SZNZP v Minister for Immigration
[2017] FCCA 2193
•14 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZNZP v MINISTER FOR IMMIGRATION | [2017] FCCA 2193 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Medical Treatment (Subclass 602) visa which was rejected as invalid by a Delegate of the Minister of Immigration – Applicant entered Australia originally on a Tourist visa subject to the “no further stay” condition 8503 – application for Medical Treatment (Subclass 602) visa was invalid by force of s.46(1A) of the Migration Act1958 (Cth) because the Applicant had not previously sought and obtained from the Minister a waiver of condition 8503 under s.41(2A) and reg.2.05(4) of the Migration Regulations – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.41,42,46,388,477 Migration Regulations 1994 (Cth) |
| Cases cited: Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 |
| Applicant: | SZNZP |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 102 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 August 2017 |
| Date of Reserved Judgment: | 25 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr T Liu |
| Solicitors for the Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 12 January 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 102 of 2017
| SZNZP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Egypt aged 47 years, having been born on 6 March 1970.
By Application filed in this Court on 12 January 2017 he seeks to quash and have redetermined a decision of the Delegate (Delegate) of the Respondent, the Minister for Immigration & Border Protection (Minister) dated 23 December 2016 refusing to consider, accept and assess his application dated 9 December 2016 for a Medical Treatment (Subclass 602) visa (Medical visa) on the basis that it was an invalid application.
The Applicant had been previously granted a Tourist (Subclass 676) visa (Tourist visa) on 26 November 2008 which was subject to visa condition 8503, commonly referred to as the “no further stay” visa condition.
The Applicant first arrived in Australia on 11 December 2008 on the Tourist visa and has remained in Australia ever since.
On 8 April 2009 the Applicant applied for a Protection visa which was refused by the Delegate, whose decision was affirmed by the Refugee Review Tribunal.
He then sought judicial review in the Federal Magistrates Court but was late in doing so and that Court did not exercise its discretion under s.477(2) of the Migration Act 1958 (Cth) (the Act) to extend the time for the making of the application for judicial review, and his application was dismissed by that Court: SZNZP v Minister for Immigration [2010] FMCA 423. The Applicant’s pseudonym in that case in the Federal Magistrates Court has been maintained for the present proceeding.
The decision of the Delegate of which the Applicant seeks judicial review in this Court was not subject to a merits review by the Administrative Appeals Tribunal under s.338 of the Act and hence the Application for judicial review in this Court.
The Delegate’s decision was advised to the Applicant in a letter dated 23 December 2016 which relevantly stated as follows:
Your application for a visa is invalid because it did not meet subsection 46(1A) of the Migration Act 1958. That provision provides that your application is invalid as since you entered Australia you held a visa subject to condition 8503 “No Further Stay”.
Where a visa is a subject to this condition, the visa holder may only make a valid application in Australia for certain limited classed of visa unless the condition is waived.
Invalid applications cannot be considered. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.
I note that the evidence establishes that the actual Medical visa application form was returned by the Department of the Minister to the Applicant by registered post on or about 23 December 2016 and no copy was retained by the Department, nor did the Applicant have a copy of this form.
Relevant Statutory Provisions
Condition 8503 in Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) prevented the Applicant from being granted a further substantive visa other than a protection visa while he remained in Australia. It is as follows:
8503The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
Condition 8503 was imposed on the Tourist visa pursuant to s.41(1) and s.42(2)(a) of the Act and reg.2.05 of the Regulations.
Section s.41(1) and s.42(2)(a) of the Act are relevantly as follows:
41Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about conditions
(2)Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or………….
Under s.41(2A) the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in s.41(2)(a) to which a particular visa is subject. The prescribed circumstances for the purposes of s.41(2A) are contained in reg.2.05(4) of the Regulations which relevantly provide as follows:
2.05 Conditions applicable to visas
(4) For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person’s circumstances; and
(b) ………………; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
See generally the discussion by Allsop J (as he then was) of the statutory context applicable to cond.8503 in Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [5]-[8].
However, unfortunately for the Applicant, he had neither applied to the Minister for a waiver of cond.8503 nor received the benefit of such a waiver prior to lodging his Medical visa application on 9 December 2016. Accordingly, the Tourist visa application fell foul of s.46(1A) of the Act and was invalid by force of that subsection. The Minister had not, previous to 9 December 2016, waived cond.8503 under s.41(2A).
Section 46(1A) of the Act provided as follows:
46 Valid visa application
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
I note that there is no suggestion in this case that s.46(2), to which s.46(1A) was subject, was applicable in this case.
In other words, the Minister had to have waived cond.8503, to which the Tourist visa had been made subject, prior to the Applicant’s lodgement of the Medical visa application for such application to be valid. Such is made clear by Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648 at [11] and [12] per Hely J:-
11 In the present case, the Minister's delegate correctly concluded that the application for a Subclass 802 visa was invalid having regard to the provisions of s 46(1A) of the Migration Act. The fact that the applicant may have impliedly requested a waiver of a clause 8503 condition at the same time as he made his visa application is beside the point. The application is invalid unless the Minister had waived the condition prior to the lodgement of the application. That had not occurred. The statutory impediment to the making of an application had not been removed. The applicant was thus not eligible to make the application. It is not simply a case where an application form has been incorrectly or insufficiently completed.
12 The terms of the Migration Act are such that the Minister's delegate was under an imperative obligation not to consider an application when the condition in question had not been waived. It follows that the delegate's decision that the visa application could not be considered represented a correct application of the law to the facts, and was not attended by any error.
It is to be noted that reg.2.05(4)(c) requires that if a person wishes to ask the Minister under s.41(2A) to waive a condition imposed under s.41(2)(a), such request is to be in writing, and the Applicant here has never suggested that he had ever expressly made a request of the Minister in writing to waive cond.8503, nor is there any evidence otherwise that he has done so, let alone evidence establishing that the Minister had waived cond.8503.
Ground of Application
The Applicant relies on two grounds:
1.The Department failed to accept my application as valid contrary to the decision made on 23 December 2016 as I have submitted an application for medical treatment visa supported by medical evidence as well as compelling circumstances.
2.The Department gave me a bridging visa E until 13 January 2017 with the condition “present valid passport”. I ask the Honourable Court to accept my review as I need medical treatment and condition 8503 should be waived to allow me to lodge the appropriate application which I did and which according to the Department's decision was treated as invalid.
Consideration
Ground 1
Ground 1 appears to argue with the Delegate’s view of the relevant statutory provisions and their effect upon his Medical visa application and seeks to invoke “compelling circumstances”, which would only have been relevant under reg.2.05(4)(c) had a request for a waiver of cond.8503 been made by the Applicant.
In my view, for the reasons given above, the Delegate was correct to find that the Applicant’s Medical treatment application was invalid and Ground 1 does not establish jurisdictional error.
Ground 2
This Ground appears to invite the Court to engage in a merits review of the Medical visa application and for the Court itself to actually waive cond.8503.
This is not a course available to the Court and Ground 2 also fails to establish jurisdictional error.
An Issue at the Hearing
At the hearing on 11 August 2017 the Applicant complained that he had not been served with the Court Book, the Minister’s Outline of Submissions or the Affidavit of Mr Thomas Liu sworn on 4 August 2017 which proved that the Applicant arrived in Australia on the Tourist visa subject to cond.8503 on 11 December 2008 and has remained in Australia ever since.
This complaint took Mr Liu, who appeared for the Respondent, by surprise but he informed me that he could prove service of these documents if given the opportunity. I considered it appropriate that the hearing proceed because of the following factors:
(a)Mr Liu informed me that he could prove in due course service of the documents;
(b)The only document comprising the Court Book was the Delegate’s decision dated 23 December 2016 of which a copy had been annexed to the Applicant’s own affidavit sworn on 12 January 2017 in this proceeding;
(c)The Minister’s Outline of Submissions had been translated to the Applicant prior to the commencement of the hearing;
(d)The Applicant at the hearing first informed the Court that he did not wish to deny that he arrived in Australia on 11 December 2008 on a Tourist visa and has remained in Australia ever since;
(e)The Applicant then informed the Court that he did not wish to deny that the Tourist visa was subject to cond.8503.
At the conclusion of the hearing I made the following orders:
1. Direct that the First Respondent file and serve an affidavit deposing as to service of the Court Book, the Minister’s Outline of Submissions and the affidavit of Mr T Liu on the Applicant within 7 days, being 18 August 2017.
2. In the event that the Applicant wishes to disagree with anything in the affidavit evidence deposing as to service, he file and serve an affidavit detailing such disagreement within a further 7 days, being 25 August 2017. My judgment will stand reserved from that date.
In the result the affidavit of service of Mr Liu of 18 August 2017 satisfies me that the Court Book, the Minister’s Outline of Submissions and Affidavit of Mr Thomas Liu sworn on 4 August 2017 were served by post at the Applicant’s address for service given by him in his Application filed on 12 January 2017, with the two latter documents being served by registered post. I further note that the Applicant has not availed himself of the opportunity given by order 2 of 11 August 2017, namely he has not filed any affidavit disagreeing with anything in Mr Thomas Liu’s Affidavit of Service of 18 August 2017.
Conclusion
In my view the Applicant has failed to establish that the Delegate’s decision under review was legally erroneous or affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 14 September 2017
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