Al Souhmarani v MIBP - [2016] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL SOUHMARANI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2866

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal erred in understanding and applying the waiving of Schedule 3 criteria for “compelling reasons” in cl.820.211(d)(ii) – whether the Tribunal erred by taking into account the statutory purpose of the provision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.353, 476.

Migration Regulations 1994, Sch.2 cl.820.211, Sch.3 3001, 3003, 3004.

Cases cited:

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

Monakova v Minister for Immigration & Anor [2006] FMCA 849

Applicant:

MOHAMAD AL SOUHMARANI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1715 of 2016

Judgment of:

Judge Street

Hearing date:

7 November 2016

Date of Last Submission:

7 November 2016

Delivered at:

Sydney

Delivered on:

7 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Firmstone & Associates

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

DLA Piper

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1715 of 2016

MOHAMAD AL SOUHMARANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) with respect to the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2016 affirming the decision of the Tribunal not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant is a citizen of Lebanon and first arrived in Australia on 21 August 2007 on a subclass 572 visa which ceased on 17 November 2008. On 17 November 2008 the applicant was granted a further subclass 572 visa which ceased on 15 March 2009. On 28 July 2009 the applicant was granted a 572 visa which expired on 30 June 2010. On 30 June 2010 the applicant was granted a 572 visa which expired on 6 September 2012.
On 5 July 2011 the applicant was included as a dependant on his former wife’s protection visa application. However, this application was refused on 2 July 2012. On 11 July 2012 the applicant and his former wife lodged a review of the protection visa application with the Refugee Review Tribunal (“the RRT”) and the RRT affirmed the adverse decision on 1 March 2013.
On 29 April 2013 the applicant applied for Ministerial Intervention, which was the subject of a “not considered” outcome on 16 March 2014. On 14 April 2014 the applicant and former partner lodged a judicial appeal to the Federal Court, the outcome of which was apparently unsuccessful.

The Delegate’s Decision

On 16 February 2015, the applicant applied for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2866
Decision Date: 7 November 2016

CaseChat Overview and Summary

The applicant, Al Souhmarani, sought judicial review of a decision made by the Minister for Immigration, Border Protection and Citizenship (MIBP) to refuse to grant him a visa. The dispute concerned the lawfulness of the Minister's decision. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing the applicant's eligibility for the visa. Specifically, the Court was asked to determine if the delegate had adequately considered the applicant's submissions and evidence regarding his genuine and temporary intention to remain in Australia, and whether the delegate had improperly relied on information not disclosed to the applicant.

Judge Street found that the delegate had failed to properly consider the applicant's submissions regarding his genuine and temporary intention to remain in Australia. The Court reasoned that the delegate had not adequately engaged with the evidence provided by the applicant, particularly concerning his ties to Australia and his future plans. The delegate's assessment was found to be based on a misunderstanding or mischaracterisation of the applicant's circumstances, leading to an unreasonable conclusion. The Court applied the principles of administrative law, including the requirement for decision-makers to undertake a proper consideration of all relevant material and to provide reasons that are not illogical or irrational.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders