Khanam v Minister for Immigration
[2009] FMCA 285
•3 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHANAM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 285 |
| MIGRATION – Application to review decision of MRT – Sponsored Family Visitor (Short Stay) Visa – no jurisdictional error demonstrated. |
| Migration Act 1958, ss.474, 499 Migration Regulations1994, cl.679 |
| Craig v The State of South Australia (1995) 184 CLR 163 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 SZITB v Minister for Immigration and Citizenship [2007] FCA 1954 Prasad v Minister for Immigration and Citizenship [2007] FCA 1739 Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 Buck v Bavone (1976) 135 CLR 110 |
| Applicant: | BUSHRA KHANAM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 865 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 20 March 2009 |
| Date of Last Submission: | 20 March 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 3 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| The Applicant in person: | Ms Khanam |
| Counsel for the Respondent: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed
The applicant is to pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 865 of 2008
| BUSHRA KHANAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of the decision of the Migration Review Tribunal, constituted by Mr Dobell, dated 26 November 2008. The Tribunal affirmed the decision of the Minister’s delegate not to grant to the applicant’s son, Nabeel Ahmad, a Sponsored (Visitor) (Class UL) visa.
The Tribunal filed a submitting appearance. The substantive application was opposed by the first respondent.
The decision of the Migration Review Tribunal is a privative clause decision, and is not amenable to merits review: s.474 Migration Act 1958. To successfully challenge the decision of the Tribunal the applicant needs to establish jurisdictional error.
A general description of what constitutes jurisdictional error is to be found in the decision of Brennan, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
See alsoPlaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
No issue was taken as to the applicant’s standing to seek relief in respect of the Tribunal’s decision. The applicant appeared on her own behalf. She was assisted at the bar table by family members present in person, and by an interpreter, via video link. The applicant’s lack of legal representation is reflected in the grounds of her application, which are as follows:
(1)That the sponsor/applicant has fulfilled all the requirements of the subclass 679 for the visa applicant, the requirements as laid down in the sponsored family Visitor visa were duly completed, the MRT did not considered these legal requirements.
(2)That the sponsor has completed r.1.03 of the Migration regulation, the sponsor also submitted the evidence as required for subclass 679 visa, as the visa applicant is the son of the sponsored applicant. The tribunal did not attended the evidence that the applicant has also completed the criteria as defined in the cl. 679.214 of the Schedule 2 of the Migration Regulations. This is a clear violation of the jurisdictional error. The MRT did not applied the proper law as laid down in the migration act and migration regulations.
(3)That the applicant has fulfilled the criterion as required under cl679.212, ans also cl679.213, and cl679.211, ans cl 679.213 of the regulations.
The applicant did not expand on the grounds of application in this Court. Essentially, the alleged grounds of jurisdictional error are:
a)The Tribunal failed to consider all of the requirements that must be satisfied before the grant of a subclass 679 visa, and that the visa applicant had satisfied those requirements;
b)The Tribunal failed to properly apply the correct law to the determination of the application;
c)The Tribunal could not lawfully have refused the application because the visa applicant satisfied all of the criteria for the subclass 679 visa.
The visa applicant, who lives in Pakistan, is the son of the applicant in the proceedings before me. The applicant mother came to Australia from Pakistan in 2005 and was granted asylum in 2006. In essence, the visa applicant sought a sponsored family visitor (short stay) visa, for the stated purpose of visiting his mother.
The Tribunal observed, at paragraph 6 of the Reasons, that the subclass 679 visa is for people seeking to enter Australia for the purposes of visiting an Australian citizen or Australian permanent resident who is a parent, spouse, child, brother or sister of the visa applicant, or for a purpose other than a purpose related to business or medical treatment.
The criteria applicable to the grant of the visa applied for are set out in Clause 679 to Schedule 2 to the Migration Regulations1994.
The Tribunal correctly identified, at paragraphs 7 and 8 of the Reasons, that:
a)The visa applicant must satisfy the criteria in sub-clauses 679.211 to 679.214, both at the time of the application for the visa, and at the time of decision;
b)Further, the visa applicant must satisfy the Minister at the time of decision that the expressed intention of the visa applicant only to visit is genuine: clause 679.224.
It is plain from the Reasons that the Tribunal focussed on whether or not the visa applicant had satisfied the criteria in clause 679.224. It was neither erroneous or in contravention of its jurisdiction for the Tribunal to do so. The criteria set out for the Subclass 679 visa are cumulative. If the visa applicant failed to satisfy the criteria in sub-clause 679.224 there was no need for the Tribunal to expressly consider each of the other criteria.
However, I accept that the Tribunal did accept that the visa applicant satisfied, and continued to satisfy, the criteria in subclauses 679.211 to 214. It expressly referred in the reasons to the production of evidence by the visa applicant that satisfied those criteria.
In its consideration of whether or not the criterion in sub-clause 679.224 was satisfied, the Tribunal correctly identified the relevant legislation which guided its consideration. The Tribunal did not misconstrue or misapply the prescribed visa criteria.
The Tribunal also had regard to Ministerial Direction No. 36 of 2005, made pursuant to s.499 of the Act. That Direction sets out a number of considerations to which regard can be had in forming a conclusion as to whether or not the decision maker is satisfied that the visa applicant genuinely intends only to visit Australia.
It is apparent from the Reasons of the Tribunal that the Tribunal member carefully considered the evidence that was put before the Department, and before it. The Tribunal accepted evidence favourable to the visa applicant (for example, at Reasons paragraphs 72 and 81) as well as adverse (for example, at paragraph 78). The Tribunal convened two hearings, on 15 September and 17 October 2008. At the second hearing the visa applicant was contacted in Pakistan. Interpretive services were provided. Various matters were put to each of the visa applicant and the applicant in these proceedings.
The Tribunal member balanced the matters favouring and disfavouring the required state of satisfaction at paragraphs 92 and 93 of the Reasons. He concluded that he was not satisfied that the expressed intention of the visa applicant only to visit Australia was genuine.
At paragraph 94 of the Reasons it was stated:
“As the Tribunal finds that it is not satisfied that the expressed intention of the visa applicant only to visit Australia is genuine, this means that he fails to satisfy the provisions of cl. 679.224 and cannot meet the essential prescribed criteria for the grant of a Subclass 679 visa.”
It is evident from a reading of the Reasons of the Tribunal that the grounds asserted in the application before this Court are not made out.
A merits review simpliciter is not permissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Adverse credibility findings are properly the function of the decision-maker and generally not susceptible to judicial review by the court: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. As Gleeson CJ pointed out in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62 reviewable error is not established purely because, on the material before the decision maker, the court would have reached the required state of satisfaction. As Flick J observed in SZITB v Minister for Immigration and Citizenship [2007] FCA 1954 at [17]:
“Jurisdictional error is not made out by one party seeking to revisit the merits of a decision and expressing disagreement with the findings of fact made by a Tribunal properly acting within the jurisdiction entrusted to it.”
Here, the critical question was whether the decision maker was “satisfied” of the genuineness of the visa applicant’s expressed intention. In Prasad v Minister for Immigration and Citizenship [2007] FCA 1739 Logan J considered that the “satisfaction” is the jurisdictional fact rather than the objective existence of the criteria specified in the paragraphs that followed in that case.
In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [8] Gleeson CJ, in dealing with statutory provisions which operate upon the state of satisfaction, or lack of satisfaction of an administrative decision maker adopted what Dixon J said in Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360:
“But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.”
In Buck v Bavone (1976) 135 CLR 110 at 118-9, in a passage frequently quoted in this area of judicial discourse, Gibbs J (as his Honour then was) said of statutory provisions which require satisfaction of certain jurisdictional facts:
“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”
There is no ground for concluding that, in this case, the Tribunal member acted in a manner that would attract judicial intervention. The application must therefore be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 3 April 2009
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