Al Bourhan v Minister for Immigration

[2015] FCCA 313

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL BOURHAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 313

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) visa – whether there were compelling reasons for exemption from the application of Schedule 3 – no matter of principle – application dismissed.

Legislation:  

Federal Court of Australia Act 1999
Federal Circuit Court Rules 2001
Migration Act 1958

Spencer v The Commonwealth of Australia (2010) 141 CLR 118

Applicant: ALAA AL BOURHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 128 of 2015

Judgment of: Judge Street

Hearing date: 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Sydney

Delivered on: 12 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Hillary

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application for leave to extend time be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 128 of 2015

ALAA AL BOURHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 and in respect of which an extension of time for the making of the application is required under s.477 of the Migration Act.  The application identified as an alleged ground:

   1. The Member of the Migration Review Tribunal misinterpreted and misunderstood our compelling and compassionate circumstances and failed to apply Schedule 3. I rely on obtaining copy of the hearing transcript to prove to the Honourable Court how the Tribunal made a serious error in assessing Schedule 3.

2. The alleged ground was patently deficient on its face and identifies no jurisdictional error. 

3. At the commencement of the hearing I identified to the applicant that the application appeared deficient and that the Court was inclined to proceed to deal with the application summarily. The applicant sought to identify what it was that he wished to have taken into account, including that his wife was having treatment for IVF at Westmead Hospital, that the war was ongoing in his country, that he had a business in which he owed money to other people and other people owed money to him which his wife could not conduct. The applicant asserted that everything he said before the Tribunal wasn’t taken into account and that his family was staying because of the war, and he asked for time to expand upon the matters to which he wished to draw attention in writing. 

4. I informed the applicant that the matters he had addressed were not matters that identified any jurisdictional error and that there was no utility in providing an opportunity to put in writing further matters of the same kind he had just identified. The applicant was asked whether there is anything further he wished to put and he said no. 

5. In dealing with this application under s.17A of the Federal Court of Australia Act 1999 and r13.10 of the Federal Circuit Court Rules 2001 I take into account the principles and caution expressed by the High Court of Australia in Spencer v The Commonwealth of Australia (2010) 141 CLR 118:

   24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said[48]:

   "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

   More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:

   "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

   There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

   25. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

   …

   59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

   60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

6. In this case the Tribunal delivered its decision on 10 December 2014 affirming the decision of the delegate on 14 January 2014 to refuse the grant to the applicant of a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958.

7. The Tribunal noted the following:

   2. The applicant applied for the visa on 16 May 2011 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

   3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant satisfied the Schedule 3 criteria or that there were compelling reasons for not applying the criteria.

8. The hearing before the Tribunal was conducted on 9 December 2014, at which the applicant appeared to give evidence and present arguments.  The Tribunal also received evidence from the applicant’s wife and the applicant’s evidence was assisted through an interpreter as well as having the applicant represented by his registered migration agent.  The Tribunal properly identified that it was necessary for the applicant to meet the requirements of the Schedule 3 criteria or to establish compelling reasons not to apply that criteria.

9. The Tribunal noted that the applicant was not the holder of a substantive visa at the time of the application and identified that as the applicant did not enter Australia as the holder of a subclass 995 visa – a special purpose visa. The Tribunal noted that the issue in the present case is whether the applicant satisfies the Schedule 3 criteria or that there are compelling reasons for not applying that criteria.  On the reasons of the Tribunal it’s clear the applicant did not meet the criteria of Schedule 3 and the Tribunal proceeded to consider whether there were compelling reasons for not applying that criteria.

10. The applicant identified before the Tribunal the treatment his wife was having and identified the stress that it would cause and said:

    28. …However, it considers that while this would be a significant stress on the relationship, this is a common experience for offshore applicants of spouse visas.  It notes the evidence from the general practitioner and the comments by the psychologist.  However, it notes the referral to the psychologist was made in November 2014 at the time just prior to the hearing and not at the time of the application for the visa.  There is no other evidence submitted of mental health issues at the time of the application.  It does not consider Ms Dannaou’s mental health issues were a compelling reason at the time of the application.

11. The Tribunal found that the treatment his wife was having was not a compelling reason to apply Schedule 3 criteria.

12. The Tribunal accepted that it may be difficult for the applicant’s partner to live in Lebanon where she does not have family or friends, but found it was open to her to remain in Australia where she had a large supportive family until such time as the applicant is granted a spouse visa.  The Tribunal made reference to the applicant’s business that he developed in Australia and the customers and contracts that he didn’t want to lose.  The Tribunal found that this was not a compelling reason not to apply Schedule 3 criteria.

13. The political and civil unrest was taken into account by the Tribunal and again the Tribunal was satisfied that that was not a sufficient and compelling reason not to apply the Schedule 3 criteria.  The Tribunal said that it did not consider, either individually or taken together, the circumstances were sufficiently compelling not to apply the Schedule 3 criteria, and for those reasons the Schedule 3 criteria applied and the applicant did not meet clause 820.211(2)(d)(i), and for those reasons the applicant did not satisfy the criteria for the grant of the visa and the Tribunal affirmed the decision. 

14. There was a justifiable and intelligible foundation for the findings made by the Tribunal and the findings were open to the Tribunal on the material before it.  Each of the matters put by the applicant raised issues concerning the findings made and the taking into account of the applicant’s circumstances.  These were matters which it was for the Tribunal to determine and not this Court, which is confined to the issue of jurisdictional error. On the matters before the Court I am clearly satisfied that there is no arguable issue of jurisdictional error.

15. There is clearly no substance in the proposition that the Tribunal either misinterpreted or misunderstood the criteria under Schedule 3 or its jurisdiction that it was exercising in considering whether there were compelling reasons for not applying Schedule 3.  There is nothing before the Court to suggest that there is any failure to comply with the statutory requirements in respect of the conduct of the review, and I am clearly satisfied that the application has no prospect of success.  For these reasons the application for an extension of time is summarily dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 February 2015