FEDERAL COURT OF AUSTRALIA

Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs as taxed or agreed.

THE COURT DIRECTS THAT:

3.    The name of the second respondent be changed to the Administrative Appeals Tribunal.

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

REASONS FOR JUDGMENT

1    Mr Azzam Sayadi applies for an extension of time within which to apply for leave to appeal from orders made by the Federal Circuit Court. On 30 June 2015 that Court refused to set aside earlier orders it had made dismissing Mr Sayadi’s proceedings on a summary basis: Sayadi v Minister for Immigration & Anor [2015] FCCA 1829. It had initially dismissed his proceedings on 28 May 2015 when he failed to attend the first return of the proceeding. On the hearing of his application to set aside the orders of 28 May 2015, Mr Sayadi led evidence which persuaded the primary judge that he had a valid reason for not attending on that day which related to his health. However, the primary judge also concluded that the proceeding itself had no prospect of succeeding and accordingly declined to vacate the earlier dismissal orders on the grounds of utility.

2    The orders made by the primary judge dismissing Mr Sayadi’s application were interlocutory in nature. Hence, the leave of this Court is required before any appeal from those orders may be brought in this Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Under r 35.13(a) of the Federal Court Rules 2011 (Cth) an application for leave to appeal must be brought within 14 days of the judgment or orders of the Court below. In this case the orders were made on 30 June 2015. Any application for leave to appeal had, therefore, to be brought by 15 July 2015. On 10 July 2015 Mr Sayadi applied for an extension of time within which to apply for leave to appeal under r 35.14 of the Federal Court Rules 2011 (Cth). However, since his application was within time that application was unnecessary. Technically, this means that the only application before this Court (a Form 118 application under r 35.14) is one to which I cannot accede (because Mr Sayadi is not out of time and there is therefore nothing to extend) and that the application to which I could accede, namely, an application for leave to appeal (a Form 117 application under r 35.12) is not before me. Despite that I propose to treat Mr Sayadi’s application for an extension of time as an application for leave to appeal from the orders of the Court below.

3    Whilst it is true that the orders below are interlocutory they also had the effect of finally disposing of Mr Sayadi’s judicial review proceeding. In such a circumstance, it will generally be appropriate to grant leave to appeal if some reasonably arguable error of law or fact appears on the face of the reasons for judgment of the Court below. If, on the other hand, no such reasonably arguable error appears then the appropriate course is to refuse to grant leave to appeal.

4    In my opinion, leave to appeal should be refused with costs. The reasoning of the Federal Circuit Court is, for the reasons which follow, plainly correct.

5    The matter arises this way. Mr Sayadi is a national of Lebanon, having been born in Tripoli in 1984. Tripoli is located in the north of Lebanon and is the second largest city in that nation after Beirut. It is not to be confused with the capital of Libya. Although this does not appear in the record of the Court below it appears Mr Sayadi first arrived in Australia in 2009. He either arrived on, or was subsequently granted, a student visa. That visa expired on 21 September 2013. At that time, however, he had on foot an application for a temporary graduate visa. Accordingly, even though his substantive visa had expired on 21 September 2013 he was nevertheless granted a bridging visa whilst his application for the temporary graduate visa was being processed.

6    The process of applying for visas and the prospect of being returned to Lebanon has taken its toll on Mr Sayadi. Medical reports before the Court below suggested that he was suffering from anxiety and depression caused by his visa difficulties and was being treated using Valium and Zoloft. His condition had also been assessed as sufficiently serious that he has, at least for some period of time, been certified as unfit for work. Indeed, it was that state which had caused him to be absent from the initial hearing in the Court below. It was the material to which I have just referred that persuaded the primary judge that Mr Sayadi had provided a sufficient explanation for his initial absence to warrant examining whether, if appropriate, the Court’s earlier summary judgment orders ought be set aside.

7    For present purposes, Mr Sayadi’s medical conditions are not only relevant to the course of the proceeding in the Court below but also to the substantive questions before that Court and this Court. This is because on 13 January 2015 Mr Sayadi applied for a visa known as a ‘Medical Treatment (Visitor) (Class UB) visa’. If it had been granted, it would have permitted him to stay within the Commonwealth to pursue medical treatment here. In his application he nominated the treatment he wished to pursue here as the administration of Valium and Zoloft for his anxiety, depression and insomnia. He attached to his application one medical certificate certifying him unfit for work between 15 and 22 December 2014, a period of one week which had expired well before he made the application.

8    The question of whether one thinks this was a plausible application for a medical treatment visa does not arise. This is because, by law, subject to certain immaterial exceptions, such a visa can only be issued to a person on a bridging visa if the application for it is lodged within 28 days of the date upon which the applicant’s last substantive visa was in effect.

9    This flows from the requirement that an application for a visa meet the eligibility criteria for it: s 65(1)(a)(ii) Migration Act 1958 (Cth). There are criteria for a Medical Treatment (Visitor) (Class UB) visa specified in the Migration Regulations 1994 (Cth). They are contained in Sch 2. Clause 602.213 provided:

‘602.213

(1)    Subclause (2) applies if:

(a)    the applicant was in Australia at the time of application; and

(b)    the applicant held a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(2)    The substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(3)    Subclauses (4) and (5) apply if:

(a)    the applicant was in Australia at the time of application; and

(b)    the applicant did not hold a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(4)    The last substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(5)    The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.’

10    This provision, if read as if it were a clause of a regulation, appears to say nothing. Subclauses (1) and (3) specify the circumstances in which subcll (2), (4) and (5) will apply. But subcll (2), (4) and (5) do not appear to specify any rule of which it is meaningful to say, as subcll (1) and (3) do, that they ‘apply’.

11    This problem is removed, or at least adequately contained, by observing that cl 602.213 is not a rule at all but merely the specification of particular eligibility criteria of the kind referred to in s 65(1)(a)(ii). What it means is that the criteria in subcl (2) will be the relevant criteria if subcl (1) is satisfied and those in subcll (4) and (5) will be the relevant criteria if subcl (3) is enlivened.

12    Which criteria apply? The subcl (2) criteria do not apply. This is because subcl (1)(b) is not satisfied as Mr Sayadi did not hold a substantive temporary visa at the time he made the visa application. The next question is whether the criteria in subclauses (4) and (5) applied. The answer to that question is ‘yes’ because subclause (3) is satisfied in this case: Mr Sayadi was in Australia, he did not hold a substantive temporary visa and the requirements of cl 602.212(6) were not met.

13    Why were the requirements of cl 602.212(6) not met? Ms Francois of counsel, for the Minister, was good enough to take me to cl 602.212(6). It provided:

‘Unfit to depart

(6)    All of the following requirements are met:

(a)    the applicant is in Australia;

(b)    the applicant has turned 50;

(c)    the applicant has applied for a permanent visa while in Australia;

(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e)    the applicant has been refused the visa;

(f)    the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.’

14    Mr Sayadi does not satisfy this as he has not turned 50 (i.e. (b)). This renders it unnecessary to consider any of the other requirements of this subclause.

15    One sees, therefore, that subcll (4) and (5) are criteria which Mr Sayadi was required to satisfy if he was to be eligible for the visa. He satisfies subcl (4) because he was never issued with either of the visas mentioned there. The difficulty is that he does not satisfy criteria 3001 in Sch 3 and hence cannot meet the criteria in cl 602.213(5). To see why this is so it is necessary to examine criteria 3001 itself. It was in these terms:

‘Schedule 3—Additional criteria applicable to unlawful non-citizens and certain bridging visa holders

(regulation 1.03)

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:

(a)    if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

(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; or

(c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)    entered Australia unlawfully on or after 1 September 1994;

whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    the day when the applicant last entered Australia unlawfully; or

(d)    if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

(i)    the day when that last substantive visa ceased to be in effect; and

(ii)    the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.’

16    Subclauses (2)(a), (2)(b) and (2)(d) do not apply. But subcl (2)(c) does because Mr Sayadi ceased to hold a substantive visa after 1 September 1994 (i.e. (2)(c)(i)). Consequently, the effect of criteria 3001(2) is that relevant day in relation to Mr Sayadi is the last day he held his student visa which was 21 September 2013: subcl (2)(c)(iii).

17    The upshot of these Byzantine rules is that one of the criteria he needed to satisfy in order to be eligible for the visa was that his application for the visa be lodged within 28 days of 21 September 2013.

18    Any application by Mr Sayadi for the medical treatment visa had, therefore, to be made by 21 October 2013 and if it was not then he was simply not eligible for the visa. Since he applied for the visa on 13 January 2015, he was not eligible for it and the Minister was bound to refuse his application, without the exercise of any discretion.

19    A delegate of the Minister refused his application on 15 January 2015. This was inevitably affirmed by the Migration Review Tribunal (as it then was) (‘the Tribunal’). The Court below was therefore correct to conclude that Mr Sayadi’s application for judicial review against the Tribunal could not succeed. It is true that Mr Sayadi submitted in the Court below that the Tribunal had failed to take into account his compassionate circumstances. However, the Tribunal did not have, for the reasons I have just given, any power to do so and cannot have erred in not doing so. Likewise, whilst the Court below was informed by Mr Sayadi of the alleged incompetence of his migration agent (which apparently related to the manner in which his temporary graduate visa had been handled) this fact, even if accepted, could not transform Mr Sayadi into a person who was eligible for the visa: cf. in a slightly different context Awon v Minister for Immigration and Border Protection [2015] FCA 846 at [38] to [40] per Beach J. The Court below’s conclusions about this were unavoidable.

20    Consequently, the proposed appeal to this Court is likewise without any prospects of success.

21    The application for leave will be dismissed with Mr Sayadi paying the Minister’s costs. I will direct that the name of the second respondent be changed to the Administrative Appeals Tribunal.

22    It appeared during the course of the hearing that Mr Sayadi is a Sunni Muslim. The Court is aware from other cases presently before it that the security situation in Tripoli is fraught, especially for Sunnis. Although it is not a question for me, I would hope that that is a matter which would, at least, be examined prior to any removal action being taken against Mr Sayadi.

Associate:

Dated:    17 November 2015