Hussein v Minister for Immigration
[2017] FCCA 226
•13 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUSSEIN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 226 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a visitor visa – Tribunal finding the visa applicant was an overstay risk – whether there was a want of procedural fairness considered – failure to take evidence from the visa applicant – whether the Tribunal decision was unreasonable or based on an incorrect assessment of the security situation in Lebanon – no jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | AKIL ABOU HUSSEIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 630 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 630 of 2015
| AKIL ABOU HUSSEIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 20 February 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the visa applicant a visitor visa. The visa applicant is the brother of the review applicant before the Tribunal, and the review applicant is the applicant in these proceedings.
Background facts relating to this matter are set out in the Minister’s legal submissions filed on 6 February 2017.
The applicant is a citizen of Australia. His brother, a citizen of Lebanon, applied for a visitor visa on 17 October 2014[1] (brother). The applicant acted as sponsor for the brother[2]. On 22 October 2014, the delegate refused to grant the visa on the basis that the brother did not satisfy clause 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (clause 600.211)[3].
[1] Court Book (CB) 1
[2] CB 13
[3] CB 41
On 8 November 2016, the applicant lodged with the Tribunal an application for review of the delegate’s decision[4]. On 18 December 2014, the Tribunal wrote to the applicant, inviting him to appear at a hearing before the Tribunal on 12 February 2015[5]. The applicant attended the hearing with the assistance of an Arabic interpreter[6]. On 20 February 2015, the Tribunal affirmed the decision under review.
[4] CB 47
[5] CB 60
[6] CB 75
By application to show cause filed on 12 March 2015, the applicant sought judicial review of the Tribunal’s decision. The proceeding was dismissed at the first court date on 9 April 2015 by another judge of this Court pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001 (Cth)[7]. The applicant appealed this decision to the Federal Court of Australia, and the matter was remitted to this Court by consent on 7 July 2015[8].
[7] see Hussein v Minister for Immigration & Anor [2015] FCCA 890
[8] Hussein v Minister for Immigration (NSD564/2015)
Tribunal decision
The Tribunal identified that the relevant issue was whether the brother satisfied clause 600.211[9]. Clause 600.211 required:
[9] CB 78 at [7]
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
c) any other relevant matter.
The Tribunal noted, and took into account, that there was no material before it to suggest the brother did not comply substantially with the conditions of his last substantive visa[10].
[10] CB 78, 81 at [9], [22]
The Tribunal found that the brother had strong family ties in both Lebanon and Australia. However, on balance, the Tribunal found that his family ties in Australia were “stronger” than those in Lebanon and provided a “strong incentive” to remain in Australia[11]. In this context, the Tribunal considered the brother’s caring responsibilities to his parents but found that “alternative arrangements” could be made.
[11] CB 80 at [20]
The Tribunal found that the brother had “employment ties” to Lebanon. However, the Tribunal found his employment and economic circumstances were “modest”. The Tribunal also found there was no evidence the brother owned “significant assets” there. The Tribunal concluded that the brother’s economic circumstances would not establish a “strong incentive” to return[12].
[12] CB 80-81 at [21]
The Tribunal further found that the “poor security situation” and the “exacerbation of sectarian divides” in the area where the brother lived in Lebanon provided “a very strong incentive” to remain in Australia[13]. The Tribunal found that the brother’s ability to lodge a “security” as an assurance that he would comply with his visa conditions did not allay its concerns[14].
[13] CB 81 at [22]
[14] CB 81 at [23]
For these reasons, the Tribunal concluded that the brother did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.
Accordingly, the Tribunal found that the brother did not satisfy clause 600.211.
The present application
The applicant continues to rely on his judicial review application filed on 12 March 2015. The grounds in that application are:
1. The Tribunal failed to interview my brother, the visa applicant, as per Response to Hearing Invitation.
2. The Tribunal failed to establish that my brother is affected by the security situation in Lebanon.
3. The Tribunal’s decision is not reasonable based on the migration history and credibility of both my brother and myself.
4. The Migration Review Tribunal denied me and my brother procedural fairness and justice by making a decision without interviewing him.
Two affidavits support the application. The first was filed with it and simply identified the applicant and annexed the Tribunal decision. The second affidavit made by Toufic Laba-Sarkis was filed on 8 October 2015 and annexed a transcript of the Tribunal decision. I received both affidavits.
I also have before me as evidence a bundle of documents which comprised the court book provided to the Court for the earlier hearing of this matter. As the documents were presented as a bundle rather than in a bound form as normally, I marked them as an exhibit[15].
[15] exhibit R1
Only the Minister prepared written submissions in accordance with procedural orders made by a registrar for the rehearing of this matter.
I invited oral submissions from Mr Hussein this morning. He read from a prepared statement that made clear that he is concerned by the Tribunal’s reasoning, as well as the Tribunal’s failure to interview his brother. Mr Hussein referred to his preparedness to provide a financial guarantee and the connections his brother has to Lebanon, including their parents, for whom his brother cares. Mr Hussein noted that his brother had previously visited Australia in 2010 and had returned to Lebanon. Mr Hussein contends that the Tribunal’s reasons are not logical or reasonable and that the Tribunal was incorrect in its assessment of the security situation in Lebanon.
In relation to the failure of the Tribunal to interview the brother, Mr Hussein states that his brother’s telephone number in Lebanon was provided to the Tribunal in his response to the hearing invitation. It is noteworthy, however, that no name was given in relation to that phone number and its placement in the form suggests that it was an alternative number for Mr Hussein. In part 3 of the form under the heading “Witnesses”, Mr Hussein answered no to the question whether he wished the Tribunal to take oral evidence from another person.
None of the grounds advanced by Mr Hussein establish any jurisdictional error in the decision of the Tribunal. The Tribunal took into account all of the information and issues raised in the review. The Tribunal specifically considered at [9][16] the brother’s previous travel to Australia. While it is apparent that a different Tribunal might have made a different decision, the conclusions reached by the Tribunal were plainly open to it on the material before it. The Tribunal decision is not unreasonable in any relevant legal sense.
[16] CB 78
In relation to the failure of the Tribunal to interview the brother, it is apparent from the transcript of the Tribunal hearing that nothing was said at the hearing about the visa applicant being interviewed. Mr Hussein now says that he did not know what process the Tribunal would follow and thought that the Tribunal might ring his brother at another time.
While more could have been done, the available material satisfies me that the Tribunal met its statutory obligations. I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced.
Grounds 1 and 4
It is convenient to deal with Grounds 1 and 4 together. These Grounds contend that the Tribunal failed to afford Mr Hussein and his brother procedural fairness by proceeding to make the decision without interviewing him.
At all relevant times, s.347(2) of the Migration Act 1958 (Cth) (Migration Act) prescribed who had the right to apply for review of an “MRT-reviewable decision”[17],as follows:
[17] Now referred to as a “Part 5 reviewable decision”, following the enactment of the Tribunal Amalgamation Act 2015 (Cth)
(2) An application for review may only be made by:
(c) if the MRT-reviewable decision is covered by subsection 338(6) or (7) — the relative referred to in the subsection concerned;
Relevantly, s.338(7) of the Migration Act provided:
A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and
(c) particulars of the relative concerned are included in the application.
In the present case, pursuant to s.347(2)(c) of the Migration Act, the review application to the Tribunal could only have been made by Mr Hussein, not the brother. In those circumstances, the Tribunal was not obliged to invite the brother to a hearing pursuant to s.360 of the Migration Act, but only the applicant.
The relevant effect of s.361(2) of the Migration Act is that, within seven days of being notified of the hearing invitation, a review applicant may give the Tribunal written notice that they want the Tribunal to take oral evidence from a witness. Pursuant to s.361(3) of the Migration Act, the Tribunal must have regard to the review applicant’s wishes as expressed in such a notice, but is not required to call that person. A failure to have regard to the notice/review applicant’s wishes pursuant to s.361(3) of the Migration Act will amount to jurisdictional error[18].
[18] SZQWL v Minister for Immigration & Anor [2012] FMCA 388 at [42]-[45]
By letter dated 18 December 2014, the Tribunal invited Mr Hussein to a hearing to give evidence and present arguments[19]. Relevantly, on 24 December 2014, Mr Hussein sent a “Response to Hearing Invitation” to the Tribunal[20]. In Part 3 of that form, Mr Hussein indicated that he did not want to request that the Tribunal take oral evidence from anybody.
[19] CB 60
[20] CB 72-73
In circumstances where the Tribunal was not obligated to invite the brother to appear pursuant to s.360 of the Migration Act, and Mr Hussein did not indicate that he wished for the Tribunal to take oral evidence from the brother, it cannot be a jurisdictional error for the Tribunal to have proceeded to make its decision without taking oral evidence from the brother.
Ground 2
Ground 2 contends that the Tribunal failed to establish that the brother was affected by the security situation in Lebanon. The ground appears to relate to the Tribunal’s findings[21] in relation to the security situation in Lebanon becoming increasingly poor and its concerns that this may provide an incentive for the brother to remain in Australia. In making this finding, the Tribunal had regard to country information before it. It was entitled to do so[22].
[21] at [22]
[22] NAHI v Minister for Immigration [2004] FCAFC 10; VWFW v Minister for Immigration [2006] FCAFC 29
To the extent that the Tribunal relied on this information in considering the factors that suggested the brother had an incentive to remain in Australia, or otherwise lacked sufficient incentive to return to Lebanon as part of its overall assessment of whether the brother satisfied clause 600.211, this was part of the Tribunal’s fact finding function, and open to it. No jurisdictional error is established by Ground 2.
Ground 3
Ground 3 contends that the Tribunal’s decision was not reasonable, having regard to the migration history and credibility of both Mr Hussein and his brother.
When faced with a contention that a decision is legally unreasonable, the Court is not asked to substitute its view of the merits of the applicant’s case before the Tribunal; rather, it exercises a supervisory function in determining whether the decision conforms to the standard of legal reasonableness[23].
[23] AZAFB v Minister for Immigration [2015] FCA 1383 at [21] per North ACJ
Disagreement with the Tribunal’s process of reasoning on an issue of fact does not inevitably lead to the conclusion that the reasoning is so unreasonable that no reasonable person could adopt it[24].
[24] Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
In the present case, it could not be said that the Tribunal’s findings of fact were not based logical grounds, or that there was an absence of logical connection between the evidence and the reasons of the Tribunal[25]. Mr Hussein’s contentions are, in essence, more in the form of disagreement with the merits of the Tribunal’s decision, thereby inviting impermissible merits review[26].
[25] Minister for Immigration v SZMDS (2010) 240 CLR 611
[26] Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259, 272
Accordingly, Ground 3 does not establish jurisdictional error on the part of the Tribunal.
I conclude that Mr Hussein is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800. That is below the amount prescribed in the Court scale. Mr Hussein did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I will direct that the name of the second respondent is amended to the Administrative Appeals Tribunal.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 15 February 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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