Yaacoub v Minister for Immigration

[2020] FCCA 2787

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAACOUB v MINISTER FOR IMMIGRATION [2020] FCCA 2787

Catchwords:
MIGRATION – Non-reviewable decision of a delegate of the Minister for Immigration – where Delegate refused no further stay request – whether the Delegate misunderstood the applicant’s evidence – whether the Delegate failed to identify the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), reg. 2.05

Applicant: ADEL YAACOUB

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 70 of 2020

Judgment of: Judge Street

Hearing date: 12 October 2020

Date of Last Submission: 12 October 2020

Delivered at: Sydney

Delivered on: 12 October 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondent: Ms P Durham Sparke Helmore

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 12 October 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 70 of 2020

ADEL YAACOUB

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in respect of a non-reviewable decision of a delegate of the respondent (“the Delegate”) refusing to waiver the no further stay condition 8503, made on 17 December 2019, and within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”). 

2. The applicant is a citizen of Lebanon and arrived in Australia on 22 May 2013 as the holder of a Tourist visa. That Tourist visa was the subject of a no further stay condition 8503. This is the third application by the applicant for a waiver of the no-stay condition. 

3. The first application was made on 12 February 2016 and was refused on 24 February 2016.  The applicant sought judicial review in the Federal Court, which was dismissed on 5 March 2018. The applicant lodged a second waiver request on 26 February 2019. That request was refused by a delegate on 27 March 2019. 

4. The current application was lodged by the applicant on 21 November 2019.

5. The Delegate correctly identified the requirements of reg 2.05(4) of the Migration Regulations 1994 (Cth) which were as follows:

   2.05(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 circumstances have developed:

   (i)over which the person had no control; and

   (ii)that resulted in a major change to the person’s circumstances; and

   (b)   if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

   (c)   if the person asks the Minister to waive the condition, the request is in writing.

6. It is not apparent that any of the applications are substantially different within the mandatory requirements of reg 2.05(4)(b) of the Regulations. They all turn on the applicant’s brother’s injury in 2015. 

7. The application to this Court is vexatious and an abuse of process. It has no reasonable prospect of success. Not only are the circumstances not substantially different but the Delegate relevantly found that there were not compelling circumstances because the applicant’s brother has a wife who can seek assistance for him.   

Before the Court

1. The proceedings were commenced on 10 January 2020 and a Registrar of the Court made orders on 13 February 2020 giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The matter was fixed for a show cause hearing today under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The applicant asserted orally that the Delegate had not taken into account the material he had provided in respect of his brother’s health. It is apparent on the face of the Delegate’s decision that the Delegate did take into account that medical information. 

5. The applicant referred to his own medical health, which was not in issue before, days before the Delegate. The applicant also referred to his dealing with lawyers and his request for ministerial intervention, none of which identified any arguable case of relevant error by the Delegate. The applicant’s submissions were, in substance, an invitation to engage in impermissible merits review.

6. The Court is troubled that the applicant has made a third application for waiver and with proceedings that had no prospect of success. Any further application of this kind, if found to be vexatious, may engage the Court’s powers under Pt 6B of the Federal Circuit Court of Australia Act 1999 (Cth). The applicant is not entitled to make multiple applications on the same grounds for a waiver. Proceedings of this kind should be the subject of an application in a case for expedition and prompt termination under the sovereign powers of the Court.

The grounds

1. The grounds in the application are as follows: 

   1.The Delegate of the Minister acknowledged the medical evidence submitted yet failed to act on it and wrongly misunderstood that my brother's circumstances are compelling.

   2.The Delegate of the Minister misapplied the law and failed to distinguish between compassionate and compelling.

Ground 1

1. There is no basis to find that the Delegate misunderstood the applicant’s evidence in relation to his brother’s circumstances. The fact that the applicant’s brother has a wife who could provide and seek assistance for the brother is a logical and rational basis that supports the Delegate’s decision. 

2. No arguable case of relevant error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the Delegate correctly identified the relevant law. It was open to the Delegate to find that the circumstances did not meet the requirement of being compelling. 

2. Ground 2 fails to identify any arguable case of relevant error. 

3. The Court is satisfied that the application has not raised an arguable case for the relief claimed. 

4. The Court is also satisfied that these proceedings were vexatious and an abuse of process. A further application by the applicant on the same grounds, if found to be vexatious, may give rise to the applicant being declared a vexatious litigant and prevented from bringing any further proceedings in this Court without the leave of the Court. 

5. The Court is satisfied this is an appropriate matter to exercise its powers under r 44.12 of the Rules. 

6. The application is dismissed under r 44.12 of the Rules. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 26 November 2020