LAAMI v Minister for Immigration

[2016] FCCA 717

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAAMI v MINISTER FOR IMMIGRATION [2016] FCCA 717

Catchwords:
MIGRATION – Partner visa – invalid application – whether an extension of time under s.195 of the Migration Act 1958 makes a visa application a valid visa application.

Legislation:

Migration Act 1958, ss.5, 5AA, 13, 14, 46, 46A, 47, 194, 195

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013
Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552

Applicant: ALI LAAMI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3539 of 2015

Judgment of: Judge Cameron

Hearing date: 30 March 2016

Date of Last Submission: 30 March 2016

Delivered at: Sydney

Delivered on: 30 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms B. Griffin of Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3539 of 2015

ALI LAAMI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Iraq, applied for a Partner (Temporary) (Class UK) subclass 820 / Partner (Residence) (Class BS) subclass 801 visa on 17 December 2015. By letter dated 18 December 2015 an officer of the respondent’s department advised the applicant that his application was invalid on the basis that it did not meet s.46A of the Migration Act 1958 (“Act”) because he was an unauthorised maritime arrival who was in Australia as an unlawful non-citizen.  The applicant has applied to this Court for judicial review of the decision that his visa application was invalid.

2. The matter is before the Court for consideration of the applicant’s application that the respondent (“Minister”) should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 if the applicant does not have an arguable case against the respondent.  The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. For the reasons which follow, the application will be dismissed.

Relevant legislation

Unauthorised maritime arrival

1. At the time the applicant arrived in Australia on 19 January 2012, s.5(1) of the Act defined an “offshore entry person” as follows:

   offshore entry person means a person who:

   (a)entered Australia at an excised offshore place after the excision time for that offshore place; and

   (b)became an unlawful non‑citizen because of that entry.

2. By virtue of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013, the definition of “offshore entry person” was repealed and references to it in the Act were replaced with references to “unauthorised maritime arrival”. The meaning of “unauthorised maritime arrival” is prescribed by s.5AA of the Act which relevantly provides:

   5AA  Meaning of unauthorised maritime arrival

   (1)For the purposes of this Act, a person is an unauthorised maritime arrival if:

   (a)    the person entered Australia by sea:

   (i)     at an excised offshore place at any time after the excision time for that place; or

   (ii)    at any other place at any time on or after the commencement of this section; and

   (b)the person became an unlawful non‑citizen because of that entry; and

   (c)     the person is not an excluded maritime arrival.

   ...

3. It has not been suggested that the applicant was not an excluded maritime arrival. 

4. Amongst other places, s.5(1) of the Act prescribes the Territory of Christmas Island as an excised offshore place. Its excision time was 2pm on 8 September 2001 by the legal time in the Australian Capital Territory.

Visa application validity

1. Sections 46 and 46A of the Act relevantly provide:

   46Valid visa application

   Validity—general

   (1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

   ...

   (e)it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

   ...

   (ii)    section 46A (visa applications by unauthorised maritime arrivals);

   ...

   46A  Visa applications by unauthorised maritime arrivals

   (1)An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

   (a)    is in Australia; and

   (b)    either:

   (i)     is an unlawful non‑citizen; ...

   ...

   (2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

   ...

   (7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.

   ...

2. Section 13 of the Act defines a lawful non-citizen as a non-citizen in the migration zone who holds a visa that is in effect. Section 14 provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

3. Section 47 of the Act relevantly provides:

   47      Consideration of valid visa application

   (1)The Minister is to consider a valid application for a visa.

   …

   (3)To avoid doubt, the Minister is not to consider an application that is not a valid application.

   (4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

Immigration detention

1. Division 7 of pt.2 of the Act deals with the detention of unlawful non-citizens. Sections 194 and 195 are found in that division and relevantly provide:

   194Detainee to be told of consequences of detention

   As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

   (a)    the provisions of sections 195 and 196; ...

   ...

   195Detainee may apply for visa

   (1)    A detainee may apply for a visa:

   (a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

   (b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.

   (2)A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

Background facts

1. The Minister’s submissions stated the applicant’s background to be as follows:

   The applicant is [a] national of Iraq who first arrived in Australia at Christmas Island on 19 January 2012 not holding a visa to come to Australia  ...

   On 28 April 2012, the applicant was provided with a written notice that the Minister had exercised his power under s 46A(2) of the Act to allow the applicant to lodge an application for a protection visa, which the applicant did on 8 May 2012. That application was refused by a delegate of the respondent on 19 June 2012 and affirmed on review by the then Refugee Review Tribunal on 1 April 2013.

   The applicant was granted a number of bridging visas in 2012 and 2013, the last ceasing on 29 September 2013.  After that time, he became an unlawful non-citizen.  He was subsequently taken into immigration detention on 10 December 2015.

2. The facts material to the present proceeding were supported by the affidavit of the Minister’s solicitor affirmed 23 March 2016. 

3. Following his detention, the applicant sought under s.195(1)(b) of the Act an extension of the time within which he could apply for a visa and he was granted an extension until 22 December 2015. As already noted, the applicant applied for a partner visa on 17 December 2015 and by letter dated 18 December 2015 he was advised that his application was invalid.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Department of Immigration and Border Protection failed to accept my application under partner grounds contrary to the instruction given to me under s.195 which entitles me to lodge an application and I did so within the prescribed time.

   2.The Department of Immigration failed to consider that my partner is Australian and my son born 10/3/2015 is also Australian.

   3.The decision by the Department that my application is invalid under s.46A of the Migration Act is wrong as I am entitled to lodge a partner visa and I was given an extension of time to lodge it before 22/12/2015 which I did.

   4.The Minister has the duty to personally decide to accept my application as it is in the public interest to allow me to do so because I have Australian partner and Australian son and the Department ignored my exceptional and compelling circumstances.

Grounds 1 and 3

1. The allegations made in the first and third grounds of the application proceeded on the basis that the involvement of s.195 can render a visa application which is not valid into one which is. That is not correct. Section 195 provides time periods within which a detained person may apply for a visa but that is all it does.

2. The provisions in sub-div.AA of div.3 of pt.2 of the Act, which include s.47, contemplate the existence of a class of applications called visa applications of which some will be valid and the others will not be valid. Section 195 is concerned with the making of visa applications generally, not with valid visa applications particularly. It is not concerned with whether a visa application will be valid or not valid, just with the time period within which a detainee may apply for a visa. In particular, there is nothing about s.195 which suggests that its operation is to have any effect beyond its limited terms on any of the provisions of the Act which regulate which visa applications will be valid and which will not.

Ground 2

1. Unfortunately for the applicant, his family circumstances were not relevant to the question whether his visa application was a valid one. The application’s lack of validity was determined by the matters prescribed by s.46A.

Ground 4

1. Contrary to the allegation made in the fourth ground of the application, the Minister had no duty to consider permitting the applicant to make an application for the visa he sought. Section 46A(7) of the Act makes that clear.

Generally

1. Finally, it should be recorded that nothing the applicant said in his address to the Court suggested that the factual understanding of the departmental officer who concluded that his visa application was not a valid one was incorrect.  In particular, although the only evidence before the Court that the applicant was an unlawful non-citizen at the time he made his partner visa application was implicit, being the officer’s decision and the fact that the applicant was in detention at the time, the applicant did not suggest that when he lodged the application he held a valid visa. 

Conclusion

1. Nothing said by the applicant in his address to the Court or alleged in the application discloses an arguable case for the relief claimed. 

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 4 April 2016