El Khatib v Minister for Immigration and Citizenship [2007] FCA 335

FEDERAL COURT OF AUSTRALIA

El Khatib v Minister for Immigration and Citizenship [2007] FCA 335 MOHAMAD EL KHATIB v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 1841 OF 2006

SPENDER J

1 march 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1841 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOHAMAD EL KHATIB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: SPENDER J DATE OF ORDER: 1 MARCH 2007

WHERE MADE: SYDNEY

THE COURT DIRECTS THAT:

1. The name of the respondent be changed on the file to 'Minister for Immigration and Citizenship'.

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant to pay the respondent's costs of and incidental to the appeal, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1841 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOHAMAD EL KHATIB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: SPENDER J

DATE: 1 march 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is a sad case. It is complicated by the very important difficulty that what is in issue on this appeal is the correctness of the decision of Lloyd-Jones FM made on 5 September 2006, that there was no error that had been able to be identified in the decision of the delegate of the Minister on the material that was before her. 2 The decision of the delegate was that the requirements of reg 2.05(4) for waiver of condition 8503 on the appellant's visa were not made out. Lloyd-Jones FM in paragraph 31 of his Honour's reasons for judgment commented: '31. … I initially adjourned the proceedings because it was apparent that the applicant had little comprehension of the operation of this Court and what he was attempting to challenge in respect of the delegate's decision. The advice that the applicant had received in the preparation of his case was misguided and placed him in an unamiable [unenviable] position. Despite the good intentions of his community worker[Mr Labrosakis], he was apparently not able to obtain the assistance of a qualified practitioner to assist and appear for the applicant. Further documents in the form of new affidavits were submitted. Regretfully [regrettably], these did not address the issue that was before the Court, but instead sought to raise a review of the merits of the original application on issues that were clearly not before the Minister's delegate. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists that suggested the Tribunal made a jurisdictional error in its decision-making process.' 3 Regulation 2.05(4)(a) of the Migration Regulations 1994 relevantly provide for waiver of the kind which the appellant sought. It relevantly required 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; …' 4 It is quite clear, particularly from the certificate of Health Services Australia, that the appellant's sister is in need of a carer and that her brother is willing and able to provide that care. The question for the delegate was, however, whether compelling and compassionate circumstances had developed since the person was granted the visa; that is to say, after 10 February 2005. Regrettably, the material that was before the delegate did not address that question. 5 The delegate's decision not to waive condition 8503 was based on the conclusion: '…The applicant has not provided any substantial evidence that circumstances have occurred since the grant of the Visa. The applicant's sister's depression is a pre-existing condition.' 6 Further, the delegate, in answer to the question, 'Did the circumstances result in a major change to the client's circumstances?' said: 'I am not satisfied that the applicant has experienced a major change in his circumstances. Mr El Khatib claims to be looking after his ill sister who has been suffering depression for a period of time. His sister's medical condition was pre-existing at the time of visa grant.' 7 Those reasons underpin the decision not to waive the 8503 condition. 8 Statements from Mr El Khatib subsequent to the making of the decision by the delegate, which addressed the question of whether there had been a change in circumstances since the grant of the visa, was not the material that was before the delegate. 9 In my judgment, the Federal Magistrate was correct to conclude that the facts that the applicant's sister was unwell and required care and that the applicant wished to provide that care were circumstances that had not developed since the grant of the visa. 10 The careful review of the material that was before the delegate as well as further material which the appellant sought to put before the Federal Magistrate reinforces that there is a misunderstanding by Mr El Khatib as to the basis on which his waiver was refused. 11 No error has been shown in the review by the Federal Magistrate of the decision of the delegate, and it follows that Mr El Khatib's appeal to this court has to be dismissed. 12 The orders of the Court are that the appeal be dismissed; the name of the respondent be changed on the file to 'Minister for Immigration and Citizenship'; and the appellant pay the respondent's costs, to be taxed if not agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.