Saifuddin v Minister for Immigration and Border Protection

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent's costs of the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 The applicant, a national of India, seeks leave to appeal from a decision of the Federal Circuit Court of Australia. The proceeding in the Federal Circuit Court related to an application for a Visitor (Tourist) (Subclass 600) visa (a tourist visa). A delegate of the respondent (the Minister) refused the applicant's application for the visa. The applicant sought judicial review of that decision. The Federal Circuit Court dismissed the proceeding, pursuant to r 44.12 of the Federal Circuit Court Rules 2001, on the basis that the applicant's application did not raise an arguable case for the relief sought. The applicant seeks leave to appeal from that decision. 2 A brief outline of the background to the application is as follows: (a) On 18 May 2015, the applicant applied for a Medical Treatment (Visitor) (Class UB) visa. That visa was refused by a delegate of the Minister on 20 May 2015. (b) The applicant applied, unsuccessfully, for review of the delegate's refusal decision to the Administrative Appeals Tribunal. (c) A judicial review application in the Federal Circuit Court was unsuccessful: see Saifuddin v Minister for Immigration & Anor [2016] FCCA 1497. An application for leave to appeal from that decision was dismissed: Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352. (d) On 5 January 2017, the applicant applied (onshore) for a tourist visa. (e) On 10 January 2017, a delegate of the Minister deemed the application invalid pursuant to s 48 of the Migration Act 1958 (Cth). (f) On 17 January 2017, the applicant commenced a proceeding in the Federal Circuit Court seeking judicial review of the delegate's decision. (g) On 26 July 2017, the Federal Circuit Court dismissed the proceeding pursuant to r 44.12 of the Federal Circuit Court Rules 2001 on the basis that the applicant's application did not raise an arguable case for the relief sought. The Federal Circuit Court gave ex tempore reasons for judgment (the Reasons). 3 The grounds of the applicant's application before the Federal Circuit Court are set out in [9] of the Reasons. The applicant's submissions in support of those grounds are set out in [10] of the Reasons. At [11] of the Reasons, the primary judge set out s 48 of the Migration Act. That provision relevantly provided as follows: 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. … 4 As noted in the Reasons, reg 2.12 of the Migration Regulations 1994 (Cth) prescribed the classes of visas that could be applied for by a non-citizen under s 48. That regulation provided: Certain non-citizens whose applications refused in Australia (Act, s 48) (1) 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). 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. 5 At [12] of the Reasons, the primary judge said that it was clear from s 48 of the Migration Act that the applicant could apply for a visa of a prescribed class, as identified in the Migration Regulations, and that reg 2.12 identified with specificity those classes of visa to which s 48 applied. 6 The primary judge held, at [13] of the Reasons, that it was clear that the visa for which the applicant applied on 5 January 2017, being a tourist visa, was not a member of the class prescribed for the purposes of s 48 of the Migration Act. Hence, the primary judge held at [15], the delegate was correct to conclude that the visa application filed by the applicant was invalid for the reasons provided in the delegate's letter dated 10 January 2017. 7 The applicant needs leave to appeal from the decision of the Federal Circuit Court as that decision is interlocutory: see r 44.12(2) of the Federal Circuit Court Rules 2001; and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 8 It is well established that the test for whether leave to appeal should be granted is that identified by the Full Court of the Federal Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Thus, the Court must consider: whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 9 The applicant has prepared an affidavit exhibiting a draft notice of appeal. This sets out the three grounds of appeal: 1. I applied for a visitor visa and I continue to rely on my application under Migration Act which was filed on 17/1/2017 as I believe that I have the right to apply for a visitor visa because His Honour Justice Dowsett of the previous Federal Court recommended that the Minister give consideration to my case pursuant to s.351. His Honour directed the Registrar to forward the papers to the Minister with a copy of these reasons. Nothing happened and there is negligence from the Department to consider ministerial intervention as recommended by His Honour Judge Dowsett. 2. I also believe that as from 1 July 2017 medical treatment visa 602 has new important changes, especially removal of Schedule 3 criteria for applicants without a substantive visa with genuine medical condition such as myself. 3. I am a genuine person with genuine medical condition and strongly believe that the Minister and Ministerial Intervention denied me natural justice and fairness by refusing my medical visa and, most importantly, by not referring my case to the Honourable Minister. 10 These grounds are not directed to the issue that was before the primary judge and the essential reasoning in support of the decision below. They do not provide a basis to consider that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal. 11 At the hearing this morning, the applicant, who appeared for himself with the assistance of an interpreter, accepted that, on the basis of the Minister's written submissions, it "looks like from a legal point of view there is no error of law" in the Federal Circuit Court's decision. The applicant drew attention to paragraph 19 of the Minister's written submissions, in which the Minister quoted the following paragraph from the judgment of Dowsett J in the earlier proceeding in this Court. In Saifuddin v Minister for Immigration and Border Protection [2016] FCA 1352, Dowsett J said (at [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. 12 The applicant said that he had received a letter from the Department of Immigration and Border Protection (the Department) to the effect that, because his matter did not meet certain criteria, it was not being referred to the Minister. There is no evidence before the Court as to whether or not this is correct. The solicitor for the Minister helpfully outlined the usual processes, but was not in a position to respond as to what occurred in this particular case, the matter having been raised in this way only during the hearing. In those circumstances, I consider it appropriate to reiterate the observations made by Dowsett J on the earlier occasion. If the applicant's case has not been considered by the Minister pursuant to s 351, then it may be appropriate for that consideration to occur. Further and in any event, the Minister's solicitor suggested that the applicant go to the Department in Sydney and discuss his case with a representative to see if there is any other basis for a visa application. Without wishing to raise any false hope, this would appear to be a practical step for the applicant to take. 13 For the reasons indicated, I do not consider that the decision below is attended with sufficient doubt to warrant its reconsideration on appeal. Accordingly, the application will be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also order that the applicant pay the Minister's costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.