Raihan v Minister for Home Affairs

[2019] FCCA 2721

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAIHAN v MINISTER FOR HOME AFFAIRS [2019] FCCA 2721

Catchwords:

MIGRATION – Medical treatment visa sought – whether application was valid – question of validity for the Court – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 46A, 91H, 91J, 91K, 91L, 476(1)

Cases cited:

Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47

Applicant: MOHAMMAD RAIHAN

Respondent: MINISTER FOR HOME AFFAIRS

File Number: BRG 1182 of 2018

Judgment of: Judge Vasta

Hearing dates: 1 August 2019 and 12 September 2019

Date of Last Submission: 12 September 2019

Delivered at: Brisbane

Delivered on: 12 September 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The Application for review filed on 9 November 2018 be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1182 of 2018

MOHAMMAD RAIHAN

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 22 October 2018, the Applicant, Mohammad Raihan, applied for a Medical Treatment Visa.  On 26 October 2018, the delegate of the Minister, by letter, informed the Applicant that his application for a Medical Treatment Visa was invalid.  On 9 November 2018, the Applicant filed an originating application in this Court asking this Court to review that decision of the delegate.

2. It is proper for this Court to review this application. The decision of the delegate was not a primary decision, and it was not reviewable by the Administrative Appeals Tribunal and, therefore, it still comes under the power that this Court has under s.476(1) of the Migration Act 1958 (Cth) (“the Act”) to review the decision exercising the powers of the High Court of Australia.

3. The question for the Court to determine realistically is whether the application is a valid application.  Both the Minister and the Applicant have referred me to the comments of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47, at paragraphs 25 to 27. I read those into the record:

   25. In our opinion, the first issue to be decided is whether or not the validity of an application for a visa is an objective question.

   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.

   27. The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.

4. The delegate, in making the decision, said in the opening paragraph of the letter to the Applicant that the application he had made was not valid:

   Your application for a visa is invalid because it did not meet section 46A(1)(e)(v) of the Migration Act 1958. That provision provides that because you are an unauthorised maritime arrival, your application for a visa is invalid because you are in Australia and you are an unlawful non-citizen.

5. The letter went on to talk of the provisions of s.46A, and then it did refer to s.91K, but it was still the reasoning of the delegate that the Applicant was an unauthorised maritime arrival and so, therefore, could not have made this application.

6. The matter first came before me on 1 August 2019.  As I explained to the Applicant what it was that the decision was based on, the Applicant said to me that he was not an unauthorised maritime arrival.  I asked him to explain that, and he handed me a piece of paper which seemed to be the first page of a judgment to do with a friend of his.

7. I then queried as to whether the Applicant was deemed to be an unauthorised maritime arrival because he was intercepted at Ashmore Reef and, in effect, deemed to have arrived in Australia at, I would assume, Darwin.  The representative of the Minister informed me that he did not have those instructions.  I adjourned the matter on that day because this was an important question.

8. During the time of adjournment, the representative of the Minister has been able to ascertain that the Applicant’s boat from his place of origin to Australia was intercepted at Ashmore Reef.  He was taken off his vessel and put on to an Australian vessel, but he did not set foot in Australia until he arrived at Fort Hill Wharf in Darwin.

9. Because he, in effect, set foot in Australia at Foot Hill, Darwin, he does not meet the definition of unauthorised maritime arrival in s.5AA of the Act. Therefore, it seems to me straightaway that there has been an error by the delegate. But I am not here to decide jurisdictional error.

10. As was said in the authority that I previously quoted, Minister for Immigration and Border Protection v Kim (Supra), the Court here must determine the validity of the application, notwithstanding whatever view the delegate of the Minister had. Because the Applicant was not an unauthorised maritime arrival, s.46A of the Act has no application. That section deals exclusively with unauthorised maritime arrivals.

11. However, unfortunately for the Applicant, that is not the end of the matter. One then has to look at ss.91H, 91J, 91K, 91L. Relevantly, s.91H reads as follows. It is headed Reason for this Subdivision:

    91H Reason for this Subdivision

    This Subdivision is enacted because the Parliament considers that a non‑citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non‑citizen who ceases to hold a visa will be subject to removal under Division 8.

    Note: For temporary safe haven visas, see section 37A.

12. Immediately when one looks at this section, one has to consider whether the Applicant meets those criteria.  It has been conceded by the Applicant that he is a non-citizen.  It has been conceded by the Minister that the Applicant is not an unauthorised maritime arrival.  The Applicant has conceded that he is not a transitory person.

13. As to him holding the Temporary Save Haven Visa, the Minister has annexed a document within the affidavit of Mr McLaren that shows that the Applicant did hold such a visa for a period of a week between 14 February 2018 and 21 February 2018, and after 21 February 2018 he ceased to hold such a visa.  The Applicant has conceded that he does have no visa at the moment and that whatever instrument that kept him in Australia was cancelled in February 2018.  Therefore, the Applicant has not left Australia since ceasing to hold such a visa.

14. When one considers all those factors, the Applicant does meet all of those criteria in s.91H, which means that Parliament considers that he should not be allowed to apply for a visa other than another Temporary Safe Haven Visa.

15. Section 91J reads as follows:

    91J Non‑citizens to whom this Subdivision applies

    (1) This Subdivision applies to a non‑citizen in Australia at a particular time if, at that time, the non‑citizen:

    (a) holds a temporary safe haven visa; or

    (b) has not left Australia since ceasing to hold a temporary safe haven visa.

    (2) This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.

    Note: Unauthorised maritime arrivals are covered by section46A and transitory persons are covered by section 46B.

16. Section 91K reads:

    91K Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas

    Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non‑citizen at a particular time and, at that time, the non‑citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

17. The exception in s.91L is that the Minister may determine that s.91K does not apply to a non-citizen, and the legislation says that it has to be a determination by the Minister personally. There is no evidence before me that the Minister has determined that s.91K does not apply to this applicant. Therefore, under s.91K, because the provisions of s.91J apply, the application for a Medical Visa is deemed, pursuant to s.91K, to be not a valid application.

18. What that means is that the delegate is, in my view, correct even though the reasoning that the delegate gave is not the correct reasoning.  But in any event, it is for the Court to say whether this is a valid application or not. 

19. I find that, pursuant to s.91K of the Act, this application for a Medical Visa was not valid. As it was not valid, there is no jurisdictional error that has been committed by the delegate of the Minister. Therefore, the application must be dismissed.

20. In this matter, the Minister has asked for costs.  Ultimately, it is a discretionary matter.  It is whether the discretion should be applied in the usual way, which is to have costs follow the event.  I am of the view that that is what should usually happen.

21. However, in this matter I am concerned by a number of factors.  They are that the delegate of the Minister did make the right decision but for an erroneous reason.  It was that reason that the Applicant fought this application on 1 August; that is, his argument was based on the fact that he said he was not an unauthorised maritime arrival.

22. The submissions of the Minister up till then had been that the Applicant was an unauthorised maritime arrival and that, therefore, s.46A showed that the Applicant could not make a valid application. In the original submissions for the Minister, the Minister even talked of the delegate erroneously referring to s.91K.

23. Because of what the Applicant had said, it necessitated an adjournment at that point on 1 August, and the Minister had to eventually concede that the Applicant was not an unauthorised maritime arrival.

24. The Applicant came here today and said that he did not understand the full force of the Minister’s submissions which I had Mr McLaren explain to him with the help of the interpreter. I then explained to the Applicant what the effect of the law was. 

25. His answer to me was, “Well, thank you very much for explaining what the law is.  I now understand that.”  And he said that there was not much more that he could say about the application.

26. In those circumstances, it is not so much that he has pursued an unmeritorious application as that there has been discovered what the true purpose is. 

27. I am of the view that in these extremely exceptional circumstances, it would not be just to order that the Applicant pay the Minister’s costs, notwithstanding that the Minister did have to defend what, in the end, was ultimately found to be an unmeritorious claim. 

28. So for those reasons, I decline to make any order for costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 September 2019