Ammar v Minister for Immigration - [2019] FCCA 376

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMMAR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 376

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Visitor (class FA) (subclass 600) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Khanam v Minister for Immigration & Citizenship [2009] FCA 966; (2009) 111 ALD 421

Applicant:

HASAN AMMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1197 of 2017

Judgment of:

Judge Mercuri

Hearing date:

7 September 2018

Date of Last Submission:

7 September 2018

Delivered at:

Melbourne

Delivered on:

20 February 2019

REPRESENTATION

Counsel for the applicant:

Ms Costello

Solicitors for the applicant:

Bardo & Erci Lawyers

Advocate for the respondents:

Ms He

Solicitors for the respondents:

Mills Oakley

ORDERS

The applicant’s application for judicial review filed on 6 June 2016, amended on 7 August 2018 and further amended on 7 September 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1197 of 2017

HASAN AMMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application was initially filed on 6 June 2017 and amended on 7 August 2018. By leave of the court and with the consent of the first respondent, the Minister for Immigration and Border Protection (“the Minister”), the application was further amended on 7 September 2018.
By this application, the applicant seeks judicial review under the Migration Act 1958 (Cth) (“the Act”) of the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 3 May 2017. In its decision, the tribunal affirmed a decision of a delegate of the Minister made on 28 February 2017 refusing to grant the applicant’s brother, Nibal Ammar, a Visitor (class FA) (subclass 600) visa (“the visa”).
The tribunal’s decision is found in the court book at pages 125 to 131.
In these reasons, I refer to the applicant as the review applicant, and the applicant’s brother, as the visa applicant.

Summary

For the reasons that follow, this application for judicial review fails.
I make orders dismissing the proceedings and order the applicant to pay the first respondent’s costs.

Background

The visa applicant is a citizen of Lebanon and a resident of Saudi Arabia. On 30 January 2017, the visa applicant applied for a Visitor (Class FA) visa to visit his brother, the applicant in these proceedings, who is a permanent resident of Australia.[1]
[1] Court book pages 1 to 13.
The visa applicant was born on 13 January 1977, is married and has four children. His wife and children live in Lebanon but he was, at the time of his application, living and working in Saudi Arabia where he holds a renewable residency permit which allows him to reside and work in that country. The visa applicant gave evidence to the tribunal that he had lived and worked in Saudi Arabia for more…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 376
Decision Date: 20 February 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to dismiss an application for a Visitor (class FA) (subclass 600) visa. The applicant, Mr Ammar, sought to challenge the AAT's decision.

The primary legal issue before the court was whether the AAT had committed jurisdictional error in its assessment of Mr Ammar's application for the subclass 600 visa. Specifically, the court was required to determine if the AAT had adequately considered the applicant's stated purpose of travel and whether its subsequent findings were based on a proper application of the relevant legal principles.

The court found that the AAT had expressly considered the interpretation of clause 600.211 by reference to the decision in *Khanam*. The AAT had regard to the information provided in the application, supporting documents, and oral evidence concerning Mr Ammar's personal circumstances, commitments, and incentives to return home. The tribunal had also put its concerns to the applicant regarding the possibility of remaining in Australia unlawfully or seeking employment, and had considered the responses provided. While the AAT acknowledged the stated purpose of visiting family, it correctly noted that this purpose alone did not demonstrate a genuine temporary stay. Unlike the situation in *Khanam*, where the tribunal failed to consider the applicant's stated intention, the AAT in this instance had given that consideration and then proceeded to examine other factors that led to its conclusion that the visa requirements were not met. The court held that this process did not constitute jurisdictional error.

Consequently, the applicant's ground of review was not made out, and the application for judicial review was dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In response, it was submitted on behalf of the Minister that the tribunal expressly noted that it had regard to the interpretation of clause 600.211 by reference to the decision in Khanam. The tribunal stated at paragraph [11] of its reasons that it had regard to: …the information provided in the application and all supporting documents relating to the applicant’s personal circumstances, commitments, and incentives to return home as well as the oral evidence given at the hearing (emphasis added).[34][34] Court book page 126 at paragraph [11]. It is clear from a fair reading of the tribunal reasons[35] that the tribunal put to both the review applicant and visa applicant its concerns about whether the visa applicant may seek to remain in Australia after the expiry of his visa and/or seek employment in breach of the conditions of his visa and that it had regard to the responses provided. [35] See in particular, paragraphs [32], [33], [38], [39], [40] and [41] of the tribunal’s decision record. Importantly, the tribunal acknowledged that the purpose of the visa applicant’s intended travel was to visit his brother and his brother’s family in Australia. The tribunal however, went on to say, “while the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay.”[36][36] Court book page 131 at paragraph [45]. I am satisfied that, unlike the position in Khanam where it was held that the tribunal had erred because it had not given consideration to the stated intention of the applicant’s travel, the tribunal in this instance has given that consideration and does not question that that was the reason for travel. What is distinguishable in this case is that the tribunal went on to consider whether, notwithstanding that reason, there were other factors which led to the conclusion that the visa applicant did not meet the requirements for the granting of a visa. That process and those conclusions do not give rise to any jurisdictional error. Therefore, the applicant’s ground of review fails. As the applicant’s ground of review is not made out, the applicant’s application for judicial review is dismissed with costs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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