Saifuddin v Minister for Immigration & Anor

[2016] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAIFUDDIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1497

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.351, 359A
Migration Regulations 1994 (Cth)

Cases cited:

Sayadi v Minister for Immigration [2015] FCA 1235

Applicant: KHAJA SAIFUDDIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3011 of 2015

Judgment of: Judge Driver

Hearing date: 20 June 2016

Delivered at: Sydney

Delivered on: 20 June 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Hutton of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,750.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3011 of 2015

KHAJA SAIFUDDIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 16 October 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a medical treatment visitor visa.  The applicant, Mr Saifuddin, is a 38 year old man who suffers from a medical condition apparently causing growths above his jaw.  It appears from the available material that the condition is, in part, controlled by the use of antibiotics but he has received medical advice that, in the future, surgery may be required.

2. The background to this matter is otherwise set out in the Minister’s written submissions filed on 10 June 2016.   

3. Mr Saifuddin is a citizen of India[1]. He arrived in Australia on 30 November 2011 as the holder of a tourist visa, which ceased on 29 February 2012[2]. In January 2012, he lodged an unsuccessful application for a protection visa[3]. On 18 May 2015, he lodged an application for a medical treatment visa[4]. This application was refused by a delegate of the Minister on 20 May 2015[5].

   [1] Court Book (CB) 2

   [2] CB 116 [12]

   [3] CB 116 [12]

   [4] CB 1-24

   [5] CB 29-31

4. On 15 June 2015, Mr Saifuddin applied to the Tribunal for review of the delegate’s decision[6].

   [6] CB 32-42

5. On 28 August 2015, the Tribunal wrote to Mr Saifuddin pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) inviting him to comment on Departmental movement records which indicated that he had last held a substantive visa on 29 February 2012, being the date of expiry of his tourist visa (the s.359A letter)[7].  This information was said to be relevant because:

   on the basis of this information the Tribunal would find that you have not made the present application for a Medical Treatment visa within 28 days after your last substantive visa expired as it was made on 18 May 2015 and therefore you do not meet public interest criteria 3001. If the Tribunal makes this finding, it would find that you do not satisfy cl 600.213 and it would affirm the decision under review.

   [7] CB 45-46

6. On 18 September 2015, Mr Saifuddin responded by acknowledging that his last substantive visa had expired, claiming that he had applied for the medical treatment visa because of his ill health, and requesting that the Tribunal “accept [his] compelling and compassionate circumstances and waive the condition” and refer his case to the Minister[8].

   [8] CB 49-50

7. On 16 October 2015, Mr Saifuddin appeared before the Tribunal[9].

   [9] CB 81-84

8. On 16 October 2015, the Tribunal affirmed the delegate’s decision[10].

   [10] CB 114-119

The present proceedings

1. These proceedings began with a show cause application filed on 5 November 2015.  Mr Saifuddin continues to rely upon that application which contains the following grounds of review:

   1. The Tribunal had evidence concerning my medical condition yet failed to accept my application because of the fact that it was made after 28 days.  The decision is affected by natural justice and fairness because Schedule 3 should be waived and should not apply to people who have serious medical condition.

   2. The Tribunal failed to refer my case to the Minister as I asked for yet this is another denial of natural justice and fairness.

2. The application is supported by two affidavits by Mr Saifuddin which I received as evidence.  The first was filed with the application and encloses the Tribunal decision.  The second was filed on 9 January 2016 and encloses a transcript of the Tribunal hearing. 

3. I also have before me as evidence the book of relevant documents filed on 7 January 2016.

4. The Minister’s submissions set out the relevant legislation and I adopt them. 

5. To be granted a subclass 602 visa Mr Saifuddin had to satisfy, among other things, particular eligibility criteria specified in clause 602.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). At the time of application to the Tribunal, clause 602.213 of the Regulations relevantly provided:

   (3)     Subclauses (4) and (5) apply if:

   (a) the applicant was in Australia at the time of application; and

   (b) the applicant did not hold a substantive temporary visa at that time; and

   (c) the requirements described in subclause 602.212(6) are not met in relation to the applicant.

   …

   (5) The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

6. Subclause 602.212(6) provided:

   Unfit to depart

   (6)     All of the following requirements are met:

   (a)   the applicant is in Australia;

   (b)   the applicant has turned 50;

   (c)   the applicant has applied for a permanent visa while in Australia;

   (d)   the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

   (e)  the applicant has been refused the visa;

   (f)    the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

7. Criterion 3001 relevantly provided:

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (c)     if the applicant:

   (i)      ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)     entered Australia unlawfully on or after 1 September 1994;

   Whichever is the later of:

   (iii)   the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully.

Tribunal decision

1. The Tribunal found that the last day of Mr Saifuddin’s last substantive visa was 29 February 2012, and as the application for the medical treatment visa was not made until 18 May 2015, it was not made within 28 days of the relevant day and Mr Saifuddin did not satisfy criterion 3001. The Tribunal concluded that Mr Saifuddin did not satisfy clause 602.213 of Schedule 2 to the Regulations and, accordingly, that he did not meet the requirements for the grant of the visa[11].

   [11] CB 116 [13]-[14]

2. The Tribunal decided not to refer Mr Saifuddin’s case for consideration by the Minister of whether to exercise his discretion to intervene under s.351 of the Migration Act, but noted that Mr Saifuddin could still make a request for intervention directly to the Minister[12].

   [12] CB 116-117 [16]-[18]

3. It is apparent that there were only two ways in which Mr Saifuddin could satisfy the criteria for the medical treatment visa.  The first would have been if he was able to satisfy the criteria in subclause 602.212(6).  He could not satisfy those criteria because of his age.  The alternative pathway required satisfaction of criterion 3001 which relevantly required that Mr Saifuddin apply for the visa within 28 days after the expiry of his last substantive visa.  He was unable to satisfy that criterion.

4. Mr Saifuddin raises two grounds noted above.  In the first ground Mr Saifuddin complains that the Tribunal would not waive the 28 day requirement.  The short answer to that ground is that the Tribunal had no discretion to waive the requirement.  I agree with the Minister’s submissions on that ground. 

5. Ground 1 complains that:

   The Tribunal had evidence concerning my medical condition yet failed to accept my application because of the fact that it was made after 28 days. The decision is affected by natural justice and fairness because Schedule 3 should be waived and should not apply to people who have [a] serious medical condition.

6. It is misconceived.  One of the criteria Mr Saifuddin needed to satisfy in order to be eligible for the medical treatment visa was that his application for the visa be lodged within 28 days of the last day he held a substantive visa, 29 February 2012. Any application by the applicant for the medical treatment visa had, therefore, to be made by 28 March 2012 and, if it was not, then he was simply not eligible for the visa.  Since he applied for the visa on 18 May 2015, he was not eligible for it and the Tribunal was bound to refuse his application, without the exercise of any discretion.  This was explained to the applicant by the Tribunal and put to him for comment, both before and at the hearing[13]. While it is true that Mr Saifuddin sought, by way of response, to raise “compelling and compassionate circumstances” why the Schedule 3 criteria should be waived, the Tribunal did not have any power to take into account those circumstances, and cannot have erred in not doing so[14].

   [13] CB 116 [10], [12]

   [14] Sayadi v Minister for Immigration [2015] FCA 1235 [17]-[19] (Perram J)

7. Ground 1 therefore fails to raise an arguable case of jurisdictional error.

8. In his second ground Mr Saifuddin complains that the Tribunal would not refer his case to the Minister for his consideration.  The Minister’s submissions deal with that ground.  I agree with those submissions.

9. Ground 2 complains that the Tribunal denied Mr Saifuddin natural justice by failing to refer his case to the Minister. It too is misconceived. The Tribunal considered and rejected Mr Saifuddin’s request having regard to the guidelines relating to the Minister’s discretion under s.351 set out in the Procedures Advice Manual (PAM3)[15].  It was not required to accede to the request.

   [15] CB 116 [17]

10. Ground 2 therefore fails to raise an arguable case of jurisdictional error.

11. In his oral submissions today Mr Saifuddin explained his condition and explained the necessity for ongoing medical treatment. It appears that the condition is currently being managed but remains potentially serious. To this point, Mr Saifuddin has not sought Ministerial intervention pursuant to s.351 of the Migration Act. That option remains open to him and would provide the Minister with the opportunity to consider all of the available medical information should the Minister be so minded.

12. Mr Saifuddin is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

13. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

14. In consequence of the dismissal of the application the Minister seeks an order for costs in the sum of $2,750.  Mr Saifuddin did not wish to be heard on the issue of costs.

15. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,750.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 22 June 2016