Farah v Minister for Immigration - [2010] FMCA 801

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARAH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 801

MIGRATION – Review of decision of Migration Review Tribunal – Tribunal gave proper consideration to applicant’s evidence – findings reasonably open to Tribunal – Tribunal decision was substantiated – applicant seeking impermissible merits review – no jurisdictional error – no utility in granting relief sought – application dismissed.

Migration Act 1958 (Cth), ss.101, 104, 105, 109, 110, 111, 140, 338, 347, 359, 359A, 410
Migration Regulations 1994 (Cth), reg. 2.41, Sch.2

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Rani Santosh v Minister for Immigration & Multicultural Affairs [1997] FCA 1493; (1997) 80 FCR 379
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1

Applicant:

FARAH FARAH & ORS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1560 of 2010

Judgment of:

Nicholls FM

Hearing date:

14 October 2010

Date of Last Submission:

14 October 2010

Delivered at:

Sydney

Delivered on:

22 October 2010

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 16 July 2010 is dismissed.
The first and second named applicants to pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1560 of 2010

FARAH FARAH & ORS

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 16 July 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which, on 18 June 2010, affirmed the decision of a delegate of the first respondent to cancel Mr Farah’s subclass 116 Carer visa. It further found it did not have jurisdiction to review the consequential cancellation of the visas of the other applicants.

Background

Mr Farah applied for a carer visa at the Australian Embassy in Beirut on 30 June 2008 (see Court Book – “CB” – CB 7 to CB 30). His wife and three of their children were included in the application. All five are applicants before the Court now. Mr Farah has been appointed as the litigation guardian for the two youngest applicants. He appears to have been assisted by a Mr Toufic Laba-Sarkis (CB 27).
The basis of the application for the visas was that Mr Farah would come to Australia to care for his uncle, Mr George Matri, who was suffering from cancer (CB 21). Mr Matri provided sponsorship for the family (CB 1 to CB 8).
Mr Farah was interviewed by a departmental representative on 4 September 2008. The report of that interview (CB 137 to CB 150) reveals, amongst other matters, that questions were asked of Mr Farah concerning Mr Matri’s health condition. Mr Farah is reported as saying that he would need: “… assistance in all aspects of daily life”. Further, that Mr Matri’s wife was sick and could not look after him. His children: “… have their own family and work commitments” (CB 147).
Mr Farah was also interviewed, apparently by telephone, on 30 October 2008. Relevantly, the report of that conversation reveals that Mr Farah advised that his uncle was still alive, and that he was “stable and moving towards improvement” (CB 145).
Following the grant of relevant visas in January 2009, Mr Farah and his family arrived in Australia in February 2009.
On 23 October 2009 a delegate of the Minister wrote to Mr Farah putting him on notice that there was consideration that Mr Farah had not complied with s.101, s.104, and s.105 of the Act (CB 158 to CB 162).
These sections concern generally the provision of “incorrect information” in relation to visa applications and the provision of information in relation to changes in relevant circumstances.
In particular, Mr Matri had died on 18 August 2008 (see Death Certificate copy at CB 168). Mr Farah had not advised the Minister’s department of this.
Mr Farah was put on notice that consideration was to be given to the cancellation of his visa because of these breaches.
A response was received from Mr Laba-Sarkis dated 23 November 2009 (CB 173 to CB 174). The thrust of the response was that as of 4 September 2008 Mr Farah was not aware that Mr Matri had died. Further, he sought to explain other responses to questions asked as “human error”.
On 2 December 2009 the delegate decided to cancel Mr Farah’s visa because of a failure to comply with s.101 and s.104 of the Act (CB 194 to CB 209). The visas of all the other family members were also cancelled as a consequence of s.140(1) of the Act.

The Tribunal

Mr Farah and his family applied for review on 8 December 2009 (CB 214 to CB 221). Mr Laba-Sarkis, who is not a registered migration agent and describes himself as a “community volunteer”, continued to be involved ostensibly as the authorised recipient for correspondence (CB 217, CB 221).
The Tribunal wrote to the applicants by letter dated 15 March 2010 and invited comment on certain information pursuant to s.359A (CB 224 to CB 228). This was said to be information that showed he had provided incorrect answers in his application form and failed to notify of the correct answers and of any change in circumstances.
The letter also invited, pursuant to s.359, the provision of certain information relevant to the breach and subsequent cancellation of the visa.
Mr Farah responded in writing on 31 March 2010 (CB 229). He, his wife, and son appeared at a hearing before the Tribunal on 3 June 2010 (CB 246 to CB 247).
In its decision record the Tribunal set out its understanding of the relevant law in unexceptional terms (see [7] at CB 217 to [17] at CB 254).
The Tribunal found that Mr Farah had been issued with a notice to cancel his visa and that the delegate had reached the requisite state of mind to engage s.109 of the Act. It found that the notice had complied with the relevant statutory requirements.
The Tribunal found that there had been non-compliance by Mr Farah in the way set out in the notice as it related to a breach of s.101 of the Act concerning answers he had provided at the interview concerning whether his uncle was still alive at that time.
The Tribunal found there was no real doubt that Mr Farah had given incorrect answers within the meaning of s.101 of the Act when he had been interviewed. This was based on the finding that there was no real doubt as to the accuracy of departmental records and the answers he gave.
While the Tribunal considered and found other breaches had been established, I agree with Mr Kennett that the first breach was sufficient to sustain the finding that there had been non-compliance with s.109. This required the necessity to consider whether the visa ought to be cancelled.
The Tribunal set out and considered each of the matters set out in reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) and, where relevant, the applicant’s circumstances. It weighed these. The Tribunal came to the conclusion that the preferable decision was that Mr Farah’s visa be cancelled. In this consideration, Mr and Mrs Farah’s explanations for the failure to tell the interviewer of the uncle’s death were found to be implausible.
In relation to the other applicants, the Tribunal said there was “no provision for merits review of a consequential visa cancellation under s.410(1) of the Migration Act”. It found that it did not have jurisdiction to review the consequential cancellations of the other applicants’ visas ([102] at CB 270).

Before the Court

The application before the Court is in the following bare terms:
“1. The Tribunal failed to substantiate the reason for its decision.
2. The decision of the Tribunal is not based on probative evidence.
3. The Tribunal misapplied the law.”
At the hearing Mr Farah appeared in person. He was assisted by an interpreter in the Arabic language. Mrs Farah, as well as other applicants, were present, as was Mr Laba-Sarkis. Mr G Kennett of counsel appeared for the first respondent. Written submissions have been filed for the Minister.
Despite drawing to the applicant’s attention at the first court date the paucity of the grounds as stated, no amended application or written submissions have been filed in this matter.
Mr Farah read from a prepared statement. His complaints reveal a misunderstanding both of the task of the Tribunal and the issue before the Court. The submission was a long attack on the merits of the Tribunal’s consideration. Nothing of substance was said that went to the issue of jurisdictional error in the Tribunal’s decision. This, after all, is the critical matter for consideration before the Court now.
The complaints can be grouped as follows:
1)He and his wife were honest. They had not lied to the Minister’s department or the Tribunal. They had taken an oath to tell the truth and were therefore incapable of lying. They did not know of his uncle’s death until they arrived in Australia in February 2009 and were told by relatives at that time. Mr Farah saw this as being his “defence” to what had been put against him.
2)He had obtained the visa to help his sick uncle, and had entered Australia lawfully. He had done nothing wrong.
3)There was no “proof” that he had provided misleading information. He had sworn to the Tribunal that he did not know his uncle had died before he came to Australia.
4)The department had known of the death of his uncle before he did. He provided to the Court a copy of an anonymous letter, which he said had been sent to the department (“MFI 1”). This letter made certain allegations about Mr Farah’s application for the visa. The department however still went ahead and issued the visas to the family.
5)He explained that Mr Matri’s six adult children, Mr Farah’s two sisters and his eldest son, who were all in Australia at the relevant times, did not tell him of Mr Matri’s death during the time between his death (18 August 2008) and the arrival in Australia (February 2009) because in his culture it was “not good” to tell people about a death. It was therefore “kept secret for a while” by all the relatives in Australia.
6)After arrival he forgot to tell the department that his uncle had died. But he did tell Centrelink. He provided Centrelink documents in support (“MFI 2”).
7)The Tribunal did not give proper consideration to his, his wife’s and his son’s evidence (see [72] at CB 266). It based its decision on a misunderstanding ([85] at CB 267). In all, its decision was based on what he had said in one interview (with the department on 4 September 2008), and in one telephone call (30 October 2008).
Both Mr and Mrs Farah told the Court they were unable to go back to Lebanon because of “bad” economic conditions. Mrs Farah said they were lucky to come to Australia, they had “integrated” into the community, they were all studying English, the younger children were at school, her husband and son were working. Mr Farah asked the question: “what have I given to Australia”? He answered: “I have given my children”.

Consideration

The submissions plainly misunderstand the task of the Tribunal. Mr Farah’s visa was cancelled pursuant to s.109 of the Act. The Tribunal properly considered the notice issued preliminary to the cancellation, and then found the delegate had reached the requisite state of mind to engage s.109. No error by the Tribunal is revealed here.
The Tribunal found, at least, that there had been a breach of s.101 of the Act by Mr Farah in relation to the provision of “incorrect information”. Before the Court Mr and Mrs Farah were at great pains to state that they had not provided incorrect information to the Minister’s department because they were honest people and at the material times did not know their uncle had died. They had sworn to this.
The problem for Mr and Mrs Farah in this regard is that s.111 of the Act states that, relevantly, s.109 applies: “whether the non-compliance was deliberate or inadvertent”. The fact remains that, when Mr Farah gave answers to relevant questions about his uncle’s health in September and October 2008, he did not tell the departmental officers that his uncle, who after all was the central reason for the issuing of the carer visa, had died in August 2008. Even if this was “inadvertent”, s.109 still applied. There was no legal error in the way the Tribunal proceeded to this point.
The Tribunal then proceeded to consider and weigh the matters arising from reg.2.41. In this consideration, amongst other things, it weighed the explanation provided by Mr and Mrs Farah as to why they did not know or were not told of their uncle’s death (August 2008) until their arrival in Australia (February 2009).
The Tribunal found their evidence to be implausible in this regard. This was at least reasonably open to the Tribunal in the circumstances presented. The applicants’ complaints before the Court now, their protestations of honesty, their assertions of no wrong doing, or that there was no “proof” that they knew of their uncle’s death, or even the claimed existence of cultural factors which precluded the many relatives of telling them of the uncle’s death until six months later and coincidentally on the day of their arrival in Australia, do not rise above a request for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
That they told Centrelink of their uncle’s death three months after their arrival in Australia does nothing to reveal jurisdictional error in the Tribunal’s decision.
It should be said, if the purpose of coming to Australia was to care for the sick uncle, why did they then not return to Lebanon after they had learned of his death in February 2009? Their claims before the Court that they sold everything in Lebanon does not sit with Mr Farah’s statement to the Minister’s department as to the stages of his uncle’s illness. The uncle’s illness, sadly, meant his life expectancy was short. In any event, none of this reveals error on the part of the Tribunal.
Mr Farah provided to the Court a copy of an anonymous letter said to have been sent to the Minister’s department, making certain allegations. It is not clear whether it involved the same letter, but the “case notes” made by staff at the Australian Embassy in Beirut refer to an “allegation letter received at this office today…” (CB 145.6). It appears this letter precipitated the telephone conversation with Mr Farah in October 2008.
There is some moral strength to the applicant’s complaint now that if the department had known of the uncle’s death, or that this was easily verifiable through inquiries with the Minister’s department in Australia, why the Embassy proceeded to grant the visas in January 2009 without some investigation.
However, whatever the situation in this regard, poor administration or even maladministration in the Australian Embassy in Beirut, does not reveal jurisdictional error on the part of the Tribunal. In any event, s.110 of the Act states that relevantly s.109 applies: “… whether or not the Minister became aware of the non-compliance…”.
It cannot be said, on any plain reading of the decision record, that the Tribunal did not give proper consideration to their evidence at the hearing. What remains is that the Tribunal found s.109 was engaged, and found implausible their explanation for the provision of incorrect information. The Tribunal made findings which were reasonably open to it, and for which it gave reasons. No error, let alone jurisdictional error, is revealed in these circumstances.
For the reasons set out above, ground one of the application must fail. The Tribunal did “substantiate” its decision. Any plain reading of the decision record reveals not only that there is no reasonable prospect of success in this ground, it is in fact hopeless.
Ground two asserts that the Tribunal’s decision is not based on probative evidence. In light of Mr Farah’s submissions before the Court, the complaint is really not one of a lack of probative evidence, but rather the view that the Tribunal took of the evidence before it. There was evidence before the Tribunal, including that of Mr and Mrs Farah, on which it based its decision and made findings open to it. The ground really, again, seeks to challenge the Tribunal’s findings and asks the Court to engage in impermissible merits review. As such, it also does not reveal any reasonable prospect of success, let alone jurisdictional error on the part of the Tribunal.
Ground three asserts that the Tribunal misapplied the law. No particulars whatsoever are provided. In their submissions before the Court no explanation was offered for this ground.
In any event, in relation to the consideration of the decision of the cancellation of Mr Farah’s visa for the reasons already set out above, no misunderstanding or misapplication of the law is evident. The Tribunal set out the relevant law in this regard in unexceptional terms in its decision record (see [7] at CB 251 to [16] at CB 254). (I will leave the Tribunal’s reference at [17] (CB 254) to the application of government policy to another day as it did not feature in the circumstances of this case.)
It is questionable whether the same can be said in relation to Mrs Farah and the children. Two parts of the Tribunal’s decision record are relevant:
1)At [6]:
“The visas of the secondary visa applications, the first named applicant’s wife and three children were automatically cancelled under s.140(1) of the Act as a consequence of the cancellation of the first named applicant’s visa. The Tribunal is not able to review the cancellation of the visas of the family members of the first named applicant. There is no provision for merits review of a consequential visa cancellation under s.140(1): see Rani v MIMA (1997) 80 FCR 379. However, if the cancellation of the first named applicant’s visa is set aside, the effect is that the visas of the family members are treated as if they were never cancelled.”
2)At [102]:
“The Tribunal finds that [sic] the reasons referred to above that it does not have jurisdiction to review the consequential cancellation of the secondary visa applicants’ visas. There is no provision for merits review of a consequential visa cancellation under s.410(1) of the Migration Act.”
In my view the Tribunal has confused two different concepts: its jurisdiction and the “consequential visa cancellation under [s.140(1)]”.
The Tribunal relied on Rani Santosh v Minister for Immigration & Multicultural Affairs [1997] FCA 1493; (1997) 80 FCR 379 (“Rani”) for the proposition that it did not have jurisdiction to review the consequential visa cancellation of the visas held by Mrs Farah and her children because these “were automatically cancelled under s.140(1)…” ([6] at CB 251).
That case, decided in 1997 and dealing with a slightly different version of s.140(1) (but not relevantly different to the current cancellation pursuant to s.109 of Mr Farah’s visa), held that s.140(1) was intended to apply to circumstances where a visa holder obtained their visa by virtue of satisfying a criterion framed in terms of being “a member of the family unit” of a person whose visa was subsequently cancelled, amongst other sections, pursuant to s.109.
The Tribunal’s use of “secondary visa applicants” (at [6] and [102]) obscures the fact that Mrs Farah and the children obtained their visas as the family members of Mr Farah. The notes for the subclass 116 (Carer) visa, as set out in Schedule 2 to the Regulations, distinguishes between “primary criteria” (116.2) and “secondary criteria” (116.3):
“116.2 Primary criteria
Note The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
116.3 Secondary criteria
Note These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.”

In Rani the “spouse” was found to have received her visa not because she was “a member of the family unit” of a person who satisfied the primary criteria for a visa (under the Regulations), but that she obtained her visa because she satisfied the “primary criteria” relevant to a subclass 100 spouse visa.
That is, she obtained and held her visa as having met the “primary criteria” for that visa in her own right and not the “secondary criteria” for that visa.
In these circumstances the Court held that, as the structure of the Migration Regulations supported the view that s.140(1) was intended to apply only where the visa holder obtained their visa by satisfying a criterion framed as being “a member of the family unit” of another person whose visa was subsequently cancelled, and as Ms Rani did not obtain her visa on that basis, s.140(1) did not apply to her.
So it can be said, in the current case, that s.140(1) does apply to “automatically” or, more precisely and accurately, have the consequential cancellation by operation of law of the visas obtained by the members of the family unit of Mr Farah, namely Mrs Farah and the children.
But I do not see that Rani supports the Tribunal’s other contention that it did not have jurisdiction to review the cancellation of Mrs Farah’s visa and that of her children. The consideration in Rani, in my respectful view, was relevantly focussed on the limitation as to the application of s.140(1) to those visas obtained and held by persons who were members of the family unit of another person, not to apply to persons who obtained and held visas in their own right, or more particularly, not as members of the family unit of the other person whose visa was later cancelled pursuant to s.109. The references to jurisdiction in Rani were to the Court’s own jurisdiction.
The Tribunal’s jurisdiction relevantly derives from s.338 of the Act. That section sets out the circumstances in which “decisions” made by the Minister, or more relevantly his delegate, are or are not reviewable by the Tribunal.
For current purposes s.338(3) provides that the Tribunal has jurisdiction to review a decision to cancel a visa held by a non-citizen in the migration zone. This certainly includes the visa held and then cancelled in relation to Mr Farah. None of the exceptions in s.338(3)(a), (b) or (c) apply to him (or to his family).
In my view, however, the decision of the delegate to cancel his visa also had the consequence, and therefore can be said to have encompassed, the cancellation of the visas of Mrs Farah and her children. Even though those cancellations were consequential or “automatic” on the cancellation of his visa.
The preferable view of these circumstances is that the delegate made one decision. However, that decision, by direct finding and by consequence, encompassed a number of people. Mr Farah and by consequence his family.
The Tribunal was charged with reviewing this “decision”. It is the case that s.347(2) provides that an application for review may only be made, in relation to, relevantly, a decision to cancel a visa (s.347(2)(a)), by the non-citizen who is the subject of that decision.
While Mr Farah may be described as the “primary” subject of the delegate’s decision, the members of his family unit were also the subjects, albeit consequentially, of that decision.
To the extent that the Tribunal repeatedly relied on Rani to say that it did not have jurisdiction in relation to the review of the consequential cancellation of the “secondary visa applicants’ visas”, then I respectfully do not see that Rani stands in support of that proposition.
When I raised this matter at the hearing no authorities were cited to support the Tribunal’s position on jurisdiction. The view taken by the Minister was that there was no error by the Tribunal in this regard, but that in any event, even if there was, the Court should not exercise its discretion to return the matter to the Tribunal.
It is the case that the relief the applicants seek is discretionary (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1).
No error is revealed in the Tribunal’s decision as it relates to Mr Farah. Mrs Farah and their son participated fully at the hearing, so it cannot even be said he was denied the opportunity of having their evidence put forward in support of his cause.
Whether the Tribunal ultimately found it did not have jurisdiction in relation to Mrs Farah and the children did not affect the conduct of the review as it related to all of the applicants.
Ultimately, however, even if the matter as it related to Mrs Farah and the children were to be sent back to the Tribunal, in light of the finding relating to Mr Farah, which was absent jurisdictional error, the operation of s.140(1) would make any such course an exercise in futility. The Tribunal could come to no other result than to find the operation of law meant their visas remain cancelled.

Conclusion

No jurisdictional error is revealed in the case of the Tribunal’s consideration of the cancellation of Mr Farah’s visa. Even at best, no utility is served by granting the relief sought by Mrs Farah and the children. The application is therefore dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 22 October 2010