El Saghir v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 703
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
El Saghir v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 703
File number(s): SYG 3930 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 23 August 2022 Catchwords: MIGRATION – Visitor visa – Tribunal found no genuine intention to stay temporarily in Australia – failure to provide evidence of adequate funds – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 359A, 476
Migration Regulations 1994 (Cth) cl 600.211, 600.212, 600.221
Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 23 August 2022 Place: Sydney The Applicant: In Person Solicitor for the Respondents: Ms A Wilford of Sparke Helmore ORDERS
SYG 3930 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUSTAPHA EL SAGHIR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
23 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 18 December 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings, fixed in the sum of $5,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 18 December 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 November 2017 which affirmed a decision of a delegate of the first respondent (delegate) to refuse the applicant a Visitor (Class FA) visa.
Background
The applicant, a citizen of Lebanon, applied for the visa on 15 March 2017 and sought a further stay in Australia until 30 July 2017 to “visit other states in Australia and assess suitability of doing business regarding exporting” (Court Book (CB) 11).
On 16 March 2017, the first respondent’s Department wrote to the applicant to request information in support of his application (CB 17-19). The letter attached a “Request Checklist and Details” which provided descriptions of the information required from the applicant including the completion of a “Visitor Visa Declaration Questionnaire” and evidence of either adequate funds or access to adequate funds (CB 18-23). No response to the letter was received.
On 24 March 2017, the delegate refused to grant the visa on the basis that the applicant did not meet the criterion in cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 25-27).
On 5 April 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 31-41). On 9 October 2017, the Tribunal invited the applicant to attend a hearing (CB 51-52) which he attended on 20 November 2017 with the assistance of an interpreter in the Arabic language (CB 56-57). On 21 November 2017, the Tribunal affirmed the decision not to grant the applicant the visa (CB 59-63).
Tribunal decision
The Tribunal identified that the issue before it was whether the applicant met cl 600.211 of the Regulations (CB 62, [17]). The Tribunal found that the applicant’s stated intentions of his visit to Australia did not appear to be a purpose for which a visa in the Tourist stream may be granted (CB 62, [18]). Having regard to the period that the applicant had already been in Australia, his repeated statements to the Tribunal that he wanted to be able to work and conduct business in Australia and his failure to specify an end date to the extension sought, the Tribunal was not satisfied that the applicant intended to stay temporarily for the purpose for which the visa was granted as required by cl 600.211, or that he met cl 600.221 in respect of the permitted purposes for this stream (CB 62, [18]). The Tribunal was also not satisfied that the applicant would comply with the “no work” visa condition or depart Australia at the end of his stay (CB 62, [19]).
The Tribunal found that there was no evidence before it to indicate that the applicant had adequate funds to support his further stay in Australia (CB 61, [15]; CB 62 [21]). In considering the applicant’s failure to provide evidence of adequate funds, his evidence that he had previously worked in Australia and his admission that it would be difficult to live in Australia without employment, the Tribunal found that the applicant did not satisfy cl 600.212 (CB 62, [21]).
The Tribunal considered the relevant matters in cl 600.211(c) and found that the applicant had been in Australia on a visitor visa for over 12 months and had not sought professional migration advice to enable him to apply for a more appropriate visa given his desire to live and work in Australia (CB 62, [20]).
In those circumstances, the Tribunal was not satisfied that the visa application genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, or that he had an appropriate tourist purpose or access to adequate funds to support himself (CB 70, [22]). Accordingly, the Tribunal found the applicant did not satisfy cl 600.211, 600.212 and 600.221 and affirmed the decision under review (CB 62-63, [23]-[24]).
APPLICATION TO THIS COURT
On 29 January 2018 a Registrar of this Court made orders by consent which provided, among other things, for the applicant to file and serve any amended application by 26 March 2018. This did not occur.
The matter was initially docketed to Judge Cameron before later being placed in the central migration docket. On 3 March this year, the matter was brought into my docket and was listed for hearing initially on 11 May 2022 with orders that the applicant and the first respondent file written submissions 14 and 7 days before the hearing (respectively). The matter was later adjourned to today. In addition to not availing himself of the opportunity to amend his application the applicant also did not file any written submissions, in time, or at all.
The applicant appeared before me today in person with the assistance of an interpreter in the Arabic language, who interpreted the Minister’s written submissions to the applicant before I ascended the Bench.
In the absence of the applicant having filed an amended application as ordered, the grounds which arise for consideration are those in the originating application which was filed with the Court and which provide as follows:
1.The Tribunal affirmed the decision not to grant me a visitor visa. The decision is affected by error because I am entitled to a visa and the Department as well as the Tribunal denied me the right to have an extension of time.
2.Contrary to the Tribunal's decision I have provided bank statement and evidence of funds and the Tribunal misunderstood my situation because I applied for a visitor visa after being granted a business visa to enable myself to visit other States and organise transporting Australian products to overseas.
3.When I had the interview with the Tribunal I was impressed and I did not expect a refusal and the Tribunal failed to request any clarification before coming up to a refusal decision.
I had the grounds interpreted to the applicant one at a time and he was asked to address them in turn.
Ground 1
By ground 1 the applicant says that he was denied an extension of time, although this is to be understood as an assertion that he was refused the visa in circumstances where the application he was making was to extend his visitor visa while he was onshore, having first been granted the visa in Lebanon. When given the opportunity to address this ground, the applicant said that he just wanted the Court to review the decision. When pressed, the applicant said that he believed that there is a legal error. When asked to further describe the alleged error the applicant reiterated that he was here to ask the Court to review the decision and to give him the visa. I reminded the applicant that as I had explained to him at the outset of the hearing, the Court is not able to grant him a visa.
To the extent that the applicant takes issue with the decision of the delegate in ground 1, and as I also explained to the applicant today, the Court does not have jurisdiction to review the delegate’s decision pursuant to s 476(2)(a) and (4) of the Migration Act 1958 (Cth) (Act) because it is a primary decision.
Otherwise, ground 1 is simply a challenge to the merits. The circuitous assertion that because the applicant is entitled to the visa but was not found to be, this is an error without explaining why (other than the applicant’s belief that he ought to have had the visa extended) is not part of this Court’s jurisdiction on review.
Ground 2
By ground 2 of the application, the applicant makes reference to his failure to provide bank statements. Before the Tribunal the applicant took issue with that proposition at a factual level. The Tribunal’s decision records at paragraph [15] that the applicant asserted that he had provided sufficient evidence of funds as part of his initial visa application. When asked to speak to this ground, the applicant said that he believed that the Tribunal had made the wrong decision.
On 16 March 2017 the first respondent’s Department wrote to the applicant seeking further information. Within that letter (CB 17 to 19) the Department made reference to a checklist which it enclosed with it. A review of that checklist (CB 21) reveals that the second of two categories of information which was requested from the applicant was “evidence of adequate funds or access to adequate funds”. The applicant did not respond to that invitation to provide information, nor did he otherwise provide any evidence of funds.
When I directed the applicant’s attention to pages 17 to 21 of the Court Book, he said that he did not know that he was supposed to provide the evidence, claimed that he had not seen the letter of 16 March 2017 and said that he could provide evidence of funds now to the Court if the Court wished him to. As I explained to the applicant, the time for him to do so was before the delegate or before the Tribunal. A review of the delegate’s reason for decision reveals (CB 30) that the delegate’s decision very clearly referred to the 16 March 2017 letter, set out the applicant’s failure to respond to it and made an express finding that in the absence of such evidence the delegate was not satisfied the applicant had adequate means to support himself nor that he had adequate means to support himself during the intended period of stay in Australia.
Accordingly, even if the applicant somehow did not receive the 16 March 2017 letter, he was on notice by the time he received the delegate’s decision that this was a live issue. There is no suggestion that the applicant did not receive the delegate’s decision, given that he applied to the Tribunal to review it only 11 days later. The Tribunal records that when the applicant appeared before it, that in the course of its discussions with him it noted that there was no evidence of funds. The applicant also gave evidence to the Tribunal about work he had been undertaking in Australia and the Tribunal observed to the applicant that, in the absence of evidence of funds and given that he had been working in Australia without permission to do so, it may indicate to it that he did not have sufficient funds.
In response to this, rather than engaging with the dearth of evidence about the adequacy of his funds, the applicant appears to have instead responded to the Tribunal about the work rights issue only. There is no evidence that the applicant sought further time to rectify the evidential gap when raised by the Tribunal and given that he had been on notice from the time of the delegate’s decision that the evidence of funds or lack thereof was a dispositive issue in the review the Tribunal was not required by any formal mechanism (such as s 359A of the Act) to put this evidential gap to the applicant in order that he could rectify it but, in any event, the Tribunal ensured that he was alive to the issue.
As noted, the applicant did not request any further opportunity to provide material at the Tribunal hearing at which he was assisted by an interpreter in the Arabic language, and also had his representative present. In those circumstances, the Tribunal was entitled to proceed as it did to make a decision the next day without the further opportunity to enable the applicant to put additional evidence.
To the extent that by ground 2 the applicant alleges the Tribunal misunderstood his circumstances, he has not explained in which way this is said to have occurred. A full and contextual reading of the Tribunal’s reasons indicates that it thoroughly considered the evidence that the applicant had put before it.
The first respondent says that there is nothing to suggest that the Tribunal misunderstood the applicant’s intention to stay and work in Australia or his financial circumstances. I agree. Accordingly, ground 2 is not made out.
Ground 3
The final ground in the application appears to allege that the Tribunal’s decision in affirming the decision of the delegate somehow took the applicant by surprise after the general tenor of the hearing experience itself. When asked to speak to this ground, the applicant said that “to answer the Court’s points” all he wished to ask was that the Court review the Tribunal’s decision.
A fair reading of the Tribunal’s decision indicates that the Tribunal properly identified the issue before it as being whether the applicant genuinely intended to stay temporarily in Australia and this is demonstrably the focus of the exchanges that it had with the applicant at the hearing. Contrary to what seems to be contended by the applicant, the Tribunal was not under any obligation to presage its findings to him. The High Court’s observations in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] are apposite (footnote omitted):
Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Lastly, in submissions, the applicant on a number of occasions indicated that all he wanted to do was to understand why the Tribunal had refused to grant him a visa.
As I told him, the Tribunal’s reasons for decision are contained in the Court Book. He has had a copy of that decision since approximately 22 November 2017 and he has had the Court Book since about March 2018, his copy of which he brought with him to the hearing today. Accordingly, the applicant has had almost five years with the Tribunal’s reasons to understand the basis of its decision. I additionally ensured that the solicitor for the Minister re-explained the Tribunal’s reasons as part of her oral submissions to the Court.
In my view, there is no error demonstrated by ground 3 and it must fails.
Conclusion
The decision is not affected by a jurisdictional error as alleged nor, from a full reading of the Tribunal’s decision, at all. Absent a jurisdictional error, the decision is a privative clause decision and should be dismissed. I will so order.
Consequent upon my dismissal of the application, the Minister seeks an order that the applicant pay costs fixed in the sum of $5,000. When asked to address the Court in relation to this, the applicant indicated that he would wait until he received the Court order and then determine whether or not he could pay it. I explained to the applicant broadly the concept of a debt to the Commonwealth (in particular should he depart Australia) and also that he would shortly receive correspondence from the solicitors who represent the Minister providing him with details about how to seek time to pay.
In all the circumstances of this case, however, I am satisfied that a costs order should be made and I am further satisfied that $5,000 is reasonable.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 29 August 2022
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