Aldaly v Minister for Immigration

[2018] FCCA 2372

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDALY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2372

Catchwords:
MIGRATION – short stay visitor visa – whether visa applicant intended to stay temporarily in Australia – evaluation of genuine temporary entrant criterion required at the time of the decision – applicant sought to stay in Australia indefinitely – matters in cl 600.211 of sch 2 to the Migration Regulations relevant but not stand alone criteria – application dismissed.

Legislation:

Migration Regulations 1994, sch 2, cl 600.211

Cases cited:

Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238

Applicant: AMNEH SALEH HUSSEIN ALDALY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2627 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 14 May 2018

Date of Last Submission: 14 May 2018

Delivered at: Melbourne

Delivered on: 14 August 2018

REPRESENTATION

Counsel for the Applicant: Ms G Costello

Solicitors for the Applicant: Bardo & Erci Lawyers

Counsel for the First Respondent: Mr A Aleksov

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. The application filed on 27 April 2016 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5 860.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2627 of 2015

AMNEH SALEH HUSSEIN ALDALY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The neat point for determination in this case is whether a grandmother, who entered Australia from Jordan in 2013 on a tourist visa so as to help her adult son raise his children following her son’s separation, is a person who “genuinely intends to remain temporarily in Australia”.  The delegate decided against her on the point as did the tribunal.  The applicant sought judicial review in this court by application filed 27 November 2015. 

2. The applicant alleged in her amended application filed 14 May 2018 –

   a)in ground one that the tribunal misconstrued cl 600.211 of sch 2 to the Migration Regulations (“regulations”), especially the phrases “genuine” and “temporary”;

   b)in ground two that the tribunal adopted an overly narrow view of the purpose of a tourist visa;

   c)in ground three that the tribunal misconstrued cl 600.211 by treating paragraphs (a) and (b) of the clause as being criteria that had to be met rather than as being matters to which regard was to be taken when assessing the genuineness of the applicant’s temporary visit;

   d)in ground four that the tribunal’s reasoning that there were no compassionate circumstances in this case represented extreme irrationality.

3. The minister contended that the tribunal made no error.  That was because –

   a)in respect of ground one it correctly construed the concept of “temporary” and “genuine”;

   b)in respect of ground two the applicant was not in Australia for tourism but rather she was and remains in Australia to care for her grandchildren;

   c)in respect of ground three the tribunal’s decision should not be construed with an eye keenly attuned to the perception of error; and

   d)in respect of ground four the tribunal did not exhibit extreme irrationality.

4. The applicant complied with the terms of the grant of leave on which the four grounds of the amended application were advanced.  It was therefore common ground that all four grounds of review were properly before me.

Synopsis

1. For the reasons that follow, I dismiss this application for judicial review.  In my view the tribunal made no error.

Factual setting of this dispute

1. On 5 June 2015 the applicant applied for a short stay visitor visa.  In support of her visa application the applicant relied on a statutory declaration made on 8 May 2015 by her son, Abdul Raham Qaisi.  In that declaration, Mr Qaisi declared that –

   a)his mother (the applicant in this case) had lived with him for one and a half years to that point;

   b)he has two children, one then five and a half years of age and the other then three years of age;

   c)a couple of years earlier (that is to say a couple of years prior to the date of his declaration) the children’s mother became addicted to the illicit drug known as “ice” leading to her acquiring a mental condition and the intervention of departmental officers who brought a proceeding in the Children’s Court.

   d)Mr Qaisi and his wife had been separated for two years prior to the date of his declaration;

   e)Mr Qaisi had sole parental responsibility for his children;

   f)the children’s mother had not seen the children for some time; and

   g)he needed his mother, who had raised eight children, to raise his children. 

2. The minister’s delegate refused to grant the applicant the visa she sought by decision dated 10 June 2015. 

3. On 26 June 2015 the applicant applied for a merits review of her visa application before the Migration Review Tribunal, now the Administrative Appeals Tribunal. 

4. By letter dated 14 September 2015 the tribunal invited the applicant to appear before it to give evidence and to present arguments at a hearing scheduled for 13 October 2015.  The applicant completed the response to that invitation by indicating that she needed an Arabic interpreter and that her son, Mr Qaisi, would give evidence.  The tribunal duly conducted the hearing, as arranged, on 13 October 2015, the hearing record of which recorded that the hearing commenced at 11:44am and concluded at 12:55pm. 

5. On 30 October 2015 the tribunal decided to affirm the delegate’s decision not to grant the applicant the visa she sought.  It is utile to examine the tribunal’s reasons generally, prior to examining them against the grounds of application to this court on this judicial review application. 

6. The tribunal recorded that the case involved one stream of cl 600 of sch 2 to the regulations, being the tourist stream. The tribunal recorded that the applicant, her son, an interpreter, and the applicant’s migration agent participated in the hearing.

7. The tribunal –

   a)stated in paragraph 8 of its reasons that the issue was whether cl 600.221 was met;

   b)stated in paragraph 10 of its reasons that when considering whether a visa applicant genuinely intends to stay temporarily in Australia, that the tribunal must consider whether the applicant has complied substantially with the conditions for which the last substantive visa was held, which on the facts of this case the applicant had;

   c)had regard to the relevant provisions of cl 600.211 between paragraphs 11 and 14 of its reasons;

   d)referred in paragraph 15 of its reasons to the delegate’s consideration of the visitor programme that was designed to allow genuine tourists an opportunity to travel to Australia temporarily for the purpose of genuine tourist activities but that it did not allow persons to maintain ongoing residence in Australia on rolling visas;

   e)addressed in paragraph 16 of its reasons the applicant’s evidence of having four children in Jordan and  four in Victoria one of whom was on a student visa, one had claimed protection, one came to Australia on a boat and Mr Qaisi has a partner visa;

   f)addressed in paragraph 18 the applicant’s evidence that the applicant only wanted to stay in Australia for the sake of her grandchildren as they were young, their father was working and he had no one to look after them;

   g)addressed Mr Qaisi’s evidence in paragraph 20 of the tribunal’s reasons, recording that he stated that he wanted his mother (the applicant) to have as much time in Australia as she could;

   h)had regard to the issue of the tribunal’s task of assessing whether the applicant genuinely intended to remain in Australia temporarily, in paragraph 21 of its reasons the tribunal recorded that Mr  Qaisi said he had an ongoing need for his mother’s assistance and in paragraph 28 of its reasons the tribunal referred to the fact that since 2013 the applicant had spent 473 days in Australia and only 75 days out of it;

   i)stated in paragraph 30 of its reasons that the evidence revealed that the applicant intended to stay as long as her son and his children needed her which may or may not be temporary; and

   j)stated it was not satisfied the applicant genuinely intended to visit Australia temporarily.

8. The tribunal affirmed the delegate’s decision. 

9. Before going to the grounds of review, it is relevant to point up at this juncture that in Saini v Minister for Immigration and Border Protection,[1] Logan J held that in any assessment of the phrase “genuinely to stay in Australia temporarily”, an evaluation is required by the decision-maker at the time of the decision.

   [1] (2016) 245 FCR 238

10. Let me now turn to the grounds. 

Ground one

1. Under this ground the applicant said the tribunal misapprehended what “genuine” and “temporary” meant.

2. I disagree. 

3. In my view the tribunal correctly assessed the applicant’s and her son’s evidence where they stated in effect that she intended to stay in Australia for as long as she was needed by her grandchildren or, as Mr Qaisi put it, that he wanted his mother to have as much time in Australia as she could.  The tribunal’s reasoning between paragraphs 20 and 22 reflected that.  I agree with the minister’s submissions in paragraph 8 of his written document dated 7 May 2018 where Mr Aleksov wrote as follows –

   Since the applicant’s grandchildren, as a matter of plain English, will be forever her grandchildren, the Tribunal was correct to understand her evidence as indicating a wish to remain in Australia indefinitely, for so long as her assistance was required, (which may have been well into “adulthood” of her grandchildren).  That is a sufficient answer to this aspect of the applicant’s care.

4. I also agree with the minister’s construction of the concept of “temporary”.  At paragraph 14 of the same submissions Mr Aleksov correctly stated as follows –

   The applicant’s evidence was that she wished to remain in Australia for an indefinite period of time whilst her grandchildren needed care.  That plainly connoted a period of many years, which on no view could be described as “temporary”.

5. Ground one failed. 

Ground two

1. Under this ground the applicant took issue with the tribunal’s construction of cl 600.221.  In my view the minister’s propositions at paragraph 18 of his submissions were correct.  It is useful to record those submissions in full  as follows –

   The Tribunal was aware that the applicant’s purpose for travelling to Australia fit within cl 600.221(b) (Reasons [9]).  With this in mind, where the Tribunal refers to the applicant not being in Australia for tourism purposes, it is not speaking to any particular legal criterion or element, but rather, is just stating facts – it is not controversial that the applicant was not in Australia for tourism purposes but to care for her grandchildren.  On no view does this statement of fact reveal any misunderstanding of the “purpose” of a tourism visa, and the ground should be rejected.

2. I agree. 

3. Ground two failed. 

Ground three

1. This ground took issue with another aspect of the tribunal’s construction of cl 600.211.

2. It seemed to me that the correct approach when reading a tribunal’s reasons is that a court undertaking judicial review should not read the tribunal’s reasons with an eye keenly attuned to the existence of error. To accept the applicant’s contentions in relation to this ground is to read the tribunal’s reasons with an eye keenly attuned to the existence of jurisdictional error. I decline to do that. Dare I say, the law forbids me from doing so. On behalf of the minister Mr Aleksov contended that the matters in cl 600.211(a) and (b) were relevant considerations but they were not stand alone criteria that, at a mandatory level, had to be met.

3. I agree. 

4. Counsel for the applicant focused acutely on the tribunal’s wording of paragraph 14 of its reasons when it said “[T]he Tribunal is therefore required to consider all other relevant matters”. That much was true. In its determination of whether the applicant genuinely intended to stay temporarily in Australia the tribunal was required to consider all relevant circumstances. But to say that is very different to asserting, as the applicant asserted, that cl 600.211(a) and (b) were mandatory criteria, or conditions, that had to be met in concluding whether the applicant was genuinely staying in Australia temporarily.

5. In my view the applicant’s position that she was to stay in Australia for as long as she was needed indicated that the duration of her stay was determined by others who assessed their need for her remaining.  On any construction of the English language that was not “temporary”. 

6. Ground three failed.

Ground four

1. Under this ground the applicant asserted that the tribunal engaged in extreme illogicality or irrationality in concluding that no compassionate circumstances existed.  It will be recalled that in reaching that conclusion the tribunal stated that Mr Qaisi’s siblings could care for his children (the applicant’s grandchildren) and that the assertion that the expired supervision orders still operative was unsupported. 

2. In my view the applicant’s contentions took the tribunal’s reasons in paragraph 34 out of context.  It is important to record precisely that the tribunal stated as follows –

   There has been no change to the applicant’s circumstances since her arrival, her purpose has always been to come to assist her son with his children.  Therefore compelling and compassionate circumstances do not arise for consideration under this policy.

3. The policy that was said not to arise was recorded in paragraph 33 of the tribunal’s reasons.  Without developing any reasons for the contention nor citing any binding authority on point, in the final sentence of paragraph 29 of the applicant’s counsel’s written submissions, it was stated that by reason of the reference from paragraph 34 of the tribunal’s reasons quoted above, the tribunal impermissibly fettered its discretion by the application of the policy. 

4. It did no such thing.  In fact the tribunal said the policy did not arise.  It then stated that even if the policy did arise, and it had earlier said the policy did not arise, then certain matters followed.  Relevantly, the submission proceeded to the assertion that the tribunal paid no regard to the bond that had formed between the applicant and her grandchildren. 

5. The minister submitted that those contentions of the application were untenable.  I agree.  The tribunal did in fact consider the personal circumstances of the grandmother at paragraphs 18 and 20 of the tribunal’s reasons.  It stated at paragraph 30 that Mr Qaisi lived with his siblings.  It then observed at paragraph 34 of its reasons that no explanation was given why the siblings could not provide Mr Qaisi with the support that Mr Qaisi said his mother needed in order to remain in Australia.  That did not amount to extreme illogicality.  I reject ground four.

Conclusion

1. All grounds failed.  I dismiss this proceeding and I order the applicant to pay the minister’s costs fixed $5 860.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:         27 August 2018