Barakat v Minister for Immigration
[2018] FCCA 1316
•22 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARAKAT v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1316 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a visitor visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359A, 359AA |
| Cases cited: Applicant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71 |
| Applicant: | HABIBA BARAKAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2249 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr T Galvin of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 18 July 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2249 of 2017
| HABIBA BARAKAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Ms Barakat, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 27 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Barakat a visitor visa. Background facts relating to this matter are conveniently set out in the Minister’s written submissions filed on 15 May 2018.
Ms Barakat is a citizen of Lebanon. She first travelled to Australia on 7 August 2011 on a student visa, and departed on 5 November 2011.[1]
[1] Court Book (CB) 76; [2] Ms Barakat asserts that her first visa was a visitor visa but that is not supported by the court book
Ms Barakat travelled to Australia again on 5 November 2015 on a visitor visa, with an expiry date of 30 August 2016.[2]
[2] CB76; [5]
On 24 August 2016, Ms Barakat applied for a visitor visa onshore.[3] At the time the visa application was lodged, Class FA had one subclass (600) with four streams. Ms Barakat sought to satisfy the primary criteria in the tourist stream.
[3] CB76; [4]
On 8 November 2016 the delegate refused to grant a visitor visa.[4]
[4] CB50–52
On 23 November 2016, Ms Barakat applied to the Tribunal for review of the delegate's decision[5] and she appeared at a hearing before the Tribunal on 24 May 2017 to give evidence and present arguments.[6]
[5] CB53–54
[6] CB66–67
The Tribunal made its decision on 27 June 2017, affirming the decision of the delegate not to grant Ms Barakat a visitor visa.[7]
[7] CB75–79
Tribunal decision
One of the relevant criteria for a subclass 600 visa is contained in clause 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). It requires that the visa applicant satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
In deciding whether the criteria in clause 600.211 had been met, the Tribunal had to consider whether Ms Barakat genuinely intended to stay temporarily in Australia, having regard to:
a)whether she had complied substantially with the conditions to which the last substantive visa held by the applicant was subject;
b)whether she intended to comply with the conditions to which the subclass 600 visa would be subject; and
c)and any other relevant matter.
The Tribunal was not satisfied that Ms Barakat intended to live temporarily in Australia. The factors listed in support of this decision are set out at [32] of the Tribunal decision, and consist of the following:
a)Ms Barakat had a young baby, and believed that the baby should be with both parents;
b)Ms Barakat’s husband had applied for a carer visa, and presumably wanted to stay in Australia permanently;
c)Ms Barakat wanted to remain with her husband;
d)Ms Barakat had few incentives to return to Lebanon;
e)Ms Barakat had many family members in Australia; and
f)Ms Barakat loved Australia and wanted to improve her language skills.
The present proceedings
These proceedings began with a show cause application filed on 18 July 2017. Ms Barakat continues to rely upon that application. There are four grounds in it:
A. The Tribunal failed to comply with s.[359A] or Section [359AA] of the Migration Act 1958 ('the Act') by failing to give to the Applicant clear particulars of the following adverse information, that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate's decision; and failed to ensure, as far as is reasonably practicable, that the Applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the delegate's decision; and failed to invite the Applicant to comment on or respond to it:
Particulars
a. The Tribunal noted that it has taken into account the material in the Department file as well as evidence to the Tribunal.
The Tribunal records indicate that the Tribunal questioned the applicant about her application to be a dependent on the carer visa of her husband. This was invalidated as she was onshore. The Tribunal asked her if this application indicated that she wished to live in Australia permanently. She said that her husband's lawyer wanted to add her to this visa application, but she said not to do so, because she did not want to live in Australia, she just wanted to visit. However, if her husband is granted a carer visa, she would then like to be with him in Australia, as a child should be with his father and mother.
The Tribunal noted that the fact that the applicant wants to remain with her husband, who has applied for a carer visa, and has also spent substantial periods of time in Australia already, does suggest that she does not genuinely intend to stay temporarily in Australia, and would want to live in Australia permanently.
It is submitted that the above is an 'information' which should have been put under Section [359A] or Section [359AA] to get response before forming an adverse view.
b. The Tribunal noted that the applicant has other family in Australia such as, aunts, uncles, her sister-in-law and friends.
The Tribunal then noted that the applicant has many family members in Australia, and said the above factors all indicate incentives to live in Australia. It is submitted that the applicant has family members such as aunts, uncles, sister-in-law and friends is an information falls within the ambit of section [359] or [359AA] of the Migration Act which should have been put to the applicant formerly under section [359A] or [359AA] of the Migration Act.
B. The Tribunal failed to take into consideration of relevant consideration when assessing the applicant’s incentive to return to Lebanon.
Particulars
In establishing whether 600.211(c) is satisfied, relevant considerations of any other matter may include, which include whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of noncompliance. The Tribunal failed to consider and assess whether the applicant from a country which represent a low risk of immigration non-compliance.
C.The Tribunal failed to take into consideration of the Ministerial Direction 59 and failed to mention in its decision.
Particulars
The Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM in accordance with Ministerial Direction No.56, made under s.499 of the Act. The Tribunal failed to take it in its consideration. The Tribunal failed to consider the DFAT report and discuss with the applicant to form a view whether there are enough incentives including the country information such as the economy and country's political and security situation of the country to return to her home country instead of prolonged her stay in Australia.
In Raza v Minister for Immigration & Anor [2017] FCCA 1272 (30 June 2017), the Federal Circuit Court noted that the Tribunal erred in failing to consider country information because the Tribunal is under obligation as per the Direction to have regard to the applicant's circumstances in his home country
D.The Tribunal misapprehended the evidence or reason for applying for a visitor visa.
a.The Tribunal noted that her purpose of applying for a visitor visa is related to medical treatment. It is submitted that no where in the application the applicant noted that her intention was applying for a visitor visa is to take treatment. The applicant has mentioned that she has a sister in Australia which should have been considered as an intention to apply for a visitor visa as per 600.221. The Tribunal overlooked the evidence and misapprehended the intention of the applicant and misdirected itself when assessing the reason for applying for a visitor visa.
(errors in original)
The third ground was not pressed.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 21 September 2017. Both Ms Barakat and the Minister filed written submissions prior to today’s hearing.
Ms Barakat requested an adjournment of today’s hearing, so that she could obtain legal assistance. She told me that she had consulted a lawyer, but she needed time to raise funds to pay the lawyer, so that he would represent her. She told me that the written submissions prepared in her name were, in fact, prepared by the lawyer.
I declined the adjournment request on the basis that there was no indication on the file of any involvement by a lawyer, and that, in any event, if the grounds that were pressed, as elaborated upon in her written submissions, supported an arguable case of jurisdictional error, Ms Barakat would have time to raise funds for whatever legal assistance she might want.
Unfortunately for Ms Barakat, however, the grounds as advanced do not support an arguable case of error. Ms Barakat was not able to support her submissions orally, probably because they were prepared by somebody else. She did raise several matters not directly linked to the grounds of review. She asserts that the Tribunal was in error at [2] of its decision, when the Tribunal stated that Ms Barakat’s first visit to Australia was on a student visa. The matters referred to by the Tribunal in its decision suggest that no error of fact was made by the Tribunal, but, if it was, that factual error did not impact in any way on the outcome of the review.
Ms Barakat also asserted that she did not claim the visa now in issue because of her pregnancy or medical status. That, however is not consistent with what is stated in the visa application reproduced at court book page 1. Ms Barakat maintains that she has been rigorous in complying with the conditions on the visas she has previously held. That appears to be so. She also complains at the treatment she received by a border control official at Sydney Airport on returning from a temporary visit to Malaysia. Whatever may have occurred at that time could not have and did not have any impact upon the Tribunal’s consideration.
In my view, the Tribunal was entitled to conclude, as it did at [32] of its reasons, that it was not satisfied that Ms Barakat only intended to stay in Australia temporarily. I see no arguable case of error in the process of reasoning adopted by the Tribunal leading up to that conclusion.
I otherwise agree with the Minister’s submissions concerning the grounds of review.
Ground A
In the particulars to this Ground, Ms Barakat describes two pieces of “adverse information” that the Tribunal purportedly failed to put to her in accordance with ss.359A or 359AA:
a)information regarding Ms Barakat being a dependent applicant on her partner's carer visa application; and
b)Ms Barakat's numerous family members living in Australia.
As to (a), the Tribunal's decision record refers to the information contained in the delegate's decision regarding the Minister’s Department's “records”.[8] As noted by the Tribunal, the delegate stated that those “records” indicate that Ms Barakat’s partner had made an application for a carer visa and that Ms Barakat was listed in the application form as a “dependant”.[9] This accurately summarises the material that was set out in the delegate's decision record[10] and the delegate stated that it suggested that Ms Barakat has no intention to stay temporarily in Australia.[11] Ms Barakat provided a copy of that decision record to the Tribunal.[12] The Tribunal also questioned Ms Barakat about this issue at the hearing, specifically the question of whether that application indicated that she wished to live in Australia permanently.[13]
[8] at [21]
[9] at [21]
[10] CB51
[11] CB52
[12] CB54
[13] at [30]
Accordingly, to the extent that that material regarding Ms Barakat being a dependent applicant on her partner's carer visa application constituted “information” for the purposes of s.359A(1) of the Migration Act, it falls within the exception to the requirements of that subsection due to the operation of s.359A(4)(b) of the Migration Act.
As to (b), the delegate's decision record also sets out that Ms Barakat’s immediate family were onshore and stated that this was “a further disincentive for Mrs Barakat to depart Australia”.[14] Ms Barakat provided a copy of that decision record to the Tribunal.[15] The Tribunal also questioned Ms Barakat about family she had in Australia, in response to which she stated that “her sister, aunts, uncles, her sister-in-law and friends” are in Australia.[16]
[14] CB52
[15] CB54
[16] at [27]
Accordingly, to the extent that that material regarding Ms Barakat’s family in Australia constituted “information” for the purposes of s.359A(1) of the Migration Act, it also falls within the exception to the requirements of that subsection due to the operation of s.359A(4)(b) of the Migration Act.
Ground B
Ground B contends that the Tribunal failed to take into account “relevant considerations” when assessing her incentive to return to Lebanon. Specifically, the particulars contend that the Tribunal ought to have considered whether Ms Barakat was from a country with a low risk of immigration non-compliance.
Such a claim never arose on the material before the Tribunal, either expressly or indirectly on the material. Furthermore, there was no statutory obligation on the Tribunal to consider whether Ms Barakat was from a country with a low risk of immigration non-compliance.
The Procedures and Advice Manual 3 states that, for the purposes of clause 600.211(c) of the Regulations, “relevant information” may include, but is not limited to, a range of matters including intelligence reports and country profiles. This can cover reports on migration fraud and immigration compliance, which is what Ms Barakat’s ground of review appears to be referring to.
The above guideline is representative of departmental policy only. It does not impose a requirement that such information be considered. Further, if information is obtained that does suggest a high risk of immigration non-compliance from nationals of a certain country, this simply means departmental officers may wish to seek further evidence from Ms Barakat as to her circumstances. Nowhere does the policy say that information suggesting a low risk of immigration non-compliance must be factored into a decision on granting a visa. Nor is there any basis in policy or case law to suggest that this consideration is a relevant consideration, of which the failure to have regard would result in jurisdictional error.
It was a matter for Ms Barakat to advance the claims and evidence that she wished to be considered as to why she satisfied the criteria for the grant of a visitor visa, and the Tribunal was not required to make out her case for her.[17] In the present circumstances, the Minister submits that this ground is an attempt by Ms Barakat to re‑caste her case before the Tribunal, and is thereby seeking to engage the Court in impermissible merits review.[18]
[17] Minister for Immigration v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76]
[18] Applicant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71 per Gleeson CJ at [1]
Ground C
Ms Barakat’s written submissions state that Ground C is not pressed.
Ground D
Ground D misunderstands the evidence before the Tribunal and the Tribunal's decision. Ms Barakat initially applied for the visitor visa because of her “pregnancy with a high risk of miscarriage due to previous record of abortion/miscarriage”.[19] The proposed period of her stay was up to six months,[20] she provided medical evidence in support of the application[21] and she stated that she expected to incur medical costs, or require treatment or medical follow up during her stay.[22] The Tribunal noted that this purpose therefore appeared to relate to medical treatment, which was not a prescribed purpose for the grant of a visitor visa.[23] However, the Tribunal found that this reason was no longer relevant because Ms Barakat had given birth to her baby and, instead, found that the purpose for which she intended to visit Australia was to visit relatives which was a prescribed purpose.[24] Accordingly, the Tribunal did not overlook Ms Barakat’s evidence, or misapprehend her intention to visit her sister in Australia; instead, that was the purpose that it considered because the initial purpose she provided was no longer relevant. Ultimately the Tribunal was not satisfied that Ms Barakat did not genuinely intend to stay in Australia temporarily, despite that stated purpose.[25] This finding was open to the Tribunal for the reasons it gave.
[19] CB1
[20] CB6
[21] CB8, 17–26 and 40–45
[22] CB8
[23] CB77; [14]–[15]
[24] CB77; [16]–[17]
[25] at [33]
I conclude that Ms Barakat is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 18 July 2017 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606. Ms Barakat sought an explanation of her options should a costs order be made but did not resist a costs order.
I will order that Ms Barakat is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 May 2018
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