ALAMEDDINE v Minister for Immigration

[2015] FCCA 999

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAMEDDINE v MINISTER FOR IMMIGRATION [2015] FCCA 999

Catchwords:
MIGRATION – Procedural fairness – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476
Migration Regulations 1994 reg.2.05(4)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: OMAR ALAMEDDINE

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 778 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondent: Ms N. Blake
Clayton Utz

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 778 of 2015

OMAR ALAMEDDINE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Department on 5 March 2015 refusing a request to waive 8503 No Further Stay condition. 

2. The application identified the following grounds:

   1. The decision maker misunderstood the claim and misapplied the law.

   2. The decision maker acted contrary to the evidence on file and ignored the information submitted on February 17, 2015.

   3. The decision maker’s decision is unreasonable.

3. The application in relation to the first return date provides:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Response by the first respondent contends there is no jurisdictional error and the first respondent indicated that there was no reason why the matter should not be dealt with summarily. The Court then raised with the applicant, that having looked at the decision and at the application, the Court was concerned that it failed to disclose an arguable jurisdictional error and was minded to consider exercising its summary jurisdiction powers.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.

5. There is no substance in relation to ground 1.  It is clear that the Department properly identified the statutory provisions to be taken into consideration.  Ground 1 does not disclose any arguable jurisdictional error.  Ground 2 is clearly a challenge to the adverse finding of fact made by the Department and does not disclose any arguable jurisdictional error.  In relation to ground 3, it was a matter for the Department to determine whether there were compelling circumstances.  It is clear from the reasons of the Department that the adverse finding cannot be said to lack an evident and intelligible justification.  Ground 3 fails to disclose any arguable jurisdictional error.

6. The Department determined that the circumstances did not satisfy the requirements of reg.2.05(4) of the Migration Regulations 1994 and therefore has not waived the 8503 condition under subclause 41(2A) of the Migration Act.  The Department noted that there had been a previous request for a waiver, which was refused on 24 July 2013.  The Department noted that the applicant’s wife had given birth to a child and there were issues in relation to the applicant’s wife’s health.  The Department accepted that the claims were ones of a compassionate nature, however, identified that the current waiver policy was one in respect of which childbirth is not of itself a compelling circumstance.  The Department identified what compelling circumstances generally require. 

7. It was in those circumstances where the Department proceeded to address the issues concerning the applicant’s wife’s health and was not satisfied as to the evidence as to the care required and that only the applicant could provide that care.  These were findings within the jurisdiction of the Department.  They were findings of fact that were open to the Department to make.  The applicant has no right of appeal to this Court.  This Court is not conducting a hearing on the merits and cannot rehear the compelling circumstances.  The applicant contended that the decision was unfair because of his new daughter and his wife’s health.  It is clear both matters were taken into account by the Department in the adverse decision. 

8. For the reasons listed the Department then said, having considered the merits, it was not satisfied that there are compelling circumstances for departing from the departmental policy, and the Department determined that the applicant’s circumstances did not meet the requirements to waive 8503 condition and that the condition would not be waived.  In these circumstances it is clear that the application is doomed to failure.  The application fails to identify any arguable jurisdictional error.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The application is summarily dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015