Farhat v Minister for Immigration - [2017] FCCA 347

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARHAT v MINISTER FOR IMMIGRATION

[2017] FCCA 347

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application to Minister to waive Condition 8503 – consideration of “compelling circumstances” and “circumstances over which the person had no control” – refusal by Delegate of Minister – leave to re-open to prove instrument of delegation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.41, 338, 496

Crown Lands Consolidation Act 1913 (NSW)
Migration Regulations 1994 (Cth)

Cases cited:
Ahmed v Minister for Immigration and Border Protection [2015] FCA 812
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Craig v South Australia (1995) 184 CLR 163
Crown Lands Consolidation Act 1913 (NSW)
Kaur v Minister for Immigration and Citizenship [2011] FCA 969
Kumar v Minister for Immigration and Border Protection [2016] FCA 1330
Liu v Minister for Immigration and Border Protection [2015] FCA 1368
McDonnell v Darwin City Council (1997) 142 FLR 191
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8
Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899
Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295
Smith v NSW Bar Association (1992) 176 CLR 256

Applicant:

AHMAD FARHAT

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3435 of 2015

Judgment of:

Judge Dowdy

Hearing date:

21 April 2016

Date of Last Submission:

2 March 2017

Delivered at:

Sydney

Delivered on:

9 March 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr L Leerdam

Solicitors for the Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 18 December 2015 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3435 of 2015

AHMAD FARHAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is a male citizen of Israel aged 37 years, having been born on 15 March 1979.
By Application filed in this Court on 18 December 2015 he seeks by constitutional writs to quash and have redetermined the decision of a Delegate (Delegate) of the Respondent, the Minister for Immigration & Border Protection (Minister), dated 20 November 2015 refusing to waive Condition 8503 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations), to which his single entry TR 676 Tourist visa (Tourist visa) was subject under the Migration Act 1958 (Cth) (the Act).

Relevant Factual and Legal Background

The Applicant entered Australia on 23 April 2003 as the holder of the Tourist visa, which was valid for three months and was stamped as subject to Condition 8503 of Sch.8 to the Regulations (Condition 8503) which is generally known as a “No Further Stay” condition. Its…

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: [2017] FCCA 347
Decision Date: 9 March 2017

CaseChat Overview and Summary

In *Farhat v Minister for Immigration*, the applicant, Mr Farhat, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of Mr Farhat's character for the purposes of the *Migration Act 1958* (Cth).

The primary legal issue before Dowdy J was whether the Minister had erred in law by failing to provide Mr Farhat with adequate notice of the adverse information that formed the basis of the character assessment. Specifically, the court was asked to consider whether the notice provided was sufficiently particular to allow Mr Farhat a reasonable opportunity to respond to the allegations against him.

Dowdy J found that the notice provided to Mr Farhat was deficient. His Honour reasoned that for a person to have a meaningful opportunity to respond to adverse information, they must be informed of the specific details of that information, including the nature of the allegations and the evidence supporting them. The notice in this instance was too vague and did not adequately particularise the concerns regarding Mr Farhat's character, thereby breaching the principles of procedural fairness.

Consequently, Dowdy J quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders