El Saghir v Minister for Immigration
[2016] FCCA 1596
•6 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL SAGHIR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1596 |
| Catchwords: MIGRATION – Application for Other Family (Residence) (Class BU) visa – review of decision of Migration Review Tribunal – whether the Tribunal failed to properly consider evidence before it – whether the Tribunal failed to apply the law – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), 1.03, 1.05A, sch.2 cll.838, 838.212 |
| Applicant: | AICHE EL SAGHIR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1470 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 June 2016 |
| Date of Last Submission: | 6 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Ms R Krishnan, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1470 of 2015
| AICHE EL SAGHIR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The applicant is a citizen of Lebanon who relevantly arrived in Australia on 29 December 2012. On 17 June 2013, she made an application for a visa, namely, an Other Family (Residence) (Class BU) visa.
The particular subclass of that visa for which she applied was the Aged Dependent Relative (subclass 838) visa. In order to obtain that visa, the applicant had to satisfy the Minister that she satisfied the criteria for the grant of the visa. One of the criteria for the visa was found in cl.838 in sch.2 of the Migration Regulations 1994 (Cth). In particular, cl.838.212 required that at the time of the application for the visa the applicant was an aged dependent relative of an Australian relative. The phrase “aged dependent relative” was defined in reg.1.03 which provides:
In relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a)does not have a spouse or de facto partner; and
(b)has been dependent on that person for a reasonable period, and remains so dependent; and
(c)is old enough to be granted an age pension under the Social Security Act 1991.
(Emphasis added)
The word “dependent” in sub-par.(b) above is defined by reg.1.05A, which provides:
(1)Subject to subregulation (2), a person, the first person, is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
…
(Emphasis in original)
The applicant claimed to be the aged dependent relative of her son, Mr El Dadoun, who is an Australian citizen. Mr El Dadoun sponsored his mother in her visa application. In support of her application, Mr El Dadoun wrote a letter dated 13 June 2013 which I set out below:
I Mazen El Dadoun of the above address certify that I used to support my mother financially with my three brothers Fawaz, Ghaleb and Ayman. My mother was supported in Lebanon by my brothers Samir & Jihad. We as Australian sons we used to send monies to our mother but care of our brother Jihad & Samir. We submit transactions to shaw [show] that the monies was deposited into my brother’s Jihad account.
My mother is now in Australia & she lives with me & I take care of her & she also stays few days at my brother’s home & other days she also stays at her sister. We all support my mother but in particular myself. I need my mother to stay her especially after the shocking attack on my brother Jihad in Lebanon.
(Errors in original)
The applicant also submitted to the Department of Immigration a document entitled “Extract of Family Registration” and a bank account statement in the name of Jihad Mahmoud Al Dadoun, another of her sons. There were also documents showing money transfer statements from Mr El Dadoun in Australia to Jehad El Dadoun or Aisha Dadoun in Lebanon.
On 21 February 2014, a delegate of the Minister decided to refuse to grant the applicant a visa. The delegate was not satisfied that the applicant was wholly or substantially reliant on her son, the sponsor, for financial support and so did not meet reg.1.15A(a). I take that to be a typographical mistake and that it should be a reference to reg.1.05A.
The applicant applied to the Migration Review Tribunal[1] for review of that decision. She was invited to attend a hearing which was to be conducted by the Tribunal on 28 April 2015. Prior to the hearing, the applicant’s authorised recipient, Mr Toufic Laba Sarkis, who described himself as an interpreter and community volunteer, sent the Tribunal a number of documents including a letter dated 21 April 2015 in English, apparently signed by Mr El Dadoun, the sponsor, and to which was affixed a fingerprint above the name of the applicant. Another document presented was a money transfer document dated 21 July 2014. The recipient’s name is recorded in Arabic and the sender is shown to have been Mr El Dadoun, the sponsor.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
At the hearing, the applicant explained to the Tribunal that this document related to money that was sent to her when she returned to Lebanon in the summer for six months in 2014. The applicant also gave evidence to the Tribunal that when she was in Lebanon, she lived in the family home, that she had a grove on her home and had some produce from that grove which she sold.
Tribunal’s decision
The Tribunal made its decision on 29 April 2015 affirming the decision of the delegate. In its statement of reasons, the Tribunal first referred to all of the evidence before it, relevantly including the letter dated 21 April 2015 before making its findings. The critical findings made by the Tribunal were at [26], [27] and [28] of its reasons, as set out below.
26.The Tribunal accepts that the sponsor has provided some support to his mother however at the time of application she had only been living in his home for six months. The Tribunal does not accept that this is a substantial period or reasonable period within the definition as defined above.
27.The Tribunal finds that previous to moving to Australia the applicant was reliant on her family home for shelter and a combination of her sons and land for her food and other needs including clothing.
28.The Tribunal after considering all the evidence is not satisfied that the applicant was for a substantial period immediately prior to the application wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. The Tribunal finds she was reliant on a combination of all her sons and the family home and land in Lebanon.
In light of those findings, the Tribunal found that reg.1.03(b) of the definition of “aged dependant relative” was not met at the time of the application, and for that reason, the criterion in cl.838.212 was not satisfied. As there was nothing to indicate that the criteria for any other subclasses were satisfied, the Tribunal affirmed the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Consideration
The applicant appeared at the hearing before me unrepresented and her son, Mr El Dadoun, the sponsor, sought permission for leave to speak on his mother’s behalf. The reason for which he sought leave was that he wished to read a document that was written in Arabic and that his mother was unable to read Arabic. The Minister did not oppose the grant of leave, and leave was granted.
The submissions read by Mr El Dadoun may be summarised as follows. First, the Tribunal failed to consider the letter dated 21 April 2015 and, secondly, that he had, in fact, substantially supported his mother since he had worked in Saudi Arabia and at least since 2004 when he came to live in Australia. That submission concerning Mr El Dadoun’s support for his mother addresses the question posed for the Tribunal.
Like the Minister, the Tribunal had to determine whether it was satisfied that the applicant satisfied the criteria for the visa. One of those criterion, as I have explained above, required the applicant to be an aged dependent relative of her son. However, whether or not the applicant is an age dependent relative of Mr El Dadoun is not a question for the Court. The power of this Court to grant relief is limited to circumstances where the Tribunal’s decision is affected by jurisdictional error.
That is not an easy concept to understand. In effect, a jurisdictional error is an error that has led the Tribunal to fail properly to exercise or fulfil its duty. That is different, however, from determining whether or not it was correct in answering the question for it, in the way that it did. What Mr El Dadoun told me at the hearing only goes to whether or not the Tribunal was correct.
The first point however, is different. If it were correct that the Tribunal had failed to consider the letter of 21 April 2015, then it might have failed to properly fulfil its duty. So for that reason that point requires closer attention.
In determining whether the Tribunal has fulfilled its duty, it is important to understand that taking a matter into consideration has a particular meaning. Ordinarily, and depending upon the importance of the document, what a Tribunal is required to do in order to take a document into consideration is to engage in some active mental process in regard to that document, in other words, to look at it and think about it and to consider its relevance to the issues it must decide. If the Tribunal does not do that, for example, if it simply overlooks the document or sets it aside for no reason at all, then it might have fallen into jurisdictional error.
In this case, the Tribunal dealt with the letter of 21 April 2015 by referring to it expressly at [19] of its reasons. In my view, that paragraph reveals that the Tribunal did read the document, understood it and assessed its relevance to the issues to be decided. In that way, the Tribunal showed that it took the letter into consideration, and for that reason, the first point made by Mr El Dadoun on behalf of his mother must fail.
It may be that what Mr El Dadoun meant by “failed to take into consideration” was that the Tribunal did not accept the assertions made in that letter. If that is what is meant by Mr El Dadoun, then that does not fall within the meaning of jurisdictional error. The Tribunal is not obliged to accept all of the evidence put forward by an applicant for a visa and is entitled to prefer one piece of evidence over another, and that is what it did in this case.
In addition to the submissions read by the applicant’s son at the hearing, there are four grounds in the application filed by the applicant.
First Ground
The first ground is that:
The Member of the Migration Review Tribunal misunderstood my evidence and my son’s evidence as to the question of dependency and failed to rely on my letter to the Tribunal with attachments dated 21/4/2015.
The Tribunal’s reasons reveal that it did not misunderstand the applicant’s evidence. As explained by it, some of that evidence supported the applicant’s claim of dependency and some of the evidence, particularly the earlier evidence, did not support that claim. Further, as I have just explained, the Tribunal did not err by not relying on the letter dated 21 April 2015. For those reasons the first ground in the application does not expose any jurisdictional error.
Second Ground
The second ground is that:
The Tribunal failed to apply the law and misunderstood my circumstances as I will provide the transcript soon.
I can see no misunderstanding by the Tribunal of the law. Effectively, what cl.838.212 required the Tribunal to do was to engage in an assessment of the evidence to determine what was ultimately a question of fact. The Tribunal made that assessment based upon the evidence before it. The transcript of the hearing conducted by the Tribunal on 28 April 2015 was in evidence. I have read that transcript and I cannot see any error in the Tribunal’s decision arising from it. In particular, the Tribunal’s summary of the evidence given at the hearing as set out in its statement of reasons appears to be in accordance with the transcript. For those reasons the second ground is rejected.
Third Ground
The third ground is that:
I have been dependent on my Australian son after my late husband died in 1984. I do not have any income as stated in the decision record.
This ground goes to whether or not the Tribunal was correct to find that the applicant was not dependent upon her son, the sponsor. For reasons that I have explained, that does not give rise to any jurisdictional error.
Fourth Ground
The fourth ground is that:
I strongly feel that the decision of the Tribunal is unreasonable.
A decision might be affected by jurisdictional error if it is legally unreasonable. However, the decision is not unreasonable simply because somebody disagrees with it, or even strongly disagrees with it. A decision might be described as unreasonable if it is arbitrary or capricious or devoid of any common sense, has no evident logical basis or was a decision that no reasonable decision maker would have made. However, none of those words describe this decision. As I have said, the decision ultimately turned upon a finding of fact. That finding of fact was in turn based upon evidence and inferences drawn from the material before the Tribunal and for those reasons was not legally unreasonable.
Conclusion
There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 1 July 2016
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