FEDERAL COURT OF AUSTRALIA

Imran v Minister for Immigration and Border Protection [2018] FCA 1137

ORDERS

THE COURT ORDERS THAT:

1.    Application for leave to appeal dismissed.

2.    The applicant to pay the respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The applicant is a citizen of India who arrived in Australia on 3 December 2012 as a holder of a visitor (subclass 676) visa. One of the conditions imposed on this visa was condition 8503 'No Further Stay'.

2    On 22 September 2016 the applicant lodged an application for a medical treatment (subclass 602) visa.

3    A delegate of the respondent considered that the application was invalid and refused it because it did not meet s 46(1A) of the Migration Act 1958 (Cth) (Act). By letter dated 23 September 2016 the applicant was notified that his application for a medical treatment visa was not a valid application. The letter included the following information:

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 subject to this condition, the visa holder may only make a valid application in Australia for certain limited classes of visas, 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.

Review rights

There is no right of merits review of the assessment that an application is invalid.

Questions about this assessment

If you have questions about the process or information that was taken into account in determining that your application was not valid, you may contact us by any of the means listed below.

4    The applicant applied to the Federal Circuit Court of Australia for judicial review of the delegate's decision. The primary judge dismissed the application.

5    The applicant now seeks leave to appeal from the primary judge's decision.

Condition 8503 and the legislative framework

6    Condition 8503 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) states:

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.

7    The source of the authority to impose that condition is s 41 of the Act, which relevantly provides:

Conditions on visa

(1)    The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

General rules about conditions

(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).

8    The prescribed circumstances for the purposes of s 41(2A) are contained in r 2.05(4) of the Regulations which relevantly provides as follows:

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

(b)    if the minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

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

9    Section 46(1A) of the Act 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.

10    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.

Proceedings before the Federal Circuit Court

11    In his application to the Federal Circuit Court, the applicant sought to rely on three grounds of review as follows (without correction):

(1)    The Delegate of the Minister ignored my compelling and compassionate circumstances and acted against the medical report submitted with my application.

(2)    My application is invalid because of 8503 condition No further stay. The notification for a medical treatment visa to refuse my application is contrary to the compelling circumstances; and

(3)    My application should not be treated as invalid as it should meet the Migration Act because of my illness which is supported by medical report.

12    The respondent sought an order under r 44.12 of the Federal Court Circuit Rules 2001 (Cth) (FCC Rules) that the application be dismissed because it did not raise an arguable case for the relief claimed (a show cause hearing). The applicant made oral submissions during the hearing regarding, amongst other things, his medical condition. The primary judge delivered ex tempore reasons and ordered that the application be dismissed.

13    The primary judge said that the effect of s 46(1A) of the Act, when considered with s 41(2)(a) of the Act and r 2.05(1) of the Regulations is that the applicant, having held a visa subject to condition 8503, was incapable of making a valid application for a medical visa unless the Minister waived the condition. That is so whether or not there were compassionate circumstances or any illness attending the application for a medical visa. Under the Act, the question of whether or not there are compelling circumstances is to be considered on an application to the Minister for waiver of a condition. There was no evidence that the applicant had applied for a waiver of condition 8503.

Leave to appeal

14    Rule 44.12(2) of the FCC Rules states that show cause hearings are interlocutory. Accordingly, the applicant requires leave to appeal from the decision of the primary judge (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).

15    Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, 398-399.

Proposed grounds of appeal

16    The proposed grounds of appeal read as follows (without correction):

(1)    His Honour dismissed my case verbally and until now I do not have his judgment sent to me.

(2)    What I understood from his Honour is that I lodged medical treatment visa and the Department of Immigration made my application invalid for that reason I took the matter to the Federal Circuit Court.

(3)    I continue to rely on the grounds listed in my application under the Migration Act and the 8503 condition rendered my application invalid and such decision prevented me from being accepted as a person who needs medical treatment in Australia.

(4)    I do not agree that the Honourable Court ignored my doctor’s letter which is important, contrary to the Respondent’s submissions. The letter confirms that I suffer from diabetes, tears in the supraspinatus muscle in both shoulders and hypercholesterolemia.

(5)    I hope that the Honourable Court will look at my application in a positive way and hopefully my case for medical treatment visa will be accepted.

17    I do not consider the grounds of appeal have any prospect of success. They do not allege error on the part of the primary judge, but assert error on the part of the delegate and seek to re-agitate an argument that the application was valid.

18    Even accepting that the real complaint is that the primary judge failed to find that the application for a medical treatment visa was valid, then such ground has no prospect of success. The primary judge's explanation of the operation of the Act and Regulations was correct. Section 46 operates such that absent a waiver of condition, the applicant's application for a medical treatment visa was invalid. Section 47 operates such that it was not open to the Minister to consider an application that is not a valid application. It was on that basis that the primary judge properly considered that the medical evidence was irrelevant on the hearing before him. The letter from the delegate to the applicant accurately records that the application of 22 September 2016 was invalid. A decision that an application is not valid and cannot be considered is not a decision to refuse a visa.

19    The authorities confirm that the terms of the Act are such that the delegate was under an imperative obligation not to consider an application for a further visa when condition 8503 had not been waived: Vahaakolo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 648 at [12].

Further contention as to alleged denial of natural justice

20    At the hearing before me the applicant submitted that he was denied natural justice as the Minister did not inform him of the need to apply to have condition 8503 waived. Counsel for the Minister responded by noting that the applicant was aware of the need to have the condition waived by reason of the letter of 23 September 2016 sent to his address.

21    In any event, the Minister or his delegate is not obliged to inform the applicant of the presence of the condition on his visa or of the possibility that the applicant could apply to have the condition waived: SZNZP v Minister for Immigration and Border Protection [2018] FCA 158 at [13]; Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [13]-[14].

22    In those circumstances, and even allowing for the late addition of a proposed ground based on the alleged denial of natural justice, I do not consider the proposed additional ground has any prospect of success.

Conclusion

23    As I have found that the proposed grounds of appeal have no legitimate prospect of success, the application for leave to appeal is dismissed.

24    The applicant is to pay the respondent's costs of the application to be assessed if not agreed.

Associate:

Dated:    3 August 2018