Al Charif v Minister for Immigration
[2009] FMCA 783
•30 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AL CHARIF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 783 |
| MIGRATION – Review of MRT decision refusing to grant a tourist visa – where applicant had arrived in Australia under a prospective marriage visa which was no longer valid – whether Tribunal failed to take into account a relevant consideration – where grounds of review not particularised. |
| Migration Act 1958, s.499 Migration Regulations 1994 |
| Applicant: | KHODR AL CHARIF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3259 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 July 2009 |
| Date of Last Submission: | 30 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2009 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr Y Shariff |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3259 of 2008
| KHODR AL CHARIF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application Mr Al Charif seeks judicial review of a decision of the Migration Review Tribunal made on 13 November 2008 affirming a decision not to grant him a tourist (class TR) visa. Mr Al Charif was in Australia when he made that application, having arrived as the beneficiary of a prospective marriage (sub-class 300 visa). He had arrived in Australia as the holder of that visa on 2 September 2007 but the sponsorship from his prospective spouse was withdrawn on 17 September 2007.
The delegate of the Minister refused to grant the tourist visa and provided the applicant with a decision record which indicated that he was not satisfied that Mr Al Charif was a genuine visitor for the purpose of the application. Because of this the delegate concluded that Mr Charif did not satisfy clauses 676.211, 676.221(2)(a) or 676.221(3)(d) of the Migration Regulations 1994 (the “Regulations”).
In the Statement of Decision and Reasons of the MRT at [CB 80], the Tribunal notes that the primary criterion to be satisfied at the time of application is clause 676.211 of the Regulations and this requires that the applicant satisfies the Minister that at the time of application the applicant’s expressed intention to only visit Australia is genuine. At the time of decision the applicant must meet the requirements of either clause 676.221(2) or (3) and those provisions include a requirement that the visa applicant satisfies the Minister that his or her expressed intention to only visit Australia is genuine: Reg 676.221(2)(a), 676.221(3)(d).
The Tribunal points out that in considering whether a person satisfies the criteria it must have regard to Ministerial Direction number 36 of 2005. The Tribunal is obliged to comply with the Minister’s directions made under s.499 of the Migration Act 1958 (the “Act”) to the extent that they are consistent with the Act or regulations.
At [CB 81] the Tribunal sets out paragraph 8 of Direction 36 which specifies the relevant considerations for determining whether or not an applicant intends a genuine visit.
In the application form 601 [CB 1 – 6], the applicant provides as his reasons for requesting the further stay in Australia as “war in Lebanon, very scared to go back”. The applicant gave further details to the delegate indicating that he did not want to leave Australia because he might not have a job in Lebanon and this was one of the reasons why the delegate came to the decision she did.
The applicant was assisted by an advisor in his application to the Tribunal. The advisor made a submission to the Tribunal indicating that the applicant was not physically or mentally prepared to depart Australia, he did not have a job or home to return to in Lebanon and he was ashamed of facing his friends and relatives in Lebanon after the failure of his marriage. It was said that the applicant needed to stay in Australia for a few more months to organise his belongings and prepare himself mentally to return to Lebanon.
At the hearing before the Tribunal the applicant was asked why he had applied for a visitor’s visa and he said that when he applied it was because there had been a war in Lebanon and the airport was not open. The Tribunal advised the applicant that a fear of returning home was not a ground for providing him with a tourist visa.
“[23]The Tribunal again explained in some detail what it was legally required to be satisfied about in relation to the grant of the Tourist visa. It was explained that personal circumstances that may encourage the applicant to return to his home country had to be taken into account. It was explained that to this point the evidence he had submitted related to his personal circumstances or other conditions in his home country which might encourage him to remain in Australia, including his economic situation and the civil disruption in Lebanon.” [CB 83]
The applicant brought witnesses to the Tribunal hearing who indicated that they would support the applicant in Australia but also told the Tribunal that the applicant’s hopes had been dashed which was why he did not wish to return to Lebanon.
At [CB 83] the Tribunal noted:
“[26]It was put to the applicant in accordance with s.359AA of the Act, that at this stage it did not appear that he had put forward sufficient evidence of personal circumstances that might encourage him to return to Lebanon in order to satisfy the legal requirements for the grant of the visa.”
The applicant was granted further time to make submissions which he did on 11 November 2008. The letter he wrote on that day is referred to by the Tribunal and it appears at [CB 73]. Today, before me, the applicant said that that was only one half of the letter and he produced what he claimed to be the other half. However I note that the fax headers and footers on [CB 73] indicate that this page was one of one page that was sent. The Minister’s counsel advises me that there is no record on the files that he or his instructing solicitor have in their possession that would indicate that any more than one page was sent.
In any event, the matters that were raised in the first page refer to the closure of Beirut Airport, the problems that the applicant had with his fiancée and the fact that he did not have a job in Lebanon because he had given it up upon the grant of the spouse visa. These are all matters that were considered by the Tribunal.
In its Findings and Reasons the Tribunal dealt with the matter by giving consideration to each and every one of the matters raised in the Ministerial Direction and came to the conclusion that:
“[32]The applicant’s personal circumstances which may encourage him to remain in Australia are considerably more persuasive than any circumstances which may encourage him to return to Lebanon. His economic situation in Lebanon, the shame of the relationship breakdown, the lack of secure employment prospects, together with an unstable political situation, as outlined by the applicant in his evidence, override, in the Tribunal’s view, his desire to return to his family. The Tribunal has formed the view that the reasons which might encourage the applicant to stay in Australia are more compelling than any reasons which might encourage him to return to Lebanon.” [CB 85]
The Tribunal concluded that it could not be satisfied that the applicant had a genuine intention to “visit” Australia as opposed to “remaining” in Australia.
On 10 December 2008 the applicant filed an application with this court seeking review of the decision of the Migration Review Tribunal. He stated as his grounds for application that:
“1. The Tribunal ignored important material –closure of Beirut airport;
2. The Tribunal misunderstood the question it had to decide;
3. The Tribunal misapplied the law.”
The applicant did not provide any particulars of grounds (2) or (3).
Ground (1) of the application cannot be sustained. The Tribunal decision refers to the applicant’s concerns about the closure of Beirut airport at [21] of [CB 83]. It also notes the letter of 11 November 2008 in which the applicant himself said “I am satisfied the airport is open”. By the Tribunal came to make its decision the status of the airport was not in contention nor relevant.
As Mr Shariff says in his helpful written submissions:
“The Tribunal (fairly) informed and put to the applicant that if he did not wish to return to Lebanon because of war, then this was outside the purpose of the Tourist Visa”.
The applicant has not particularised the manner in which he says that the Tribunal misunderstood the question it had to decide but it does seem to me, from a reading of the Tribunal decision, that it was very clear about its responsibilities which is why it set out the relevant law in such detail and then proceeded to apply it. Ground (2) cannot be sustained.
Ground (3) seems to me to be a subset of ground (2) but to the extent that it is not, I am quite satisfied that the Tribunal applied the law and did so appropriately. Before me today the applicant said that he applied for the renewal of his visa because of the closure of the airport and the fact that the situation was dangerous. This seems to be articulating grounds for the grant of a visa which are not within those set out in the Regulations. He said that he knew people who had limited time visas and had been granted extra time. This may be the case but he was not applying for an extension of any visa, he was applying for a new one and it had to be considered on its merits and in accordance with the Regulations.
The applicant told me that on 9 May 2008 the Australia Government had said that any Lebanese citizen who was in the country could remain here because of the security situation in Lebanon. This may or may not be the case but the Tribunal was not considering the situation in May 2008, it was considering a situation in November. The applicant then made reference to further security problems in Lebanon but these are not matters which this court could take into account. The applicant then indicated that he could have applied for a protection visa but that also has no relevance to this review.
I am unable to be satisfied that the applicant has demonstrated to the court that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss his application. I order that the Applicant pay the Respondent’s costs assessed in the sum of $4,400.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 August 2009
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