SAYADI v Minister for Immigration

[2015] FCCA 1453

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAYADI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1453

Catchwords:
MIGRATION – Migration Review Tribunal – Medical Treatment (visitor) (class UV) visa – impermissible challenge to the adverse findings of fact – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

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: 28 May 2015

Date of Last Submission: 28 May 2015

Delivered at: Sydney

Delivered on: 28 May 2015

REPRESENTATION

No appearance by the applicant

Solicitors for the First Respondent: Ms H. Dejean
Australian Government Solicitor

ORDERS

1. The application be summarily dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.00.

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 for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the decision of the Tribunal made on 19 March 2015 affirming a decision of the delegate not to grant the applicant a Medical Treatment (visitor) (class UV) visa.  The application identifies the following grounds:

   I. 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.

2. The matter was listed before the Court at 9.30 am and it is now past 10.30 am and the matter has been called outside and the applicant has failed to appear.

3. This is an application where it is clear that the first ground is an impermissible challenge to the adverse findings of fact and fails to disclose any jurisdictional error.  There is no substance in relation to the second ground and it fails to identify any jurisdictional error.  It is clear that the Tribunal determined the matter on its merits.  The applicant applied for the visa on 12 January 2015, which the delegate refused, and appeared before the Tribunal on 12 March 2015 to give evidence and present arguments and was assisted by an interpreter.

4. Relevantly, the Tribunal said:

   9.   In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision. In this case Schedule 3 criterion 3001(2)(c)(i) applies as the applicant ceased to hold a substantive visa after 1 September 1994. The relevant day is the last day when the applicant held a substantive visa or criminal justice visa.

   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. This is an application in which it is appropriate to summarily dismiss under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) in the context of the default of appearance.  I take into consideration in respect of the Court’s summary dismissal powers under s.17A and r.13.01 the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The proceedings have no reasonable prospect of success and in default of appearance are summarily dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 May 2015