El Khansa v Minister for Immigration

[2017] FCCA 170

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL KHANSA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 170

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of family migrant visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

SBBA v Minister for Immigration [2003] FCAFC 90

Applicant: FARIHA EL KHANSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2190 of 2016

Judgment of: Judge Driver

Hearing date: 2 February 2017

Delivered at: Sydney

Delivered on: 2 February 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Given of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2190 of 2016

FARIHA EL KHANSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Ms El Khansa, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 July 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant three relatives of Ms El Khansa family migrant visas.  In essence the visas were sought to enable Ms El Khansa’s daughter and other members of her family to come to Australia to care for her. 

2. Background facts are set out in the Minister’s outline of legal submissions filed on 25 January 2017. 

3. On 26 March 2015 and 2 July 2015, the visa applicants, citizens of Lebanon, applied for Other Family (Migrant) (Class BO) visas[1].  The visa applicants, who are the daughter, son-in-law, and grandchild of Ms El Khansa respectively, remained offshore while the application was being processed.

   [1] Court Book (CB) 1 to 47, 103 to 174

4. On 3 December 2015, a delegate at an offshore post (in Beirut) refused their application on the basis that they were not satisfied the primary applicant was the carer of the sponsor as defined by regulation 1.15AA of the Migration Regulations 1994 (Cth)[2]. The visa applicants were notified of the delegate's decision on 8 December 2015[3].

   [2] CB 183 to 187

   [3] CB 179 to 182

5. On 23 December 2015, Ms El Khansa applied to the Tribunal for review of the delegate's decision[4].  Ms El Khansa was invited to, and attended a hearing on 12 July 2016[5]. On 13 July 2016 the Tribunal affirmed the delegate's decision[6].

   [4] CB 188 to 198

   [5] CB 203 to 208, 217 to 231

   [6] CB 234 to 237

Tribunal decision

1. The Tribunal accepted that the assistance required by Ms El Khansa could not reasonably be provided by other relatives in Australia[7].

   [7] CB 235 at [1]

2. In finding that it was not satisfied that the assistance could not reasonably be provided by welfare, hospital, nursing or community services in Australia, the Tribunal[8]:

   a)found that Ms El Khansa had not contacted any welfare, hospital, nursing or community services as she had asked her agent to do this. The agent indicated he had spoken with Australian Unity over the telephone and that he was told Ms El Khansa needed an Aged Care Assessment Team (ACAT) assessment. The agent also advised he had accessed a web-based “home care fee estimator”, a copy of which he provided to the Tribunal (along with two medical documents).  Ms El Khansa told the Tribunal she had not undertaken an ACAT assessment;

   b)noted that Ms El Khansa presented no other evidence that the assistance could not be obtained from welfare, hospital, nursing or community services in Australia;

   c)noted that Ms El Khansa claimed to speak no English, was of limited financial means, and that there was no appropriate facility for Muslim women such as herself. On this issue the Tribunal held that notwithstanding any preference Ms El Khansa might have had in regards to who provides assistance, the evidence presented by Ms El Khansa did not satisfy the Tribunal that the assistance sought could not reasonably be obtained from welfare, hospital, nursing or community services, particularly given the review applicant had not completed an ACAT assessment, and had presented (through her agent) such limited and anecdotal evidence in regard to each inquiry (namely: telephoning Australian Unity; contacting the Department of Ageing, Disabilities and Home Care; and, advising that the Tripoli and Minia Association is no longer funded and therefore does not provide the care Ms El Khansa required;

   d)had regard to a report from the Good Samaritan Medical Centre to Australian Unity and the Multicultural Aged Community Welfare Service. The Tribunal held that there was no documentary evidence from these providers to detail what assistance was actually sought, in addition to Ms El Khansa's agent having already been advised that Ms El Khansa needed to have an ACAT assessment before Australian Unity could provide assistance;

   e)considered a letter from the Western Sydney Community Centre, stating they do not provide the full-time “carer” assistance Ms El Khansa sought. The Tribunal held that just because this provider did not offer the assistance sought, it did not mean that such assistance was not reasonably obtainable

   [8] CB 235 at [2]

The present proceedings

1. These proceedings began with a show cause application filed on 15 August 2016.  There are two grounds in that application:

   1. The Tribunal had evidence that my agent made the enquiries to obtain community services and the Tribunal had no reasonable ground to refuse my application based on the issue of assistance can reasonably be obtained from community services. There is evidence on file that the full-time care cannot reasonably be obtained from Australia.

   2. The Presiding Member failed to consider my application according to the Australian law as I have been assessed that I need a carer and the Tribunal ignored my medical condition and the references from various institutions who admitted that they cannot meet my needs on full-time basis.

2. I have before me as evidence two affidavits filed by Ms El Khansa.  The first is by Ms El Khansa and was filed with her application.  That simply identifies her and annexes a copy of the Tribunal decision.  The second was made by Toufic Laba-Sarkis on 23 December 2016 and annexes a transcript of the Tribunal hearing.  I receive that affidavit, subject to relevance.  The transcript proved to be of some assistance in verifying the Tribunal’s record of what occurred at the Tribunal hearing. 

3. I also have before me the court book filed on 25 November 2016. 

4. Only the Minister prepared pre-hearing written submissions in accordance with procedural orders made in this case. 

5. I invited oral submissions from Ms El Khansa, who appeared in person with the assistance of an Arabic interpreter.  She was at a disadvantage both because she is not a lawyer and has no legal assistance, and also because she was in pain during the hearing.  She made no complaint but it was plain that she was experiencing pain.

6. Ms El Khansa had the interpreter read to me a written statement.  That statement traversed some of the grounds arising from the application.  It points to a belief by Ms El Khansa that there was sufficient material before the Tribunal for it to be satisfied that community services were not available to her.

7. Ms El Khansa believes that the Tribunal should have reached a favourable conclusion on that issue.  At the same time, she submits that any deficiencies in the material put to the Tribunal was the fault of her agent. 

8. As I explained to Ms El Khansa during the course of oral submissions, the task for the Tribunal was to see whether it could be satisfied that the assistance Ms El Khansa needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

9. The material submitted by or on behalf of Ms El Khansa was limited both in its scope and its content.  It was plainly open to the Tribunal to find that it was not satisfied on that criterion based on the available information. 

10. Given that there were a number of criteria that the visa applicants needed to satisfy, there was no error by the Tribunal in focusing on one criterion that appeared to present a problem.  Ms El Khansa suggested at one point that the Tribunal had not accepted her need for care.  However, that was not an issue that was disputed by the Tribunal.

11. The decision, while brief, and the Tribunal hearing, while short, appear to me to be adequate to deal with the issue requiring resolution.  I otherwise agree with the Minister’s written submissions.

12. Grounds 1 and 2 allege that the Tribunal failed to consider the agent's evidence about the inquiries he made on Ms El Khansa’s behalf, and that the Tribunal failed to consider medical records and references from medical providers about her need to access care and the ability of those institutions to provide assistance.

13. Findings of fact are essentially a matter for the Tribunal. The Tribunal outlined the evidence that was before it at [2] of its reasons[9] and considered the evidence and other material presented by Ms El Khansa, and was entitled to give whatever weight it deemed fit to each item of evidence.  Absent jurisdictional error, the assessment of the cogency and weight of the evidence before it is a matter for the Tribunal[10].

    [9] CB 235

    [10] SBBA v Minister for Immigration [2003] FCAFC 90 at [15]

14. Further, the Tribunal's findings were open to it on the evidence.  The Tribunal considered whether assistance could reasonably be provided by relatives of Ms El Khansa, having regard to their particular position, and found that it could not[11]. The Tribunal then went on to consider whether the assistance required could reasonably be obtained from welfare, hospital, nursing or community services in Australia, and found that it was not satisfied, based on the limited amount of evidence that Ms El Khansa provided, that the assistance could not reasonably be obtained from relevant service providers in Australia[12].

    [11] CB 235 at [1]

    [12] CB 235 at [2] and [3]

15. A fair reading of the decision record shows that the Tribunal referred to all of the evidence that was before it, including the evidence from Ms El Khansa’s agent and the evidence provided by Ms El Khansa from various institutions in support of her application. The Tribunal's decision to affirm the decision under review was open to it in the absence of the Tribunal reaching the requisite state of satisfaction that the criteria for the grant of the visa were met.

16. I conclude that Ms El Khansa is unable to demonstrate an arguable case of jurisdictional error by the tribunal. I will, accordingly, order that the application filed on 15 August 2016 be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

17. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale.  Ms El Khansa sought an explanation of what payment arrangements may be required.  She did not oppose a costs order. 

18. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 3 February 2017