Amro v Minister for Immigration
[2007] FMCA 1452
•6 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMRO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1452 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal found that no sufficient evidence of sponsor’s ability to provide financial support to visa applicant – no jurisdictional error. |
| Migration Act 1958, ss.347(2)(b), 357A, 359, 474, 476 The Constitution, para.75(v) Migration Act Regulations 1993, reg.1.15AA(1) |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs and Lay Lat (2006) 151 FLR 214 |
| Applicant: | KAMEL AMRO |
| First Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | ADG 122 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing date: | 27 July 2007 |
| Date of last submission: | 27 July 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 6 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Ms Nash |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 17 May 2007 is dismissed.
The applicant pay the first respondent’s costs of, and incidental to, the Application fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 122 of 2007
| KAMEL AMRO |
Applicant
And
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under the Migration Act filed on 17 May 2007. It is an application for review of a decision of the Migration Review Tribunal (the “Tribunal”). The application is made pursuant to s.476 of the Migration Act 1958 (the “Act”) and pursuant to that section this Court has the same powers on review as has the High Court pursuant to para.75(v) of the Constitution of the Commonwealth of Australia.
The provisions of s.474 of the Act provide that the decision of the Tribunal will be final and conclusive. That section will only not apply if the decision can be shown to have been attended by, or vitiated by, jurisdictional error. That concept has been explained by the High Court of Australia in cases such as Craig v South Australia (1995) 184 CLR 163 and, more specifically, in the context of applications under the Act in cases such as Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24.
I should point out at the start that no jurisdictional error is alleged in the application itself and to some extent that really is a complete answer to the application. Had it been, for example, the circumstance that the applicant was legally represented, it is possible that that would have been the end of the matter, but as he is unrepresented, I think there is some obligation cast upon the court to scrutinise the decision to ensure that the decision does not have about it those features which would render it liable to be successfully reviewed on account of jurisdictional error.
The primary visa applicant in this case is the applicant's sister. She intends to be the full-time carer of her mother who lives in Australia. The applicant is obviously the son of that same mother; the mother lives with him and he is the sponsor of the sister. As such he has standing to bring this application for review pursuant to the provisions of s.347(2)(b) of the Act.
The review is sought in respect of a Tribunal decision of 20 April 2007. That decision affirmed the decision of the delegate of the minister to refuse to grant the relevant visa, in this case a class BO visa, to the mother. The delegate refused the application because of what the delegate thought were problems the visa applicant had in her proficiency with the English language and problems the delegate thought the visa applicant had with a lack of understanding of the specifics of the mother's condition, and those matters, cumulatively, were such as to satisfy the delegate that the sister was not willing and able to assist the mother. That satisfaction as to the sister being willing and able is what the Regulations, and in particular Regulation 1.15AA(1) of the Migration Act Regulations requires.
Ironically, in this case, the Tribunal was not troubled with those matters that had troubled the delegate but was troubled by a different aspect of the visa applicant being willing and able to look after the mother. Namely, in the circumstances of this particular case, the ability of the applicant in these proceedings to provide assistance to the visa applicant.
So the Tribunal disagreed with the delegate about the grounds for the refusal of the visa but ultimately was able to fall in with the decision in so far as it constituted a refusal to grant the visa on other grounds. That the Tribunal was able to conduct, itself, a full de novo review of the delegate's decision is a matter that is beyond doubt.
The respondents' counsel, at the hearing before me, drew my attention to a passage in Zubair v Minister for Immigration (2004) 139 FCR 344, particularly at para.35. It sets out the broad nature of the review the Tribunal conducts in such cases, and whilst Zubair is a decision that is often referred to in a different context or in relation to a different aspect of the interrelationship between the delegate's decision and the Tribunal, that passage sets out, in an unexceptional way, the nature of the review conducted by the Tribunal and that there was no difficulty associated with it affirming the decision of the delegate, even if on other grounds.
This issue of financial support - that is, the financial support the applicant before me was able to provide to the visa applicant so as to put her in a position where she was willing and able to provide care and support to the mother, the resident whom it is said requires the care - is dealt with at CB 316; in particular, the last three paragraphs thereof.
The documents filed by the applicant with the Tribunal at the time of the making of the application indicated that he would be providing financial support for the visa applicant. This was summarised by the Tribunal at CB 305 and confirmed by him in his oral evidence. It must be borne in mind that the ability to provide financial assistance was evaluated in the context of the sister herself having two children whom she would be bringing with her from Lebanon to Australia.
The information provided by him, in those documents and in his oral evidence, indicated that he was the proprietor of a real estate company that had been trading for approximately three years at the time of the application. The material - the statutory declaration and the oral evidence - indicated that he owns three homes and that he proposed, if there were cramped circumstances within his own household where the mother resides, that he would allow his sister to have the use of one of his rental properties and indicated that he would be providing something in the nature of three to four thousand dollars in financial support per month. That was the state of the evidence at the conclusion of the oral hearing.
The Tribunal made a request for further information following that oral hearing and its power to request such information is again a matter that I do not think to be controversial. Section 359 of the Act provides that:
(1) In conducting the review, the tribunal may get any information that it considers relevant. However, if the tribunal gets such information, the tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the tribunal may invite a person to give additional information.
As I say, that additional information was sought by the tribunal and the information sought is set out at CB 229. In particular, the Tribunal asked the applicant to provide the following additional information: copies of his taxation returns for the financial years ended 30 June 2004, 2005 and 2006; copies of his personal bank statements for the six months prior to the time of the application; copies of his personal bank statements for the last six months; evidence as to his ownership of property; copies of his real estate company's taxation returns for those same financial years and any supporting evidence of his financial ability to support the visa applicant and her children while she cares for their mother full-time.
The applicant responded almost straightaway to that request and the documents he provided are set out at CB 231. There was no difficulty in him providing copies of the titles with respect to his ownership of the properties that he said he owned: copies of council approvals; confirmation from agents who were marketing the properties; web site information; confirmation from another real estate agency of his status as a developer; a letter from his accountant regarding his taxation returns; a copy of a tax return of someone by the name of Kathleen Barnes whom the letter of 15 March asserts is going to be the sponsor “if you find me not good enough for that”. Copies of previous correspondence from the Tribunal were also sent.
Ms Barnes is not a total stranger, as it were, to the proceedings because she has a status with the real estate company, to the extent that the financial statements suggest that she received significant sums from that company in her capacity as a director. Other than that, though, no further information was provided in relation to Ms Kathleen Barnes.
The consideration of this information provided in response to the s.359 letter led to the key findings of the Tribunal at CB 316.6:
The tribunal accepts that the company, Amro Estates Pty Ltd, owns several development properties and that the review applicant also owns properties in his own right. However, the evidence submitted by the review applicant indicates that all these properties are encumbered by mortgages. The review applicant has indicated to the tribunal that his taxable income has been nil in recent years. He has not provided his personal bank statements, as requested by the tribunal.
The tribunal has little information regarding Ms Barnes, whose tax return was submitted. Ms Barnes has not indicated her preparedness to support the primary visa applicant and her children.
The review applicant indicated that he already financially supports his mother and his three dependent children in addition to himself. The tribunal is not satisfied on the evidence that the review applicant has the financial ability to support the primary visa applicant and her children in addition to his other dependents.
It is in the context of that finding that the application for review is brought to this court. It is an application that was brought apparently within time. As I say, the application itself has obviously been prepared without legal assistance. It does not address the matters said to ground a suggestion of jurisdictional error. It says, “The Tribunal only did not ask me for my bank statements”. In so far as I can understand that ground, that is simply wrong. It is contrary to the very text of the s.359 letter that I have referred to.
The allegation goes on in ground 2 to say that: “The tax return from Kathleen Barnes sought was enough since the Australian Embassy in Beirut accepted that I was a sponsor”. The evaluation of the extent to which the information provided by Ms Barnes satisfied the tribunal as to the requisite financial assistance being made available by the applicant to the visa applicant was a matter for the tribunal.
Ultimately, the provision of a tax return from Ms Barnes was not deemed sufficient to satisfy the Tribunal's concerns and frankly that is not a surprising finding by the Tribunal. Ms Barnes, after all, was not the sponsor. She did not provide any information other than the taxation return to the tribunal and indeed, as the Tribunal pointed out, did not otherwise indicate, in writing or in any other way, her preparedness to act as sponsor. So in the light of that the Tribunal's findings in relation to the inadequacy of the information provided by her is unsurprising.
It is not clear whether there is a separate third ground or whether the information under the printed number 3 is really just an amplification of what is under 2, but it goes on to say: “From the information from Social Security indicate that Kathleen Barnes can be the sponsor from her taxable income”. As I say, it is difficult to know what is intended by that but it does not in any event address the fact that no further information was provided from Ms Barnes as to her financial status or as to her willingness to fulfil the obligations of sponsor.
As I indicated at the outset of these reasons the obligation is on the applicant to establish some jurisdictional error. Having considered the way the Tribunal went about its task, I am unable to apprehend any way in which it has fallen into jurisdictional error. The request for the s.359 information was, I think, in the circumstances a reasonable request and the use the tribunal made of that information appears, on its face, to have been a reasonable use. The Tribunal's response to the absence of taxation returns from the applicant personally, and the absence of bank statements as sought by it was again, I think, a reasonable response.
In short, there is nothing apparent to me in the way the Tribunal went about its task to suggest its having exceeded its jurisdiction or its having failed to exercise, whether constructively or otherwise, its responsibilities under the Act. This is not, after all, a merits review of the Tribunal's decision. No bias, real or apparent, is evident in the way the Tribunal went about its task and no procedural unfairness is evident, even if the Full Court of the Federal Court had not, in the decision of Minister for Immigration and Multicultural Affairs and Lay Lat (2006) 151 FLR 214 at paragraphs 64 to 70, expressed clearly, albeit in ways that may be obiter dictum, the plain effect of the provisions of s.357A of the Act.
The application should be refused.
I certify that the preceding twenty-three (23)paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N Julius
Date: 23 August 2007
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