Hussein v Minister for Immigration

[2015] FCCA 890

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSSEIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 890

Catchwords:
MIGRATION – Migration Review Tribunal – visitor (class FA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.426(3), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: AKIL ABOU HUSSEIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 630 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr K. Eskerie
Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 630 of 2015

AKIL ABOU HUSSEIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 20 February 2015 to affirm a decision not to grant the applicant a visitor (class FA) visa.  The grounds of the application are as follows:

   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.

2. The grounds indentify under the first return date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court identified to the applicant that having looked at the grounds it was not satisfied that the grounds identified an arguable jurisdictional error.  In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

4. The applicant sought to advance that the Tribunal should have invited his brother to attend to give evidence.  The relevant issue in this case was whether the applicant genuinely intended to stay temporarily in Australia.  The applicant said that the Tribunal should have looked at all the evidence in terms of aspects of security in his home country.

5. The applicant said that the decision was not fair given the long history with his family in this country. Those observations made by the applicant are entirely consistent with the Tribunal’s finding that it was not satisfied that the applicant genuinely intended to stay temporarily in Australia. It is not the case that s.426(3) requires the Tribunal to call evidence that is requested by the applicant and in the circumstances of this case it was clearly unnecessary to do so.

6. Further in this case it is not in fact clear that the applicant requested any evidence to be adduced from his brother particularly given the terms of exhibit A.  In any event given the nature of the issues before the Tribunal this was clearly a case where there was little benefit to be derived from evidence as to the security problems in the applicant’s home country in respect of concerns as to whether the applicant genuinely intended to stay temporarily in Australia.

7. I am satisfied that the Tribunal clearly complied with the statutory requirements of the review and that there is no substance in relation to ground 1.  Ground 2 raises the security issue in the applicant’s home country and is for the reasons I have just identified inconsistent with an assertion that the applicant genuinely intended to stay temporarily in Australia.  Ground 2 does not identify any jurisdictional error. 

8. Ground 3 sought to raise the applicant’s history and again is consistent with the finding made by the delegate and by the Tribunal. Ground 3 is an impermissible challenge to findings of fact and fails to identify any jurisdictional error.  There is no substance in relation to ground 4.  It is clear that the applicant attended before the Tribunal to give evidence on 12 February 2015 and to present arguments and have the benefit of an interpreter.  The Tribunal considered the applicant’s claims and relevantly made the following findings:

   14.    The review applicant told the Tribunal that the visa applicant was just intending a temporary stay because he was responsible for looking after his parents. He had previously been to Australia and had complied with visa conditions and departed before the expiry of his visa.

   …

   20. The Tribunal finds that the visa applicant has strong family ties in Lebanon in that his parents and 2 of his siblings reside there. However, against that, the Tribunal also finds that he has very strong family ties in Australia in that 3 of his brothers reside here. Given the circumstances that the visa applicant is not married with his own family, the Tribunal has formed the view that his family ties in Australia are stronger than those in Lebanon, and would provide a strong incentive for him to remain in Australia. The Tribunal has considered the evidence that his ties to his parents provide a particularly strong incentive for him to return to Lebanon because he is responsible for looking after them, given that his sister cannot undertake this role because of mental health problems, and his brother there has his own family and lives separately. The Tribunal accepts that the visa applicant lives with his parents and that this arrangement may involve providing some level of assistance and care for his parents. However the visa applicant’s proposed travel to Australia indicates that alternative arrangements are able to be made for any required assistance during the proposed trip. The Tribunal is not satisfied that the evidence demonstrates that the visa applicant’s role in looking after his parents is of such a critical nature that it would provide a strong incentive for him to return.

   21. The Tribunal is satisfied that the visa applicant has employment ties in Lebanon through his work as a tailor. However the Tribunal considers his employment and economic circumstances are modest. The Tribunal has taken into account the review applicants’ evidence that the visa applicant’s salary of USD 650 per month places him in the middle income range. However, the Tribunal is not satisfied that his employment circumstances are sufficiently strong to act as a strong incentive for him to return. Although the visa applicant has provided evidence of some savings, the Tribunal also considers they are relatively modest. In addition, although the visa applicant lives in the family home, there is no indication that he owns significant assets such as property that would establish a strong incentive for him to return. Having regard to these circumstances, and taking into account the country information indicating weakened economic conditions in Lebanon at least partly as a result of the effects of the Syrian conflict, the Tribunal is not satisfied that the visa applicant’s economic circumstances would act as a strong incentive for him to return to Lebanon.

   22. In addition, the Tribunal has serious concerns that the increasingly poor security situation and the exacerbation of sectarian divides in the area where the visa applicant resides, when considered together with the visa applicant’s personal and economic circumstances outlined above, provide a very strong incentive for the visa applicant to remain in Australia. The Tribunal has taken into account the evidence of the visa applicant’s previous travel to Australia in 2010, and that of his other brother in 2006, and that they returned to Lebanon. The Tribunal has also considered the review applicant’s evidence that a volatile security situation has been a feature of life in Lebanon for a long time, and the review applicant’s family there, including the visa applicant, have adapted to the situation, and that the visa applicant would not leave his parents if the situation was so dangerous. However, the Tribunal is not satisfied that this overcomes the Tribunal’s concerns in relation to the visa applicant’s intentions in relation to this proposed visit. The Tribunal is also not satisfied that the evidence that the visa applicant could have arranged other pathways in the past to remain in or come to Australia permanently, overcomes the Tribunal’s concerns in the context of the country information indicating the deterioration in the security situation in the area where the visa applicant lives as a result of the recent Syrian conflict.

   23. The Tribunal has taken into account the review applicant’s evidence that he is in a position to lodge a security as an assurance of the visa applicant’s compliance with visa conditions, and that he takes the issue of compliance with immigration laws very seriously. However this does not allay the Tribunal’s concerns. Having regard to the visa applicant’s current personal and economic circumstances, and the country information regarding the poor security situation in the area where the visa applicant lives, the Tribunal is of the view that at the current time the visa applicant is seeking the visa in order to secure travel to Australia for the purposes of seeking a longer term stay. The Tribunal is not satisfied that the visa applicant would not remain in Australia after the end of his permitted stay if granted a visitor visa.

   24. For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

9. The finding made by the Tribunal in paragraph 24 that it was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia was a finding that was open on the material before the Tribunal.  The findings cannot be said to make an evident and intelligible justification.  The proceedings are clearly doomed to failure and I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015