FEDERAL COURT OF AUSTRALIA

SZNZP v Minister for Immigration and Border Protection (No 2) [2018] FCA 160

ORDERS

THE COURT ORDERS THAT:

1.    the appeal be dismissed.

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. He arrived in Australia on 11 December 2008. At that time he held a tourist (subclass 676) visa (granted on 26 November 2008), which 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.

2    On 9 December 2016, the appellant applied for a medical treatment (subclass 602) visa. On 23 December 2016 the respondent’s delegate (the “delegate”) determined that the application was invalid and therefore could not be considered. That decision was based upon s 46(1A) of the Migration Act 1958 (Cth) (“the Act”) which 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.

Statutory context

3    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(a)    the application is withdrawn; or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.

4    Sections 41(2)(a) and 41(2A) provide:

(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

...

(2A)    The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

5    Regulation 2.05(4) of the Migration Regulations 1994 (Cth) contains the prescribed circumstances for the purposes of s 41(2A) of the Act. The regulation provides:

(1)    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

…

(c)     if the person asks the Minister to waive the condition, the request is in writing.

The Circuit Court JUDGE’s decision

6    On 12 January 2017, the appellant applied to the Federal Circuit Court for judicial review of the delegate’s decision.

7    The grounds of application were as follows:

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.

8    Clearly enough, neither ground addressed the validity of the application, save for the suggestion that condition 8503 should be waived, a matter not raised before the delegate. The Circuit Court Judge noted at [17] that the appellant:

... 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 Minster had waived cond.8503.

9    Concerning the two grounds, the Circuit Court Judge said at [19]-[22]:

Ground 1

19.    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.

20.    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

21.    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.

22.    This is not a course available to the Court and Ground 2 also fails to establish jurisdictional error.

10    In summary, the Circuit Court concluded that the appellant had failed to establish that the respondent’s decision under review involved legal error or otherwise demonstrated jurisdictional error.

this appeal

11    The notice of appeal identifies the following grounds:

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.

12    Ground 1 does no more than repeat the delegate’s decision. Clearly, in the absence of any application for a waiver, there was no basis for doubting the correctness of the decision. I have held that ground 2 may not be pursued on the basis that it substantially addresses matters not raised at first instance. It is true that the appellant had, in his review grounds, asked that condition 8503 be waived, but as he had not sought such waiver before the delegate, it could hardly be said that the delegate’s decision was infected by jurisdictional error by virtue of the failure to waive the condition. Hence, on appeal, the appellant sought to assert a duty upon the delegate (or the “Department”) to advise as to the existence of the condition and as to the possibility of waiver. Such argument would, in any event, have necessarily failed. Pursuant to s 41(2A) the Minister may waive a condition described in s 41(2)(a). Condition 8503 falls within the operation of s 41(2) and s 41(2A). However the power to waive arises only in the prescribed circumstances set out in reg 2.05(4). Although the appellant has asserted compelling and compassionate circumstances, there is no relevant evidence. Further, there has been no written application for waiver.

13    Finally, I note that in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [13], O’Loughlin J effectively rejected the submission that there may have been any such duty upon the basis that there was simply no demonstrated basis for finding such a duty. I agree.

14    As to the appellant’s assertion that he was deprived of natural justice, no such assertion was made at first instance. Its precise basis is unclear, but I take it to mean only that as a result of his not being told about the possibility of waiver, he was deprived of a right to make such an application, and to be heard concerning such application. However that submission necessarily depends upon there being an obligation on the delegate to tell him about that possibility. I have found no basis for any such obligation.

15    The appeal must be dismissed.

Associate:

Dated:    26 February 2018