FEDERAL COURT OF AUSTRALIA

Elafifi v Minister for Immigration and Border Protection [2017] FCA 969

ORDERS

THE COURT ORDERS THAT:

1.    the appeal be dismissed; and

2.    the appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

introduction

1    The appellant is a citizen of Egypt, who arrived in Australia on 23 November 2007 on a Tourist (Short Stay) (subclass 676) visa. The appeal in the present case concerns alleged error by the Federal Circuit Court (the “Circuit Court”) in striking out the appellant’s application for review of a decision to refuse him an Other Family (Residence) (class BU) Carer subclass 836 visa (the “836 visa”).

2    On 8 February 2010 in Australia, the appellant married, and subsequently applied for a Partner (Temporary) (class UK) subclass 820 visa (the “820 visa”), and a Partner (Residence) (class BS) subclass 801 visa (the “801 visa”). On 23 August 2011, a delegate of the respondent (the “Minister”) refused the appellant’s application. That decision was affirmed by the Migration Review Tribunal (the “Tribunal”) on 31 October 2013. However it was later set aside by consent and remitted back to the Tribunal by the Circuit Court. The Tribunal again affirmed the delegate’s refusal to grant a visa. The appellant did not seek review of that decision.

3    On 24 February 2015, a delegate of the Minister purported to make a fresh decision to refuse the application for the 801 visa, due to an, “error in the decision to refuse to grant you a [801] ... visa” and an, “incorrect notification” of the decision. As a result the time in which the appellant could apply to the Tribunal for review of the decision had not expired. On 12 March 2015 the appellant again applied to the Tribunal for review. On 16 June 2015 the Tribunal found that it did not have jurisdiction in the matter as it had already made a decision to affirm the refusal to grant an 801 visa. The appellant did not seek review of the decision dated 16 June 2015.

THE APPLICATION FOR AN 836 VISA

4    The appellant lodged his application on 29 October 2015. On the following day, the appellant was notified that this application was invalid because it did not meet the requirements of s 48(1) of the Migration Act 1958 (Cth) (the “Act”). That Section provides:

(1)    A non-citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    after last entering Australia:

(i)    was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii)    held a visa that was cancelled under section 109 (incorrect information), 116 general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

5    There is no doubt that in the appellant’s case, the section was engaged.

THE DECISION AT FIRST INSTANCE

6    On 24 November 2015 the appellant filed an application in the Circuit Court, seeking review of the delegate’s decision that his application was invalid. In those proceedings, the Minister applied for summary dismissal pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the appellant’s application did not raise an arguable case for the relief sought. On 17 February 2017, the primary Judge summarily dismissed the application on the basis that, “the application does not disclose an arguable case for the relief it seeks”.

7    In explaining his decision, the primary Judge noted that:

The only issues the delegate was permitted to consider are those identified by s.48 of the Act; namely, whether, at the time he applied for the carer visa, the applicant was in the migration zone; whether the applicant held a substantive visa; whether, after the applicant entered Australia, he had been refused a substantive visa; and whether the visa for which he applied fell within any class of visas prescribed for the purposes of s.48 of the Act.

8    Each of those issues was necessarily determined against the appellant.

THIS APPEAL

9    On 10 April 2017 this Court granted an extension of time in which to appeal and granted leave to appeal. The grounds of appeal are:

1.    The decision made by [the Circuit Court Judge] … is affected by error of law as I never received the Court Book with the application we made as a carer.

2.    I was never notified by the Department of Immigration about the process of my carer application and why the Department took the money and failed to consider the case.

10    Neither ground asserts any error by the primary Judge. However counsel for the Minister referred me to the decision of the Full Court in AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30. That decision, and the cases referred to therein, led me to treat ground 1 as, in effect, an allegation that the appellant had been denied procedural fairness. There was no evidence in support of his allegation that he had not received the Court Book. I allowed him to give oral evidence of that matter. He was cross-examined concerning his allegation, but in the end, the matter proceeded upon the basis that he may not have received the Court Book.

11    I also received evidence from Ms Charlotte Elizabeth Saunders, the solicitor having the carriage of the matter, at first instance and on appeal. Ms Saunders said that at the hearing in the Circuit Court, the appellant had asserted that he had not received the Court Book. The primary Judge had asked her to explain the contents to him. She had done so in his Honour’s presence. The appellant made no request for an adjournment. The primary Judge did not ask him whether he wished to seek such an adjournment. The appellant seemed to submit that had he received the Court Book, he would have sought legal advice. He claimed to have shown the current Appeal Book to a lawyer.

12    I do not go so far as to hold that the appellant was denied procedural fairness. However, it may have been preferable for the primary Judge to have offered him an adjournment. In the end, however, it is plain that he had, and has no answer to the Minister’s view concerning the operation and application of s 48. If receipt of the Court Book before the hearing at first instance had led him to consult a lawyer, it seems certain that, as occurred in connection with this appeal, he would have had no answer to the application for summary dismissal.

13    To the extent that the appellant made any submissions before me, they went to the merits of the difficult position in which he finds himself. Those matters offer no answer to the operation of s 48.

14    The appeal must be dismissed.

Associate:

Dated:    24 August 2017