SAYADI v Minister for Immigration

[2015] FCCA 1829

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAYADI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1829

Catchwords:
MIGRATION – Migration Review Tribunal – application for reinstatement of application for review of Migration Review Tribunal decision – original application dismissed due to non-appearance at hearing by the applicant – reason for previous non-attendance – whether the applicant has an arguable case – reinstatement application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), s.476

Applicant: AZZAM SAYADI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1078 of 2015

Judgment of: Judge Street

Hearing date: 30 June 2015

Date of Last Submission: 30 June 2015

Delivered at: Sydney

Delivered on: 30 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms H. Dejean
Australian Government Solicitor

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1078 of 2015

AZZAM SAYADI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case in matter with the Court’s jurisdiction under s.476 of the Migration Act 1958.  The applicant seeks to have set aside an order summarily dismissing the proceedings in circumstances where the applicant had failed to appear.  The applicant has put on evidence to provide an explanation for his failure to attend.  That application was one which was filed on 17 June 2015, and the order summarily dismissing the proceedings was made on 28 May 2015. 

2. The applicant identified that he attended a doctor because he was feeling unwell and obtained a medical certificate, as well as a prescription for some antibiotics.  The medical certificate identified that he would be unfit to continue his usual occupation.  The applicant candidly acknowledged that his current position was one where he was unemployed.  The applicant explained that he did not ask for a more specific certificate, and it is clear from the cross-examination that the applicant was able to communicate on the day the matter was listed for hearing.

3. The applicant was candid in his response to the cross-examination about his medical condition, and I would accept that the applicant was unwell on 28 May 2015, insofar as the requirement for an explanation of delay is concerned.  I am not, however, satisfied that there is any arguable case sufficient to warrant the setting aside of the order that was made. Further there would be no utility in doing so as the proceedings are doomed to failure.

4. In this case the delegate refused to grant the applicant a visa because the applicant did not meet the requirements of cl.602.211 as he had not satisfied Schedule 3, Criteria 3001.  The Tribunal correctly identified that in order to satisfy the criteria 3001, the application for the visa must have been lodged within 28 days of the relevant date.  In this case the Tribunal found that the applicant’s last substantive visa ceased on 21 September 2013.  It was in those circumstances that the Tribunal made the following findings:

   10. In this case the decision record of the Department provided by the applicant to the Tribunal indicates that the applicant’s last held substantive visa ceased on 21 September 2013. The visa application indicates that the applicant was living in Australia. The Tribunal finds that 21 September 2013 is the relevant day for the purpose of this case.

   11. This decision record also indicates that the applicant applied for this visa on 12 January 2015 although the visa application is date stamped 13 January 2015. The Tribunal finds that this application was made to the Department on 13 January 2015. This means the application was not lodged within 28 days of the relevant day.

   12. The applicant stated to the Tribunal that he held a bridging visa at the time he applied for the Subclass 602 visa and he had held bridging visas for about 1.5 years. After holding student visas he applied for a Subclass 485 visa and he met the criteria but his migration agent made errors. He received poor advice and did not lodge an appeal about the refusal of the Subclass 485 visa. He changed agents and tried for different visas but the Department rang him and said his visa had ceased. He was shocked and went to his doctor who referred him to a specialist. He developed insomnia and had a motor vehicle accident. He still suffers from insomnia and poor memory. He tried to commit suicide last year and was admitted to RPA Hospital for 1 day and then referred to community services. He now takes Zoloft and Valium, and sees his doctor. He cannot live in Lebanon and does not want to return there. He has lived in Australia for 5 years and if he has to leave he will investigate whether he can go to another country, other than Lebanon.

   13. The Tribunal has considered all the available evidence but as explained at hearing, the Tribunal has no discretion to take other circumstances into account. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. 

   14. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

5. The Tribunal did not have jurisdiction on compassionate grounds to overcome the non-compliance with the criteria under 3001.  The application identifies the following grounds:

   1. The decision of the Migration Review Tribunal does not support my application based on Schedule 3 that I did not hold a substantive visa at the time of my application yet failed to take into consideration my compelling and compassionate circumstances as per evidence submitted concerning medical condition.

   2. My migration agent, Sam Issa, is also liable and responsible for the outcome of the 485 visa. He failed to act properly and currently under investigation. I ask the Honourable Court to consider his behaviour as responsible for the failure to lodge a review for 485 subclass.

6. Ground 1 is without substance as the Tribunal did not have jurisdiction to consider compelling and compassionate circumstances to overcome the non-compliance and, accordingly, ground 1 has no prospect of success.  Ground 2 fails to identify any jurisdictional error, and it is clear that the application fails to disclose any arguable jurisdictional error. 

7. The Court has had the benefit of the Court book that identified the invitation to the applicant to attend the hearing, as well as the delegate’s decision adverse to the applicant. I am satisfied that this is a case in which there is no utility in setting aside the order made on 28 May 2015, and that the interests of the administration of justice do not warrant any such order.  The application in the case is dismissed. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 3 July 2015