Awadallah v Minister for Immigration
[2015] FCCA 3126
•27 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWADALLAH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3126 |
| Catchwords: MIGRATION – Application for a Visitor (Class FA) visa – review of decision of Migration Review Tribunal – visa applicant offshore – extent of the obligation under section 359A of the Migration Act 1958 (Cth) – whether the relevance of “information” is a matter for the Court to decide – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.60, 348, 359, 359A, 360, 424A Migration Regulations 1994 (Cth), cls.600.211 and 600.612 of sch.2, cls.8101 & 8531 of sch.8 |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 1 Minister for Immigration & Border Protection v SZTJF [2015] FCA 1052 |
| Applicant: | KOUKAB AWADALLAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 631 of 2015 |
| Judgment of: | Judge Smith |
| Hearing dates: | 30 September 2015 & 12 October 2015 |
| Date of Last Submission: | 12 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2015 |
REPRESENTATION
The Applicant appeared in person.
| Solicitor for the Respondents: | Mr L. Dennis, Sparke Helmore |
ORDERS
The name of the second respondent be amended to Administrative Appeals Tribunal.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 16 February 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 2 October 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 631 of 2015
| KOUKAB AWADALLAH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant’s son, Samir Soussan, is a citizen of Lebanon who applied for a visitor visa (Class FA) on 25 September 2014. The applicant, Mrs Awadallah, sponsored that visa application.
The criteria for the grant of that visa were contained in pt.600 of sch.2 to the Migration Regulations 1994 (Cth). The relevant criteria for the purpose of this application were found in cl.600.211 which provides:
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.
Amongst the conditions to which the visa would be subject was that the applicant must not work in Australia, and must not remain in Australia after the end of the permitted stay: cl.600.612 of sch.2 and cls.8101 and 8531 of sch.8 to the Regulations.
In support of his visa application, Mr Soussan relied essentially upon the fact that the applicant was undergoing mental difficulties as a result of the death of her husband and had a fear of flying on a plane. In addition, he relied on evidence that he had sufficient savings to support himself financially and that he had previously been sponsored by his mother some six years prior. Mr Soussan further explained that he had not breached the conditions imposed upon his previous visa and returned to Lebanon on time. He also explained that his mother guaranteed that he would return to Lebanon upon the expiry of this visa, if he was granted the visa.
The Tribunal’s decision
On 2 October 2014 a delegate of the Minister decided to refuse to grant Mr Soussan a visa. As he was offshore at the time, and his mother sponsored him for the visa, his mother applied to the Tribunal for review of the delegate’s decision.
The Tribunal conducted a hearing on 3 February 2015 at which both Mr Soussan and his mother gave evidence (the former by telephone). It will be necessary to return to the hearing later in these reasons. On 16 February 2015 the Tribunal made its decision to affirm the decision of the delegate.
The Tribunal considered and weighed up both the matters that supported Mr Soussan and those that were against him. It summarised the matters weighing against Mr Soussan at [42] of its reasons:
The Tribunal has considered all the information both individually and cumulatively. Significant concerns for the Tribunal are the findings that the visa applicant has strong family ties in Australia. His four siblings reside here permanently along with his mother whose circumstances have changed since her husband passed away in December 2013. He is the only child of the review applicant who is not a permanent resident of Australia. He is also single. The Tribunal also takes into account that two of his sisters sought to change their migration status after being sponsored by a relative and had been granted protection because of their Jehovah Witness practice. It accepts this happened several years ago. However it is concerned that there is a family history of seeking to change migration status after arriving in Australia as the holder of a temporary visa. The Tribunal is also concerned that the review applicant’s psychological condition may provide the visa applicant with a strong incentive to remain in Australia and care for his mother. It is also concerned about the country information indicating there is increasing violence in North Lebanon associated with significant number of refugees from Syria, and clashes between the Lebanese Army and extremist groups.
The Tribunal then turned to the positive aspects of the evidence at [43]:
Some aspects of the visa applicant’s claims support a finding that he intends to stay temporarily in Australia - he has previously complied with conditions on a visitor visa, he has employment in Lebanon and he has several relatives. He owns a property. …
The Tribunal found that the former outweighed the latter and so was not satisfied that Mr Soussan genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted. For that reason the Tribunal concluded that the requirements of cl.600.211 were not met and so affirmed the decision of the delegate to refuse to grant Mr Soussan a visa.
Grounds of application
There are three grounds in the application. They are:
1.The Migration Review Tribunal Member failed to fairly weigh the circumstances of the visa applicant and erred in her finding that he will not stay temporarily in Australia for the purpose for which the visa is granted.
2.The Tribunal Member failed to understand that the visa applicant genuinely intends to visit Australia and the country information as well is any adverse information affecting his credibility or conduct.
3.The record of the hearing will be provided to the Honourable Court to show that the Tribunal acted unfairly and unjustly in this case which seems to be unreasonable when it comes to his previous visit on 24 April 2008 and returned on 15 July 2008 during which time he honoured his visa condition and the Tribunal failed to understand that at that time he had the opportunity to change the visa condition but he did not and such action is a great incentive and proof to the Tribunal that he will honour his visa contrary to the Tribunal’s findings.
In spite of the references to unfairness and unreasonableness these grounds show no more than a difference of view between the applicant and the Tribunal as to the outcome of the review. As such, they do not raise any jurisdictional error and must be rejected.
It is important to note that the Tribunal did consider all of the matters put forward by the applicant and Mr Soussan in support of the review. In particular, it considered the fact that Mr Soussan had previously travelled to Australia and had complied with the conditions of the visa which permitted him to do so. However, the Tribunal gave greater weight to other matters particularly in light of the fact that circumstances had changed since Mr Soussan’s last visit to Australia. Amongst these were the death of the applicant’s husband which had led her to suffer mentally and the deterioration of circumstances in the North of Lebanon. In those circumstances, I can see no error in the Tribunal’s reasons for its decision.
Assistance given to the applicant
At the hearing of this matter the applicant was apparently unrepresented. I say “apparently” because of two matters. First, the applicant sought leave for a Mr Laba Sarkis to make submissions for her; and secondly, when that leave was refused, she sought leave to hand up a document that began “Good Morning Your Honour”. The applicant said that Mr Laba Sarkis had translated that document but denied knowing who had written it. Although it does not matter for the disposition of this matter, I do not believe her. Mr Laba Sarkis is well-known to this Court. He is neither a registered migration agent nor a legal practitioner and yet regularly attends court as a “friend of the family” or “as a community worker” or “interpreter”. I have personally seen many documents in other cases such as that handed up by the applicant. They always commence “Good Morning Your Honour” as though prepared for the purposes of being read out by an applicant or the Court provided interpreter. Mr Laba Sarkis is almost always there in court. I also note that the applicant filed an affidavit affirmed by Mr Laba Sarkis on 21 March 2015 that annexed a transcript of the Tribunal hearing on 3 February 2015, also prepared by him.
I gave leave to the applicant to rely on the document in this case. That was in spite of my suspicion of Mr Laba Sarkis’ involvement in the preparation of it. However, that leave came at a cost to the applicant, as the Minister sought, and obtained an adjournment in order to be able to deal with the arguments raised in the document and the applicant was ordered to pay the costs of the adjournment. Ultimately, for the reasons that I set out below, those costs have been wasted as the document raised no arguable ground and did not assist in determining the matter.
Consideration
Upon granting the adjournment, I asked Mr Dennis, who appeared for the Minister, to address the Court on the next occasion on whether the Tribunal might have failed to comply with s.359A of the Migration Act 1958 (Cth). I will set out the reasons for doing so, the Minister’s submissions on the issues and my consideration of it after dealing with the grounds raised in the applicant’s document.
The document contained 12 paragraphs. The first paragraph contains an argument that the Tribunal denied the applicant procedural fairness:
… the Tribunal noted that the previously constituted Tribunal had recorded the visa applicant has a mental disability. I denied this and the Tribunal member failed to disclose to me evidence of mental disability and failed to give me the opportunity to disprove and to comment on it …
The transcript of the hearing proves, however, that the Tribunal put this issue squarely to the applicant for comment:
Member:His health is good. When you were last at the tribunal he had a health problem.
…
The evidence that you gave was that your son has a mental disability with a mental capacity of 10 year old, 10 to 13 year old.
Applicant:I am not sure if they understood it that way.
Member:It was in a written statement and it was in a letter from a Member of Parliament, a supporting letter from the Member of Parliament in a statement from the applicant indicating her son has a mental disability with a mental capacity of a 10-13 year old.
The relevant obligation was to invite the applicant to a hearing to give evidence and present arguments relating to the issues in relation to the decision under review: s.360. To the extent that Mr Soussan’s health was an issue relating to the decision under review, the Tribunal fulfilled that obligation.
The first paragraph also contends that there was unfairness because the Tribunal accepted that Mr Soussan had a job, contrary to what it said about his health at the hearing. However, the argument is misconceived. It cannot be unfair for a decision-maker to accept a person’s evidence in spite of concerns raised about that evidence by other material.
The second paragraph raises the fact that Mr Soussan had a Lebanese passport which meant that he would not be able to apply for any visa in Australia other than a protection visa. That goes to the merits of the decision alone and is irrelevant to the power of this Court.
Similarly, paras.3, 5, 6, 8 and 9 all raise matters which only go to the merits of the Tribunal’s decision.
Paragraph 4 refers to the history of the applicant’s family in respect of applying for visas once in Australia. It is asserted that this was irrelevant because that was before 2008 and, since Mr Soussan had, in 2008, travelled to, and departed from Australia without seeking to stay. The argument is not that the statute prohibited consideration of the particular facts; rather, that those facts should not have been considered, because of other facts. Justice Mason said this about the proper scope of the “irrelevant consideration” ground of review in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40:
… In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. …
(References omitted)
Thus, the contention in paragraph 4, too, is properly understood as only going to the merits of the decision.
Paragraph 7 baldly states that the Tribunal incorrectly interpreted and applied the requirements of the Regulations and its findings were not open. Not only is that submission particularly unhelpful but it is wrong. The Tribunal’s findings were all based on material available to it. The test applied by the Tribunal (whether there was a genuine intention) was that posed by the regulation. It was a test that required an evaluation of intention from both objective matters and the stated subjective intention of the visa applicant. This is what the Tribunal did.
Paragraph 11 of the document asserts that the Tribunal ignored the migration agent’s submission. That assertion is made in spite of the express reference by the Tribunal to that submission and its substance and is rejected.
Finally, para.12 of the document contains a summary of the arguments in the document and requires no separate consideration.
The Tribunal’s compliance with s.359A
It is necessary to return, then, to consider whether the Tribunal has complied with s.359A of the Act. The question arose from the passage in the transcript of the hearing conducted by the Tribunal which is set out at [17] above.
The reference to the Tribunal in this passage appears to have been in respect of a review by the Tribunal of a decision to refuse to grant Mr Soussan a tourist visa for which he had applied on 7 September 2012. That is, it had no connection with the visa application currently in question.
The question is whether the evidence given at the earlier Tribunal hearing about Mr Soussan’s health fell within sub-s.359A(1). There was no question that, if it did, the Tribunal failed to comply with the obligation under that section.
Subject to certain exceptions in sub-ss.359A(1) and (4) applies to any “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.” This phrase, and its equivalent in sub-s.424A(1) has, since its introduction to the Migration Act in 1998, attracted much judicial attention. The High Court has considered it on at least three occasions: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294; SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 (“SZBYR”) and Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 (“SZFLX”). The Full Court of the Federal Court has considered it in close to 150 cases. In the last three years, this Court has considered it in close to 500 cases. Nevertheless, just like the rules of procedural fairness at common law, the scope of the provision is relatively easy to state, but not always easy to apply.
The Minister argued that the evidence of the visa applicant’s health did not fall within sub-s.359A(1) for three reasons. First, whether “information” falls within that provision is a matter of law for the Court to decide. The question to ask is whether the information is in and of itself a rejection, denial or undermining of the visa applicant’s claims. This submission relied on a passage from the joint judgment in SZBYR at 1196 [17]. The Minister argued that that was not the case here. Secondly, the Tribunal has to consider that the information is adverse in the sense just described. The evidence does not support the conclusion that the Tribunal held that view in this case. Thirdly, sub-s.359A(1) does not apply to the Tribunal’s thought processes. That submission was based on the joint judgment in SZBYR at 1196 [18].
In respect of the first argument, in addition to SZBYR, the Minister also relied on the recent decision of Yates J in Minister for Immigration & Border Protection v SZTJF [2015] FCA 1052. That was a protection visa case dealing with s 424A (which is in relevantly identical terms to s.359A). His Honour dealt with the argument at [31] of his judgment:
There are two matters to note concerning the information referred to in [21] of the decision record. First, it is not information which contains a rejection, denial or undermining of the first respondent’s claims to protection as summarised in [7] above. Put another way, the information was not of “dispositive relevance” to the Convention claims advanced by the first respondent: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [27]-[29]; SZMDS v Minister for Immigration and Citizenship (2009) 107 ALD 361 at [14]. It was simply information about the first respondent’s travel arrangements and travel to Australia and her living arrangements in Australia. Secondly, as the Minister submits, the information itself is “mere inconsistency” or “evidence that [came to be] relied upon to find inconsistency”. I reject the first respondent’s submissions to the contrary.
(Emphasis added)
In the passages in MZXQB v Minister for Immigration & Citizenship (2008) 166 FCR 483 referred to by Yates J, Heerey J first discussed the need for the information in question to be of “dispositive relevance” to the Convention claims. However, his Honour went on to consider the grammar of sub-s.424A(1) and said at [28]:
… The meaning conveyed by s 424A(1)(a) is that the Tribunal considers that if the information is true (conditional clause), it would be the reason, or a part of the reason, for affirming the decision (host clause). …
(Emphasis added)
This passage suggests that it is not a matter for the Court to decide whether the information is adverse. Indeed, I do not think that Yates J intended to say anything differently. The suggestion is consistent with the later decision of the Full Court of the Federal Court in SZKLG v Minister for Immigration & Citizenship (2007) 164 FCR 578 at 589 [33]. The High Court referred to that decision with approval in SZLFX at 514 [24]:
As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration & Citizenship, s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. …
(Citation omitted)
Finally, the plurality in SZBYR did not say anything inconsistent with that. In order to understand that, it is necessary to set out the whole of its judgment at [17]:
Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal,” or “the Tribunal's published reasons.” The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be)rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.” Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
…
Although the first few lines of that paragraph could lend support to the Minister’s submission in this case, it must be understood to be dealing with only one aspect of the issue, namely, “would be the reason …”. Later in the paragraph, the reasoning returns to the necessary “consideration” by the Tribunal that is emphasised in the authorities I have referred to above.
However, that is not to say that, simply because the Tribunal considers that information falls within sub-s.359A(1) then the provision applies to that information. Justice Jagot considered this issue in Minister for Immigration & Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11. The issue arose because Tribunal, relying on s.359C of the Act, did not invite the applicant to a hearing because it had failed to comment on or respond to information set out in a letter purporting to have been sent under s.359A. Her Honour found that the applicant had in fact responded to the information and so the Tribunal was wrong not to have a hearing. For that reason, it was unnecessary for her Honour to consider the issue of whether there was in fact an invitation under s.359A. However, she did deal with it, saying, at [42]:
… In my view, however, the requirement that the Tribunal consider the information to meet the relevant description involves another minimum standard. It is that the information, at the time the Tribunal issues the invitation, must be rationally capable of being seen as information that would affect the decision under review. If the information, at the time the invitation is issued, is not rationally capable of being seen as information that would affect the decision under review then, again, the Tribunal’s action in issuing the invitation is a nullity. The Tribunal could not be said to have acted “under” s 359A as required in order to engage s 359C(2)(a), and again no consequence to an applicant could flow from a failure to respond to or comment on the information contained in such an invitation. By this, I do not mean to import notions of manifest or Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). I mean no more than that the information, at the time the invitation is given, must be capable of being seen as referable to the statutory power to be exercised (that is, the Tribunal’s powers in relation to the application for review) on some rational basis.
…
Although this passage is obiter, I agree with it.
The questions, then are: first, whether the evidence about Mr Soussan’s health was “information” in the sense required by the section; secondly, whether it was capable as being seen as referable to the statutory power to be exercised by the Tribunal on some rational basis; and thirdly, whether the Tribunal considered whether, if accepted, it would be the reason or part of the reason for the decision on review.
In SZBYR the plurality said, at [18], that, however broadly "information" be defined, its meaning in the context of sub-s.424A(1) is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. In my view, the evidence about Mr Soussan’s health was such “evidentiary material”. It was knowledge about a fact or matter communicated to the Tribunal: see Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 referred to in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 which was, in turn, cited by the plurality in SZBYR.
The statutory power to be exercised by the Tribunal was to review the decision of the delegate: ss.348 and 349. The delegate’s decision was to refuse to grant the visa applicant a visa under s.65 of the Act because she was not satisfied that he satisfied the criteria for the grant of the visa. This meant that the Tribunal, in turn, had to consider whether the applicant satisfied those criteria. The critical criterion was that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was to be granted having regard to a number of matters including “any other relevant matter”: cl.600.211 of sch.2 to the Regulations. The nature of this criterion and the breadth of the matters to be considered suggest that the health of an applicant may, in the circumstances, have a rational connection to the satisfaction of the criterion and thus to the power to be exercised by the Tribunal. Here, for example, it could be that visa applicant’s mental ability meant that he was unable to work and so was or could be dependent on the care of his immediate family, most of which lived in Australia.
Finally, I find that the Tribunal did consider that this information would be the reason or part of the reason for its decision. The transcript reveals that the Tribunal raised Mr Soussan’s health as part of the issue of his current personal circumstances. Although it did not ultimately form part of the Tribunal’s reasons, that is not to the point: SZBYR at [17]. Mr Soussan’s circumstances were important to the ultimate decision and, by asking the applicant about her son’s health, it showed that, at the hearing, it thought that that, too, could be an important issue.
For those reasons, there was an obligation under sub-s.359A(1) in respect of the evidence about Mr Soussan’s health given at a previous Tribunal hearing. The Tribunal failed to comply with that obligation and so fell into jurisdictional error.
Conclusion
Accordingly, there will be an order for the issue of writs of certiorari and mandamus.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 27 November 2015
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction