Hamoud v Minister for Immigration - [2015] FCCA 1087

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMOUD v MINISTER FOR IMMIGRATION

[2015] FCCA 1087

Catchwords:
MIGRATION – Interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Family Law Act 1975 (Cth)
Migration Act 1958 (Cth), s.41
Migration Regulations 1994 (Cth)

Terera v Minister for Immigration [2003] FCA 1570; 135 FCR 335

Thongpraphai v Minister for Immigration [2000] FCA 1590

Applicant:

OMRAN HAMOUD

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2161 of 2014

Judgment of:

Judge Driver

Hearing date:

28 April 2015

Delivered at:

Sydney

Delivered on:

28 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr S Speirs of Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2161 of 2014

OMRAN HAMOUD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application filed on 1 August 2014 seeking review of a decision of a delegate of the Minister refusing to waive condition 8503 on a visa held by the applicant, Mr Hamoud. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 21 April 2015.
Mr Hamoud, a citizen of Lebanon, arrived in Australia on 27 June 2012 on his visitor visa. His visitor visa was due to expire on 27 July 2012.
On 25 July 2012, Mr Hamoud applied for a protection visa, which was refused[1]. Mr Hamoud subsequently lodged an application for review with the Refugee Review Tribunal and an application for Ministerial Intervention - both of which were unsuccessful[2].
[1] Court Book (CB), 16
[2] CB, 16
On 20 June 2014, Mr Hamoud lodged a request to the Minister’s Department to waive condition 8503 imposed on his visitor visa[3]. That request was refused on 30 June 2014. Subsequently, on 1 August 2014, Mr Hamoud lodged this application seeking judicial review of the delegate's decision.
[3] CB, 14

Relevant legislation

The Minister's power to impose and/or waive conditions relevant to the grant of a visa is set out in ss.41(2) and 41(2A) of the Migration Act 1958 (Cth) (Migration Act). Those sections relevantly provide:
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
...
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a…

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: [2015] FCCA 1087
Decision Date: 28 April 2015

CaseChat Overview and Summary

In *Hamoud v Minister for Immigration*, the applicant, Mr Hamoud, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing the applicant's claims, had failed to properly consider or apply the relevant provisions of the *Migration Act* and *Regulations*, particularly concerning the assessment of the applicant's fear of persecution and the availability of protection in his country of origin.

Driver J found that the delegate's assessment contained a significant error. The delegate had failed to adequately consider the evidence presented by the applicant regarding the specific nature of the threats he faced and the likelihood of him being able to access protection from the authorities in his home country. The Court applied the principles of administrative law, emphasizing that a decision-maker must genuinely consider all relevant evidence and apply the correct legal tests. The delegate's failure to do so amounted to a jurisdictional error.

Consequently, Driver J set aside the Minister's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders