BAYROUTI v Minister for Immigration

[2017] FCCA 1144

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYROUTI v MINISTER FOR IMMIGRATION [2017] FCCA 1144

Catchwords:
MIGRATION – Sponsored Family Visitor visa – application for an extension of time under s.477 – the grounds and the submissions invite this Court to engage in an impermissible merits review – insufficient merits to warrant an extension of time – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), s.476, 477.

Migration Regulations 1994, r.2.05(4)

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BILAL BAYROUTI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1629 of 2016

Judgment of: Judge Street

Hearing date: 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Ms A Wong

Mills Oakley

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the Respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1629 of 2016

BILAL BAYROUTI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the delegate made on 9 May 2016, which decision was not a primary decision falling within s.476(4) of the Migration Act.

2. The applicant is a citizen of Lebanon and filed an application for relief in this Court on 27 June 2017, six days outside the 35 day period required under s.477 of the Migration Act. The delegate’s decision, the subject of the challenge is a decision refusing a request to waive condition 8503.

3. The applicant arrived in Australia on 25 November 2012 as the holder of a Sponsored Family Visitor visa, sponsored by his uncle. That visa was subject to condition 8503, being an obligation of no further stay.  The applicant’s visa expired on 25 December 2012 and he remained in Australia thereafter holding various bridging visas since that time.

4. On 9 May 2016, the applicant lodged a request to the delegate to waive condition 8503 imposed on his visa, on the basis that the applicant needed to care for his grandfather, and he felt that he could offer quality care compared to his uncle who already had two boys suffering mental conditions. The applicant provided copies of pages from his passport, medical documents and a letter from the Department.

5. On 17 May 2016, the delegate refused the waiver request. The delegate provided brief reasons for the decision, although there was no obligation to do so under reg.2.05(4) of the Migration Regulations 1994 (“the Migration Regulations”). The delegate found that the applicant’s circumstances were not sufficiently forceful to waive condition 8503.

Before this Court

1. The proposed grounds in the application are as follows:

   1. The Department accepted the compassionate circumstances yet failed to accept compelling circumstances.

   2. The original application to waive 8503 condition had attachment about my grandfather's medical condition and reference from Ryde Hospital yet the Department of Immigration failed to accept that my grandfather's condition is compelling and that I am the only person to give quality care as my grandfather’s carer has two boys suffering medical conditions.

   3. I recall completing form 1447 No Further Stay Waiver Request and did not authorise the Department to communicate with me by email therefore the Department failed to notify me properly.

   4. The Department asked me to provide airline ticket and depart Australia on l 0 July 2016. I cannot do that at present because of the medical condition of my grandfather.

2. At the commencement of the hearing, the Court explained to the applicant that this was an interlocutory application to determine whether there should be an extension of time under s.477 of the Migration Act. The Court explained that there were generally three considerations. Firstly, whether the applicant had a satisfactory explanation for the delay, secondly, whether there was any prejudice to the respondent and thirdly, the merits of the application.

3. In relation to the merits of the application the Court explained that the Court was considering whether the applicant had a reasonable argument that the delegate’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to either an excess of statutory power or a denial of procedural fairness to the applicant.

4. The Court explained that if satisfied there was an adequate explanation for the delay and a sufficiently arguable case on the merits, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that if not satisfied there was a sufficiently arguable case and a satisfactory explanation for the delay, the Court will dismiss the application for an extension of time. 

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

6. The applicant indicated from the bar table he wished to reply upon written submissions that were handed up. Those written submissions addressed the merits of the application and in substance invited the Court to engage in an impermissible merits review. Nothing in the applicant’s written submissions identified any arguable jurisdictional error by the Tribunal.

7. The first respondent submitted that the grounds and the submissions all invite this Court to engage in an impermissible merits review. That submission is correct. There is nothing before the Court to identify any arguable case of jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

8. The first respondent conceded that there was an adequate explanation for the delay because the applicant had indicated he did not wish to receive emails in terms of communications. Whilst the Court would not have regarded that as an adequate explanation for the delay, in light of the Minister’s concession, the Court will treat the applicant as having a satisfactory explanation for the delay and the only issue is the merits of the application. No prejudice was suggested by the respondent. 

9. For the reasons already given, there are insufficient merits to warrant an extension of time under s.477 of the Migration Act. The Court was not satisfied that an extension of time is necessary in the interests of the administration of justice.

10. The application for an extension of time under s.477 of the Migration Act is dismissed.

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

Date: 3 August 2017