Ramos v Minister for Immigration - [2017] FCCA 2412

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMOS v MINISTER FOR IMMIGRATION

[2017] FCCA 2412

Catchwords:
MIGRATION – Review of decision of a delegate of the Minister refusing to waive no further stay condition on a visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.41, 351, 417

Cases cited:

Anani v Minister for Immigration [2013] FCCA 1140

Cheema v Minister for Immigration [2011] FCA 121

Dogolau v Minister for Immigration [2012] FMCA 529
Farhat v Minister for Immigration [2017] FCCA 347

Minister for Immigration v Hossain [2017] FCAFC 82

Minister for Immigration v SZJSS (2010) 243 CLR 164

SZGIZ v Minister for Immigration [2013] FCAFC 71

Applicant:

ROSARIO YDEO RAMOS

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 1837 of 2016

Judgment of:

Judge Driver

Hearing date:

3 October 2017

Delivered at:

Sydney

Delivered on:

3 October 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr A Keevers of Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $3,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1837 of 2016

ROSARIO YDEO RAMOS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Ms Ramos, seeks judicial review of a decision of the delegate of the Minister (the delegate) made on 20 June 2016. The delegate refused a request by Ms Ramos for a waiver of condition 8503 (no further stay) attached to her last substantive visa. The Court has jurisdiction to review the delegate’s decision because the decision was not subject to any merits review by the Administrative Appeals Tribunal. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 26 September 2017.
Ms Ramos, a citizen of the Philippines, entered Australia on 21 December 2004 as the holder of the visitor visa. Following a period of unlawfulness, she applied for a protection visa, which was refused by a delegate. Ms Ramos sought ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (Migration Act), but subsequently withdrew the request.
The visitor visa was subject to condition 8503, known as the “No Further Stay Condition,” which relevantly provided that:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the subject remains in Australia.
Pursuant to s.41(2A) of the Migration Act, the Minister or his delegate may, in prescribed circumstances and by writing, waive condition 8503. The “prescribed circumstances” referred to in s.41(2A) of the Migration Act are set out at regulation 2.05(4) of the Migration Regulations 1994 (Cth) (Regulations) as follows:
(4) For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate…

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 2412
Decision Date: 3 October 2017

CaseChat Overview and Summary

In *Ramos v Minister for Immigration*, the applicant, Mr. Ramos, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa. The dispute centred on whether Mr. Ramos met the criteria for protection under Australian law, specifically concerning his claims of persecution. The matter was heard by Judge Driver in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had erred in law in assessing Mr. Ramos's claims for protection. This involved determining whether the delegate had properly considered all relevant evidence, applied the correct legal standards in assessing the risk of harm, and whether the ultimate decision was affected by jurisdictional error.

Judge Driver's reasoning focused on the principles of administrative law, particularly the requirement for decision-makers to undertake a proper and logical assessment of the evidence presented. The court examined whether the delegate had adequately considered the specific circumstances of Mr. Ramos's claimed persecution, including the credibility of his account and the objective likelihood of harm upon return to his country of origin. The judge applied the established legal tests for assessing claims of persecution and the standard of proof required.

The court found that the delegate had failed to properly consider certain aspects of Mr. Ramos's evidence and had made an error in assessing the risk of harm. Consequently, the decision of the Minister was set aside, and the matter was remitted to the Minister for redetermination according to law.

Orders