FEDERAL COURT OF AUSTRALIA

Matar v Minister for Home Affairs [2018] FCA 1917

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1    This proceeding was commenced by an application made pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time and leave to appeal from a judgment and orders of Federal Circuit Court of Australia delivered on 11 May 2018: Matar v Minister for Home Affairs [2018] FCCA 1251. The primary judge dismissed, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCCA Rules), an application to review a decision of THE delegate of the Minister for Home Affairs dated 18 December 2017 to the effect that the applicant’s application for a Visitor (Tourist) visa (visitor visa) was invalid.

BACKGROUND

2    The applicant is a citizen of Lebanon who first arrived in Australia in August 2007 on a Prospective Marriage visa.

3    The applicant applied for a Medical Treatment (Visitor) visa (medical visa) in October 2015, eight years later, which was refused on 3 November 2015. The applicant applied to the Administrative Appeals Tribunal for review of that decision, but on 18 March 2016 the Tribunal affirmed the delegate’s decision to refuse to grant a medical visa. The applicant unsuccessfully sought judicial review of Tribunal’s decision before the Federal Circuit Court (Matar v Minister for Immigration & Anor [2017] FCCA 1587) and on appeal to the Federal Court (Matar v Minister for Immigration and Border Protection [2017] FCA 1314).

4    On 15 December 2017, the applicant lodged his application for the visitor visa and shortly after lodging it, was notified by the Department that his application was invalid because it did not meet the requirements of s 48 of the Migration Act 1958 (Cth).

IN THE FEDERAL CIRCUIT COURT

5    The applicant filed an application seeking judicial review of the decision that his application for the visitor visa was invalid.

6    The applicant relied on the following two grounds:

1.    While the Department of Immigration and Border Protection treated my application of a visitor visa as invalid I want the Federal Circuit Court to reconsider the decision because the department did not take into consideration my wife's compelling circumstances and the wellbeing of my two Australian children as well as the extensive medical evidence provided with the application which I hope will lead you to consider accepting my application which is needed during this difficult time.

2.    The Department stated that I did not meet Section 48 and contrary to their finding I see my application should be accepted and assessed as per evidence attached to my application.

7    The matter was listed for a show cause hearing before the primary judge in May 2018, where his Honour dismissed the application pursuant to r 44.12 of the FCCA Rules.

8    After considering the high threshold established by the authorities in relation to applications for summary dismissal (at [6]), the primary judge noted that r 44.12 of the FCCA Rules contemplates two components: first, the Minister had to satisfy the Court that the applicant had not raised an arguable case; and secondly, the Court retains a residuary discretion whether to dismiss the application or allow it to proceed to final hearing.

9    In addressing ground 1, his Honour noted expressly that the compelling circumstances of the applicant’s immediate family was an important issue for the applicant, but as a matter of law, was a legally irrelevant consideration citing Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 per Yates, Robertson and Wigney JJ (at [26]).

10    His Honour identified that the criteria for the validity of a visa application were stated objectively and did not rely on a discretion invoking matters such as compelling circumstances. The primary judge concluded that the application for the visa was invalid (at [9]).

11    Turning to ground 2, the primary judge noted that ‘there [was] no such evidence attached’ to the applicant’s application as it was raised. His Honour noted that the only visa then held by the applicant was a Bridging E (Class WE) visa and that it was further established (and not controversial) that the medical visa had previously been refused. His Honour concluded in the circumstances, s 48 of the Act rendered the visitor visa application invalid.

RELEVANT LEGISLATION

12    Section 48 of the Act, read with reg 2.12 of the Migration Regulations 1994 (Cth), stipulate the class of visas which may be refused in certain circumstances. Section 48 provides:

Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

(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

…

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.

13    Further, reg 2.12 of the Regulations provides:

2.12    Certain non-citizens whose applications refused in Australia (Act, s 48)

For section 48 of the Act the following classes of visas are prescribed:

(a)    Partner (Temporary) (Class UK);

(b)    Partner (Residence) (Class BS);

(c)    protection visas;

(ca)    Medical Treatment (Visitor) (Class UB);

(e)    Territorial Asylum (Residence) (Class BE);

(f)    Border (Temporary) (Class TA);

(g)    Special Category (Temporary) (Class TY);

(h)    Bridging A (Class WA);

(j)    Bridging B (Class WB);

(k)    Bridging C (Class WC);

(l)    Bridging D (Class WD);

(m)    Bridging E (Class WE);

(ma)    Bridging F (Class WF);

(mb)    Bridging R (Class WR);

(o)    Resolution of Status (Class CD);

(p)    Child (Residence) (Class BT);

(q)    Retirement (Temporary) (Class TQ);

(r)    Investor Retirement (Class UY).

Note:    Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.

BEFORE THIS COURT

14    In this Court, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to appeal from the judgment of the Federal Circuit Court and the orders of the primary judge. Those orders were interlocutory in nature: Baig v Minister for Immigration and Border Protection [2014] FCA 855 (at [3]); SZHSY v Minister for Immigration and Citizenship [2007] FCA 793 (at [1]); MZXQQ v Minister for Immigration and Citizenship [2008] FCA 250 (at [15]).

15    An application for leave to appeal must be filed within 14 days after the date of judgment: r 35.13 of the Rules. The applicant’s application for leave to appeal was filed 11 days out of time and, therefore, he requires an extension of time to bring his application for leave to appeal.

16    The application for an extension of time and leave to appeal contains a single ground, which I have read to the applicant, namely:

1.    The Department as well as [the primary judge] ignored compelling circumstances and denied me fairness and natural justice. The Court and the Respondent were aware that my wife [was] due to give birth and my wife and I already have two other young children and it was essential that a visitor visa be approved because I needed extra time with my family and such was ignored.

17    The applicant’s affidavit in support spells out similar matters and deposes:

…

2.    I appeared before [the primary judge] on 11 May 2018. I did not receive an Order from His Honour and since that day my wife was in a terrible situation and was admitted after the Federal Court to hospital and gave birth to our third child, our daughter … .

3.    My sister … was previously diagnosed with cancer and shockingly was admitted to Westmead Hospital and she died on 25 May 2018. From 26 May 2018 until 28 May 2018 the family was receiving condolences and we are extremely traumatised as a result of the death of my young sister Leila. I did not realise that I was given 14 days to lodge the appeal, I have most compelling circumstances and hope that the Honourable [C]ourt will accept my application.

…

18    The draft notice of appeal, annexed to the applicant’s affidavit, sets out the following three grounds which I raised with the applicant in the course of the hearing today:

1.    I appeared before [the primary judge] on 11 May 2018. My wife and I addressed His Honour and explained our compelling and compassionate circumstances which were not considered. I have not received an Order in writing from His Honour nor a judgment yet.

2.    I do believe that the [Minister] as well as His Honour did not consider that my wife and I and [our] two children at the time had compelling circumstances which were ignored.

3.    His Honour and the [Minister] failed to accord me natural justice and fairness.

APPLICANT’S SUBMISSIONS

19    In addition to the oral submissions which the applicant has made, he has handed up to the Court today (without objection) written submissions raising similar matters but expressing them quite formally. The submissions are as follows and the solicitors for the Minister have undertaken to pass them onto the Minister in accordance with the applicant’s request (I have not included the annexures to protect the identity and particulars of persons therein named):

1.    I received [Minister’s] Outline of Submissions informing me that my application for a visitor visa lodged on 15 December 2017 is invalid because I did not have substantive visa.

2.    The [Minister] also objects to the extension of time as my application was lodged 11 days out of time.

3.    The reasons for extension of time were as follows:

•    The admission of my wife in hospital and she delivered our third child on 20 May 2018 (I attach birth certificate of our daughter [suppressed from publication]); and

•    the death of my young sister … on 26 May 2018 and I attach copy of death certificate [suppressed from publication].

4.    Until now I did not receive the judgment of His Honour [the primary judge].

5.    I am told in the [Minister’s] submission that the application for leave to appeal and draft notice of appeal are without merit because compelling and compassionate reasons and denial of procedural fairness are not relevant because the Court is looking at error of law.

6.    I do expect that this honourable Court may not be in a position to make a decision in my favour but I strongly implore this honourable Court to take into consideration that I have compelling circumstances and I am the father of three dependent young children and I am the partner of Australian wife and my wife and I have written to the honourable Minister on 14 July 2018 and 2 October 2018 and submitted our marriage certificate, the birth certificate of son …, the birth certificate of our son …, the birth certificate of our daughter … and the death certificate of my sister … who died of cancer on 26 May 2018 and my family is extremely worried and shocked to know that our letters were never referred to the Minister and one Officer of the Ministerial Intervention Unit failed to refer our correspondence to the Minister and such failure is a denial of natural justice and failure from the Minister's part to consider our compelling and compassionate circumstances.

7.    If this honourable Court refuses my application I will be sad but I accept the decision and strongly hope that this court make a plea to the Minister for Immigration and bring our trauma to him because if this honourable Court make such recommendation I believe the matter will be referred to the Minister.

8.    I ask that the honourable Judge take the time and read my correspondence to the Minister and recommend ministerial intervention.

9.    My Australian wife and Australian 3 children will suffer if the Department force me to return to Lebanon and they cannot be left alone and by accompanying me to Lebanon they will be prejudiced because there is substantial basis for fear and harm and risk because my area in North Lebanon is affected by clashes and bombing especially by the huge number of Syrian refugees in Lebanon and my young children are vulnerable and they will be possibly caught up in dangerous situations.

20    I have read these submissions, but as I have explained to the applicant, my role, other than requesting they be referred to the Minister, is limited to considering whether or not there is merit in the draft grounds of appeal or otherwise identifying error on the part of the Federal Circuit Court judge.

RELEVANT PRINCIPLES

21    In determining the application for an extension of time, the Court has regard to:

(a)    whether it is satisfied that it is appropriate to do so, noting that the prescribed period ought not to be ignored. This encourages consideration of the reason for the delay;

(b)    any prejudice to the respondents, though the mere absence of prejudice is insufficient to justify the grant of an extension; and

(c)    the merits of the substantive application.

See, for example, SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 per Murphy J (at [15]-[19]), citing Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 per Wilcox J (at 348-349).

22    Further, determining the application for leave to appeal, the Court must consider whether the applicant has shown 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: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 per Sheppard, Burchett and Heerey JJ (at 398-399).

23    In addition, in light of the discretionary nature of the power exercised by the primary judge under rule 44.12 of the FCCA Rules, to succeed in challenging the exercise of a discretionary power, it must be shown that an error of the kind identified in House v The King (1936) 55 CLR 499 (at 505) was made. That is, it would need to be shown that the exercise of discretion miscarried because a wrong principle was acted upon, extraneous or irrelevant matters were used as guides, relevant matters were ignored or a mistake of fact was made. Alternatively, a failure to properly exercise a discretion may be inferred where the discretionary decision is unreasonable or plainly unjust.

CONSIDERATION

24    The Minister confirms no prejudice would be suffered by the Minister should the extension of time be granted. Therefore, the matters to be determined by the Court are whether there is an acceptable explanation for the delay and the merits of the substantive appeal, including whether any substantial injustice would be suffered by the applicant if leave to appeal were refused.

25    I am prepared to proceed on the basis that, in light of the materials filed by the applicant, albeit that they have not been formally proved, there is an acceptable explanation for the delay. So the question is as to the merits of the substantive appeal if leave were granted.

Merits of the application for leave to appeal and draft notice of appeal

26    Unfortunately, it is in the merits where the applicant has difficulty. As he did not hold a substantive visa and, after last entering Australia, was refused a medical visa, he was barred from applying for a visitor visa by s 48 of the Act. Pursuant to reg 2.12 of the Regulations, visitor visas are not a class of visa prescribed for s 48. There was a minor error in the notification of the relevant date, but that does not impact upon the lawfulness of the Minister’s actions. It follows that the ground of the application for leave to appeal, in contending error, cannot be substantiated in relation to visa approval under the Act.

27    As to the ground contending that the primary judge ignored compelling and compassionate reasons, on a reading of the decision, this does not appear to be the case. It is clear that the judge was aware of the reasons advanced, but those reasons do not fall within the ambit of the role of that Court. Reference to those reasons misapprehends the role of the Court, which is to determine whether the decision on review is affected by jurisdictional error. The primary judge was correct to find that any compelling or compassionate circumstances of the applicant were not factors to take into account in the validity of the visa application being considered. His Honour was correct to conclude that there was no jurisdictional error established and it follows that this Court is satisfied that there was no error of law on the part of the primary judge.

28    In relation to the complaint that written orders or reasons were not provided, that complaint does not establish appellable error and written reasons and orders were published by the Federal Circuit Court in ample time for the purposes of this application.

29    In relation to the second ground of the draft notice of appeal to the effect that the delegate and the Federal Circuit Court did not consider his compelling circumstances, I have addressed those grounds.

30    In relation to ground 3, there is a contention of a denial of natural justice and fairness by the Minister and the Court, but in the absence of any particularisation to explain where the denial occurred, that assertion is simply without foundation. The Minister was correct, in interpreting the Act, to conclude that the visitor visa was invalid, as did the primary judge on his review. No contention of denial of procedural fairness or natural justice is made out.

CONCLUSION

31    Accordingly, I must refuse the application for an extension of time for leave to appeal with costs.

Associate:

Dated:    29 November 2018

ANNEXURES REFERRED TO IN APPLICANT’S SUBMISSIONS, BUT SUPRESSED FROM PUBLICATION