FEDERAL COURT OF AUSTRALIA

SZNZP v Minister for Immigration and Border Protection [2018] FCA 158

ORDERS

THE COURT ORDERS THAT:

1.    ground 2 of the notice of appeal be struck out; and

2.    the matter otherwise be adjourned to a date to be fixed for judgment.

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

REASONS FOR JUDGMENT

DOWSETT J:

1    This is an appeal from a decision of a Federal Circuit Court Judge. His Honour refused an application for review of a decision by the respondent’s delegate (the “delegate”) pursuant to the Migration Act 1958 (Cth) (the “Act”). The appellant had applied for a medical treatment (subclass 602) visa. The delegate refused the application upon the basis that it was not valid. The appellant applied to the Federal Circuit Court for review of that decision, the grounds being that:

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 a medical treatment visa supported by medical evidence, as well as compelling circumstances.

2.    The Department gave me a bridging visa E valid until 13 January 2017 with the condition “present valid passport”. I asked 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.

2    The Circuit Court Judge upheld the decision. This appeal is from his Honour’s decision. The grounds of appeal are:

(1)    The Department considered my application for medical treatment visa as invalid because of the condition 8503.

(2)    The Department failed to inform me that my visa has condition 8503 and failed to waive the condition or at least ask me to apply to waive it before making a decision that my application is invalid. In this case I was deprived of natural justice.

3    Ground 2 seems to proceed on the basis that the delegate had some duty to inform the appellant that his original visa was subject to condition 8503 and/or that he could apply to waive it. Before the Circuit Court Judge the appellant sought waiver of the condition, but offered no basis for such an order. The primary Judge correctly refused that application.

4    The appellant offers no explanation for his failure previously to raise the matters identified in appeal ground 2. He offers no other basis upon which I could properly allow him to raise such matters on appeal. In any event, the ground poses several problems. In order to understand them, it is necessary that I give a brief outline of the circumstances of the case.

5    The appellant entered Australia on 11 December 2008 on a tourist (subclass 676) visa. The visa was subject to visa condition 8503 as follows:

The 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.

6    A “substantive visa” is any visa other than a bridging visa, a criminal justice visa or an enforcement visa.

7    In the Circuit Court Judge’s reasons at [8], the following passage appears:

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 [sic] subject to this condition, the visa holder may only make a valid application in Australia for certain limited classed [sic] 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.

8    Section 46(1A) provides:

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.

9    Section 47 provides:

(1)    The Minister is to consider a valid application for a visa.

(2)    The requirement to consider an application for a visa continues until:

(a)    the application is withdrawn; or

(b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)    To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

10    Appeal ground 2 does not disclose the point at which, as the appellant asserts, the “Department” ought to have advised him that his visa was subject to the condition. It may have been at the time the original visa was granted, or at the time at which his application was filed, or at some other time prior to the delegate’s decision. Only a jurisdictional error by the delegate could lead to the decision being invalid. Nor is there any explanation of the factual or legal basis for the asserted obligation. In effect, the appellant identifies no grounds for his assertion that the condition ought to have been waived, or that he should have been advised to apply for such waiver. The ground also seems to assume that the delegate exercised some discretion or judgment in concluding that the application was invalid. In fact it was invalid by operation of the Act. No question of procedural fairness arises. Further, the appellant does not assert in appeal ground 2 that he was unaware of the condition.

11    I note that O’Loughlin J, in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590, concluded that the Minister or his delegate bore no duty such as that asserted in appeal ground 2. I consider that decision to be correct.

12    In order to prosecute any such ground of appeal, it would have been necessary that the appellant lead evidence, at least as to his lack of knowledge of the condition. No such evidence was provided. Further, the respondent submits that had the matter been raised at first instance, that is, before the Circuit Court Judge, he would have led evidence. No indication has been given as to the nature of such evidence. However I am prepared to infer that there is at least a possibility that the respondent may have chosen to lead evidence concerning the matter.

13    In the end, however, I consider that I should follow the decision of O’Loughlin J in holding that there was no obligation upon the delegate to advise the appellant as to the visa condition, or of the possibility of his applying to waive it. Nor do I see any basis for imposing such a duty upon any other officer of the “Department”. In this regard, it must be kept in mind that the very question in this case is the validity of the appellant’s application. As the Circuit Court Judge has demonstrated, there is no doubt as to its invalidity. No good purpose would be served by allowing the appellant to raise this ground on appeal. In this regard, I refer to the observations made by Lander and Middleton JJ in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [67] and [68] and by Jessup J at [105] and [106]. I will not allow the appellant to raise appeal ground 2. It will be struck out.

Associate:

Dated:    23 February 2018