Ahmed v Minister for Immigration

[2014] FCCA 719

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 719

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.359A
Migration Regulations 1994 (Cth)

Applicant: IQRA AHMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2566 of 2013

Judgment of: Judge Driver

Hearing date: 9 April 2014

Delivered at: Sydney

Delivered on: 9 April 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2566 of 2013

IQRA AHMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 22 October 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 18 September 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the visa applicant a Sponsored (Visitor) (Class UL) visa.  The visa applicant applied to the Minister’s Department for the visa on 17 December 2012.  At the time the visa application was lodged, Class UL contained two subclasses, Subclass 459 (Sponsored Business Visitor (Short Stay)) and Subclass 679 (Sponsored Family Visitor)[1].

   [1] item 1217A of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations)

2. In the present case, having regard to the application forms prescribed for the class, the relevant subclass is Subclass 679.  The criteria for a Subclass 679 visa are set out in Part 679 of the Schedule 2 to the Regulations.  A primary criterion to be satisfied at the time of decision is clause 679.224 which requires the visa applicant to satisfy the Minister that the visa applicant’s expressed intention only to visit Australia is genuine.

3. The Minister’s delegate refused to grant the visa on 24 December 2012 on the basis that the visa applicant did not meet clause 679.224 because the delegate was not satisfied that the visa applicant’s intention to only visit Australia was genuine.  The review applicant, Ms Ahmed, – the present applicant before the Court – appeared before the Tribunal on 19 June 2013 to give evidence and present arguments.  The Tribunal also received evidence from Ms Ahmed’s mother and the visa applicant.  Ms Ahmed’s grandfather also gave evidence.

4. On 25 June 2013, the Tribunal sent Ms Ahmed a letter pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act). Ms Ahmed sought and was given additional time to respond to that letter. She provided that response on 21 August 2013 and included psychiatric reports and letters of support from members of Parliament. On 22 August 2013, further information was provided to the Tribunal from Ms Ahmed’s representative. Ms Ahmed said, among other things, that her father should have been granted a permanent sponsored employment visa, noting that he had fought a decision to refuse that visa through the legal system.

5. Ms Ahmed also noted that her father could have remained in Australia when he was last here until his visa expired in December 2008 and that his visit to Australia to see his children is profoundly genuine.  The Tribunal considered the material submitted by Ms Ahmed and the evidence given by the family members before the Tribunal.  However, at [26] of its reasons[2], the Tribunal concluded that the presence of the visa applicant’s children in Australia was a significant incentive for him to remain in Australia beyond the stated intended period of stay.

   [2] court book, page 110

6. The Tribunal also said that the visa applicant’s migration history indicates that he wished to remain in Australia permanently.  The Tribunal found that those factors were not outweighed by his admitted ties to Pakistan, in particular, his elderly parents who live there.  The Tribunal was not satisfied that the visa applicant intended to remain in Australia for his stated period of stay and found therefore that the requirements of clause 679.224 had not been met.

7. In her show cause application, Ms Ahmed states that the Tribunal member failed to take the visa applicant’s children’s interest into account in considering whether to grant the visa.  While continuing to rely upon that application, Ms Ahmed refined her arguments in written submissions which she tendered in court this afternoon.  In relation to the Tribunal decision, Ms Ahmed states that the Tribunal affirmed the delegate’s decision despite medical reports supporting the visit of her father and evidence of her father’s employment in Pakistan as a taxi driver.  Additionally, Ms Ahmed states that her father’s responsibility to take care of his elderly parents in Pakistan who entirely depend on him was ignored.  For those reasons, Ms Ahmed strongly believes that the Tribunal has profoundly failed to take into consideration the best interests of her siblings and herself to grant her father a visitor visa. 

8. I have before me as evidence the court book filed on 28 November 2013 and a supplementary court book filed on 29 January 2014. 

9. The issue before me is whether Ms Ahmed has an arguable case that the Tribunal fell into jurisdictional error.

10. As I understand her submissions, both written and oral, Ms Ahmed’s proposition is that the Tribunal’s decision is unreasonable because it ignored relevant and probative material.  That material included medical evidence of the psychological problems suffered by members of the family due to the absence of the visa applicant who left Australia in 2008, evidence of secure employment he has in Pakistan which would draw him back to that country, and evidence of his responsibility to take care of his elderly parents.

11. The Tribunal, in its letter sent pursuant to s.359A of the Migration Act, dated 25 June 2013, drew attention to the visa applicant’s migration history. He arrived in Australia in 2001 and applied for an Employer Nomination Scheme visa on 11 December 2003. He was nominated by a business called Unique Tannery operated by Sherafzal Khan. On 30 January 2004, the Minister’s Department conducted a site visit at the claimed business address of Unique Tannery and found that it was a residential unit and a leather goods workshop or factory.

12. The Tribunal considered that information relevant to the decision under review because, at the hearing, Ms Ahmed stated that Mr Khan is her mother’s uncle, which indicated that her father and Mr Khan were related by marriage.  The Tribunal pointed out that this might lead it to suspect that the employer nomination may not have been genuine and that Ms Ahmed’s father may have been involved in some deceptive conduct.  This bore upon the credibility of the visa applicant and his assertion that his wish to visit Australia temporarily was genuine.

13. The visa applicant entered Australia on a Temporary (Skilled) Work visa.  Following the refusal of the Employer Nomination Scheme visa, he lodged a review application to the Tribunal which affirmed the decision.  That decision was, in turn, unsuccessfully appealed to this Court (then the Federal Magistrates Court), the Federal Court and the High Court.  The transcript of the High Court’s special leave application appears on pages 30 and 31 of the supplementary court book.  Special leave was refused.

14. The Tribunal also pointed out in its s.359A letter that following the visa applicant’s departure from Australia, Ms Ahmed’s mother and her three children, including Ms Ahmed, were granted protection visas on the basis of alleged domestic violence suffered at the hands of the visa applicant[3].  Ms Ahmed’s mother gave evidence at the Tribunal hearing that she had concerns for Ms Ahmed if she were to visit Pakistan because her father might force her into an arranged marriage.  That was a concern apparently shared by others.  The Tribunal considered that that concern bore on the visa applicant’s character and the view of his likely conduct.

    [3] and presumably the lack of effective state protection in Pakistan or the risk that protection might be refused for a Convention reason.

15. Ms Ahmed sought to answer those concerns in her response to the Tribunal’s invitation to comment.  She sincerely believes that her father has changed.  In her oral submissions today, Ms Ahmed argued cogently that the weight of evidence supported the proposition that her father’s intention to visit Australia temporarily was genuine and that the visitor visa should have been granted. 

16. The legal issue, however, is whether there is an arguable case that the Tribunal ignored relevant material, whether or not the decision was unreasonable in a legal sense.

17. On my reading of the Tribunal decision, it did give consideration to all of the available material.  The Tribunal’s focus was clearly on the significant adverse considerations of the visa applicant’s previous visa history in Australia, the visa history of Ms Ahmed’s mother, siblings and herself and the risk posed by the fact that the visa applicant’s close family members were in Australia and would remain here.  Viewed as a whole, and fairly, I am not persuaded that an arguable case exists either of legal unreasonableness or a failure to take into account relevant material.

18. I have discussed during the course of the hearing with Ms Ahmed other options that may be available to her[4]. The outcome of the present application is that I will order that it be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

    [4] Among other things, the position of the visa applicant would be enhanced by parenting orders under the Family Law Act 1975 (Cth) in his favour. At present, no such application has been made.

19. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Ms Ahmed did not wish to be heard on costs. I discussed with Ms Ahmed her options for dealing with the debt that would be created by the costs order sought. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 April 2014