Saifuddin v Minister for Immigration

[2017] FCCA 1734

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAIFUDDIN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1734

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.48
Migration Regulations 1994 (Cth), reg.2.12
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
Saifuddin v Minister for Immigration [2016] FCCA 1497
Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Reg v The District Court; Ex parte White (1966) 116 CLR 644
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Applicant: KHAJA SAIFUDDIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 154 of 2017

Judgment of: Judge Emmett

Hearing date: 26 July 2017

Date of Last Submission: 26 July 2017

Delivered at: Sydney

Delivered on: 26 July 2017

REPRESENTATION

Applicant appeared in person with the assistance of an Urdu interpreter

Solicitors for the Respondents: Mr Dominic Eberl
Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 154 of 2017

KHAJA SAIFUDDIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant filed an application for judicial review of a decision of a Delegate of the first respondent (“the Delegate”) dated 10 January 2017.

2. On 10 January 2017, the Delegate notified the applicant that the application he had made for a Visitor Tourist Subclass 600 visa was invalid because it did not meet s.48 of the Act. The Delegate’s letter went on to explain to the applicant that s.48 of the Act provides that the applicant was not permitted to apply for a Visitor Tourist Subclass 600 visa, because he did not hold a substantive visa after he last entered Australia and was refused a medical treatment visa on 20 May 2015.

3. I note that the application by the applicant for judicial review of the Tribunal’s refusal in respect of his medical treatment was heard by Judge Driver of this Court in Saifuddin v Minister for Immigration [2016] FCCA 1497 and the decision of the Tribunal affirmed the decision of the Delegate. The applicant then appealed that decision to the Federal Court of Australia, and that appeal was dismissed by Dowsett J in Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352.

4. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The applicant was unrepresented before the Court this morning, although had the assistance of an Urdu interpreter. I explained to the applicant the content of the Delegate’s decision and why his application had been deemed invalid.

8. The applicant confirmed that he had attended a directions hearing before a Registrar of this Court on 1 June 2016. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 8 June 2017.

9. The applicant confirmed that he relied on the grounds identified in his initiating application filed on 17 January 2017 as follows:

   “1. This is an application for review of a decision made by a Delegate of the Minister for Immigration to refuse to grant visitor visa under s.65 of the Migration Act 1958 (the Act).

   2. Contrary to the notification of invalid application for the visa it is my right to apply for the visa because I have compelling and compassionate circumstances even though my medical treatment visa was refused, I do have the right to apply for a visitor visa because of the circumstances provided in my medical treatment visa application and the recommendation of the Federal Court a copy of which I attach and the failure to refer my matter to the Honourable Minister is a denial of fairness and natural justice.

   3. I do meet clause 600 (visitor) as the intended purpose was for a purpose related to further medical treatment. I genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted and I have every intention to comply substantially with the conditions of the visa grant according to subclass 600 visa which is relevant in my case.

   4. As there is no right of merits review by the Tribunal I wish to exercise my rights in the Federal Circuit Court as I submitted sufficient evidence to support my request for a visitor visa. Request.”

   (Errors in original)

10. Each of the grounds of the application was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.  The applicant had nothing to say orally, however, provided to the Court a written document identified as Applicant’s Submissions, as follows:

    “APPLICANT'S SUBMISSIONS

    1. I received Respondent's Outline of Submissions which object to my application which was lodged on 5 January 2017. I still believe that the application which I lodged has merit, especially the support of His Honour Judge Dowsett in the Federal Court of Australia which was ignored by the Department of Immigration especially by the Minister's Intervention Unit. The Act should not prevent me from lodging an application to renew my visa because I have and continue to have compelling and compassionate circumstances.

    2. I draw the Court's attention to the fact that as from 1 July 2017 medical treatment visa (602) has new important changes especially removal of Schedule 3 criteria for applicants without a substantive visa with genuine medical condition such as myself. I am a genuine person with genuine medical condition and strongly believe that the Minister and Ministerial Intervention denied me natural justice and fairness by refusing my medical visa and by refusing to refer my case to the honourable Minister.”

    (Errors in Original)

11. The respondent, in written submissions, accurately summarised the background of the applicant's claims and the relevant legislation, as follows:

    “PART I BACKGROUND

    3. The applicant is a national of India, who applied for a Medical Treatment (class UB) visa on 18 May 2015. That visa was refused by a delegate of the Minister on 20 May 2015. The applicant applied, unsuccessfully, for review of the delegate's refusal decision to the Administrative Appeals Tribunal. Subsequent judicial review applications in the Federal Circuit Court (Judge Driver) and Federal Court (Justice Dowsett) were also unsuccessful (see Saifuddin v Minister for Immigration [2016] FCCA 1497 and Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352).

    4. On 5 January 2017, the applicant applied (onshore) for the visitor visa. On 10 January 2017, the delegate deemed the application invalid pursuant to s 48 of the Migration Act 1958 (the Act).

    PART II RELEVANT LEGISLATION

    5. Section 48(1) of the Act relevantly provides:

    Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

    (1) A non-citizen in the migration zone who:

    (a) does not hold a substantive visa; and

    (b) after last entering Australia:

    (i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501 B, for which the non-citizen had applied (whether or not the application has been finally determined);

    …

    may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

    6. Regulation 2.12 of the Migration Regulations 1994 (the Regulations) prescribes the classes of visas which can be applied for by a non-citizen under s 48 of the Act.

    Regulation 2.12 provides:

    Certain non-citizens whose applications refused in Australia (Act, s 48)

    (1) For section 48 of the Act the following classes of visas are prescribed:

    (a) Partner (Temporary) (Class UK);

    (b) Partner (Residence) (Class BS);

    (c) protection visas;

    (ca) Medical Treatment (Visitor) (Class UB);

    (e) Territorial Asylum (Residence) (Class BE);

    (f) Border (Temporary) (Class TA);

    (g) Special Category (Temporary) (Class TY);

    (h) Bridging A (Class WA);

    (j) Bridging B (Class WB);

    (k) Bridging C (Class WC);

    (1) Bridging D (Class WO);

    (m) Bridging E (Class WE);

    (ma) Bridging F (Class WF);

    (mb) Bridging R (Class WR);

    (o) Resolution of Status (Class CD);

    (p) Child (Residence) (Class BT).

    Note: Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.

    7. It is apparent from the above that a Visitor (Tourist) (subclass 600) visa is not a visa prescribed by reg 2.12 of the Regulations.”

12. It is clear from s.48 of the Act that the applicant may apply for a visa of a prescribed class identified in the Migration Regulations 1994 (“the Regulations”). Regulation 2.12 of the Regulations, identifies with specificity those classes of visa to which s.48(1) of the Act applies.

13. It is clear that the visa for which the applicant applied on 5 January 2017, being a visitor Tourist Subclass 600 visa, is not a member of the class prescribed for the purposes of s.48(1) of the Act.

14. The applicant’s complaints in the grounds of his application and his submissions misunderstand the limitations that the Delegate had in considering his visa application. The applicant’s complaints, as reflected in the grounds of his application, are misconceived and are not capable of demonstrating jurisdictional error in the Delegate’s decision that the applicant’s visa application was invalid.

15. The Delegate was correct to conclude that the visa application before it for a Visitor Tourist Subclass 600 visa filed by the applicant on 5 January 2017 was invalid for the reasons provided in the Delegate’s letter dated 10 January 2017.

16. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

17. While I make no final decision as to whether or not the Delegate’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Delegate that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Delegate referred to the relevant law in reaching the decision under review and appears to have made findings that were open to it on the evidence and material before it and for the reasons it gave.

18. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 17 January 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  1 August 2017