Lababidi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 541
•4 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lababidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 541
File number(s): SYG 1078 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 4 June 2024 Catchwords: MIGRATION – Application for medical treatment visa found to be invalid – where applicant paid application fee which was not reimbursed despite rejection of application on basis of invalidity – where applicant claimed to not be able to access ImmiAccount Legislation: Migration Act 1958 (Cth) ss 46, 47
Migration Regulations 1994 (Cth) reg 2.07 and 1214A of Schedule 1
Cases cited: BPW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1422
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Division: General Federal Law Number of paragraphs: 45 Date of hearing: 4 June 2024 Place: Sydney Applicant: In person Solicitor for the Respondent: Ms C Juarez, MinterEllison ORDERS
SYG 1078 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDUL HAMID RAAFAT LABABIDI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
4 JUNE 2024
THE COURT ORDERS THAT:
1.The application filed on 3 May 2019 is dismissed.
2.The applicant must pay the respondent’s costs and disbursements, of and incidental to the proceedings, fixed in the sum of $5,240.
3.The applicant must file a Notice of Address for Service by 4:00pm on 5 June 2024.
4.Service of the Notice of Address for Service is dispensed with.
5.Within 7 days of the day of this order, the solicitors for the respondent are to provide to the applicant, at his new address for service, a copy of whatever form/s are required in order for him to make an application for reimbursement of the filing fee associate with the application the subject of review before this Court.
6.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until he date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with the Court on 3 May 2019, the applicant seeks review of a decision of a delegate of the Minister (delegate) made on 3 April 2019 that an application sought to be made by him for a medical treatment subclass 602 visa (visa), was invalid.
BACKGROUND
The applicant lodged the visa application on 3 April 2019.
On the same day, the applicant was notified by the delegate (by letter) that the visa application was not valid (CB 1 to 2).
By that letter, the delegate noted that item 1214A(1) in Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations) required applicants for a medical treatment visa to make an application using “Form 48ME (Internet)”.
The delegate determined that the applicant’s application was invalid because it did not meet item 1214A(1). The delegate noted that, as of 2 March 2019, all applications for the visa must be made through “ImmiAccount”.[1]
[1] See [22] below
At first blush, the decision appears to be a primary decision. However, the Federal Circuit and Family Court of Australia has jurisdiction to hear an application for review of a determination that an application is invalid: see ss 476, 474 and 5 of the Migration Act 1958 (Cth) (Act) (definition of 'migration decision') and BPW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1422 at [14] per Judge Jarrett.
Whether an application is invalid is an objective question of law for the Court to determine: Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [26] to [27] per Yates, Robertson and Wigney JJ.
LEGISLATION
The effect of ss 46 and 47 of the Act is that the Minister cannot consider an invalid application. Those sections provide:
46 Valid visa application
Validity—general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
…
(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:
…
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
…
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
Prescribed criteria for validity
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
…
47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(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.
At the time the applicant lodged the visa application, items 1214A(1) and (3) of Schedule 1 to the Regulations provided:
1214A Medical Treatment (Visitor) (Class UB)
(1)Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
…
(3)Other:
(a) An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
Regulation 2.07(5) provided:
(5) If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a) an approved form for making an application for a visa of a specified class;
(b) the way in which an application for a visa of a specified class must be made;
(c) the place at which an application for a visa of a specified class must be made;
(d) any other matter.
Note 1: For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.
Note 2: Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.
The relevant legislative instrument at the time the applicant made the visa application (pursuant to reg 2.07(5) of the Regulations), was Migration (LIN 19/046): Arrangements for Medical Treatment (Visitor) Class UB Visa Applications) Instrument 2019 (Instrument). The Instrument commenced on 2 March 2019, and relevantly provided as follows:
Part 2—Specified Arrangements for Medical Treatment (Visitor) (Class UB) Visa Applications
6 Approved form for Medical Treatment Visa Applications
For the purposes of subitem 1214A(1) of Schedule 1 to the Regulations, the approved form for making an application for a Medical Treatment visa is Form 48ME.
7 Approved place and manner for Medical Treatment Visa Applications
(1) For the purposes of paragraph 1214A(3)(a) of Schedule 1 to the Regulations, the approved place and manner for making an application for a Medical Treatment visa, by a person who is in or outside of Australia is by:
(a) lodging an internet application using the online Form 48ME; or
(b)if the applicant receives an authorisation confirmation - by submitting a paper Form 48ME in accordance with the directions provided by the Department.
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed with the Court on 3 May 2019.
On 23 May 2019, a Registrar of the Court made orders by consent which included leave to the applicant to amend his application by 18 July 2019. The proceedings were stood over for a callover before a Registrar of the Court on 26 September 2019, on which date the applicant appeared in person, together with the assistance of an interpreter in the Arabic language. The applicant also apparently met with the Minister’s solicitor on that occasion.[2] I will return to that event later.
[2] See [27] and [29] below.
On 26 September 2019, the proceedings were adjourned to a callover at a time to be notified administratively to the parties. The proceedings were transferred to the Court’s central migration docket and were called over once more by telephone on 14 September 2023, on which occasion they were adjourned to a final hearing on a date to be advised. On 6 March 2024, the proceedings were docketed to me, and I made orders on that date listing the matter for hearing before me today. I made a further grant of leave to the applicant to file any amended application on or by 7 May 2024.
The applicant and the Minister were ordered to file and serve submissions 14 and 7 days before this hearing, respectively. The Minister filed written submissions as ordered. The applicant has not filed anything additional. The applicant appeared before me this afternoon with the assistance of an interpreter in the Arabic language. The Minister is represented by a solicitor.
The Court Book was tendered for the Minister and was marked Exhibit “1R”. The Court Book is comprised of a single document, and the Minister says that the Department file in this matter (BCC2019/1662169) is similarly solely comprised of that document, being the notification letter of the invalid application dated 3 April 2019. The Affidavit filed by the applicant in support of his originating application was not read, as it serves only to annex the decision which forms the Court Book. An Affidavit made by the solicitor for the Minister was read.
At hearing, the applicant sought to tender a bundle of documents comprised of:
(a)a certificate of capacity/certificate of fitness from the NSW Government State Insurance Regulatory Authority. That certificate is dated 12 February 2024 and says the applicant has no capacity for any employment from 12 February 2024 until 12 March 2024;
(b)a medical imaging request form dated 20 February 2024, requesting various ultrasounds and an MRI for the applicant; and
(c)a referral to a doctor for opinion and management dated 19 March 2024 in respect of the applicant because of a motor vehicle accident.
The solicitor for the Minister objects to the tender of the documents on the basis that they can have no relevance to the delegate’s decision and the instant review before me, given that they all post-date the delegate’s decision. I agree and would add that, to the extent that any of these documents are sought to be tendered before me in pursuit of an adjournment application, there is nothing before me to indicate that the applicant is unfit for Court today: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] to [11] per Lindgren J. The applicant has presented today and, while he does appear to have some difficulty speaking at a loud volume, I am confident that he and the interpreter are able to converse. Even though the Court had some difficulty hearing the applicant because he is softly spoken, the interpreter can hear him and in turn, I can hear the interpreter clearly. When asked early in the hearing if the matter could continue, the applicant said yes.
I am not satisfied that the documents sought to be tendered are relevant to the case and accordingly, the tender was rejected.
GROUNDS OF REVIEW
Each of the grounds of review were interpreted to the applicant, and he was given a chance to address them in turn. Those grounds are:
1. The Delegate of the Minister notified me of invalid application for medical treatment visa even though the money order was received and money taken by the department and I understand that from 2 March 2019 all applications for this visa must be made through immi account.
2. I am not able to understand and comply with immi account requirements therefore the Delegate's decision is affected by error of law by taking the money and not processing the application.
Grounds 1 and 2 each contained similar allegations, made up of two components. The first component relates to the applicant’s payment of an application fee upon lodging his visa application. The second component relates to the applicant’s understanding that he was required to make the visa application through “ImmiAccount”, but that he could not understand or comply with the requirements of that system.
While no evidence is presented to this effect, I inquired of the solicitor for the Minister as to what an “ImmiAccount” actually is, and am informed from the Bar table, that it is an electronic lodgement portal for the making of visa applications to the Department.
Component 1
By grounds 1 and 2 the applicant says that, despite the fact the Department accepted and kept the application fee relating to the visa application, he was later notified that the visa application was invalid. The applicant also said (though this is more relevant to establishing the premise relied on for ground 2) his understanding was that he needed to lodge the visa application through ImmiAccount.
The Court sought to establish with the applicant whether or not he had, in fact, lodged the visa application using the paper form. The applicant says he does not know and was assisted in the making of the visa application by somebody called “Toufic Laba”. The applicant says that he did not, himself, personally understand how the application was to be made, nor how it ultimately was made.
The applicant again complained to the Court that the filing fee had not been reimbursed to him. It is understandable that the applicant may feel aggrieved, in circumstances where the fee associated with the visa application was paid and not refunded, that the application could also then have been considered invalid. However, payment of the fee is not the only requirement for the making of a valid application.
In relation to an allegation about the payment made in ground 2, the Minister says that the visa application charge can be repaid if the applicant requests repayment through ImmiAccount. By the notification letter, that information was conveyed to the applicant, which relevantly provided:
Visa application charge
As your application was not valid, your visa application charge can be repaid.
To request repayment, go to the 'Manage Payments' screen in your ImmiAccount. Select the credit item and choose action 'Request Refund'.
By the Affidavit of the Minister’s solicitor, correspondence was annexed being an email from a solicitor (who attended the callover referred to at [13] above) and the Department. While unusual to do so, this otherwise privileged hearing report was said to be annexed on the basis that no file note existed from the solicitor who attended that Court event, other than what he reported to his client contemporaneously.
The hearing report reveals that during a meeting between the applicant and a solicitor for the Minister, the applicant was told by the solicitor that the Department has a process by which the applicant could apply for a refund. Most significantly, and in contrast to what was told to the applicant in the notification letter, the hearing report records the applicant being told at the callover that he could make the reimbursement request by completing “Form 1424”, a hard copy of which was provided to the applicant at callover. I take it from this that there is a paper form by which reimbursement can be requested.
The applicant says he recalls the meeting, but does not recall being given the form, and that in any event he has not completed it. The applicant confirmed to the Court he has never requested reimbursement.
I will make an order at the conclusion of today’s hearing that the Minister’s solicitors must again provide a copy to the applicant of whatever is the appropriate form for seeking the reimbursement, within seven days of the date of today’s hearing. I note that the applicant has indicated he has a new address for service, and my Associates will assist him in lodging a Notice of Address for Service today, so that that reimbursement form can be sent to the correct address.
Even if there was no mechanism for a refund of the application fee, that would not, in and of itself, oblige the Minister to accept an otherwise invalid application, or cure any invalidity. The applicant should, if he so wishes, pursue the Department’s refund processes. However, ground 1 is not otherwise made out.
Component 2
By grounds 1 and 2 the applicant also says that, he thought he was required to make the visa application via ImmiAccount and, and that he was not able to understand nor comply with the requirements of that system.
The Minister says that the proposition that applicants for medical treatment visas are limited to only making their applications through ImmiAccount is incorrect, because the relevant instrument does allow for certain applicants to submit a paper form, being Form 48ME.
By reference to item 7(1)(b) of the instrument and notation 1 of reg 2.07(5) of the Regulations (see [10] to [11] above) there is provision for a paper application to be made. In order to be eligible, an applicant must first receive an “authorisation confirmation”, which is a term defined at item 4 of the instrument as follows (error in original):
an email or a verbal confirmation by an officer of the Department authorising the applicant to make a an application in a different manner.
The Minister goes on to submit that the applicant has not provided any evidence to suggest that he received an authorisation confirmation by an officer of the Department authorising him to submit a paper Form 48ME, nor any evidence that he even sought such an authorisation confirmation.
In the absence of evidence, the Minister invites the Court to infer that the applicant had no such authorisation confirmation and, therefore, that the delegate correctly determined that the visa application was invalid. The Minister also invites the Court to infer that the application that was made by the applicant was, in fact, made by paper form. The Court is additionally invited to infer by reference to the delegate’s decision, which specified that the application was required to have been made using the form 48ME (internet) that, therefore, the applicant must have used the paper form. These are curious submissions.
Upon inquiring as to why it is the Minister cannot more equivocally put those submissions (beyond inviting inference), the Court was informed from the Bar table that that was because the paper form would have been returned to the applicant, and that the Department did not keep a copy. That practice seems rather slipshod. In any event, there is no evidence before the Court to demonstrate that the applicant sought an authorisation confirmation, nor received one.
I am prepared to accept that the applicant struggles to understand and/or access the ImmiAccount system. But that does not, in and of itself, give rise to an error. Nor can the Court use it as a basis to decide for itself that the application should otherwise be considered valid.
At the commencement of his oral submissions today, the applicant read a statement to the Court. The applicant says that he is a person who is advanced in age. He says that he is sick and that “he has compelling reasons”. The applicant says that he had a new medical report, being that relating to his motor vehicle accident, the tender of which was rejected at hearing today. The applicant says that he needs the help of the Court in having the application accepted, that he does not speak much English (although he can understand some), and that at the conclusion of the hearing the applicant hopes that the Court can be compassionate and assist him.
I accept that the applicant is a person of advancing years, and accept that he has recently suffered a motor vehicle accident which has left him injured. I accept that navigating Australia’s migration system is not easy, much less for somebody who is of advanced age, not in good health and does not speak English.
The jurisdiction of the Court does not include a discretion despite these compassionate circumstances, nor “compelling reasons” to channel compassion into rendering the application as being valid. It is simply not an available course for the Court.
CONCLUSION
In the absence of evidence beyond the notification letter, the applicant has not established that the delegate’s decision is affected by legal error. For the reasons given above, the allegations about retention of the application fee cannot ground an error by themselves. Nor can retention of the fee, by any sort of estoppel (if that be suggested or implied), compel the Minister to accept an otherwise invalid application as being valid.
Overall, I am satisfied that the decision of the delegate is not affected by jurisdictional error, and that the application must be dismissed. I will so order.
COSTS
Consequent on the dismissal, the solicitor for the Minister seeks an order that the applicant pay some part of the respondent’s costs of the proceedings. That order is sought to be fixed in the amount of $5,240. When asked if there was anything the applicant wished to say as to whether costs should follow the event and, if so, in what amount, the applicant says that he does not have money and that he has not been working for six months.
The Court can accept both of those matters as being true, but they are not bases upon which the costs order would not be made, if it is otherwise reasonable. The applicant will receive correspondence in due course from the Minister’s solicitors which will inform him of processes that he can follow to seek either a reduction in the amount ordered from the Department itself or time to pay. I am satisfied in the circumstances of this case that costs should follow the event and that the amount sought is reasonable.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2024
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