Saifuddin v Minister for Immigration and Border Protection

1. the application for leave to appeal be dismissed; and
2. the applicant pay the first respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DOWSETT J: 1 Following a hearing in Sydney, I ordered that this application be dismissed with costs, indicating that I would publish my reasons at a later date. I now do so. 2 The applicant applies for leave to appeal from a decision of the Federal Circuit Court of Australia. He is a citizen of India. He arrived in Australia on 30 November 2011 on a tourist visa, valid for three months. The applicant applied for a protection visa. That application was unsuccessful. He says that his health began to deteriorate whilst he was going through the visa application, review and appeal process. On 18 May 2015, he applied for a medical treatment (visitor) (class UB) visa. On 20 May 2015, a delegate of the Minister refused that application upon the ground that the applicant did not meet the relevant eligibility criteria. He unsuccessfully sought review in the second respondent (the "AAT"). The AAT has entered a submitting notice. The reasons for his failure are to be found in cl 602.212 and cl 612.213 in Sch 2 to the Migration Regulations 1994 (Cth) (the "Regulations") and criteria 3001 in Sch 3 to the Regulations. 3 In order to explain his failure to meet relevant criteria, it is necessary that I make a detailed analysis of the various regulations and criteria as they apply to the applicant's position. I will base my examination upon the reasons of Perram J in a virtually identical case, Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235. 4 The criteria for a medical treatment (visitor) (class UB) visa are set out in the Regulations. At the relevant time, reg 602.213 of Sch 2 to the Regulations provided: (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. 5 Concerning this provision, Perram J said, in Sayadi, at [10] and [11]: 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. 6 The applicant satisfied the requirements of reg 602.213(3)(a) in that he was in Australia at the time of the application, and he did not, at that time, hold a substantive temporary visa. Regulation 602.212(6) provided: (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. 7 He did not meet the requirement in reg 602.212(6). He has not yet turned 50. It follows that the applicant did not satisfy reg 602.213(1). Therefore reg 602.213(2) did not apply. 8 Regulation 602.213(3) was satisfied so that regs 602.213(4) and (5) applied. The applicant satisfied reg 602.213(4). The question is whether he satisfied reg 602.213(5). 9 Criterion 3001 of Sch 3 to the Regulations provided that an additional criterion is that: (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. 10 Pursuant to criterion 3001(2)(c)(i) the applicant had to lodge any application for a medical treatment (visitor) (class UB) visa within 28 days of the last day of his tourist visa. That visa expired on 29 February 2016, three months after the date he arrived in Australia. Hence his application was out of time, as the Minister's delegate and the AAT concluded. 11 On 5 November 2015, the applicant applied to the Federal Circuit Court, seeking judicial review of the AAT's decision upon the following grounds: (1) The Tribunal had evidence concerning my medical condition yet failed to accept my application because of the fact that it was made after 28 days. The decision is affected by natural justice and fairness because Schedule 3 should be waived and should not apply to people who have serious medical condition. (2) The Tribunal failed to refer my case to the Minister as I asked for yet this is another denial of natural justice and fairness. 12 On 20 June 2016, the Federal Circuit Court dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). In relation to ground 1, the primary Judge found that the AAT was bound to refuse his application as he was not eligible for the visa. His Honour went on to find that the AAT had no power to extend time upon the basis of compelling and compassionate circumstances. Ground 1 did not raise an arguable case of jurisdictional error. His Honour found that ground 2 similarly failed, noting that the AAT considered, and rejected the applicant's request that the AAT refer his case to the Minister for consideration pursuant to s 351 of the Migration Act 1958 (Cth) (the "Migration Act"), having regard to the guidelines for the Minister's discretion set out in the Procedures Advice Manual (PAM3). In any event, the applicant's complaint was as to denial of procedural fairness in not acceding to his request. There was no basis for that allegation. 13 On 23 June 2016, the applicant filed an application for leave to appeal to this Court. The orders made by the primary Judge were interlocutory in nature. Hence a person wishing to appeal must seek leave. 14 The applicant seeks to rely on the following grounds: (1) His Honour failed to consider my compelling circumstances. (2) The Tribunal failed to understand that my health deteriorated after my arrival to Australia and after 28 days and denied me to have the Minister's intervention. 15 At the hearing, the applicant tendered a medical report dated 31 October 2016 (exhibit 1). He otherwise stated his grounds of appeal, in particular, that the legislative and regulatory scheme was unfair in that it failed to take account of his health problems. Obviously enough, the applicant raises no valid ground of appeal. Clearly, there is no basis for upsetting the primary Judge's reasons. 16 The primary Judge noted that the applicant has not sought Ministerial intervention pursuant to s 351 of the Migration Act. There seems to be little doubt that the applicant is unwell. It may also be that his ill-health is, at least in part, attributable to his dealings with the migration system. It may be appropriate that the Minister give consideration to his case pursuant to s 351. To that end, I direct the Registrar to forward the papers to the Minister with a copy of these reasons. 17 It was for these reasons that I dismissed the application with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.