YAACOUB v Minister for Immigration

[2017] FCCA 2183

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAACOUB v MINISTER FOR IMMIGRATION [2017] FCCA 2183

Catchwords:
MIGRATION – decision of the Minister’s delegate refusing to waive condition 8501 – whether the delegate’s decision was made according to law – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.41, 476.

Applicant: ADEL YAACOUB

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 445 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 445 of 2016

ADEL YAACOUB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a non-reviewable decision of the delegate made on 24 February 2016. That was a decision refusing to waive condition 8503 as the applicant wishes to remain in Australia to assist his brother, who suffered an injury following an accident.

2. The applicant is a citizen of Lebanon and was granted a Tourist (subclass 676) visa on 27 March 2013. The applicant arrived in Australia on 22 May 2013. The applicant applied for waiver of condition 8503 on 12 February 2016, on the basis of the applicant being needed to care for his brother who had been injured in March 2015.

3. The delegate identified the power to waive condition 8503 pursuant to s.41(2A) of the Migration Act. The delegate found that the circumstances of a waiver of the “no stay” condition 8503 were not met by the applicant. The delegate provided detailed reasons in support of that adverse finding.

4. The applicant contended that he was necessary to assist his brother and take him to places. The delegate correctly pointed out that the applicant has other family members residing in Australia and that the brother employs over 30 people in his business. It is clear that the delegate took into account the applicant’s claims in respect of the brother’s injury. The adverse finding by the delegate in relation to the waiver of condition 8503 was open on the material before the delegate.

5. The applicant had an opportunity to put material to the delegate in relation to that application for waiver. There was no failure by the delegate to comply with the statutory obligations in relation to the waiver decision. Further, on the face of the material before the Court, the applicant was afforded procedural fairness in the determination of the waiver by the delegate.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the delegate’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

2. The Court explained that if satisfied that the delegate’s decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the delegate’s decision was affected by relevant legal error, the application would be dismissed.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the respondent and then any submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The Court notes the applicant sought to rely upon a further affidavit, filed by the applicant before the Court on 2 August 2017. To the extent that that affidavit annexed material that was not before the delegate, it is not capable of identifying any relevant legal error by the delegate, and is not admissible. The affidavit was admitted subject to relevance. I reject as irrelevant material that was not before the delegate.

5. The applicant sought to take the Court to the material that was before the delegate and, in particular his assertions in relation to his brother’s need of his assistance. Nothing said by the applicant from the bar table identified any relevant legal error in the decision of the delegate.

Grounds of the application

1. The grounds of the application are as follows:

   1. The decision of the Delegate is affected by error as it failed to see the severity of the accident which is compelling and contrary to the comment made by the Delegate stating that my brother's circumstances are not compelling, my brother is unable to drive or undertake household chores such as gardening or anything which involves heavy lifting. The condition my brother is in is compelling and the decision is made contrary to the evidence provided.

   2. My brother's circumstances are supported by medical evidence and the decision made by the Delegate leads anyone to see that it is a wrong decision and that the Department misunderstood the severity of the circumstances and misapplied the law by not waiving 8503 condition.

   3. The Department acted contrary to regulation 2.05(4) as listed in the decision.

Consideration

Ground 1

1. Ground 1, in substance, is a disagreement with the adverse finding by the delegate and does not identify any relevant legal error.

Ground 2

1. Ground 2 asserts a misunderstanding of the facts. It is not apparent on the material before the Court that there was any misunderstanding of the applicant’s claims and evidence by the delegate. The adverse decision in relation to the applicant was open. Ground 2 is, in substance, an invitation for this Court to engage in an impermissible merits review. No relevant error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, the bare assertion of the delegate acting contrary to the provision reflects a disagreement with the outcome. It does not identify any relevant legal error. On the face of the material before the Court, the delegate complied with the applicable statutory obligations and afforded the applicant procedural fairness.

2. Accordingly, the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  27 February 2018

CORRECTIONS

1. The incorrect and unapproved extempore reasons were uploaded by error on 28 September 2017. The correct approved version of the extempore reasons was forwarded for uploading on 5 October 2017 and erroneously the incorrect version was posted to and was not uploaded onto the ECF. The correct approved version dated 5 October 2017 was also sent to the parties and uploaded onto the ECF.