Elafifi v Minister for Immigration and Border Protection [2017] FCA 969

FEDERAL COURT OF AUSTRALIA

Elafifi v Minister for Immigration and Border Protection [2017] FCA 969 Appeal from: Elafifi v Minister for Immigration and Border Protection [2017] FCCA 323

File number: NSD 336 of 2017

Judge: DOWSETT J

Date of judgment: 24 August 2017

Catchwords: MIGRATION – appeal from a summary dismissal of the Federal Circuit Court – where s 48 precludes the appellant obtaining the visa applied for – appeal dismissed

Legislation: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001 (Cth)

Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30

Date of hearing: 9 August 2017

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 14

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Ms R Francois

Solicitor for the Respondent: DLA Piper

ORDERS NSD 336 of 2017

BETWEEN: YOUSSEF MAHMOUD EL BAKRY ELAFIFI Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: DOWSETT J DATE OF ORDER: 24 august 2017

THE COURT ORDERS THAT:

1. the appeal be dismissed; and 2. the appellant pay the respondent's costs of the appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

introduction 1 The appellant is a citizen of Egypt, who arrived in Australia on 23 November 2007 on a Tourist (Short Stay) (subclass 676) visa. The appeal in the present case concerns alleged error by the Federal Circuit Court (the "Circuit Court") in striking out the appellant's application for review of a decision to refuse him an Other Family (Residence) (class BU) Carer subclass 836 visa (the "836 visa"). 2 On 8 February 2010 in Australia, the appellant married, and subsequently applied for a Partner (Temporary) (class UK) subclass 820 visa (the "820 visa"), and a Partner (Residence) (class BS) subclass 801 visa (the "801 visa"). On 23 August 2011, a delegate of the respondent (the "Minister") refused the appellant's application. That decision was affirmed by the Migration Review Tribunal (the "Tribunal") on 31 October 2013. However it was later set aside by consent and remitted back to the Tribunal by the Circuit Court. The Tribunal again affirmed the delegate's refusal to grant a visa. The appellant did not seek review of that decision. 3 On 24 February 2015, a delegate of the Minister purported to make a fresh decision to refuse the application for the 801 visa, due to an, "error in the decision to refuse to grant you a [801] ... visa" and an, "incorrect notification" of the decision. As a result the time in which the appellant could apply to the Tribunal for review of the decision had not expired. On 12 March 2015 the appellant again applied to the Tribunal for review. On 16 June 2015 the Tribunal found that it did not have jurisdiction in the matter as it had already made a decision to affirm the refusal to grant an 801 visa. The appellant did not seek review of the decision dated 16 June 2015.