Yaacoub v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1493
•30 November 2023
FEDERAL COURT OF AUSTRALIA
Yaacoub v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1493
Appeal from: Yaacoub v Minister for Immigration [2020] FCCA 2787 File number(s): NSD 1232 of 2020 Judgment of: DOWNES J Date of judgment: 30 November 2023 Catchwords: MIGRATION – application for extension of time and leave to appeal decision of (then) Federal Circuit Court of Australia dismissing application for judicial review – where proposed appeal is unmeritorious – where proposed appeal lacks utility – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Circuit Court Rules 2001 (Cth) rr 44.12(1)(a), (2)
Federal Court Rules 2011 (Cth) r 35.13
Cases cited: Yaacoub v Minister for Immigration [2020] FCCA 2787 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of hearing: 10 November 2023 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondent: Ms M Kelly of Sparke Helmore ORDERS
NSD 1232 of 2020 BETWEEN: ADEL YAACOUB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
DOWNES J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal is dismissed.
2.The applicant pay the respondent’s costs, fixed in the amount of $4,000.
3.The name of the respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWNES J:
This is an application for an extension of time and leave to appeal from a decision of the (then) Federal Circuit Court of Australia delivered on 12 October 2020: Yaacoub v Minister for Immigration [2020] FCCA 2787 (J).
As the legal principles are well-settled and there is no challenge by the applicant to either the facts or the Minister’s submissions in this proceeding as to the application of the legal principles to the facts, it is appropriate to deliver a short form judgment in this matter.
On 17 December 2019, a Delegate of the Minister refused the applicant’s third application for a waiver of condition 8503. The applicant applied for judicial review of the Delegate’s decision on two grounds. That application was heard by the primary judge on 12 October 2020, with judgment being delivered on the same date. The facts on which the primary judge relied are set out at [1]–[6] J. The primary judge dismissed the application pursuant to r 44.12(1)(a) of the (then) Federal Circuit Court Rules 2001 (Cth): [21]–[22] J. Such decisions are interlocutory in nature, and therefore require the Court’s leave to appeal: r 44.12(2), s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (as in force at the time).
APPLICATION FOR EXTENSION OF TIME AND LEAVE TO APPEAL
The applicant filed his application for an extension of time and leave to appeal on 16 November 2020. Accordingly, the extension of time which is sought is 21 days, applying r 35.13 of the Federal Court Rules 2011 (Cth).
The applicant’s affidavit material contains an explanation for the delay in filing the application (which explanation was not seriously challenged by the Minister), and no specific prejudice would be caused to the Minister if the application is granted, beyond the public interest in the finality of administrative decisions. Coupled with the relatively insignificant length of the extension of time which is sought, these factors weigh in favour of granting the extension of time.
However, the application will be dismissed because the applicant’s proposed substantive ground of appeal lacks merit, and the proposed appeal lacks utility in any event. Each of these matters will now be addressed.
1. Merits of proposed ground of appeal
The only formal ground of appeal proposed by the applicant was as follows:
His Honour Judge Street issued an Order on 12 October 2020. I have not yet received the full judgment and I do not agree with his Order because he failed to accept my compelling circumstances to waive the 8503 condition.
Although not pressed as a ground of appeal, the application for an extension of time also included the following statement, which effectively advances the same challenge to the primary judge’s findings, namely:
His Honour failed to accept that my brother’s circumstances are compelling and failed to remit the case back to the Department to be considered according to law.
Due to their commonality, I will treat these contentions as a single proposed ground of appeal, being to the effect that the primary judge failed to accept the applicant’s compelling circumstances to waive condition 8503. That claim is reiterated in the affidavit material filed by the applicant.
This proposed ground fails to appreciate that it was not the role of the primary judge to engage in merits review but to determine whether there was any jurisdictional error. As to whether there was any such error, the Delegate correctly identified the relevant legal framework for determining applications to waive condition 8503, and each of the findings relied upon by the Delegate to refuse the application was open to her based on the relevant provisions of the Migration Regulations 1994 (Cth) and the evidence which was before her (including the evidence of the applicant’s brother’s circumstances). It follows that the primary judge was correct to conclude that there was no basis to find that the Delegate had misunderstood the applicant’s evidence, and to dismiss the first ground of review: [15]–[16] J. Similarly, the primary judge did not err in dismissing the second ground of review because, as found by the primary judge, the Delegate had correctly identified and applied the relevant law to the applicant’s case: [17]–[18] J.
Insofar as the applicant appears to take issue with not having received the primary judge’s reasons at the time of filing his application, the parties were provided a copy of the primary judge’s reasons on 26 November 2020. Despite having had ample time to do so, the applicant did not amend his proposed grounds of appeal. This point is therefore without substance.
For these reasons, the applicant’s proposed ground of appeal has no reasonable prospect of success with the result that the application for extension of time should be dismissed. For the same reasons, the decision of the primary judge is not attended with sufficient doubt to warrant it being reconsidered on appeal. Further, as substantial injustice will not result if leave is refused, the application for leave to appeal should also be dismissed.
2. Utility of the proposed appeal
During the hearing and in a somewhat bizarre turn of events, the applicant produced a copy of a notification of approval of a request for waiver of condition 8503 from the Department of Home Affairs dated 12 January 2021. That notification post-dates the decision of the Delegate and the primary judge and indicates that the applicant has (now) successfully obtained a waiver of the condition that was to be the subject of any appeal, had his application succeeded. Not only does this approval provide further support for a conclusion that there will be no substantial injustice if leave to appeal is refused, but it demonstrates that any appeal would lack utility as the applicant has already obtained the result which he ultimately wants.
DISPOSITION
For these reasons, the application for the extension of time and leave to appeal will be dismissed with costs fixed in the amount of $4,000.00.
The Minister also sought an order that the name of the respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”. I will make that order.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes. Associate:
Dated: 30 November 2023
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