METWALLI v Minister for Immigration

[2016] FCCA 712

FEDERAL CIRCUIT COURT OF AUSTRALIA

METWALLI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 712

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – show cause – whether bias – no arguable jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: MOHAMED METWALLI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3309 of 2015

Judgment of: Judge Street

Hearing date: 1 April 2016

Date of Last Submission: 1 April 2016

Delivered at: Sydney

Delivered on: 1 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms S Sangha
Mills Oakley Lawyers

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3309 of 2015

MOHAMED METWALLI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 5 November 2015 affirming a decision of the delegate not to grant the applicant a visitor class FA visa. The applicant is a citizen of Egypt. The applicant arrived in Australia on 24 June 2014 as a holder of visitor class FA subclass 600 tourist visa. That visa allowed the applicant to remain in Australia up until 24 September 2014.

2. On 15 September 2014, the applicant lodged a visitor class FA subclass 600 tourist visa and requested to have the visa extended up until 24 September 2015.  On 15 September 2014, the applicant’s visitor class FA subclass 600 tourist visa was granted up until 24 June 2015.  On 20 June 2015, the applicant lodged a further visitor class FA subclass 600 tourist visa application and requested to have this extended up until 24 June 2016. 

3. In circumstances where the applicant has spent more than 12 consecutive months as the holder of a visa class FA subclass 600, the applicant must establish that exceptional circumstances exist for the grant of a further visa.  The applicant’s wife is an American citizen and the applicant had hoped that his wife would join him in Australia and had anticipated making further plans once that occurred. 

4. The delegate found that there were not exceptional circumstances for the grant of a visa.  The applicant applied to the Tribunal for a review by letter dated 25 September 2015.  The applicant was invited to attend a hearing on 2 November 2015 to give evidence and present arguments.  The applicant appeared before the Tribunal on 2 November 2015 to give evidence and present arguments.  To the applicant’s credit, he was found to be an honest witness and was candid in the evidence that he gave.  However, as raised by the Tribunal member with the applicant, the circumstances that he explained did not establish exceptional circumstances. 

5. The applicant did refer to the difficulty his wife had in coming to Australia in support of his contention of there being exceptional circumstances as well as referring to the uncertainty and potential problems in his country of nationality.  It was a matter for the Tribunal to determine the merits of the application and the Tribunal was not satisfied as a matter of fact that there were exceptional circumstances for the grant of the visa.  That adverse finding was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

6. On 11 February 2016, a Registrar of the Court made orders fixing the matter today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The Registrar also provided an opportunity to provide an amended application, affidavit evidence and submissions.  The applicant filed an affidavit annexing the transcript. 

7. At the commencement of the hearing today, the Court explained to the applicant that the show cause hearing under r.44.12 was to determine whether there was an arguable case. The Court explained that there needed to be an arguable case of legal error by the Tribunal. The Court explained that the relevant legal error by the Tribunal was an excess of its statutory powers or a denial of procedural fairness to the applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

8. The grounds of the application are as follows:

   1. The Tribunal failed to accept my exceptional circumstances and failed to give me the extra requested time as they say I did not demonstrate exceptional reasons which I did. 

9. Insofar as the ground seeks to cavil with the adverse finding by the Tribunal that there were not exceptional circumstances, that is a challenge to the finding of fact made by the Tribunal and, as indicated, that adverse finding was open on the evidence before the Tribunal.  In the course of the hearing before the Tribunal, it is apparent from the transcript that the applicant wanted more time to stay in Australia and the desire by the applicant for more time to stay in Australia is not a ground that gives rise to any legal error by the Tribunal.  Ground 1 of the application fails to disclose any arguable case.

10. The applicant from the bar table addressed the Court in relation to his circumstances with the same candour and integrity that he had obviously given evidence to the Tribunal.  The applicant explained the difficulty that had occurred by reason of his wife being unable to travel to Australia and that this had adversely affected his plans and the applicant raised the potential lack of security in Europe and his desire to stay in Australia.  Those candid observations were not ones that identify any legal error by the Tribunal. 

11. The applicant did make reference to the delegate interrupting the applicant in the course of the hearing.  The Court has read the transcript of the hearing and it is apparent that the Tribunal was endeavouring to ensure that the applicant focused on the relevant issue of whether there were exceptional circumstances.  There is nothing in the conduct of the hearing on the face of the transcript by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal failed to bring an independent and impartial mind to the determination of the matter on its merits.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error. 

12. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.  However, I would observe, particularly in light of the applicant’s candour and honesty, that this is a person in respect of whom, if Ministerial representations are made by the applicant in the form of a request for intervention by the Minister, there may be merit in such an application.  That is, however, a matter for the Minister to determine. 

13. The application is dismissed under r.44.12.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016