MAHMOUD v Minister For Immigration and Anor (No.2)

[2015] FCCA 2986

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHMOUD v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2986

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Visitor (class FA) visa – application for reinstatement – applicant failed to appear on first Court date – whether satisfactory explanation of the failure to appear – whether arguable case – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.16.05

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.600.211

Applicant: SALLAH MAHMOUD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1050 of 2015

Judgment of: Judge Street

Hearing date: 5 November 2015

Date of Last Submission: 5 November 2015

Delivered at: Sydney

Delivered on: 5 November 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms N. Blake
Clayton Utz

ORDERS

1. The name of the second respondent be changed to the Administrative Appeals Tribunal and the filing of further material in that regard is dispensed with. 

2. The application in a case is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $500. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1050 of 2015

SALLAH MAHMOUD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 30 October 2015 seeking an order under r.16.05 to set aside orders of the Court made on 14 May 2015. On 14 May 2015 the applicant failed to appear, and orders were made summarily dismissing the proceedings. The applicant’s affidavit for reinstatement is supported by an affidavit sworn 30 September 2015 which merely says:

   Everything on this form is correct, and please accept the attachments to this form.

2. No explanation is provided as to the failure or inability of the applicant to attend the first return date on 14 May 2015.  No explanation is proffered in relation to the delay that has occurred in the making of the application beyond the attachment of a letter of 6 July 2015 which refers to none of the documents being able to be processed and the requirement for the payment of a filing fee, together with a further letter dated 20 August 2015, again raising with the applicant the need to pay a filing fee. 

3. Whilst that may be a partial explanation for the delay, there is no evidence explaining the applicant’s circumstances surrounding that delay or the steps the applicant took to bring the matter back to the Court prior to the filing of the application on 30 October 2015.  The application for reinstatement is opposed by the first respondent.  The first respondent submits that the medical certificate annexed to the applicant’s affidavit is insufficient to provide any adequate explanation for the applicant’s failure to appear in Court on 14 May 2015. 

4. The first respondent points out that the medical certificate does nothing more than record the assertions of the applicant to the doctor. I accept the first respondent’s submission that the explanation for the failure to appear on 14 May 2015 provided by the applicant is inadequate. In determining whether or not the Court should exercise its powers under r.16.05, two issues arise: first, whether there is an adequate explanation for the delay; and second, whether there is a sufficiently arguable case to warrant in the interests of the administration of justice the reinstatement of the proceedings. I do not regard the applicant’s explanation for the delay as adequate, and on that ground alone I would refuse to set aside the orders that were made.

5. The first respondent, however, went on to point out that the application in the present case was one that failed to disclose any sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.  The grounds of the application are as follows:

   l. The Migration Review Tribunal made an error of law on the basis that on the materials before it there was no evidence to establish that the applicant was affected by any problems in Lebanon as his address is Ardeh, Zghorta, North Lebanon and the Member relied on wrong area country information. There are no problems in Ardeh and surroundings.

   2. The Tribunal denied the visa applicant natural justice and fairness by failing to take evidence from him as requested in the Response to Hearing form.

   3. The Tribunal failed to ask the visa applicant about the form 1418 which was completed by Gitani Travel Co. which leads the Court to cast any doubt as to why there was no disclosure of full history as mentioned by the Tribunal.

   4. Based on the material before the Tribunal such as: applicant's family overseas, work commitment, references from Al Beit Al Kadim Restaurant, Hammoud Establishment, passport (previous visit), title deed ownership of property, the Tribunal's decision is unreasonable because it does not have any adverse information to lead to such a decision.

6. The application was one for a Constitutional writ in respect of the decision of the Tribunal made on 12 March 2015 affirming the decision not to grant the visa applicant a visitor (Class FA) visa.  The visa applicant is in Lebanon, and the review applicant is in Australia.  It is clear from para.11 of the Tribunal’s reasons that the Tribunal raised with the review applicant the considerable difficulties in northern Lebanon which may induce the visa applicant to attempt to seek safety in Australia.  It was a matter for the Tribunal to determine what weight to give the country information.  Nothing identified in ground 1 identifies any arguable jurisdictional error. 

7. It is apparent from the Tribunal’s reasons, and in particular, para.8, that the review applicant attended the hearing to give evidence and present arguments.  The statutory scheme in relation to the review is one in respect of which it is the review applicant that had the right to appear and present arguments.  There is no substance in the proposition that the visa applicant in Lebanon had to be invited to attend to give evidence at the hearing in respect of that visa application.  Ground 2 fails to disclose any arguable jurisdictional error. 

8. In relation to ground 3, the Tribunal raised the failure of the visa applicant to make full and frank disclosure in his application for the visa.  Relevantly, the Tribunal said:

   13. The departmental decision provided by the review applicant to the tribunal indicated that the visa applicant had failed to disclose previous visa applications and refusals when making this application. The review applicant explained that this was because his brother had relied on the assistance of an agent and they had made a mistake about the applicant’s previous applications. This was not an attempt to mislead authorities and his brother would have nothing to gain by trying to hide earlier applications.

   …

   23. The tribunal is also concerned by the fact that the visa applicant did not disclose the full history of his more recent attempts to visit Australia. He has had a series of applications for temporary travel to Australia refused but these were not disclosed in respect of the current application. While this has been blamed on an agent who assisted the visa applicant, the tribunal does not accept this explanation. The form does not disclose that assistance was provided at question 38 and otherwise provides comprehensive and clear details about the visa applicant’s circumstances. This failure to disclose previous unsuccessful applications has increased the tribunal’s concern about the current intentions of the visa applicant as it indicates an intention to minimise the scrutiny of earlier applications.

9. It was clearly a matter for the Tribunal to take into account the nature of the disclosure that had been made by the visa applicant in determining whether cl.600.211 was met in the present case, and in deciding whether the Tribunal was satisfied the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly, ground 3 fails to disclose any arguable jurisdictional error.

10. I accept the first respondent’s submission that ground 3 appears to be an impermissible challenge to the findings of the Tribunal and seeking to revisit the merits of the matter.  I accept the first respondent’s submission that the adverse findings of the Tribunal cannot be said to lack an evident and intelligible justification.  I accept the first respondent’s submission that ground 4 fails to identify any arguable jurisdictional error.

11. From the bar table, the applicant asserted that he was very sick and that he was waiting for some documents to arrive.  Neither of those propositions were supported by evidence to adequately explain the delay in the present case.  The applicant also advanced reasons why it was he contended his brother would return to his family in Lebanon, as well as identifying that this was what had occurred before.  These were matters for the Tribunal to determine and do not identify any arguable jurisdictional error.  I am not satisfied that there is a sufficiently arguable case to warrant the setting aside of the orders made on 14 May 2015 in the interests of the administration of justice.  The application in a case is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 November 2015