HODGAHMAT v Minister for Immigration

[2016] FCCA 3330

FEDERAL CIRCUIT COURT OF AUSTRALIA

HODGAHMAT v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3330

Catchwords:
MIGRATION – Judicial review – tourist visa.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), sch.2 cl.600.211

Applicant: MASTURA HODGAHMAT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2252 of 2015

Judgment of: Judge Harland

Hearing date: 12 December 2016

Date of Last Submission: 12 December 2016

Delivered at: Melbourne

Delivered on: 12 December 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 5 October 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2252 of 2015

MASTURA HODGAHMAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Tribunal, dated 31 August 2015, affirming the delegate’s decision to refuse the review applicant’s application for her brother, to be granted a visitor subclass 600 visa in the tourist stream. 

3. The review applicant, who is the brother’s sister, resides permanently in Australia, she initially travelled to Australia on a student visa she later applied for an was granted a protection visa.  The review applicant’s brother applied for a visitor visa in order to visit the review applicant and her children for a period of about a month. 

4. The Tribunal sets out in its reasons the criteria it considers for a subclass 600 visa it set out in Schedule 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”), being cl.600.211, which requires that the applicant generally intend to stay temporarily in Australia for the purpose of the visa, having regard to the following:

   a)Whether the applicant has complied substantially with conditions of any previous substantive visa or any subsequent bridging visa. As the Tribunal found, that has no application, as the applicant has not previously applied for a visa to Australia and only left the Republic of China in the 1990s for the purpose of study in which he returned.  

   b)Whether the applicant intends to comply with the conditions to which the subclass 600 visa would be subject. This includes not working in Australia, not engaging in study or training in Australia for more than three months, and not remaining in Australia after the end of the stay permitted pursuant to the visa.

   c)And (c) any other relevant matter.

5. The Tribunal took evidence from the review applicant and the visa applicant. The visa applicant appeared by telephone and had the assistance of a Mandarin interpreter. The Tribunal sets out in its decision the background circumstances of the review applicant and the visa applicant and found that both were credible witnesses, and their evidence was largely consistent, and sets out findings of fact that it made at [14]. I don’t propose to repeat those here.

6. It is clear from the Tribunal’s decision that the Tribunal engaged in the exercise that it was required to do in considering the criteria for the visa and weighing up the factors which it considered favoured the grant and did not favour the grant. 

7. At [15] of its decision, the Tribunal was satisfied that the visa applicant would abide by conditions not to work or study.  The Tribunal referred to the documentary evidence that indicated that he would be able to financially support himself during the visit and that the main concern on the facts of the case was whether or not he would abide by the condition not to overstay the visa. In particular, by making protection visa, which it noted condition 8503 permits. 

8. It is clear that the major concern that the Tribunal had was the similarity of the applicant’s circumstances to the review applicant in terms of study and work history. The concern that the Tribunal was weighing was whether or not it was likely, given the similarity of those circumstances, that the applicant would seek to apply for a protection visa whilst in Australia and overstay the visa conditions.  The review applicant, in her application for review filed on 5 October 2015, sets out four complaints, all of which seek a merits review, which this Court is not permitted to do. 

9. The applicant both in her review application and before me today seeks to emphasise that her circumstances are very different to her brother’s.  Additionally, her reasons for applying for a protection visa and being granted that visa through circumstances peculiar to her and not her brother who has strong family ties in China and a different working history and temperament, although both were academics at the university.

10. It is clear from reading the decision of the Tribunal that those submissions were made to the Tribunal and it took those into account.   In particular, at [25] to [27] of the Tribunal decision, that they gave weight to the fact that most of the visa applicants family is in China, including his wife and two children.

11. That the only family member he has in Australia is the review applicant and her children.  The Tribunal found that this would be significant incentive for him to return to China.  The Tribunal also gave weight to the documentary evidence he provided with respect to his employment, his salary, as well as the two properties that he owned there. It considered those factors provide incentive for him to return to China. 

12. However, the Tribunal expressed main concern that the review applicant and the applicant had similar backgrounds as academics at the university.  The review applicant had come to Australia on a temporary visa and subsequently sought protection here. 

13. That factor, together with the country information, which suggested that Uyghurs have high tendency to apply for visas and to overstay visas once they have come to Australia. These issues are identified at [28] and [30] in particular. 

14. The Tribunal refers to country information.  It is apparent from [32] that the Tribunal discussed country information with the review applicant and the visa applicant as he says that both acknowledged the information the Tribunal raised but argued that there were only certain people who had those issues.  That the visa applicant had told the Tribunal that he did not have any issues due to being a Uyghur and was employed on long-term basis and had a good position at the university, as well as most of his family living there.

15. The Tribunal clearly considered that evidence from both the applicants, weighed against the country information, and concluded at [32] that the review applicant’s circumstances at the time that she applied for the protection visa were similar to the application.

16. The Tribunal did not accept that their circumstances could be distinguished in the manner the review applicant said that they could and was not persuaded that these circumstances were materially different from each other.  Then gave weight to the country information. 

17. One of the review applicant’s complaints is about the country information that the Tribunal relied on.  It is pointed out by the respondent in his written submissions.  It is a matter for the Tribunal to choose and assess the country information.  The issue of what weight to place on that country information is an issue for the Tribunal and not the Court.

18. Whilst the Tribunal is not obliged to discuss country information with the applicants pursuant to s.359A(4)(a) it is clear that the Tribunal did discuss that information with the applicants.

19. At [12] of his written submissions the respondent points out that in the last sentence states:

    The court is not concerned with whether the decision was unjust.  Only whether it was lawfully made.  And that is clearly correct.  It is not an issue of this court forming the view that it would have reached a different decision or a view as to whether or not the decision of the Tribunal was harsh. 

20. The Court is limited to identifying whether or not the Tribunal has made a jurisdictional error. What is apparent from the Court Book and the Tribunal’s decision itself is that it was mindful of the obligations it had in considering the the factors for the visa conditions pursuant to cl.600.221 of the Migration Regulations in assessing whether or not it was satisfied that the applicant generally intended to stay in Australia temporarily for the purpose for which the visa would be granted.

21. The Tribunal weighed up the factors for and against granting the visa.  In making that assessment, including considering the country information, it reached the conclusion that it was not satisfied that the visa applicant generally intended to stay temporarily in Australia. 

22. No jurisdictional error has been identified.  Therefore, I must dismiss the application.

23. The first respondent seeks costs in the sum of $5,800, which is less than the amount allowed in the Federal Circuit Court costs scale. The applicant opposes the order for costs. She says the court website said nothing about costs. Costs generally follow the event. I see no reason to depart from this in this case.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 20 December 2016