Ammar v Minister for Immigration
[2019] FCCA 376
•20 February 2019
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 than 20 years.
The evidence before the tribunal was also that the visa applicant had 8 siblings, including the review applicant. The majority of his siblings live in Lebanon, with two also living in Saudi Arabia.
The review applicant, as stated is an Australian permanent resident. He was born in Lebanon on 1 May 1980 and first arrived in Australia in 2008 on a visitor’s visa. He then returned to Lebanon and came back to Australia sponsored by his wife whom he had married in Lebanon in 2009.
The review applicant provided a statutory declaration in support of the visa applicant’s application and supporting his brother’s evidence that the visa applicant only intended a genuine temporary visit.
The visa applicant also provided a letter from his employer in Saudi Arabia which stated that he had been employed by that company for 6 years, that he was a valued employee and that he had applied for four week’s paid holiday leave.
The Minister’s delegate refused the visa application on 28 February 2017.
The review applicant sought a merits review of the delegate’s decision in the tribunal. The review applicant attended a meeting at the tribunal on 1 May 2017. At that meeting the tribunal also took evidence over the telephone from the visa applicant.
The review applicant was assisted throughout the process before the tribunal by a registered migration agent and at the tribunal hearing both the review applicant and the visa applicant, were assisted by an Arabic (Lebanese) interpreter.
The tribunal also had before it a detailed written submission made in respect of this matter.[2]
[2] Court book pages 58 to 68.
The tribunal affirmed the delegates’ refusal in its decision of
3 May 2017.[3]
[3] Court book pages 124 to 131.
At the time of the application, the visa contained one subclass[4], within which there were four streams. The visa applicant applied for and was assessed against the Tourist stream.[5]
[4] Known as subclass 600.
[5] Court book page 1.
Tribunal decision
In its decision, the tribunal identified the relevant criteria which needed to be satisfied in order for the visa to be granted.[6]
[6] Court book page 125 at paragraph [3].
The tribunal also identified that the issue in this matter was:
Whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted...[7]
[7] Court book page 125 at paragraph [9].
The tribunal noted the applicant’s submission that the tribunal must consider each case on its own merits and, having regard to the comments of Collier in Khanam v Minister for Immigration and Citizenship [2009] FCA 966; (2009) 111 ALD 421 (“Khanam”), must consider the specific circumstances of the applicant.[8]
[8] See paragraph [11] of the tribunal’s decision record.
The tribunal then set out and addressed each of the criteria contained in clause 600.211(a) and (b). In addressing the criteria in clause 600.211(c), the tribunal referred to the relevant considerations which might be taken into account in considering “any other relevant matter”.[9]
[9] Court book pages 126 to 127 at paragraphs [13] to [19].
The tribunal then set out the evidence given by:
a)the visa applicant about his history and current personal circumstances;[10] and
b)the review applicant.[11]
[10] Court book page 128 at paragraphs [20] to [25].
[11] Court book pages 128 to 129 at paragraphs [26] to [33].
The tribunal then considered whether the visa applicant was able to meet the conditions to which the visa would be subject.[12] The tribunal expressed concern about whether the visa applicant had a genuine intention to stay temporarily in Australia.
[12] Court book page 129 at paragraphs [34] to [35].
The tribunal went on to consider the evidence given by and on behalf of the visa applicant about his current work and residency rights in Saudi Arabia, the current political, economic and security situation in Northern Lebanon and made the following observation:
Because of the non-permanent nature of his status in Saudi Arabia the Tribunal has significant concerns that the instability in Lebanon may act as a strong disincentive for the visa applicant to return home at the end of a visit to Australia.[13]
[13] Court book pages 130 to 131 at paragraph [43].
The tribunal considered the visa applicant’s evidence regarding the property which he owns in Lebanon, but placed little weight on this given that it is an “easily transferrable asset”.[14]
[14] Court book page 131 at paragraph [44].
Importantly for the purposes of this application, the tribunal:
...acknowledges that the purpose of the applicant’s intended travel is to visit his brother and his brother’s family. While the applicant’s purpose of visit is noted, this in itself does not demonstrate that the applicant only intends a genuine temporary stay (emphasis added).[15]
[15] Court book page 131 at paragraph [45].
The tribunal further considered the visa applicant’s past travel to China and Turkey and whilst noting that he did not overstay those visits also noted that there was no evidence that he had any family in either of those countries which might provide a reason for him to remain in either of those countries.[16]
[16] Court book page 131 at paragraph [46].
The tribunal added that it had taken into account the submissions made on behalf of the applicant and the review applicant and had only determined the issues on the basis of the “specific evidence available”.[17]
[17] Court book page 131 at paragraph [47].
For these reasons, the tribunal was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was to be granted and therefore concluded that the requirements of clause 600.211 were not met.
Ground for review
By his amended application, the applicant only presses one ground of review, namely:
The Tribunal’s decision is affected by jurisdictional error in that the Tribunal misconstrued cl 600.211 by considering whether the applicant might be tempted to work in Australia or overstay his visa if circumstances changed, which was the wrong question. The right question was whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (emphasis in original).[18]
[18] Applicant’s further amended application filed 10 September 2018.
It is common ground that the visa applicant was required to satisfy the common criteria in clause 600.211 which relevantly states:
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)Whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
(c)Any other relevant matter.
Clause 600.211(a)
As stated above, the tribunal concluded that as the visa applicant had not previously been granted a visa to Australia, clause 600.211(a) was not relevant[19] although the tribunal did have regard to the fact that the visa applicant had not overstayed visits in other countries.
[19] Court book page 126 at paragraph [14].
Clause 600.211(b)
In relation to clause 600.211(b), the relevant conditions set out in schedule 8 to the Regulations includes:
a)condition 8101 – must not work in Australia; and
b)condition 8531 – must not remain in Australia after end of permitted stay.[20]
[20] Court book page 126 at paragraph [17].
Clause 600.211(c)
As for clause 600.211(c), the tribunal is required to have regard to “any other relevant matter”. The tribunal quite correctly had regard to the non-exhaustive list of examples of possible relevant matters set out in the relevant departmental policy.[21]
[21] Court book page 127 at paragraph [19].
As stated, the applicant’s sole ground of review relies on a finding that the tribunal applied the incorrect test to the extent that it considered the hypothetical of whether the visa applicant might wish to stay in Australia should circumstances change in Saudi Arabia and Lebanon.
It was submitted on behalf of the applicant that this “consideration was extraneous to whether the applicant held a genuine intention to stay temporarily in Australia at the time of the visa application”.[22]
[22] Paragraph 13 of the applicant’s written submissions filed 7 August 2018.
In addition, it was further submitted that the tribunal considered whether:
a)the visa applicant might be “tempted to work”;[23]
b)his non-permanent status as a worker in Saudi Arabia together with his history of working away from Lebanon may “tempt” him to perceive better economic opportunities in Australia;[24] and
c)if the applicant was unable to work in Saudi Arabia he may find Australia less of a gamble and be “tempted to remain here”.[25]
[23] Court book page 129 at paragraph [34].
[24] Court book page 129 at paragraph [36].
[25] Court book page 130 at paragraph [43].
It was said on behalf of the review applicant that this analysis discloses an error in that the tribunal applied the wrong test; namely, it was submitted that “it is about genuine intention, not temptation.”[26]
[26] Paragraph 14 of the applicant’s written submissions filed 7 August 2018.
In response it was submitted on behalf of the Minister that the tribunal identified and applied the correct statutory criteria; namely, whether the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted. It was conceded that in doing so, the tribunal had regard to:
a)whether the applicant might be tempted to work in Australia given the non-permanent nature of his status as a worker in Saudi Arabia, his history of working away from his home country and that these factors might tempt him to perceive better economic opportunities in Australia;[27]
b)whether the applicant might be tempted to overstay his visa if the circumstances in Saudi Arabia changed for any reason;[28] and
c)its finding that the applicant might find Australia to be “less of a gamble” and may be “tempted to remain here”.[29]
[27] Court book page 129 at paragraphs [34] and [36].
[28] Court book page 130 at paragraph [37].
[29] Paragraph 21 of the Minister’s written submissions filed 24 August 2018.
It was further submitted on behalf of the Minister that far from leading the tribunal into error by asking the wrong question, these factors were entirely relevant to the issue before the tribunal; that is, the assessment of whether the applicant genuinely intends to stay temporarily in Australia for the purposes of clause 600.211.
It was further submitted on behalf of the Minister that whether there were circumstances which might lead the visa applicant to seek to remain in Australia had a direct bearing on whether the tribunal could be satisfied that he would comply with the condition that he not work in Australia, or that he not stay beyond the expiry of the visa.
I agree with these submissions.
The factors considered by the tribunal and set out at paragraph 40 above were relevant to the tribunal’s assessment of “other relevant matters” under clause 600.211(c). For example, as noted at paragraph [19] of the tribunal’s decision record, some of the factors which might be taken into account include:
·The personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia such as:
…
oEconomic circumstances… that… would not constitute a strong incentive for the applicant to leave Australia… (emphasis added)
Moreover, the comment in paragraph [36] of the tribunal’s reasons extracted at paragraph 38(b) above must be read in the context of the whole of that paragraph and against the background of the preceding paragraph in which the tribunal said:
… the Tribunal has significant concerns regarding conditions 8503 and 8531. The Tribunal has formed a view that there exists a range of factors that indicate that the visa applicant may not have a genuine intention to stay temporarily in Australia and may not comply with the condition not to remain in Australia after any period of permitted stay. This is due to the lack of permanence of the applicant’s status in Saudi Arabia where he lives and works; his established history of working away from home, his financial commitments to a growing family, his age, his occupation as a wall and floor tiler where his brother in Australia owns and runs his own construction business as well as the situation in his home country.[30]
[30] Court book page 129 at paragraph [35].
It is evident from this statement that the tribunal was applying the correct test. It is against this background that the tribunal’s comments are made about the visa applicant being “tempted” to perceive better economic opportunities in Australia if granted a visitor visa.[31] The tribunal’s reference to the visa applicant being “tempted to work” must be read in this context.
[31] Court book page 129 at paragraph [36] and page 130 at paragraph [43].
Moreover, it is also clear from a fair reading of paragraph [43] of the tribunal’s reasons as a whole that the correct test was applied. Whether there are factors in the applicant’s home country or in his country of residence which might ‘tempt’ the applicant to overstay his visa or to work whilst in Australia in breach of his visa conditions, these are clearly relevant to considering “the personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia” as one of the matters to which he tribunal could properly have regard.[32]
[32] Court book page 127 at paragraph [19].
The court was referred to the decision of Khanam in which his Honour found that the tribunal had erred by not considering the visa applicant’s stated intention and not explaining why the applicant was not believed to be genuine.[33]
[33] Khanam v Minister for Immigration and Citizenship [2009] FCA 966; (2009) 111 ALD 421 at [30].
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.
Conclusion
As the applicant’s ground of review is not made out, the applicant’s application for judicial review is dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 20 February 2019
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