Ajaj v Minister for Immigration
[2010] FMCA 873
•2 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AJAJ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 873 |
| MIGRATION – MRT decision – visitor’s visa application – whether genuine intention to return – assessment of previous immigration history and current attachments – misapprehension by Tribunal of material evidence – failure to consider important point favouring favourable assessment – jurisdictional error established – matter remitted. |
| Migration Act 1958 (Cth), s.368 Migration Regulations 1994 (Cth), Sch.2 cl.676.221(2)(a) |
| Khanam v Minister for Immigration & Citizenship [2009] FCA 966, (2009) 111 ALD 421 Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZMSD v Minister for Immigration & Anor [2009] FMCA 96 |
| Applicant: | FAYZE AJAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1029 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 2 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 8 April 2010 in matter 0910230.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 5 November 2009.
The first respondent pay the applicant’s costs, if any, as agreed or taxed under r.21.02(2)(c) and O.62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1029 of 2010
| FAYZE AJAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mrs Ajaj is the sister of Mr Abbas, who is a national of Lebanon. She and Mr Abbas are committed to his making a visit to Australia to see her children and his wider family in Australia. On 26 October 2009 an application for a subclass 676 visitor’s visa for six months duration was lodged on behalf of Mr Abbas with the embassy in Beirut by an unregistered migration agent, Mr Toufic Laba Sarkis. The exact contents of that visa application and the documents in support is not clear to the Court, since the relevant Department file has been lost.
There is, however, a computer printout of the decision‑making by a delegate at the embassy, which contains a short statement of his reasons for refusing the visa application:
The visa applicant is a 42yo unattached Lebanese national residing in Lebanon wishing to travel to Australia to visit his sister for a period of six months. The applicant claims to be employed as a pastry cook since 20 years. No evidence of personal funds provided. All supporting documents attached to the application. The applicant was approved a visitor visa in 1993 and departed Australia on a BV [illegible class] in 2000. PA claims to have departed Australia voluntarily and I have taken into consideration this was 9 years ago however based on the information provided with this application I am not satisfied with the claimed purpose of the visit. There is a high risk if the applicant was granted a visa he will not abide by visa conditions. PA has not shown he has strong incentives to return to his home country. I am not satisfied PA intends a genuine visit. I am not satisfied that all legislative requirements are met. 676.221(2)(a) not met. Therefore I am refusing the applicant a subclass 676 visitor visa. Application refused.
The delegate’s decision refusing the visa was made on 5 November 2009, and was communicated to Mr Abbas shortly thereafter. Mrs Ajaj had standing to appeal from the decision, and an application for review was lodged on her behalf by Mr Laba Sarkis on 30 December 2009.
As well as receiving the documents on the Department’s file, the Tribunal held two hearings on 9 March 2010 and 8 April 2010. At the first hearing, the Tribunal took evidence from Mrs Ajaj and Mr Abbas by telephone, and Mr Laba Sarkis was in attendance. At the second hearing, only Mrs Ajaj attended and gave evidence.
In the course of both hearings, the Tribunal discussed with Mr Abbas circumstances which might have a bearing on the issue which had concerned the delegate. This was the application of criterion 676.211(2)(a), which provided:
676.22Criteria to be satisfied at time of decision
…
(2)An applicant meets the requirements of this subclause if:
(a)the applicant satisfies the Minister that the applicant’s expressed intention to only visit Australia is genuine; and …
A transcript of both hearings has been prepared by Mr Laba Sarkis, and the Minister accepts for present purposes that it accurately records what was said in English.
In the course of the hearing, particularly at the second hearing, the Tribunal put squarely to Mr Abbas and Mrs Ajaj the concern arising from Mr Abbas’s previous migration history of visiting Australia. Mr Abbas had previously arrived in Australia in January 1993 on a one month tourist visa, but had remained in Australia until leaving in June 2000. During at least the first part of that period, he had continued his residence under bridging visas granted while he unsuccessfully pursued two protection visa applications. Bridging visas in relation to this activity appear to have expired in April 1998 and Mr Abbas did not depart until two years later.
In response to the Tribunal’s concern about Mr Abbas’s intentions in his current proposed visit, Mrs Ajaj and Mr Abbas claimed that he had developed a settled life in relation to employment and residence after his return from Australia, and that he provided essential support for his aging parents. They claimed that he had made a relationship with a Lebanese woman, whom he intended to marry after his return from his Australian visit.
In corroboration of Mr Abbas’s attachment to his domicile in Lebanon and his current intentions to return, Mrs Ajaj made a point which appeared very important to her. She said that after Mr Abbas returned to Lebanon he had declined an opportunity to acquire rights of residence in Australia at the invitation of a previous Australian girlfriend.
She made this point at the first hearing:
Member: Your bank statement and your brothers. The concern that the Tribunal has is with your brother’s immigration history. I need to consider if he has given me enough information to support him that he will return home from Australia. Previous occasions that has not happened so I need to consider bringing him here and making sure that he goes back to Lebanon.
Applicant:He doesn’t want to stay here because when he is back to Lebanon he had a girlfriend here she died to bring him back he said no. She called him all the time.
Member: So he had a girlfriend last time he was.
Applicant: Yes the girl he knows her very well when he go back she call him to bring him here like a husband he say no.
Member: So why do you think it’s different this time?
Applicant: Because he is engaged there.
Member: But do you think she might want to come out to Australia?
Applicant: He can’t bring her here if he stay here how he gonna bring her here he can’t. If he want to stay here he has to marry here he can’t bring her here.
Member: Is there anything else you want to add?
(emphasis added)
Unfortunately, it appears that the Tribunal member misapprehended Mrs Ajaj’s evidence, and erroneously formed the impression that the girlfriend she referred to had been resident in Lebanon when Mr Abbas was in Australia, and that Mr Abbas had previously declined to return to Lebanon at the request of a girlfriend there. That erroneous impression obviously pointed against, rather than in favour, of Mr Abbas’s claimed attachment to his current life and girlfriend in Lebanon.
That this was not, in fact, the true history being presented by Mrs Ajaj is clear from the transcript of the second hearing. This contains the following passage:
Member: So he went back to Lebanon?
Applicant: Yea he went back to Lebanon when the government asked him to leave. When the immigration asked him to leave back to Lebanon and after 5 years just I decide to bring him here on a visa that’s it. My brother now he have a good job he has house there he lives with my parents because my parents old and they need someone with them and another reason you know if you come to the Australia and for example you give him visa for three months or six months if you stay more than that that mean he destroy his life. He need like 6 or 7 years he can stay another 6, 7 years on the run you can’t do that he is until this age he is now 42 years old, over 42 years old and other thing if he wanna apply to stay in Australia like if stay 6, 7 years to give him visa to stay in Australia when he gonna get married? How long his fiancé gonna wait for him she can’t wait for him that long and other thing is he come to the Australia he talk to me he tell me if I come to Australia and make $1000 a week if I wanna buy 400‑450 dollars in rent what the future wait for me?
Member: So he has spoken to you about it.
Applicant: Yes believe me he spoke to me like that because his not interested stay here believe me when he back to Lebanon like I said before that girl she know him here she die to bring him back like a husband he refused. Year 2000 I went to Lebanon I was there when she called him and she talked to him believe me he shut the phone in front of her face he said to her I don’t want to go back to the Australia I don’t wanna that’s enough.
Member: Who is this girl you are talking about?
Applicant: Her name is [name] but I don’t know her now I do know her.
Member: Sorry is this someone he was engaged to last time or a girlfriend last time?
Applicant: Girlfriend yes.
Member: You saying she wanted him to come here?
Applicant: She wanted him to come back like a husband to bring him here like a husband he said no I don’t want it I tried my luck in Australia I stayed 7 years that’s it I don’t want to waste another 7 years of my life you know he’s older now to get married and have a family and here they have good wages, he have a house he have too many things there. He said it’s hard to come to Australia to start from zero when he come he want to stay like if he come here when he is on a visa tourist I keep him with me but after six months, three months I can’t keep him with me.
(emphasis added)
Although the Tribunal might appear on the transcript to have acknowledged and accepted the history being presented, its misapprehension of Mrs Ajaj’s evidence becomes apparent from its statement of reasons. In particular, from its misstatement of Mrs Ajaj’s evidence given at the second hearing, and its failure to address the pertinent point being made by her as corroboration of Mr Abbas’s attachment to Lebanon.
The Tribunal made no reference to the evidence at the first hearing concerning the Australian girlfriend’s offer to sponsor Mr Abbas, and misstated the evidence given by Mrs Ajaj at the second hearing. It described her evidence at the second hearing:
31.The Tribunal advised that at the previous hearing it had raised with her questions about the visa applicant’s immigration history. The Tribunal said it wanted to discuss that matter further in the hearing. The Tribunal said that it had access to the Departmental records which showed that the visa applicant arrived in Australia on 23 January 1993 on a visitor visa and he overstayed his visa, that he had subsequently lodged a protection visa application in 28 July 1993 and a further protection visa application on 11 August 1994 and remained in the country until 17 June 2000. The Tribunal said that it would consider whether his prior immigration history should be taken into account when considering whether he should be granted a visitor visa now. The Tribunal said his prior immigration history in Australia was information which could be the reason or part of the reason which might lead the Tribunal to affirm the decision to refuse the visa. The Tribunal said she could comment or respond to this and she could ask for more time to do so.
32.She said that his situation was different now. Last time he came to Australia, there was civil war everywhere in Lebanon and he liked it in Australia, so he stayed. Last time he stayed in Australia for seven years and left when he was asked to in 2000. She was not sure how long this was after he had exhausted his avenues of appeal which she guessed might have been in 1996 or 1997. He has told her that he is too old to waste more years trying to make a life in Australia and that it would be very expensive for him to live in Australia now. He has told her that if he stays in Australia, it will destroy his life. She said that last time his long‑term girlfriend had begged him for a long time to return to Lebanon as she wanted to marry him. She said he has a good job now and he cares for his parents. He is engaged to be married and at 42 years of age wants to have a family. She said he stayed in Australia a long time before because he was defrauded by a migration agent about his visa application. She said she did not have anything further to say.
(emphasis added)
There is nothing in the remainder of the Tribunal’s statement of reasons to dispel the inference that it decided the matter based upon its mistaken understanding of Mrs Ajaj’s evidence.
The Tribunal made its decision on 8 April 2010, affirming the delegate’s decision. In its “Findings and Reasons”, it referred to the requirement that the visa applicant must meet the requirement that “the visa applicant’s expressed intention only to visit Australia is genuine”. It recited guidelines of the Department manual, which includes as a first dot point an assessment of “personal circumstances that may encourage the applicant to leave Australia at the end of the proposed visit”, and also as a second dot point “the applicant’s immigration history”.
The Tribunal’s consideration of the issues raised by the criterion was short:
37.The evidence before the Tribunal is that the review applicant and her husband are self‑employed and they have the funds to provide for her brother’s visit to Australia and also to raise a security bond. The review applicant has provided a statement that she will provide accommodation and any other needs her brother may have.
38.The Tribunal is satisfied that the visa applicant has access to adequate funds for his personal support during the period of the proposed visit to Australia and that he has approved leave from his job as a baker.
39.The Tribunal has considered the personal circumstances that may encourage the visa applicant to leave Australia at the end of the proposed visit. The visa applicant said his brother and sister in Lebanon are able to care for his parents and intend to do so during his proposed visit to Australia. The visa applicant does not own any real estate in Lebanon. The visa applicant is single and is engaged to marry in October 2010.
40.The Tribunal has noted that the review applicant and the visa applicant have both stated that the personal circumstances in the applicant’s home country that may encourage the visa applicant to remain in Australia have changed since the visa applicant last came to Australia.
41.Nothing adverse is known to the Tribunal about the circumstances of the review applicant, insofar as these are relevant to the visa applicant’s intentions, nor is there any adverse and relevant information about the immigration activities in Australia of other nationals from Lebanon.
42.In the second hearing the Tribunal raised with the review applicant that the Departmental records showed that the visa applicant arrived in Australia on 23 January 1993 on a visitor visa and he overstayed his visa, that he had subsequently lodged a protection visa application in 28 July 1993 and a further protection visa application on 11 August 1994 and remained in Australia until 17 June 2000. The Tribunal said that it would consider whether this prior immigration history should be taken into account when considering whether he should be granted a visitor visa now. The Tribunal said his prior immigration history in Australia was information which could be the reason or part of the reason why the Tribunal might lead the Tribunal to affirm the decision to refuse the visa.
43.The Tribunal has carefully considered the evidence of the visa applicant and the review applicant, including the evidence of the review applicant at the second hearing. Having considering the evidence as a whole, the Tribunal places significant weight on the visa applicant’s prior immigration history.
44.For the above reasons, the Tribunal is not satisfied that the visa applicant’s expressed intention only to visit Australia is genuine and therefore finds that the visa applicant does not satisfy the requirements of cl.676.221(2)(a).
It is to be noted that while the Tribunal said that it “carefully considered the evidence of [Mrs Ajaj] … [given] at the second hearing”, this must be understood in the light of its significant misstatement of her evidence. Its failure to address the suggested significance of events concerning the Australian girlfriend’s invitation made after Mr Abbas’s return to Lebanon, tends to confirm that its mistake led it to assess that evidence as unhelpful to mitigate its assessment of the adverse weight to be given to Mr Abbas’s previous immigration history. In effect, the Tribunal’s misunderstanding seems likely to have augmented, rather than minimised, the significance of the immigration history, by raising a suspicion that Mr Abbas had no personal attachments to his Lebanese girlfriend and his life in Lebanon.
If the Tribunal had correctly appreciated the evidence and point made by Mrs Ajaj, then it is difficult to understand why it would not have discussed it. It was directly pertinent by showing that, after his previous immigration history, Mr Abbas had declined an opportunity to obtain residence in Australia.
The Tribunal was obliged by s.368 of the Migration Act 1958 (Cth), to set out a statement of reason containing its findings on material issues of fact, and it has failed to include its findings on a very material issue presented to it by the review applicant. The absence of any reference and discussion of the actual evidence on the issue given by Mrs Ajaj would allow the inference that it was ignored (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75], Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [33]‑[36], and Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 at [72] and [98]).
In all the circumstances, I conclude that the Tribunal did totally disregard this important evidence.
The Tribunal was obliged to perform a difficult factual assessment when determining the genuineness of Mr Abbas’s currently stated intentions. Matters of history bearing upon that assessment, whether it be his immigration history between 1993 and 2000, or his subsequent life in Lebanon as presented by him and Mrs Ajaj as corroborative of the truth of his claimed intentions to return after his proposed visit, were required to be appreciated and then weighed together by the Tribunal.
In my opinion, Mrs Ajaj’s evidence of Mr Abbas declining an offer of sponsored residence in Australia was of such importance to the case presented to the Tribunal as to require consideration by the Tribunal in the course of forming that judgment, as a matter of jurisdiction.
This is a case where, in view of the Tribunal’s clear misstatement of material evidence, I can conclude that it completely overlooked an important consideration which might have contradicted the considerations given dominant weight by the Tribunal.
In my opinion, this is a case where jurisdictional error of the type which I analysed in SZMSD v Minister for Immigration & Anor [2009] FMCA 96 at [23] and following, that of “ignoring relevant material” within the well‑known passage in Yusuf’s case at [82], has been established on the evidence before me.
The Tribunal did more than make a mistake about a piece of evidence before it. It failed to address an important component of the case presented by Mr Abbas and Mrs Ajaj to prove the genuineness of his intentions to return from Australia. I am satisfied that jurisdictional error similar to the error found by Collier J in Khanam v Minister for Immigration & Citizenship [2009] FCA 966, (2009) 111 ALD 421 at [30.5] has been made out.
It is not submitted that there is any discretionary reason for my declining to order the issue of writs. Mrs Ajaj informs me that her brother is still keen to visit Australia before marrying in Lebanon, and has postponed his marriage to await the outcome of the proceedings.
I consider that they have made out an entitlement for orders which will require the Tribunal to reconsider the matter.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 12 November 2010
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