Matar v Minister for Home Affairs
[2018] FCCA 1251
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATAR v MINISTER FOR HOME AFFAIRS | [2018] FCCA 1251 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Visitor visa – Delegate rejects application because since last entering Australia the Applicant had been refused another visa, namely a Medical visa and s.48 of the Act rendered the Visitor visa application invalid – Minister brings show cause application under r.44.12 under Federal Circuit Court Rules 2001 (Cth) – Applicant found not to have raised an arguable case – and discretionary considerations militate in favour of dismissal of application to this Court – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 48 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Agar v Hyde (2000) 201 CLR 552 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Matar v Minister for Immigration & Anor [2017] FCA 1314 Matar v Minister for Immigration & Anor [2017] FCCA 1587 Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 |
| Applicant: | RAAD MATAR |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 22 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| The Applicant appeared in person. Counsel for the Respondent: | Ms C. Hillary |
| Solicitors for the Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 4 January 2018 is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant is to pay the Respondent’s costs of the proceeding in the amount of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 22 of 2018
| RAAD MATAR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction and Background
I am considering an application by the Respondent, the Minister for Home Affairs, under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) for dismissal of the Application filed in this Court by the Applicant on 4 January 2018.
The Applicant last arrived in Australia on a Prospective Marriage (Subclass 300) visa on 8 August 2007. He applied for a Medical Treatment (Visitor) (subclass 602) visa on 30 October 2015 (Medical visa). That Medical visa was refused by a Delegate of the Minister (Delegate) on 3 November 2015 and there was an application for merits review to the Administrative Appeals Tribunal (Tribunal), which affirmed the decision of the Delegate not to grant the Medical visa to the Applicant. He then applied to this Court for judicial review and it so happens that the matter was docketed to me and in my judgment of 12 July 2017 I found that the decision of the Tribunal was not affected by jurisdictional error: see Matar v Minister for Immigration & Anor [2017] FCCA 1587. The Applicant then appealed to the Federal Court of Australia where Yates J in his reasons for judgment dated 31 October 2017 dismissed the Applicant’s appeal from my judgment: see Matar v Minister for Immigration & Anor [2017] FCA 1314. Then on 15 December 2017 the Applicant applied to the Minister for a Visitor (Tourist) (Subclass 600) visa (Visitor visa). By letter dated 18 December 2017 a Delegate of the Minister advised the Applicant that his application for the Visitor visa was invalid by reason of s.48 of the Migration Act 1958 (Cth) (the Act) because:
a)he did not hold a substantive visa; and
b)after last entering Australia, he had been refused a visa, namely the Medical visa to which I have already referred.
Then by Application filed in this Court on 4 January 2018 the Applicant seeks that the Delegate’s decision of 18 December 2017 be quashed and for a writ of mandamus that the Delegate reconsider the validity of the Visitor visa application.
Grounds of Application
The Grounds of the Application are as follows:
1.While the Department of Immigration and Border Protection treat my application of a visitor visa as invalid I want the Federal Circuit Court to reconsider the decision because the department did not take into consideration my wife’s compelling circumstances and the wellbeing of my two Australian children as well as the extensive medical evidence provided with the application which I hope will lead you to consider accepting my application which is needed during this difficult time.
2. The Department stated that I did not meet Section 48 and contrary to their finding I see my application should be accepted and asserted as per se evidence attached to my application.
Show Cause Hearing Before this Court
The present show cause hearing which I am conducting was set down for this morning on 8 February 2018 when the Applicant was present in Court and agreed with that date. On that occasion I explained to him the nature of what the Minister was seeking to achieve by asking for a show cause hearing under r.44.12 of the Rules. I have considered the letter of the Delegate which asserted invalidity and am considering the Minister’s application under r.44.12 while being conscious of the seriousness of such an application, which is in form and nature that of a summary dismissal application.
I take into account and have regard to the principles and the high hurdle for such applications established by the well-known cases of Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Fancourt v Mercantile Credits Ltd (1983) 48 ALR 1; Spencer v Commonwealth (2010) 241 CLR 118; and Agar v Hyde (2000) 201 CLR 552.
I note further that r.44.12 of the Rules comprehends two components. First, the Minister has to establish that the Court ought to be satisfied that the Application has not raised an arguable case for the relief claimed. Second, I would then have a residuary discretion whether or not to dismiss the Application or to allow the case to go to final hearing.
Ground 1 of the Application refers to the compelling circumstances of the Applicant’s wife and the well-being of his two Australian children. That is indeed an important issue for the Applicant but unfortunately in legal terms, and I of course am bound by the law, it is an irrelevant consideration. The Minister has referred in his written submissions to the decision of the Full Court of the Federal Court of Australia comprised of Yates, Robertson and Wigney JJ in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at 528 [26]:
[26] The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.
That passage makes clear that issues like compelling circumstances are not relevant to the validity of a visa application. The criteria for the validity of a visa application are stated objectively and do not rely on a discretion invoking such matters as compelling circumstances as referred to in Ground 1. The question here is basically whether, as a matter of law, the Delegate was correct to find that the application for the Visitor visa made by the Applicant was valid or not valid in circumstances where s.48 of the Act in its terms prevented him from applying for a visa when he did not hold a substantive visa and, after having last entered Australia, having been refused a Medical visa. The answer must be that the application for the Visitor visa in this case was invalid.
Ground 2 of the Application is basically a submission. Insofar as it refers to “evidence attached to my application”, there is no such evidence attached. It is established by the evidence (and admitted by the Applicant at the hearing) that the only visa currently held by the Applicant is a Bridging E (Class WE) visa which the evidence establishes was granted to the Applicant on 3 November 2015. A bridging visa is not a “substantive visa” (see definition of “substantive visa” in s.5 of the Act). It is further established (and indeed not in controversy) that the Medical visa application was refused after the Applicant last entered Australia. In these circumstances s.48 of the Act rendered the Visitor visa application invalid.
Conclusion
In these circumstances, the law appears to me to be clear and the decision of the Delegate to find that the application for the Visitor visa was invalid has not been shown by the Applicant, and could not be shown on the evidence before me, to be legally wrong or to be otherwise affected by jurisdictional error. I find in terms of r.44.12 of the Rules that I am not satisfied that the Application filed by the Applicant has raised an arguable case for the relief claimed, that is, to set aside the decision of the Delegate.
Accordingly, my residuary discretion is enlivened. I take into account the seriousness of a dismissal and the general principles relating to summary dismissal set out in the cases in the High Court to which I have referred. In my view, this is a proper case for dismissal under r.44.12 of the Rules. Accordingly, I will so order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 21 May 2018
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