FEDERAL COURT OF AUSTRALIA

Zaoui v Minister for Immigration and Citizenship [2012] FCAFC 70

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal from a decision of Foster J given on 16 December 2011 (Zaoui v Minister for Immigration and Citizenship [2011] FCA 1469) dismissing an application for judicial review under s 476A(1)(b) of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 26 July 2011 (Re Samir Zaoui and Minister for Immigration and Citizenship [2011] AATA 515.

2    The Tribunal affirmed the decision of the delegate of the Minister to cancel the appellant’s Return (Residence) (Class BB) visa pursuant to s 501(2) of the Act.

3    When the appeal was called, the appellant applied for an adjournment. He relied on an affidavit sworn by him dated 8 May 2012 and on the annexures which referred to his medical condition.

4    We refused the adjournment application. Our reasons were that the medical evidence was too slight and did not support the application, particularly paras 3 and 4 of the appellant’s affidavit. As to the expressed desire to seek legal representation, there was no material showing why the appellant had left that attempt so late. We note that the decision under appeal was given on 16 December 2011, some five months ago. Moreover, there is nothing in the appellant’s affidavit or the additional material that was relied upon by the appellant to suggest that, even if an adjournment were granted, there were any real prospects that he would obtain legal representation.

5    Further the Notice of Appeal identifies no grounds and no errors on the part of the primary judge. The grounds and submissions previously relied on were fully considered by the primary judge. In our opinion, contrary to the appellant’s assertion in para 5 of his affidavit, the appeal presents a weak case.

6    The Notice of Appeal filed on 19 January 2012, under the heading “Grounds of appeal”, says no more than “I appeal against the decision of Judge Foster on 16 December 2011. I also appeal against the decision of Tribunal.” Under “Orders sought” the Notice says “The decision of Federal Court Judge be set aside and that the applicants visa not be cancelled and also the serious emotional effect on my four children and my partner if I be deported to Algeria.”

7    No error in the judgment under appeal is thus identified in the Notice of Appeal and no such error has otherwise been identified. When asked whether he wished to address the Court on the substance of the appeal, the appellant responded that he had nothing to say based on his medical condition.

8    Further, no relevant error in the decision of the Tribunal has been shown. As to the hardship that would be suffered by the appellant’s partner and children if he were deported, this was a matter the Tribunal took into account in the appellant’s favour, as the primary judge held at [30].

9    The learned primary judge gave detailed reasons for his decision, which we have carefully considered. His Honour dealt with the arguments in his reasons. We are in full agreement with what his Honour has said about them and we see no reason to add to what he has written. In substance both the application for judicial review and the appeal to this Court have been, purportedly, on the merits of the Tribunal’s decision which it is not for this Court to consider: see the judgment of the primary judge at [25]-[28]. Subject to judicial review, the Parliament has vested in the Tribunal and not in this Court the statutory power to decide on the merits whether or not the appellant’s visa should be cancelled.

10    In these circumstances we dismiss the appeal with costs.

Associate:

Dated:    14 May 2012