KHATER v Minister for Immigration - [2011] FMCA 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHATER & ANOR v MINISTER FOR IMMIGRATION

[2011] FMCA 52

MIGRATION – Review of decision of delegate not to remove condition on the applicants’ visas – compassionate but not compelling circumstances – whether the delegate’s decisions were unreasonable considered.

WORDS AND PHRASES – Compelling circumstances.

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

Anupama v Minister for Immigration & Anor [2009] FMCA 817
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48
Minister for Immigration v SZMDS [2010] HCA 16

Salazar v Minister for Immigration [2001] FCA 899

SZGBR v Minister for Immigration [2005] FMCA 824

First Applicant:

OJENY KHATER

Second Applicant:

RENEE KASSAB

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2450 of 2010

Judgment of:

Driver FM

Hearing date:

3 February 2011

Delivered at:

Sydney

Delivered on:

28 February 2011

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondent:

Mr H P T Bevan

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2450 of 2010

OJENY KHATER

First Applicant

RENEE KASSAB

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review decisions of a delegate of the Minister not to waive a condition attached to the applicant’s visas.
The applicants are mother and daughter. They are citizens of Lebanon who arrived most recently in Australia on 8 March 2010 on tourist (class TR, subclass 676) visas (court book “CB” 5 and CB 58).
Each of their visas was subject to condition 8503. That condition provides that the visa “holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”.
The applicants have applied for that condition to be waived on two occasions.
Applications were first made on 23 March 2010 (CB 1-3 and CB 56-58). The second applicant, who claimed to be dependent upon her mother, relied upon the first applicant’s claims. A delegate of the Minister for Immigration and Citizenship (the Minister) refused these applications on 10 June 2010 (CB 33) and 18 June 2010 (CB 61).
Applications were again made on 17 September 2010 (CB 39-45 and CB 66-67). Again, the second applicant relied upon her mother’s claims. A delegate of the Minister refused these applications on 25 October 2010 (CB 50 and CB 69).
By application filed 11 November 2010, the applicants have applied to the Court for relief in respect of the delegate’s most recent decisions.

The judicial review application

The applicants rely upon the judicial review application filed on 11 November 2010[1]. That application contains the following grounds of review:
1. The delegate misapplied the law and ignored the changes of circumstances after the issue of the visa ie the death of my brother.
2. The delegate ignored the deterioration of health and compassionate and compelling circumstances.
[1] Formally, the application seeks only an order in…

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: [2011] FMCA 52
Decision Date: 28 February 2011

CaseChat Overview and Summary

In the matter of Khater v Minister for Immigration, the applicant, Mr. Khater, sought judicial review of a decision by a delegate of the Minister for Immigration to not remove a condition on his visa. The condition in question related to the requirement for Mr. Khater to reside in a specified location within Australia. The primary focus of the case was the delegate's assessment of whether the circumstances surrounding Mr. Khater's situation constituted 'compelling circumstances' warranting the removal of the condition on his visa.

The central legal issue before the court was whether the delegate's decision to not remove the condition on Mr. Khater's visa was unreasonable. The court was required to determine if the delegate had correctly interpreted the concept of 'compelling circumstances' and whether the evidence presented by Mr. Khater was sufficient to meet the threshold of compelling circumstances. The court also needed to consider whether the delegate had appropriately weighed all relevant factors in making the decision.

The court found that the delegate had correctly applied the relevant legislative provisions and had not erred in their interpretation of 'compelling circumstances'. It was held that the circumstances presented by Mr. Khater, while compassionate, did not meet the high threshold of being 'compelling'. The court also noted that the delegate had considered all relevant factors in making the decision and had exercised their discretion appropriately. The application for judicial review was dismissed, and the decision of the delegate was upheld as reasonable.

As a result of the court's decision, the application for judicial review was dismissed, and the decision of the delegate not to remove the condition on Mr. Khater's visa was upheld. The court found that the delegate's decision was not unreasonable and that the evidence presented by Mr. Khater did not meet the threshold of 'compelling circumstances'.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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