Boutros v Minister for Immigration and Border Protection

[2017] FCA 131

FEDERAL COURT OF AUSTRALIA

Boutros v Minister for Immigration and Border Protection [2017] FCA 131

Appeal from:	Boutros v Minister for Immigration & Anor [2016] FCCA 2415
File number(s):	NSD 1691 of 2016
Judge(s):	JAGOT J
Date of judgment:	17 February 2017
Catchwords:	MIGRATION – Appeal from decision of Federal Circuit Court – whether primary judge erred in dismissing application to review decision not to grant visa – no error established – appeal dismissed.
Legislation:	Migration Regulations 1994 (Cth)
Date of hearing:	17 February 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondents:	Mr M Glavac of Clayton Utz

ORDERS

NSD 1691 of 2016

BETWEEN:

MARWAN HANNA BOUTROS

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	17 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the amount of $2486.40.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. On 22 August 2014 the Migration Review Tribunal (now the Administrative Appeals Tribunal) affirmed a decision not to grant the appellant a Partner (Temporary) (Class UK) visa.  The Tribunal was not satisfied that the appellant met the relevant criteria in the Migration Regulations 1994 (Cth) to be granted such a visa. In particular, the Tribunal found that the appellant was not in a genuine de facto relationship.

2. The appellant applied to the Federal Circuit Court of Australia (the FCC) for review of that decision by the Tribunal on 13 November 2014.  The primary judge dismissed the application for review on 16 September 2016.  The primary judge was satisfied that there had been no legal error in the Tribunal’s decision. 

3. The appellant then filed a notice of appeal to this Court on 30 September 2016.  The notice of appeal sets out four grounds of appeal.  Those grounds are as follows:

   1.On 22 May 2015 Her Honour Judge Emmett granted my application an extension of time.

   2.His Honour Judge Street failed to understand the error of law committed by the Tribunal otherwise Her Honour Emmett would have not granted an extension of time if she was not satisfied that I have an arguable case.

   3.I strongly belief that His Honour Judge Street overlooked the error and committed an error of law by ignoring what Her Honour Emmett accepted as error of law.

   4.As I have not received the full Judgment of His Honour Judge Street I will in the near future argue his judgment.

4. The appellant did not make any submissions in support of these grounds of appeal, but relied upon the grounds as explaining the error said to have been made by the primary judge.

5. The appellant’s case is that the primary judge did not have regard to the fact that another judge of the FCC, who had granted the appellant an extension of time in which to make his application, would not have granted him an extension of time unless satisfied that the Tribunal had committed an error of law.  However, as the Minister has submitted in written submissions, and with which I agree, the fact that a judge granted the appellant an extension of time in which to make an application does not mean that the judge granting the extension of time was necessarily satisfied that there has been an error of law.  It is a matter for the judge deciding the application to make up his or her own mind as to whether or not there has been an error of law.  The fact that an extension of time has been granted does not determine the issue. 

6. In the present case, there is nothing in the reasons for judgment of the primary judge which suggests any error.  There is also nothing which appears before me which would suggest any legal error by the Tribunal. 

7. In these circumstances it is necessary that I order that the appeal be dismissed and that the appellant pay the first respondent’s costs, fixed in the amount of $2486.40.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        17 February 2017