Charaf v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 350
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Charaf v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 350
File number(s): SYG 2454 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 March 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal - Visitor (Class FA) visa (subclass 600) refusal– Where Tribunal found the visa applicant would not stay temporarily in Australia due to the economic conditions in Lebanon – Whether Tribunal asked itself the wrong question – Whether the tribunal failed to take into account a relevant consideration – Error of the kind identified in Khanam – Application upheld Legislation:
Migration Regulations 1994 (Cth) cl 600.211
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Khanam v Minister for Immigration & Citizenship [2009] FCA 966
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 5 March 2025 Place: Parramatta Counsel for the Applicant: Mr Godwin (Direct Access) Solicitor for the First Respondent: Mr Pasas (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2454 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAFAA CHARAF
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application is upheld.
2.A writ of certiorari shall issue, quashing the decision of the (then) Administrative Appeals Tribunal made on 14 October 2020.
3.A writ of mandamus shall issue, directed to the Administrative Review Tribunal, requiring it to determine the Applicant’s application according to law.
4.The First Respondent is to pay the Applicant’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS:
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 14 October 2020 which affirmed a decision made by a delegate of the Minister for Immigration (“the Minister”), dated 6 June 2018, to refuse Mr Sabbouh’s visa application. The review applicant is Ms Waffa Charaf, the mother of the visa applicant, Mr Hayssam Sabbouh.
For the reasons set out below, the application should be upheld and the decision remitted to the Tribunal for reconsideration.
BACKGROUND
The visa applicant, born in 1993, is a citizen of Lebanon. He claims to work as a full-time painter. In his application to the Minister, he stated that his father and five siblings also live in Lebanon, whilst his mother, sister, and extended family members live in Australia.
He applied for a Visitor (Class FA) visa (subclass 600) on 16 May 2018. Class FA contains a number of streams. The visa applicant sought a visa in the Sponsored Family Stream. His application stated that he wanted to visit Australia for the period of 20 May 2018 to 20 August 2018 in order to visit his mother and a sister, who reside in Australia.
On 6 June 2018 a delegate of the Minister refused to grant the visa applicant a visa.
On 15 October 2020 the Tribunal affirmed the decision of the Minister.
On 29 October 2020 the review applicant filed an application seeking judicial review of the decision of the Tribunal.
THE TRIBUNAL’S DECISION
The Tribunal decision is relatively short and spans a total of six pages and 27 paragraphs.
The Tribunal reproduced the delegate’s reasoning for refusing to grant the visa at [5].
The delegate found that the visa applicant’s requested length of stay, being 20 May 2018 to 20 August 2018 was inconsistent with his claim that he was a full-time home painter. The delegate did not doubt the circumstances of the visa applicant’s employment but held concerns that the employment did not provide a strong enough incentive for him to return to Lebanon. The delegate accepted that the visa applicant had family ties in Lebanon, being his parents and siblings classed as non-dependent relatives, and the delegate found that they may offer some incentive to return home but ultimately this did not allay concerns the delegate had about the visa applicant’s overall intentions for a genuine visit to Australia. The delegate pointed to country information indicating the state of civil unrest in Lebanon due to the war in Syria and found that the circumstances in North Lebanon may encourage the visa applicant to remain in Australia after the expiry of his visa.
The review applicant and her daughter appeared before the Tribunal to give evidence and present arguments. Among other things, the review applicant stated that; the visa applicant was only coming to Australia to see her and his sister, the visa applicant was in North Lebanon; she could provide a bond of up to $15,000.00, and the review applicant’s other children had visited Australia and had not breached their visas.
The Tribunal put country information to the review applicant that Lebanon was on the verge of economic collapse even before COVID, and in August 2020 events in Beirut (being the largest non-nuclear explosion recorded), would be reasons that the visa applicant would remain in Australia. The review applicant stated that she had applied before these events had occurred. After putting to her the reasons why the visa applicant may remain in Australia, the Tribunal stated that the review applicant said she was depressed and wanted to see the visa applicant.
The review applicant’s daughter stated that the visa applicant would not work in Australia and would return to Lebanon on account of his employment.
The Tribunal had regard to a DFAT Country Information Report: Lebanon dated 19 March 2019 and an article in Al Jazeera from 2 September 2020.
The substantive issue before the Tribunal was whether cl 600.211 of the Migration Regulations 1994 (Cth) (Regulations) was met. The Tribunal had to consider whether the visa applicant genuinely intended to stay temporarily in Australia for the purposes of a visa in the Sponsored Family stream. The Tribunal did not have to consider if the visa applicant had complied with the conditions of any last substantive visa held as he had never entered Australia.
The Tribunal made the following findings in considering all relevant matters under the clause. Whilst the visa applicant had ties to Lebanon, such as property and family that would incentivise him to return to Lebanon, he also had personal ties to Australia through his mother and sister. Further, the Tribunal considered that the conditions in Lebanon were significant to push the visa applicant to seek to work and/or remain in Australia, even if the review applicant’s intention was for the visa applicant to return to Lebanon and even if a bond were imposed.
For those reasons the Tribunal affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The review applicant’s sole ground of judicial review is set out in an Originating Application filed on 29 October 2020. It reads as follows:
1.The Tribunal treated as dispositive of the application the fact that the applicant was from a country in financial turmoil. It failed to complete the exercise of its jurisdiction because that was not the only question. The Tribunal failed to make findings about the particular circumstances of the visa applicant which bore upon why that turmoil might cause him in particular to not return to Lebanon. Nor did the Tribunal have regard to the fact that the bond of $15000 offered by the sponsor was large. Nor did it have regard to the fact that the sponsor would be barred from further sponsoring for 5 years if the visa applicant failed to comply with the conditions of his visa
THE APPLICANT’S SUBMISSIONS
The review applicant’s ground of judicial review is a complaint that the determinative factor for the Tribunal’s review was the economic circumstances in Lebanon.
The review applicant submitted that there was no information before the Tribunal that the visa applicant was enduring financial hardship of any sort. Instead, the Tribunal had information before it regarding his secure employment in Lebanon. Additionally, the review applicant would be prevented from sponsoring any other visits for five years in the event that the visa applicant breached his visa conditions. The review applicant had provided the Tribunal with information that her health condition precluded her from travelling to Lebanon and the visa applicant visiting his mother in Australia was the only way she could see him.
It was submitted that the Tribunal did not engage with the visa applicant’s individual intentions but found the “country conditions” in Lebanon to be determinative.
Reliance was placed on Collier J’s decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966 (‘Khanam’). The review applicant contends that the Tribunal asked itself the wrong question, that being “is the visa applicant from a country in financial turmoil?”. The answer to this question could not determine the application that was before the Tribunal however a reading of the decision record indicates that it was the determining question.
THE FIRST RESPONDENT’S SUBMISSIONS
The respondent summarised specific areas of concern in the review applicant’s application, which can be summarised as follows:
(a)The Tribunal had genuine reasons to believe the visa applicant would not return to Lebanon upon weighing up the socio-economic difficulties in Lebanon together with the visa applicant’s familial ties to Australia;
(b)The bond totalling $15,000.00, and its respective size, is a matter of merits review and “not a mandatory consideration” for the Tribunal; and
(c)The sponsor being barred for sponsoring for five years was not raised by the review applicant at the Tribunal and thus not a mandatory consideration nor a question directed at the applicant’s visa intentions.
The first respondent seeks to distinguish Khanam from the facts of the case at hand. That case dealt with a Pakistani citizen who applied for a Sponsored (Visitor) Class UL (subclass 679 (Sponsored Family Visitor)) visa. The visa was refused initially on the basis that the Minister was concerned the applicant was planning to seek asylum in Australia as opposed to being a genuine visitor. The applicant was ultimately successful in showing jurisdictional error in that the Tribunal focused “exclusively” on generic information, rather than the applicant’s personal circumstances.
The respondent argues that the Tribunal’s decision in this matter was not based solely on country information, but also on personal information that was relevant to the visa applicant’s circumstances, and “any attempt to challenge the Tribunal’s findings involves impermissible merit’s review”.
CONSIDERATION
It is common ground between the parties that the visa applicant meets all other criteria for the grant of the visa and that the only matter of concern was the intention of the visa applicant to genuinely visit his mother for a three-month period or, whether he was using the visa as a means to gain permanent residency within Australia.
Counsel for the review applicant took the Court to a number of errors or omissions in the Tribunal decision record:
(a)At [4] reference is made to the fact that the visa applicant’s father and three siblings also reside in Lebanon. This was incorrect, in fact five siblings resided in Lebanon (see CB 13 and 22).
(b)No specific reference was made in the Tribunal decision to the letter at CB 29, being a letter from the visa applicant’s employer confirming the visa applicant would be granted three months leave from his employment as a house painter in order to visit Australia. This letter confirmed the visa applicant would be re-employed upon his return to Lebanon.
(c)There is no reference within the Tribunal decision record to medical certificates contained at CB 85 – 86 that confirm the review applicant suffers from a number of medical conditions that prevent her travel back to Lebanon.
(d)There is no specific reference other than at [10] to the fact that three of the visa applicant’s siblings, who reside in Lebanon, including 2 brothers, have visited Australia in the past and complied with their visa conditions. No discussion of this occurs in the decision record as to how this might impact on the genuineness of the visa applicant’s intentions.
(e)There is only a passing reference at [24] of the offer for a $15,000 bond to be imposed and no discussion as to whether not this would provide an incentive for the visa applicant to return to Lebanon.
(f)The application for the visa predated the DFAT country information report of the economic collapse in Lebanon in 2020, which was heavily relied upon as a reason to refuse the application.
(g)There is no discussion of the fact that the visa applicant lives in Northern Lebanon, well away from explosion in Beirut and why this explosion would impact on his intentions with respect to his visa application.
Reasons of a tribunal are not to be scrutinised “with an eye finely attuned to error”. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]. Further at [47] the Court per French, Sackville and Hely JJ said as follows:
The inference the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings a greater generality or because there was a factual premise upon which a contention arrests that has been rejected. Where, however, there was an issue raised by the evidence advanced behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegates decision, a failure to deal with that in the published reasons may raise a strong inference that has been overlooked.
In Khanam Collier J had the following to say at [27] – [28]:
[27] I have considered the material before me, including the oral submissions of Counsel during the hearing. While the Tribunal gave detailed consideration to the case before it, it is clear that the Tribunal’s conclusion that the express intention of the visa applicant to visit Australia was not genuine was based exclusively on the conclusion reached by the Tribunal that the visa applicant could claim asylum in Australia because of his religion. Indeed the line of reasoning of the Tribunal can be summarised as follows:
1. Ahmadi Muslims are persecuted in Pakistan and could claim asylum in Australia.
2. The visa applicant is an Ahmadi Muslim, currently living in Pakistan.
3. Therefore the visa applicant’s real motive in visiting Australia is to claim asylum, and not genuinely to visit Australia, as required by subcl 679 of the Regulations.
[28] Notwithstanding the acknowledgement by the Tribunal that it is ultimately the intentions of the visa applicant which must be ascertained, the Tribunal formed its opinion based on its view of likely intentions of Ahmadi Muslims as a group in applying for subclass 679 visas rather than based on the circumstances of the visa applicant in this particular case. Indeed, reviewing the reasons of the Tribunal one might wonder whether any Ahmadi Muslim from Pakistan seeking to visit relatives in Australia would receive a subclass 679 visa. The reasons given by the Tribunal suggest not.
The error identified by Collier J set out above also applies here. The reasons of the Tribunal appear to suggest that any applicant for a sponsored visitor’s visa from Lebanon would be refused such a visa based on the economic circumstances in Lebanon. That line of reasoning is subject to jurisdictional error for the same reasons as found by Collier J in Khanam.
The economic circumstances in Lebanon could not alone determine the application before the Tribunal. While the economic circumstances were a relevant consideration, noting in particular the application for the visa was made before the economic collapse referred to by the Tribunal, that matter was not solely determinative of the application.
By misdirecting itself to an incorrect question, the Tribunal failed to consider whether the visa applicant himself would meet the requirements of the visa and in so doing, failed to give proper consideration to the evidence before it, including of the visa applicant’s employment circumstances, the bond offered and the effect of Lebanon’s circumstances on the visa applicant’s intentions.
DETERMINATION
The application is upheld, and the Court will grant the orders set out in the initiating application. The Court will hear from the parties on the issue of costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 14 March 2025
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