MAHMOUD v Minister for Immigration

[2015] FCCA 1291

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHMOUD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1291

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, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: SALLAH MAHMOUD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1050 of 2015

Judgment of: Judge Street

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

No appearance by the applicant

Solicitors for the Respondents: Mr M. Glavac
Clayton Utz

ORDERS

1. The proceedings are summarily dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1050 of 2015

SALLAH MAHMOUD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Tribunal made on 12 March 2015. The grounds of the application are as follows:

   The Migration Review Tribunal made an error of law on the basis that on the materials before it there was no evidence to establish that the applicant was affected by any problems in Lebanon as his address is Ardeh, Zghorta, North Lebanon and the Member relied on wrong area country information. There are no problems in Ardeh and surroundings.

   2. The Tribunal denied the visa applicant natural justice and fairness by failing to take evidence from him as requested in the Response to Hearing form.

   3. The Tribunal failed to ask the visa applicant about the form 1418 which was completed by Gitani Travel Co. which leads the Court to cast any doubt as to why there was no disclosure of full history as mentioned by the Tribunal.

   4. Based on the material before the Tribunal such as: applicant's family overseas, work commitment, references from AI Beit AI Kadim Restaurant, Hammoud Establishment, passport {previous visit), title deed ownership of property, the Tribunal's decision is unreasonable because it does not have any adverse information to lead to such a decision.

2. The applicant has failed to appear and the matter has been called outside the Court and was listed at 9.30 am and it is now past 10.30 am.  This is a matter in which, having looked at the grounds in the application and the reasons of the Tribunal, I am clearly satisfied there is no arguable jurisdictional error.  Ground 1 is an impermissible challenge to the findings of fact made by the Tribunal.  It does not disclose any jurisdictional error.  There is no substance in relation to the second ground and it does not disclose an arguable jurisdictional error.

3. The third ground is a further impermissible challenge to the finding of fact and the fourth ground seeks to agitate the merits. None of the grounds disclose any 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, and, in particular, [24]-[25] and [59]-[60].

4. The applicant applied for a Visitor (class FA) visa on 8 October 2014 which was refused by the delegate on 16 October 2014.  The Tribunal identified the relevant issue at para.5 as follows:

   5. The issue in this case is whether cl.600.211 is met, which requires the tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to 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; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

   6. The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

   8101 – must not work in Australia

   8201 – must not engage in study or training in Australia for more than 3 months

   8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

   8531 – must not remain in Australia after end of permitted stay.

   7. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother, the review applicant, and other siblings in Australia. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl.600.231.

5. Relevantly, the Tribunal found:

   17. Thus, in the tribunal’s view, there is some support for the contention that the visa applicant does intend to comply with visa conditions at the current time and that he does intend a genuine temporary stay in Australia.

   18. Against these factors however the tribunal has weighed those matters which might influence the visa applicant to remain in Australia and which might suggest his current intention is other than a genuine stay temporarily. The current circumstances in northern Lebanon are extremely unstable and the tribunal does not accept the analysis which has been put forward by the review applicant. While he claims that fighting and sectarian clashes have reduced and is now confined to the border, this is only as a result of strong actions by security forces recorded in the material referred to above. There have been recent and significant clashes in areas very near to where the visa applicant lives and the review applicant himself indicated that there was substantial activity of security forces in the affected region. The tribunal believes that the current instability in Lebanon for a man of a religious minority must be a strong reason why he may seek safety elsewhere.

   19. The tribunal has considered that his wife and children would remain in Lebanon at this time and that it would be a difficult decision for him to have a period apart from them. It is the case however that in many instances people have sought refuge in Australia while enduring a period of separation from loved ones in order to reunite in the future in a safer environment.

   …

   21.    In the tribunal’s view, the current circumstances in Lebanon are so significantly threatening for those of minority faiths in the area where the visa applicant and his family reside that this would act as a very significant disincentive for him to return to Lebanon after any visit to Australia. This is so notwithstanding that he may have to endure some separation from his family who remain there.

   21. The tribunal does not find persuasive the argument that circumstances facing the visa applicant in 2008 were worse than faced currently, nor that the current threat is exaggerated. There has been recent very significant violence in areas nearby to where the visa applicant resides and the threat is not merely from internal conflict between communities in Lebanon but also reports of activity by the Islamic State for Iraq and the Levant in the north, albeit it closer to the border with Syria. This must be seen as a significant threat to religious minorities in the north and the tribunal believes it is not plausible to suggest that the visa applicant would not feel at the least very insecure in the current environment. While the tribunal does accept that various terrorist attacks have occurred in many European countries, in the tribunal’s view the threat in Lebanon is of a different quantum because of the longstanding nature of conflicts and that it is adjacent to Syria.

   22. The tribunal is also concerned by the fact that the visa applicant did not disclose the full history of his more recent attempts to visit Australia. He has had a series of applications for temporary travel to Australia refused but these were not disclosed in respect of the current application. While this has been blamed on an agent who assisted the visa applicant, the tribunal does not accept this explanation. The form does not disclose that assistance was provided at question 38 and otherwise provides comprehensive and clear details about the visa applicant’s circumstances. This failure to disclose previous unsuccessful applications has increased the tribunal’s concern about the current intentions of the visa applicant as it indicates an intention to minimise the scrutiny of earlier applications.

   …

   25.    As a result the tribunal is not satisfied that at this time the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted. In the tribunal’s view, taking account of the fact that he is of a minority faith and the level of threat to his community in north Lebanon the tribunal is not satisfied that his intention is currently only a short visit to Australia. This being the case, the visa applicant does not satisfy the provisions at cl.600.211 essential prescribed criteria for the class of visa sought. As a result, he must be refused the grant of a Visitor (Class FA) visa under s.65 of the Act and the delegate’s decision to this effect should be affirmed.  

6. I am clearly satisfied that the adverse findings by the Tribunal were open.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  In the circumstances including the default of appearance of the applicant, the proceedings are summarily dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 May 2015