Youssef v Minister for Immigration
[2012] FMCA 992
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YOUSSEF v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 992 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a medical treatment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error – observations on humanitarian considerations. |
| Federal Magistrates Court Rules 2001 (Cth) Legislative Instruments Act 2003 (Cth), s.13 Migration Act 1958 (Cth), ss.5, 14 Migration Regulations 1994 (Cth) |
| SZQAN v Minister for Immigration & Anor [2011] FMCA 501 |
| Applicant: | YOUSSEF GERGES YOUSSEF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1519 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 30 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr O Jones Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1519 of 2012
| YOUSSEF GERGES YOUSSEF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (the Tribunal). The decision was made on 15 June 2012. The Tribunal affirmed a decision with the delegate of the Minister that Mr Youssef is not entitled to a medical treatment visa.
Background facts relating to Mr Youssef’s application and the Tribunal decision upon it conveniently summarised in the Minister’s written submissions filed on 26 October 2012. Additional background information is contained in the decision of this Court in SZQAN v Minister for Immigration & Anor[1]. Those proceedings concerned a decision of the Minister’s delegate that Mr Youssef’s application for a medical treatment visa was not a valid application:
[1] [2011] FMCA 501 at [2]-[6]
The applicant is a citizen of Lebanon who arrived in Australia in November 1993. Relevantly, the evidence before the court is that in August 1994 the applicant applied for refugee status and to remain in Australia permanently pursuant to a Protection (Permanent) Entry Permit. Following changes to the legislation which took effect on 1 September 1994, protection visas were introduced for people in Australia seeking protection as refugees. Decision-makers were required to deal with earlier refugee-related applications in the same manner as applications for protection visas (see s.39 of the Migration Reform Act 1992 (Cth)). In such circumstances the applicant is referred to by a pseudonym in these proceedings.
The application for protection was rejected on 18 October 1995.
The applicant sought review by the Refugee Review Tribunal which, by a decision dated 18 June 1997, affirmed the decision not to grant him a protection visa. It found that his claims were “implausible and far-fetched”, vague and inconsistent.
On 31 July 2008 the applicant applied for a Child (Residence) (Class BT) visa. It was a criterion for such a visa that at the time of the application the applicant be under 25 years of age or be incapacitated for work due to total or partial loss of his or her bodily or mental functions. At that time the applicant was 50 years old. In January 2009 the application was refused on the basis of his age and the absence of any evidence of incapacity for work.
The applicant sought review of that decision by the Migration Review Tribunal. On 1 June 2009 the Tribunal determined that the application for review was not a valid application and that the Tribunal had no jurisdiction.
On 19 October 2010 the applicant made the application for a Subclass 685 visa that is in issue in these proceedings. Subclass 685 is one of the two subclasses within Class UB. The other subclass is Subclass 675 (a Medical Treatment (Short Stay) Visa). These visas are temporary visas to enable successful applicants to remain in Australia as visitors for the purposes of medical treatment or for related purposes.
When Mr Youssef arrived in Australia on 11 November 1993 he held a Class UA-420 Entertainment visa. By Mr Youssef’s own admission, that visa ceased on 20 January 1994 and he has not since held an Australian visa other than bridging visas[2].
[2] Court Book (CB) 51 [14], 52 [23]
As was stated in SZQAN, the visa arising in the present proceedings had two subclasses: subclass 675 Medical Treatment (Short Stay) (Short Stay visa) and subclass 685 Medical Treatment (Long Stay) (Long Stay visa). The relevant criteria for the Short Stay visa are set out in clause 675.216 of the Migration Regulations 1994 (Cth) (the Regulations). Clause 675.216 relevantly states:
If the application is made in Australia:
(i) the Applicant:
A.is the holder of a substantive temporary visa other than a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
B.does not hold a substantive visa and:
1) ...
2) satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005; and
...
A bridging visa is not a substantive visa[3].
[3] Migration Act 1958 (Cth), s.5(1) “substantive visa”
Schedule 3 criterion 3001 relevantly states:
3001(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:
...
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant;
The relevant criteria for the Long Stay visa are set out in clause 685.216. Clause 685.216(1) is materially identical to clause 675.216. Clause 685.216(2) refers to the criteria in clause 685.212(6). The latter relevantly states:
(6)An Applicant meets the requirements of this subclause if he or she:
(a)...
(b)...
(c) while in Australia, applied:
(i) for a permanent entry permit before 1 September 1994; or
...
(ii) for a permanent visa on or after 1 September 1994; and
(d)has met all the criteria for the grant of that visa or entry permit other than public interest criteria related to health; and
...
Decision of Tribunal
The following matters were relied on by the Tribunal to affirm the Delegate's decision. Mr Youssef did not hold a substantive visa. Mr Youssef did not satisfy clause 3001 of Schedule 3, as he had not applied within 28 days after his substantive visa ceased, ie 21 January 1994. This left clause 685.212(6). The Tribunal found that Mr Youssef did not satisfy clause 685.212(6)(d) as he had not met the criteria for the grant of the substantive visas for which he had previously applied.
The present application
These proceedings began with a show cause application filed on 13 July 2012. Mr Youssef continues to rely on that application. There is one ground in that application:
1. The Migration Review Tribunal overlooked the decision made by Federal Magistrates Court and the reasons for remitting the case back to the Tribunal.
The application is supported by a short affidavit annexing the decision of the Tribunal. I received that affidavit. I also received the court book filed on 21 August 2012.
Consideration
The issue in this case is a simple one. Mr Youssef contends that the Tribunal erred by overlooking the decision of this Court in SZQAN. The short answer to that contention is that this Court’s decision in SZQAN was not relevant to the Tribunal’s consideration, other than on the question of the validity of his medical treatment visa application. This Court’s decision in SZQAN related to the Minister’s delegate’s decision communicated by letter dated 27 October 2010[4]. This Court in SZQAN overturned that decision of the delegate that the visa application was invalid. The Tribunal proceeded on the correct basis that there had been a valid visa application and the matter was properly before the Tribunal. Mr Youssef, is, therefore, incorrect in asserting that the Tribunal overlooked this Court’s decision. There is no other arguable legal basis for challenging the Tribunal decision which I can discern.
[4] CB 26-27
The Tribunal's decision turned on three conclusions:
a)Mr Youssef did not presently hold a substantive visa;
b)Mr Youssef had applied for the present visa more than 28 days after the expiration of his last substantive visa;
c)Mr Youssef had not met the criteria for the other substantive visas for which he had applied.
Each of these conclusions was correct. By his own admission, Mr Youssef only holds a bridging visa. This is plainly not a substantive visa. Section 5(1) of the Migration Act 1958 (Cth) (Migration Act) relevantly states:
substantive visa means a visa other than:
(a) a bridging visa; ...
This applies to the Regulations[5]. It follows that Mr Youssef did not have a substantive visa for the purposes of clause 675.216 and clause 685.216.
[5] Legislative Instruments Act 2003 (Cth) s.13(1)(b)
The Tribunal was likewise correct to conclude that Mr Youssef was out of time. By Mr Youssef’s own admission, his last substantive visa ceased on 20 January 1994. It was open to the Tribunal to conclude that Mr Youssef thereby became an “illegal entrant” for the purposes of criterion 3001 of Schedule 3 to the Regulations, as this was when Mr Youssef’s entry permit expired[6].
[6] Migration Act s.14(3), as at 21 January 1994
Lastly, the Tribunal was right to conclude that Mr Youssef had not met the criteria for the other substantive visas for which he had applied. By Mr Youssef’s own admission, his applications for substantive visas had not been successful. In the circumstances, it was open to the Tribunal to conclude that Mr Youssef had not fulfilled the criteria for those visas.
There are humanitarian considerations in this case of some force. Mr Youssef is a 54 year old man from the Tripoli region of Lebanon. He has been in this country since 1993, and over that time he has unsurprisingly put down roots here. He wants to remain in Australia indefinitely. He suffers from a number of health conditions, including diabetes and high blood pressure. He takes medication to deal with a risk of heart disease and stroke. He is apparently paying for his own medical treatment. He has, with no sense of irony, asked the Court why he should not be treated as well as asylum seekers arriving in this country by boat. The present circumstances in Lebanon would not give confidence that returning to Tripoli at this time would be a happy prospect for Mr Youssef. It would be open to the Minister, if he was so minded, to give consideration to Mr Youssef’s circumstances pursuant to s.351 of the Migration Act.
I have informed Mr Youssef that if he were minded to make a submission to the Minister pursuant to that section, he would be well advised to engage the professional help of a migration agent. I have also explained to him that the Court has no influence over whatever consideration the Minister might be minded to give to such a request. I have also discussed with Mr Youssef whether he might wish to seek the Minister’s permission for him to make a further protection visa application, given the fragile security situation in Lebanon.
Mr Youssef’s earlier protection visa application was made 18 years ago and much has changed since. Apart from the change of circumstances in Lebanon, since 24 March 2012 decision makers have been able to give consideration to the availability of complementary protection. That ability introduces a range of potential circumstances that could be taken into account which do not directly bear on the issue of protection under the Refugees Convention.
These are matters beyond the scope of the present proceedings, but given Mr Youssef’s age, his poor health, the length of time he has been in this country and the circumstances in his country of origin, it is appropriate that the Court mentions them.
Mr Youssef has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. Mr Youssef made some general observations concerning today’s hearing, but did not wish to be heard specifically on costs. I will order that Mr Youssef is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 1 November 2012
6