Ayad v Minister for Immigration
[2007] FMCA 208
•5 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AYAD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 208 |
| MIGRATION – Review of decision of MRT – where visa applicant was in Lebanon – where visa applicant was subject to a direction which required him to satisfy the higher standards test – where Tribunal was not satisfied to that standard – obligation of visa applicant to satisfy Tribunal. |
| Migration Act 1958, ss.499, 359 |
| Seyfarth v Minister for Immigration [2004] FCA 1713 SZATG v Minister for Immigration [2004] FCA 1595 NAST v Minister for Immigration [2004] FCA 86 |
| Applicant: | HIND AYAD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG2482 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 February 2007 |
| Date of last submission: | 5 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2007 |
REPRESENTATION
| For the Applicant: | Mr T Sarkis |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2482 of 2005
| HIND AYAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This proceeding is an application for judicial review of a decision of the Migration Review Tribunal made on 3 August 2005 to affirm a decision of the Minister that the visa applicant is not entitled to the grant of a Short Stay Sponsored (Visitor) (Class UL) visa. There appears before me today Miss Hind Ayad who is the aunt of the visa applicant, Mr Mohammed Khalid Ghazzaoui.
Mr Ghazzaoui is a young man of approximately 25 years of age who is currently living in Lebanon. He has a considerable family living in Australia although his parents and siblings live in Lebanon. His Australian family have visited him in Lebanon and they wish to reciprocate his past kindnesses and provide him with an opportunity to see his aged grandmother by sponsoring him for a subclass 679 visa.
The application was first made on 17 November 2004 and the delegate’s decision to refuse to grant the visa was made on 17 January 2005. It is almost 18 months now since the decision of the MRT. It is difficult to understand why these proceedings have been brought into this court at this time given that there is no bar to the applicant making another application for a visa at which time he may be able to be more persuasive. But that is only an observation and does not in any way influence my decision.
Because of the applicant’s age and nationality he is subject to directions made under the Migration Act 1958 (the “Act”) and in particular regulations relating to what is known as “public interest criteria risk factors”. On 20 December 2000 the Minister published a schedule of countries to which these risk factors applied and they included Lebanon and males from that country of 20 years or older. The way in which applications from such persons are to be considered by the Department and then later by the Tribunal standing in the shoes of the Department is described in direction number 33 being a direction under s.499 of the Act. It was made by the then Minister on 21 August 2003.
At [20] of the direction it states:
“In addition to the requirements that each applicant satisfy the criteria relating to “genuiness” and “adequate funds” certain applicants are also subject to public interest criteria 4011 of the regulations (known as the risk factor).”
This criterion requires that persons who have certain characteristics in common with people identified as presenting a relatively high risk of visa non compliance must satisfy the decision maker that they intend a genuine visit and that there is very little likelihood that they will not abide by the conditions of the visa granted to them. The applicant was one of such persons.
The direction goes on to say that applicants will satisfy the “higher level of proof test” only if a certain number of matters have occurred. One is that they have been employed for a period of at least 12 months prior to the application and have approved leave for the period of stay sought. The other is that they can produce evidence of their own funds or their access to funds to cover the period of stay sought and the activities proposed and in this regard the direction states:
“Recently deposited funds may raise doubts as to whether the funds are personally owned.”
When this visa applicant had his application considered by the relevant officer in the Australian Embassy in Lebanon an enquiry was made as to the genuineness of his employment. This took the form of a visit to the employer’s place of business. The employer’s place of business could not be found. The delegate considered that this was a suspicious matter and it became one of the reasons why the delegate refused to grant the visa in the country. That matter was the subject of a s.359A letter sent to the applicant on 27 April 2005 [CB 12].
When the matter came before the Tribunal the Tribunal allowed the visa applicant to call as a witness the lawyer for whom the visa applicant worked and it is fair to say that the Tribunal came to the conclusion that the applicant was employed by the lawyer and therefore the matters which were the subject of the s.359A letter did not form part of the Tribunal’s decision.
The gravamen of the decision is contained in paragraphs 39 and 40 of the Tribunal’s decision at [CB 40-41].
[39] Similarly, although the Tribunal is prepared to accept that the visa applicant is employed by a lawyer, Mohammed Salloum, the visa applicant has indicated that he earns US $235 a month from his employment. Given that this is relatively low by Australian standards, the Tribunal is unable to accept that the visa applicant’s earnings from his employment is a strong factor which makes it unlikely that he will remain in Australia beyond the period authorised.
[40] The visa applicant also provided evidence of funds, being approximately US$5,000 in a bank account. However, the $5,000 was deposited in the account very recently before being provided to the Tribunal. Without further evidence regarding the source of the US$5,000, the Tribunal gives the bank statement limited weight as a factor which makes it likely that the visa applicant will return to Lebanon within the period authorised. The visa applicant did not provide any evidence of other funds or the ownership of other assets in Lebanon.”
At paragraph 41 of the Tribunal’s decision, the Tribunal weighs up the various circumstances that would make it likely that the visa applicant would return to his homeland against those factors which would make it a possibility that he would remain in Australia in breach of his visa conditions. It concludes:
“Having had regard to the visa applicant’s personal circumstances in Lebanon, the Tribunal is unable to be satisfied that they are such that the Tribunal can be satisfied that there is very little likelihood that the visa applicant in Australia beyond any period authorised.”
The applicant argues that the Tribunal misinterpreted the requirements for the visa when it gave consideration to the value of his earnings in Lebanon as compared with earnings in Australia. Mr Sarkis, whom I allowed to appear on behalf of the applicant, explained to me that US$235 in Lebanese terms is quite a significant amount of money and I accept that. However, in my view, the Tribunal’s reference to the earnings is not a reference founded on a misguided understanding of the value of money in Lebanon but a comparison between the earnings of a clerk in that country and the earnings of a clerk or someone similar in this country.
The Tribunal took the view that the average earnings of a clerk in Lebanon would not be a factor that might induce the visa applicant to return to his homeland. It was not a question of whether he would obtain more money in this country. It was a decision by the Tribunal completely within its power not to give the visa applicant’s earnings in Lebanon a particularly high ranking in the scale of matters that might induce him to return to his own country.
Mr Sarkis made a number of other complaints about the Tribunal decision which to my mind amounted to a generalised grievance that the Tribunal did not examine with the visa applicant more thoroughly those matters which the visa applicant put to it as supporting his claim to be awarded a visa. As Hely J said in Seyfarth v Minister for Immigration [2004] FCA 1713 at [95]:
“There is no general duty on a decision-maker ‘to prompt and stimulate an elaboration which the applicant chooses not to embark upon’: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 (Gummow and Heydon JJ). There is no general obligation on the Minister to make his own enquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister: Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 at [45], [51] (Hill J).”
In SZATG v Minister for Immigration [2004] FCA 1595, Hely J again considered the applicant’s duty to advance his own case when he said at [36]:
“It was for the appellant to put forward the information and materials on which he relied in support of his claims. The RRT is not in the position of a contradictor, rather, the RRT is to consider the appellant’s claims and determine if they have been made out: Abebe v Commonwealth (1999) 197 CLR 510 (Gummow and Hayne JJ).”
The visa applicant was faced with a hard task. He had to satisfy the higher standard test. He would have been deemed to have known that even if it had not been explained to him by the various departmental officers with whom he dealt. It was certainly made clear to him in the decision of the delegate and so he would have had some understanding of the hurdles that he would have to jump in order to satisfy the Tribunal.
The Tribunal’s duty in this case was to have regard to the application and then come to a conclusion as to whether or not it had reached the necessary state of satisfaction required of it under the Act. As Allsop J said in NAST v Minister for Immigration [2004] FCA 86 at [6]:
“[6] My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.
[7] Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa …”
That case related to a refugee application but the principles are the same. The Tribunal is not allowed to grant a visa unless it comes to the state of satisfaction of which the Act imposes upon it. In this case, the Tribunal weighed up the matters of evidence that the applicant had provided to it and for the reasons which it gave. In particular it considered the two reasons that I have extracted relating to the applicant’s earnings and the recent deposit of money into his bank account and concluded that it could not be satisfied that his personal circumstances in Lebanon which make it unlikely that he would remain in Australia outweighed the personal circumstances which make it likely that he would remain in Australia.
Mr Sarkis wishes me to say that because the applicant fulfilled all the criteria set out in the Minister’s direction that the state of satisfaction must be reached. He says that to find otherwise would result in a decision of such unreasonableness that it could be set aside. I do not have to answer that question because I don’t think that the Tribunal came to the conclusion that this particular applicant met all the criteria. The Tribunal’s decision upon that matter is a matter for it alone.
In all the circumstances, I must decline to grant review of the decision of the MRT in this case. I dismiss the application and I order that the applicant pay the respondent’s costs. The respondent asks for $5,000. That is not a totally unreasonable figure, but in my view a more appropriate one would be $4,000.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
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