Boutros v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 668
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boutros v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 668
File number(s): SYG 2813 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 9 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant visitor visa – Tribunal not satisfied exceptional circumstances exist for grant of visa – whether jurisdictional error – no point of principle – application dismissed Legislation: Migration Regulations 1994 (Cth) Sch 2 cl 600.215 Cases cited: Al-Mamun v Minister for Immigration and Multicultural Affairs [2000] FCA 1058
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 30 April 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms R Adler (Australian Government Solicitor) ORDERS
SYG 2813 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MONA BOUTROS
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
9 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 10 December 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 16 November 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Visitor (class FA) (Tourist) (subclass 600) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2) provided at the time of the Tribunal’s decision:
(1)If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
(2)This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:
(a)one or more visitor visas;
(b)a Subclass 417 (Working Holiday) visa;
(c)a Subclass 462 (Work and Holiday) visa;
(d)a bridging visa.
FACTUAL BACKGROUND
On 17 November 2018, the applicant, a citizen of Lebanon, arrived in Australia as the holder of a subclass 600 visitor visa which ceased in February 2019. The applicant was granted a further visitor visa which allowed her to stay until 17 November 2019.
On 16 November 2019, the applicant applied for a third subclass 600 visitor visa to stay in Australia until 15 February 2020. Since the grant of the visa “would result in the applicant being authorised to stay in Australia … for a total period of more than 12 consecutive months” (see cl 600.215(2) of Schedule 2 in paragraph 3 above), as stated in cl 600.215(1), a criterion for the visa was that “exceptional circumstances exist for the grant of the visa”.
On 23 November 2019a delegate of the first respondent refused to grant the visa because the delegate was not satisfied that “exceptional circumstances exist for the grant of the visa” and so the applicant did not satisfy cl 600.215.
On 11 December 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 9 October 2020, the Tribunal invited the applicant to attend a hearing on 16 November 2020.
On 16 November 2020, the applicant attended a hearing before the Tribunal with the assistance of an interpreter.
Following the hearing and on the same day, the Tribunal made a decision affirming the decision under review not to grant the visa.
TRIBUNAL’S DECISION
The issue before the Tribunal was whether cl 600.215 of Schedule 2 was met, which required the Tribunal to be satisfied that “exceptional circumstances exist for the grant of the visa”.
The applicant, in support of her claim that “exceptional circumstances exist for the grant of the visa”, stated that she wanted to remain in Australia to look after her uncle following his eye surgery in October 2019, she was concerned about travelling during the COVID-19 pandemic, and she had high blood pressure and experienced dizziness.
The Tribunal, after considering these matters, stated at [20] that it was “not satisfied that the applicant has put forward exceptional circumstances that would justify the grant of a visa for a total period of more than 12 consecutive months” and therefore “the requirements of cl 600.215 were not met”.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 30 April 2025
On 10 December 2020, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision. The application contained the following grounds (as written):
1.The decision of the Administrative Appeals Tribunal is not reasonable and was made contrary to the compelling reasons I provided.
2.At the time I applied to renew my visa it was a genuine request to renew my passport and I provided evidence that I requested to renew my passport and I stated that I had no intention to overstay my visa and that I am facing the problem of permission to travel because of Coronavirus.
3.The Tribunal accepted that there is difficulties in getting a flight and additional cost to depart and that I had high blood pressure and dizziness and I had difficulties in arranging departure flight.
4.The Tribunal accepted that Lebanon has a large number of COVID-19 cases and that while in Australia I support my uncle yet the Tribunal failed to act upon the evidence provided and failed to complete the exercise of its jurisdiction and failed to make findings about my particular circumstances.
On 26 July 2021, the applicant filed a written submission (AS).
Following a period of inactivity, on 19 February 2025 the registry of the Court notified the parties that the matter was listed for hearing on 30 April 2025.
On 16 April 2025, the first respondent filed a written submission (RS).
Hearing on 30 April 2025
At the hearing before this Court, the applicant appeared unrepresented, assisted by an Arabic interpreter. Ruby Adler of the Australian Government Solicitor appeared for the first respondent.
The applicant brought to the hearing a copy of the Court Book, filed and served by the first respondent in March 2021, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision. I explained that the Court’s role was limited to determining whether there was a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. I explained, with reference to the Tribunal’s decision, the main categories of jurisdictional error. I told the applicant that, to win her case, she must persuade the Court there is a jurisdictional error in the Tribunal’s decision.
The applicant then made oral submissions. In general, the applicant contended that the Tribunal should have found that “exceptional circumstances exist for the grant of the visa”, and it erred by not making this finding.
CONSIDERATION
Ground 1 of application
The applicant contends in ground 1 that “the decision of the … Tribunal is not reasonable and was made contrary to compelling reasons I provided”.
To similar effect, the applicant stated at AS [10] that “the Tribunal’s decision was made contrary to the evidence provided”, stated at AS [11] that the Tribunal’s decision “is infected by error of law because it is not reasonable based on the evidence provided …”, and repeated at AS [13] that “the Tribunal decision is made contrary to the evidence provided”.
The applicant, in support of her claim that “exceptional circumstances exist for the grant of the visa”, told the Tribunal that she wanted to remain in Australia to look after her uncle following his eye surgery in October 2019, she was concerned about travelling during the COVID-19 pandemic, and she had high blood pressure and experienced dizziness. In relation to these three matters:
(a)The Tribunal at [16] noted that “her evidence indicated that her uncle had improved”.
(b)The Tribunal at [14] noted that travel considerations associated with the COVID-19 pandemic “apply to everyone that needs to depart Australia”, at [16] noted that the applicant “had made no claims that she [was] particularly prone to COVID-19”, and at [19] noted that the applicant “did not claim that she is particularly vulnerable because of her health”.
(c)The Tribunal at [19] noted that the applicant “did not provide any evidence of any health condition that would make her particularly vulnerable”.
The Tribunal at [19] concluded that “the applicant did not make out grounds that exceptional circumstances exist for her continued stay because of her health, her uncle’s condition or for any other reason”.
I consider that the Tribunal provided reasons in support of its conclusion that it was not satisfied that exceptional circumstances exist for the grant of the visa, and the reasons provided “an evident, transparent and intelligible justification for the decision”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92].
For the above reasons, I am not satisfied that the Tribunal’s decision was legally unreasonable. I am also not satisfied that the Tribunal’s decision was “contrary to the evidence” in a manner which might involve jurisdictional error.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Grounds 2 and 3 of application
In ground 2, the applicant restates her reasons for applying for a further visitor visa. She does not identify a jurisdictional error.
In ground 3, the applicant restates an acknowledgment of the Tribunal at [14] that “getting a flight [during the COVID-19 pandemic period] is not straightforward and also that there are additional costs involved” and restates her submission to the Tribunal, considered by the Tribunal at [16] and [19], that the applicant “has high blood pressure and dizziness”. The applicant does not identify a jurisdictional error in ground 3.
Grounds 2 and 3 do not identify a jurisdictional error in the Tribunal’s decision.
Ground 4 of application
The applicant contends that the Tribunal “failed to act upon the evidence provided and failed to complete the exercise of its jurisdiction and failed to make findings about my particular circumstances”.
To similar effect, it is stated at AS [10] that the Tribunal failed to consider the surgery of the applicant’s uncle and COVID-19 as compelling circumstances.
As explained in paragraphs 23 to 25 above, the Tribunal considered the evidence and submissions provided by the applicant and explained why it was not satisfied that “exceptional circumstances exist for the grant of the visa”. I do not accept that the Tribunal failed to consider the applicant’s evidence and submissions the Tribunal was not persuaded by the applicant’s evidence and submissions is not a jurisdictional error.
Ground 4 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Adler sought an order that the applicant pay the first respondent’s costs in the sum of $5,000 which she confirmed in an email after the hearing was the first respondent’s costs on a party/party basis. This is less than the scale amount of $8,371.30. I consider the amount sought by Ms Adler is reasonable. The applicant stated that she cannot afford to pay this amount. However:
(a)In circumstances where the scale amount is $8,371.30, which is “a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case” (Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12 at [69]), I consider the amount of $5,000 sought by the first respondent is reasonable.
(b)I consider that indigence of a losing applicant who, by making and progressing the application to hearing, has forced the respondent to incur legal costs does not affect a determination of an amount which is fair and just in the present matter: see Al-Mamun v Ministerfor Immigration and Multicultural Affairs [2000] FCA 1058 at [5].
I will make the order sought by Ms Adler.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 9 May 2025
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