Boutros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1053
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Boutros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1053
File number(s): SYG 2504 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 18 June 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a visitor visa – applicant required to show exceptional circumstances for a stay of more than 12 months – Tribunal finding no exceptional circumstances – whether the Tribunal failed to consider a serious medical condition considered – jurisdictional error established Legislation: Migration Regulations 1994 (Cth) Cases cited: Merhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1054 Number of paragraphs: 26 Date of hearing: 17 May 2021 Place: Sydney The Applicant appeared in person Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: HWL Ebsworth ORDERS
SYG 2504 of 2019 BETWEEN: MAY BOUTROS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 3 September 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine according to law the review before it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
The applicant, Ms Boutros, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 September 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Boutros a visitor visa. This case was dealt with concurrently with proceedings SYG 2503 of 2019 concerning the refusal of a visitor visa to Ms Boutros’ husband, Mr Fouad Bou Merhi.
The following statement of background facts is derived from written submissions filed on behalf of the Minister on 13 January 2021, which I adopt.
Ms Boutros is a citizen of Lebanon, as noted above, and the wife of Mr Merhi, an applicant to the Court in his own right (SYG 2503 of 2019). Their daughter is Ms Vidad Bou Merhi (Ms Bou Merhi).
Ms Boutros applied for a visitor visa on 13 December 2018.[1]
[1] Court Book (CB) 1
On 28 December 2018, the delegate refused to grant Ms Boutros a visitor visa.[2]
[2] CB 22
The delegate was not satisfied that Ms Boutros met clause 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth). That clause relevantly provided:
(1)If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
(2)This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:
(a) one or more visitor visas;
…
(d) a bridging visa.
The delegate recorded that Ms Boutros had last arrived in Australia on 24 September 2017 as the holder of a tourist visa, which remained in effect until 28 December 2018. On 13 December 2018, Ms Boutros lodged the visa application the subject of the delegate’s decision, requesting a further stay until 11 December 2019. This would result in Ms Boutros staying in Australia for a total period exceeding 12 consecutive months and therefore she had to demonstrate that exceptional circumstances existed for the grant of the visa. The delegate was not satisfied that exceptional circumstances existed and therefore refused the application.[3]
[3] CB 23
Ms Boutros sought review of the delegate’s decision by application to the Tribunal lodged on 17 January 2019.[4] Ms Boutros appointed Ms Bou Merhi as her authorised recipient.[5]
[4] CB 25
[5] CB 31
By letter dated 5 August 2019, sent by email to Ms Bou Merhi[6] the Tribunal wrote to Ms Boutros and invited her to attend a hearing on 27 August 2019.[7]
[6] CB 49
[7] CB 51
The Tribunal’s hearing invitation enclosed an information brochure, which included the following:[8]
Can I ask the AAT to obtain evidence?
You may, within 7 days after being notified that you are invited to attend a hearing, give us written notice that you want us to take oral or written evidence from a person or persons named in the notice or to obtain other written material. If you make such a request within that time limit, we will consider your notice but may decide not to obtain such evidence or written material. For example, we may be satisfied on a particular point, or may not consider the evidence to be relevant to your case.
You may use the 'Response to hearing invitation - MR Division' form to nominate persons you want us to take oral evidence from. If any person is in immigration or criminal detention, you should advise us immediately. You will need to arrange for any persons you nominate, who are not in immigration or criminal detention, to be available to give evidence.
[8] CB 53
Also enclosed was a response to hearing invitation form,[9] which Ms Boutros was asked to complete and return within seven days of receipt of the hearing invitation.[10]
[9] see list of enclosures at CB 52
[10] CB 51
On 16 August 2019, the Tribunal re-sent Ms Bou Merhi the abovementioned hearing invitation.[11]
[11] CB 58, CB index item 11
On 25 August 2019, Ms Bou Merhi emailed the Tribunal with respect to both Ms Boutros and Mr Merhi and attached, relevantly:[12]
(a)a letter from herself concerning her need for her parents’ help during her pregnancy;[13]
(b)medical documents in relation to herself;[14] and
(c)a response to hearing invitation form for Ms Boutros,[15] indicating that she wanted the Tribunal to take evidence from two witnesses. They were Tony and Linda Semaan, the relatives of Ms Bou Merhi’s husband (and also Ms Bou Merhi’s neighbours). They were expected to give evidence that they saw Ms Boutros with Ms Bou Merhi, in Ms Bou Merhi’s house every day helping Ms Bou Merhi.[16]
[12] CB 59
[13] CB 60
[14] CB 61ff
[15] CB 66
[16] CB 67
Ms Boutros appeared at a hearing before the Tribunal on 27 August 2019,[17] to give evidence and present arguments on the issues arising in relation to the review. Mr and Mrs Semaan’s names and mobile telephone numbers are written at the bottom left of the “Hearing Record” at CB 69. Mr Merhi and Ms Bou Merhi both gave oral evidence at the hearing.[18]
[17] CB 69
[18] CB 82 [5] and transcript of hearing, annexed to the affidavit of Claire Dunn made on 20 January 2021. No other witnesses gave oral evidence
The transcript of the hearing indicates that the hearing commenced with an introduction given by the Tribunal Member to Ms Boutros, Mr Merhi, and an unknown number of unrelated applicants whose cases were apparently also being dealt with that day. Ms Boutros’ and Mr Merhi’s hearings were then conducted jointly.
On 3 September 2019 the Tribunal made its decision, affirming the decision under review not to grant Ms Boutros a visitor visa.[19]
[19] CB 81
The Tribunal set out at [8]-[9] the relevant factual background to the visa application, including the reasons Ms Boutros and Mr Merhi were applying to extend their stay.
The Tribunal found at [14] that the grant of the visa would result in Ms Boutros being authorised to stay in Australia as the holder of a visitor tourist stream visa and a bridging visa A, which are visas specified in clause 600.215, for a total period of more than 12 consecutive months.
The Tribunal considered at [15] Ms Boutros’ circumstances as presented to it.[20] It accepted that Ms Boutros wanted to spend time in Australia to assist Ms Bou Merhi in caring for her young daughter, and during her present pregnancy. The Tribunal accepted that Ms Boutros had been living with Ms Bou Merhi and had been the primary carer for their granddaughter, as Ms Bou Merhi was pregnant and had gestational diabetes.[21]
[20] see CB 84 [19]-[23]
[21] at CB 83 [15]
The Tribunal had regard to departmental policy, the Procedures Advice Manual (PAM3), in relation to exceptional circumstances, noting that it provided guidance and did not bind the Tribunal. The Tribunal set out examples of what might constitute exceptional circumstances, identified by the policy. They included:[22]
•the death, serious illness or serious medical condition of a member of the visa applicant's close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
•a change in the applicant's circumstances (or the circumstances of an Australian resident) that:
could not have been anticipated at the time their visitor visa was granted and
is beyond the visa applicant's control and
where not granting a visa would cause significant hardship to an Australian resident or citizen.
[22] at CB 84 [18]
The Tribunal considered the claims put to it and concluded at [24] that:[23]
Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to assist her daughter with her caring responsibilities the Tribunal was also mindful that she had previously been granted a temporary visa for this purpose and that there was no real change in the situation since the visa had been granted. The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.
[23] CB 84
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 27 September 2019, on which Ms Boutros continues to rely. There are two grounds in it:
1.The Tribunal Member acted contrary to the evidence presented at the interview and failed to consider my daughter's exceptional circumstances and failed to consider extending my visa because of the immediate need for my daughter to be with her and supporting her before and after the delivery of the child.
2.The Tribunal failed to understand and apply the law in relation to exceptional circumstances which existed at the time of the decision.
In addition to the court book filed on 5 December 2019, I have before me as evidence three affidavits, being Ms Boutros’ affidavit accompanying her application, the affidavit of Toufic Laba-Sarkis made on 24 December 2020 annexing a transcript of the Tribunal hearing and the affidavit of Claire Dunn made on 20 January 2021 annexing a corrected version of that transcript. An earlier version of the transcript annexed to the affidavit of Sarah Gin-May Bowe made on 21 August 2020 was not read.
CONSIDERATION
This case was dealt with by the Tribunal the day following the case of Ms Boutros’ husband and the Tribunal was constituted by the same member. The reasoning in both cases was the same. As identified in SYG 2503 of 2019,[24] the Tribunal fell into error by failing to determine whether the gestational diabetes afflicting Ms Boutros’ daughter in her second pregnancy was a “serious medical condition” for the purposes of the PAM3 in relation to exceptional circumstances. That medical issue was squarely raised with the Tribunal both orally and in writing and the Tribunal needed to deal with it. The Tribunal recognised the issue but did not resolve it. I have proceeded on the basis that the condition arose in relation to the second pregnancy and not previously, and on that basis conclude that the Tribunal was wrong to state at [24] that there was no real change in the situation since the visa had been first granted in 2017.
[24] Merhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1054
CONCLUSION
Ms Boutros has been successful in establishing that the decision of the Tribunal is affected by jurisdictional error. She should receive the relief she seeks.
I will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 18 June 2021
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