Hussein v Minister for Home Affairs - [2018] FCCA 3801

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSSEIN v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3801

Catchwords:
MIGRATION – Application for an Other Family Residents Class BU visa – application for judicial review of a decision of the Administrative Appeals Tribunal – definition of a “carer” in reg.1.15AA of the Migration Regulations 1994 (Cth) – rating requirement in a Carer Visa Assessment Certificate (CVAC) – allegation of fraud on the part of the Applicant’s migration agent and by extension fraud on the Tribunal – whether the Tribunal denied opportunity to obtain a CVAC – whether the Tribunal afforded the Applicant natural justice – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.65, 376, 378, 476

Migration Regulations 1994 (Cth), reg.1.15AA, Schedule 2 cls.836.21, 836.22, 836.212 836.221

Cases cited:

SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64

Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

Applicant:

SAMIRA KARIM EP HASSAN EL HAJ HUSSEIN

First Respondent:

MINISTER FOR HOME AFFAIRS AND ANOTHER

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 719 of 2018

Judgment of:

Judge Baird

Hearing date:

28 November 2018

Date of Last Submission:

28 November 2018

Delivered at:

Sydney

Delivered on:

28 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr K. Eskerie, Sparke Helmore

ORDERS

Pursuant to s.130(1) of the Evidence Act 1995 (Cth), the document which is marked Confidential Exhibit MBP-A to the affidavit of Monica Perotti affirmed 21 November 2018 not be adduced as evidence, on the grounds that adducing it as evidence would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, in this instance being the Migration Act 1958 (Cth), as contemplated by s.130(4)(e) of the Evidence Act.
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 719 of 2018

SAMIRA KARIM EP HASSAN EL HAJ HUSSEIN

Applicant

And

MINISTER FOR HOME AFFAIRS AND ANOTHER

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore revised from transcript)

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 February 2018. The Tribunal affirmed a decision dated 24 October 2016 of a Delegate of the First Respondent, the Minister for Home Affairs, who was then the Minister for Immigration and Border Protection, not to grant the Applicant, Ms Karim, an Other Family Residence (Class BU) Carer (subclass 836) Visa.
The Applicant, Ms Samira Karim Ep Hassan El Haj Hussein, was born in 1963, and is a citizen of Lebanon. On 4 April 2011, Ms Karim applied for the Visa on the basis that she is a carer for her daughter, whom I will call ‘Ms Sponsor’, who lives in Australia, and is an Australian resident.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3801
Decision Date: 28 November 2018

CaseChat Overview and Summary

This matter concerned an application by Ms Samira Karim Ep Hassan El Haj Hussein for judicial review of a decision by the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a Delegate of the Minister for Home Affairs to refuse Ms Karim an Other Family Residence (Class BU) Carer (subclass 836) Visa. Ms Karim, a citizen of Lebanon, applied for the visa on the basis that she was the carer for her Australian resident daughter, who was the sponsor for the visa.

The court was required to determine whether the Tribunal had erred in affirming the Delegate's decision to refuse the visa. Specifically, the court needed to consider the criteria for the grant of the subclass 836 visa, which included requirements that the applicant claim to be the carer of an Australian relative at the time of application, and that the applicant be a carer of that person at the time of the decision.

The court noted that pursuant to s.65(1) of the Migration Act 1958 (Cth), the Minister must refuse to grant a visa if the prescribed criteria are not satisfied. The primary criteria for the subclass 836 visa, as set out in the Migration Regulations 1994 (Cth), required the applicant to claim to be a carer of an Australian relative at the time of application and to be a carer of that person at the time of the decision. The court also considered an application made pursuant to s.130(1) of the Evidence Act 1995 (Cth) to prevent the adducing of a confidential document as evidence, on the grounds that it would disclose the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth.

The application for judicial review was dismissed, and the applicant was ordered to pay the First Respondent's costs fixed at $5,000. The application to prevent the adducing of the confidential document as evidence was granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Pursuant to s.130(1) of the Evidence Act 1995 (Cth), the document which is marked Confidential Exhibit MBP-A to the affidavit of Monica Perotti affirmed 21 November 2018 not be adduced as evidence, on the grounds that adducing it as evidence would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, in this instance being the Migration Act 1958 (Cth), as contemplated by s.130(4)(e) of the Evidence Act. The application be dismissed. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 February 2018. The Tribunal affirmed a decision dated 24 October 2016 of a Delegate of the First Respondent, the Minister for Home Affairs, who was then the Minister for Immigration and Border Protection, not to grant the Applicant, Ms Karim, an Other Family Residence (Class BU) Carer (subclass 836) Visa. The Applicant, Ms Samira Karim Ep Hassan El Haj Hussein, was born in 1963, and is a citizen of Lebanon. On 4 April 2011, Ms Karim applied for the Visa on the basis that she is a carer for her daughter, whom I will call ‘Ms Sponsor’, who lives in Australia, and is an Australian resident. Ms Sponsor is the sponsor for the Visa. She is a single mother, with four small children. At the time of the Visa application, she had a small girl, and twins, who were born prematurely. She now has had another baby. In the course of the hearing today the personal circumstances of the children and Ms Sponsor have been described. Given the reasons for my decision, and for the decision of the Tribunal, I do not need to set out specific detail about them and their personal circumstances in these published reasons and I have redacted my reasons accordingly. Pursuant to s.65(1) of the Act, the Minister is to refuse to grant the application for a visa if, among other things, the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have not been satisfied. At the time Ms Karim made her application for the Visa, one of the primary criteria for the grant of the class of visa for which she applied was as set out in cl.836.212 - that at the time that the Visa was applied for, the applicant claims to be the carer of an Australian relative. Additionally, one of the primary criteria set out under cl.836.22 in schedule 2 to the Regulations to be satisfied at the time of the decision, pursuant to cl.836.221, was that the Applicant is a carer of the person referred to in cl.836.212. That is, at the time that Ms Karim applied for the Visa, she was required to satisfy the criteria that she claimed, inter alia, to be the carer of an Australian relative, and at the time of the decision about the grant of Visa, she had to satisfy the criteria that she is a carer of that person.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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