Dawood v Minister for Immigration
[2016] FCCA 1576
•30 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAWOOD v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1576 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – whether Tribunal’s decision affected by jurisdictional error – whether applicant met the requirements of reg.1.15AA(1)(b) of the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider relevant information before it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), regs.1.15AA(1)(e)(i), 1.15AA(1)(e)(ii) |
| Cases cited: JOJO v MIBP [2013] FCCA 1554 |
| Applicant: | FADI KERARDOS DAWOOD |
| First Respondent: | MINISTER OF IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2490 of 2014 |
| Judgment of: | Judge McNab |
| Hearing date: | 23 June 2016 |
| Date of Last Submission: | 23 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2016 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Day |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The Second Respondent’s name be amended to Administrative Appeals Tribunal.
The applicant’s application filed 10 December 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3416.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2490 of 2014
| FADI KERARDOS DAWOOD |
Applicant
And
| MINISTER OF IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 10 December 2014, the applicant sought judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) dated 27 November 2014. The Tribunal affirmed a decision of a delegate of the first respondent, made on 12 November 2013, not to grant the applicant an Other Family (Residents) (class BUD) carer visa.
The grounds of review in the application erroneously seek the judicial review of a decision of the Refugee Tribunal made on 4 November 2013 in relation to a refusal to grant a protection visa to the applicant. The grounds of the application bear no relation to this application and have plainly been copied from some other unrelated document into this current application.
For the purposes of this application, the respondent and the Court had assumed that the grounds of review are those matters raised in paragraphs 14 and 15 of the applicant’s affidavit sworn 9 December 2014. Those paragraphs provide (quoting directly):
The Tribunal did not give weight to my father’s current health situation and he did not consider that none of my siblings can look after him. Because they all have their own life and they are all busy with their work and study. And also the member did not consider that I am the one who’s looking after him for the last two years and because of that we have a great bonding now and now if I have to leave my father his health and mentally condition will be deteriorate.
I provided documents to the Tribunal to corroborate my claims. The Tribunal failed to engage in an active intellectual process of the documents as well as with the information. It was an error for the Tribunal to assess my father’s situation and my credit without first assessing whether the substance of the documents corroborated my claims. Annexed, marked BKSB, is a decision of the Tribunal made by the member.
Background
The applicant’s affidavit filed in this Court dated 9 December 2014, deposes that the applicant is a 40 year old Swedish citizen who was born in Iraq. He arrived in Australia on 28 March 2012 on a visitor visa.
The applicant applied for an Other Family (residents) (class BUD) carer visa.
The delegate refused to grant the visa on the ground that the applicant did not meet the requirements of Regulation 1.15AA(1)(e)(i) to the Migration Regulations 1994 (Cth). The applicant had applied for a carer visa on the ground that he was the carer of the sponsor, Kirados Dawood Petrus (who is the applicant’s father).
The applicant submitted documents regarding the sponsor’s medical conditions and the alleged inability of other members to care for the sponsor. The applicant submitted 12 statutory declarations from family members declaring that they were either too unwell or too busy with work commitments to care for the sponsor.
The delegate was not satisfied that the applicant had established the requirements of reg.1.15AA(1)(e)(i) which requires the applicant to establish that the assistance to the sponsor cannot be reasonably provided by other relatives of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The delegate also held that the applicant had not satisfied reg.1.15AA(1)(e)(ii) which relates to establishing that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The applicant applied for review by the Tribunal on 13 November 2013.
The Tribunal Decision
By a decision, dated 27 November 2014, the Tribunal affirmed the decision of the delegate. The Tribunal was satisfied that the requirements under reg.1.15AA to establish that the applicant was a carer of the sponsor and that the sponsor suffered a medical condition of the kind covered by the regulation were met. The Tribunal found that the applicant did not satisfy the requirement that the assistance needed by the sponsor could not be provided by another Australian relative.
The Tribunal found that the sponsor’s evidence to the Tribunal that the applicant has at least 12 relatives who meet the requirement of being an Australian citizen. The Tribunal at [29] states that the sponsor lives with five of his children (ages 29, 26, 23, 22 and 16) at a common address in Faulkner. It also found that three of the sponsor’s sons (ages 35, 34 and unknown) reside in the neighbouring suburbs of Campbellfield, Oak Park and Craigieburn.
At [30], the Tribunal referred to evidence before it that the sponsor’s wife had health and medical issues which affect her capacity to provide assistance to the sponsor, but noted that it did not consider that she should be the sole carer and that she could, in combination with other Australian relatives, provide care to the sponsor. The Tribunal also noted at [30] that the applicant gave evidence to the Tribunal that his mother did provide some assistance to the sponsor.
The Tribunal considered all the evidence before it in relation to the Australia relatives who are living with the sponsor, in relation to employment and education commitments and the other Australian relations who had health conditions. The Tribunal held at [35]:
The Tribunal is sympathetic to the circumstances of the sponsor who was suffering from serious medical conditions. However, the Tribunal is required to assess whether the direct assistance the sponsor requires cannot reasonably be provided from any other relatives of the resident who is resident in Australia. It is not sufficient that these relatives may not wish to provide this assistance. The regulations were amended in 2009 for this reason and, as stated by the Federal Circuit Court in JAJO v Minister for Immigration & Border Protection & Anor [2013] FCCA 1554, the purpose of the amendments is to ensure that it is open to decision makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.
The Tribunal held at [39]:
The Tribunal has considered the evidence submitted, and in relation to the sponsor’s 12 Australian relatives, it accepts that none of them can reasonably provide the sponsor with full time care on an individual basis. However, the Tribunal considers that these relatives could, between them, organise themselves in such a way as to reasonably provide the assistance to the sponsor as specified in the MHS certificate.
The Grounds of Review
The grounds of review as set out in the applicant’s affidavit do no more than challenge the findings of fact of the Tribunal. Dealing with the grounds raised:
Ground 1
This ground states that:
There was a failure by the Tribunal to give weight to the sponsor’s current health condition and a failure to consider that none of the applicant’s siblings could look after the sponsor.
These matters were considered by the Tribunal and findings were made in relation to that matter on the basis of the evidence that had been placed before the Tribunal. There is no absence of any consideration of the matters put by the applicant or a failure by the Tribunal to give consideration of the life, work or study commitments of other Australian relatives.
Ground 2
This ground states that:
The Tribunal did not consider that the applicant was the one who was looking after the sponsor for the last two years and because of that, they have a great bonding and if the applicant was to leave his father, his health and mental condition would deteriorate.
The Tribunal did consider the care that had been given by the applicant and noted at [35] that is was sympathetic to the circumstances of the sponsor. It was open to the Tribunal to find that other Australian relatives of the sponsor, could in combination, look after and provide care to the sponsor.
Ground 3
This ground states that:
The Tribunal failed to engage in an active intellectual process of the documents as well as with the information.
The reasons of the Tribunal clearly disclosed that it had regard to the material filed by the applicant and the sponsor and considered those matters.
Ground 4
This ground states that:
It was an error for the Tribunal to assess my father’s situation and my credit without first assessing whether the substance of the documents corroborated my claims.
The ground in relation to assessing the applicant’s credit is irrelevant as there was no finding in relation to the applicant’s credit.
Conclusion
For the foregoing reasons, there is no appealable error disclosed in the reasons of the Tribunal and the application should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 30 June 2016
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