Merhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1054
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Merhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1054
File number(s): SYG 2503 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 18 June 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a visitor visa – applicant required to show exceptional circumstances for a stay of more than 12 months – Tribunal finding no exceptional circumstances – whether the Tribunal failed to consider a serious medical condition considered – jurisdictional error established Legislation: Migration Act 1958 (Cth) ss 361, 364, 366, 368
Migration Regulations 1994 (Cth)
Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114
AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424
AYX17 v Minister for Immigration and Border Protection(2018) 262 FCR 317
Boutros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1053
BOX16 v Minister for Immigration and Border Protection [2020] FCA 801
CZBH v Minister for Immigration and Border Protection [2014] FCA 1023
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Maltsin (2005) 88 ALD 304
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
Number of paragraphs: 51 Date of hearing: 17 May 2021 Place: Sydney The Applicant appeared in person Counsel for the Respondent: Ms K Hooper Solicitor for the Respondent: HWL Ebsworth ORDERS
SYG 2503 of 2019 BETWEEN: FOUAD BOU MERHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 2 September 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Tribunal to redetermine according to law the review before it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Mr Merhi, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 September 2019. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant Mr Merhi a visitor visa.
This matter was heard concurrently with matter SYG 2504 of 2019, which involves a judicial review application by Mr Merhi’s wife (Ms Boutros) in relation to an effectively identical decision made in respect of her visa application and dealt with by the same Tribunal Member the following day.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 13 January 2021 which I adopt.
Mr Merhi is a citizen of Lebanon and, as noted above, the husband of Ms Boutros, an applicant to the Court in her own right (SYG 2504 of 2019). Their daughter is Ms Vidad Bou Merhi (Ms Bou Merhi).
Mr Merhi applied for a visitor visa on 13 December 2018.[1]
[1] Court Book (CB) 1
On 28 December 2018, the delegate refused to grant Mr Merhi a visitor visa.[2]
[2] CB 24
The delegate was not satisfied that Mr Merhi met clause 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth). That clause relevantly provided:
(1)If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
(2)This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:
(a) one or more visitor visas;
…
(d) a bridging visa.
The delegate recorded that Mr Merhi had last arrived in Australia on 24 September 2017 as the holder of a tourist visa, which remained in effect until 28 December 2018. On 13 December 2018, Mr Merhi lodged the visa application the subject of the delegate’s decision, requesting a further stay until 11 December 2019. This would result in Mr Merhi staying in Australia for a total period exceeding 12 consecutive months. Therefore, Mr Merhi had to demonstrate that exceptional circumstances existed for the grant of the visa. The delegate was not satisfied that exceptional circumstances existed and refused the visa application.[3]
[3] CB 25
Mr Merhi sought review of the delegate’s decision by application to the Tribunal lodged on 17 January 2019.[4] Mr Merhi appointed Ms Bou Merhi as his authorised recipient.[5]
[4] CB 28
[5] CB 34
By letter dated 5 August 2019, sent by email to Ms Bou Merhi[6] the Tribunal wrote to Mr Merhi and invited him to attend a hearing on 27 August 2019.[7]
[6] CB 52
[7] CB 54
The hearing invitation enclosed an information brochure, which included the following:[8]
Can I ask the AAT to obtain evidence?
You may, within 7 days after being notified that you are invited to attend a hearing, give us written notice that you want us to take oral or written evidence from a person or persons named in the notice or to obtain other written material. If you make such a request within that time limit, we will consider your notice but may decide not to obtain such evidence or written material. For example, we may be satisfied on a particular point, or may not consider the evidence to be relevant to your case.
You may use the 'Response to hearing invitation - MR Division' form to nominate persons you want us to take oral evidence from. If any person is in immigration or criminal detention, you should advise us immediately. You will need to arrange for any persons you nominate, who are not in immigration or criminal detention, to be available to give evidence.
[8] CB 56
Also enclosed was a response to hearing invitation form,[9] which Mr Merhi was asked to complete and return within seven days of receipt of the hearing invitation.[10]
[9] list of enclosures at CB 55
[10] CB 54
On 12 August 2019 and again on 16 August 2019, the Tribunal re-sent Ms Bou Merhi the abovementioned hearing invitation.[11]
[11] CB 60, CB index item 9; CB 63, CB index item 12
On 25 August 2019, Ms Bou Merhi emailed the Tribunal with respect to both Mr Merhi and Ms Boutros and attached, relevantly:[12]
(a)a letter from herself concerning her need for her parents’ help during her pregnancy;[13]
(b)medical documents in relation to herself;[14] and
(c)a response to hearing invitation for Mr Merhi,[15] indicating that he wanted the Tribunal to take evidence from two witnesses. They were, first, “Kalim El Khoury Semaan”, a neighbour of Ms Bou Merhi’s who would give evidence about how much Mr Merhi helped his daughter. Secondly, “Linda Semaan”, Ms Bou Merhi’s sister-in-law and neighbour, who would give evidence that Mr Merhi was available to take care of Ms Bou Merhi’s daughter. Telephone numbers for both proposed witnesses were provided.
[12] CB 64
[13] CB 65
[14] CB 66ff
[15] CB 69
Mr Merhi appeared at a hearing before the Tribunal on 27 August 2019[16] to give evidence and present arguments on the issues arising in relation to the review. The two proposed witness’ names and mobile telephone numbers are written at the bottom left of the Tribunal “Hearing Record” at CB 79. Ms Boutros and Ms Bou Merhi both gave oral evidence at the hearing.[17] No other witnesses gave oral evidence.
[16] CB 79
[17] CB 91 [5]
A transcript of the hearing is in evidence annexed to the affidavit of Claire Dunn made on 20 January 2021. The transcript indicates that the hearing commenced with an introduction given by the Tribunal Member to Mr Merhi, Ms Boutros, and an unknown number of unrelated applicants whose cases were apparently also being dealt with that day. Mr Merhi’s and Ms Boutros’ hearings were then conducted jointly.
On 2 September 2019 the Tribunal made its decision, affirming the decision under review not to grant Mr Merhi a visitor visa.[18]
[18] CB 90
The Tribunal set out the relevant factual background to the visa application, including the reasons Mr Merhi and Ms Boutros were applying to extend their stay.[19]
[19] CB 91 [7]-[8]
The Tribunal found that the grant of the visa would result in Mr Merhi being authorised to stay in Australia as the holder of a FA Visitor Tourist Stream visa and a Bridging visa A, which are visas specified in clause 600.215, for a total period of more than 12 consecutive months.[20]
[20] CB 92 [13]
The Tribunal considered Mr Merhi’s circumstances as presented to it.[21] It accepted that Mr Merhi wanted to spend time in Australia to assist Ms Bou Merhi in caring for her young daughter, and during her present pregnancy. The Tribunal accepted that Mr Merhi and his wife had been living with Ms Bou Merhi and had been the primary carers for their granddaughter, as Ms Bou Merhi was pregnant and had gestational diabetes.[22]
[21] CB 92 [14], and see CB 93 [18]-[22]
[22] at CB 92 [14]
The Tribunal had regard to departmental policy, the Procedures Advice Manual (PAM3), in relation to exceptional circumstances, noting that it provided guidance and did not bind the Tribunal. The Tribunal set out examples of what might constitute exceptional circumstances, identified by the policy. They included:[23]
•the death, serious illness or serious medical condition of a member of the visa applicant's close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
•a change in the applicant's circumstances (or the circumstances of an Australian resident) that:
could not have been anticipated at the time their visitor visa was granted and
is beyond the visa applicant's control and
where not granting a visa would cause significant hardship to an Australian resident or citizen.
[23] at CB 93 [17]
The Tribunal considered the claims put to it and concluded at [23] that:[24]
Whilst the Tribunal was mindful of the applicant’s wish to remain in Australia to assist his daughter with her caring responsibilities the Tribunal was also mindful that he had previously been granted a temporary visa for this purpose and that there was no real change in the situation since the visa had been granted. The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.
[24] CB 93
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 27 September 2019. Mr Merhi continues to rely upon that application. There are two grounds in it:
1.The Tribunal Member acted contrary to the evidence presented at the interview and failed to consider my daughter's exceptional circumstances and failed to consider extending my visa because of the immediate need for my daughter to be with her and supporting her before and after the delivery of the child.
2.The Tribunal failed to understand and apply the law in relation to exceptional circumstances which existed at the time of the decision.
I have before me as evidence Mr Merhi’s affidavit accompanying his application and two affidavits annexing differing versions of the transcript of the hearing before the Tribunal on 27 August 2019. The first of those affidavits was made by Toufic Laba-Sarkis on 24 December 2020 and the second was made by Claire Dunn on 20 January 2021. Having regard to the body of Ms Dunn’s affidavit, to the extent that there are differences between the two transcripts, I prefer that annexed to the affidavit of Ms Dunn. An earlier version of the transcript annexed to the affidavit of Sarah Gin-May Bow made on 21 August 2020 was not read.
I also have before me as evidence the court book filed on 6 December 2019.
Both Mr Merhi and the Minister filed pre-hearing written submissions. I also heard oral submissions from Ms Bou Merhi and the Minister’s counsel. I have been assisted by those submissions.
CONSIDERATION
The grounds in the application are in general terms. The Minister’s submissions deal with aspects of the legal issues arising from the grounds which were not raised by Mr Merhi, and to that extent I agree with and adopt those submissions.
Pursuant to s 361(3) of the Migration Act 1958 (Cth), where the Tribunal is notified of a request to call a witness in accordance with s 361(2) (within 7 days after the applicant is given an invitation to a hearing), the Tribunal “must have regard to the applicant's notice but is not required to comply with it”. The Tribunal is required to apply its mind to the notice from the applicant and to whether it should take oral evidence from the nominated witness.[25]
[25] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Maltsin (2005) 88 ALD 304 at [38]; AYX17 v Minister for Immigration and Border Protection(2018) 262 FCR 317 at 331-332 [48]; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [44]; SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [50]-[51]
In this case, Mr Merhi’s request was not made in accordance with s 361(2). Despite the re‑sending by the Tribunal of its hearing invitations, they were first emailed to Ms Bou Merhi as Mr Merhi’s authorised recipient on 5 August 2019.
Mr Merhi’s request to the Tribunal to take oral evidence from witnesses was not received by it until 25 August 2019, which was in excess of seven days later.
Even if the seven days ran from the second re-sending of the hearing invitation on 16 August 2019, which it did not as no invalidity is apparent in the sending of the earlier invitation(s), 25 August 2019 is still in excess of seven days after this date. Therefore, the Tribunal’s statutory duty under s 361(3) was not enlivened.[26]
[26] BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 at [56]
Nevertheless, the Tribunal had a discretionary power to take evidence on oath or affirmation under s 364(1)(a). It also had a discretionary power to receive oral evidence by telephone under s 366.
The Tribunal’s reasons are silent as to its consideration of those powers and in particular s 364(1)(a). However, it was not obliged to have regard to any notice of a request under s 361(3). The Tribunal’s duty to give reasons under s 368(1) also did not oblige it to state its reasons in relation to either or both of s 364(1)(a) and/or s 366, as opposed to its reasons for the substantive decision on the review. Therefore, no inference can be drawn from the Tribunal’s silence in the statement of reasons as to any consideration of its discretion to take the oral evidence of the two proposed witnesses.[27]
[27] see AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [48]
In AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[28] Colvin J considered that, where there was no request to the Tribunal to take oral evidence from a witness within seven days (as here), the relevant framework was “duty to inquire” principles.[29]
[28] [2020] FCA 424
[29] see [34]-[36], and/or legal unreasonableness at [64]-[65]
Applying duty to inquire principles[30] to this case, it is not shown that either of the witnesses was a person who could give evidence about a “critical fact”. Because he has not adduced any evidence of what these witnesses would have said, Mr Merhi also cannot show a sufficient link between the failure to inquire and the outcome of the review.
[30] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Furthermore, in order for any error by the Tribunal, whether characterised as an unreasonable failure to consider the exercise of discretion or as a failure to inquire, to go to its jurisdiction, the error also has to be material.[31]
[31] see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433 [4], 445-446 [44]-[49] per Bell, Gageler and Keane JJ
In the ordinary course and but for the error (assuming one was made), the Tribunal would have considered whether or not to telephone any one or both of the witnesses and to take oral evidence from them. Even assuming that the Tribunal did decide to take oral evidence, the only evidence before the Court as to what these witnesses might have said is the bare details contained in the response to hearing invitation form.[32] They are to the effect that the witnesses would confirm Mr Merhi was assisting Ms Bou Merhi with her day-to-day activities including caring for her child. The Tribunal did not doubt this was so. Mr Merhi cannot discharge his onus of proving that the Tribunal’s error (if any) could possibly have deprived him of a favourable outcome.
[32] CB 70
Subject to a particular issue which I deal with below, the grounds of the application to the Court are unparticularised and appear not to rise above an attempt at impermissible merits review. With respect to Ground 1, the Tribunal appears to have understood the nature of the exceptional circumstances claimed, however, having considered the issue at a high level of generality, it did not accept that they did constitute exceptional circumstances. The Tribunal regarded the circumstances as not significantly different from those previously relied upon (that being the birth of Ms Bou Merhi’s first child). This was a factual evaluation for the Tribunal. The Tribunal otherwise correctly set out and applied the relevant law.
Mr Merhi’s submissions lodged on 6 January 2021 refer to evidence before the Tribunal[33] and parts of the hearing transcript. There is a reference to a Dr Hassan Salloum in evidence,[34] as suggested by Mr Merhi.
[33] in the case of Mr Merhi’s application, this evidence is at CB 65-68
[34] at CB 66-67
The Tribunal considered the documentary and oral evidence before it, and made factual findings reasonably open to it. That includes, for example, at [14][35] and [21],[36] where it accepted that Ms Bou Merhi suffered gestational diabetes and experienced dizziness because of this.
[35] CB 92
[36] CB 93
Sadly, Ms Bou Merhi’s second child was stillborn. This evidence does not appear in the court book in relation to Mr Merhi, however it appears from Ms Boutros’ court book that on 23 September 2019 Ms Bou Merhi emailed the Tribunal further material indicating this to have occurred.[37] However, as the Tribunal was functus officio, it was not able to reopen its decision to consider that material.
[37] CB 91-92 in SYG 2504 of 2019
An additional issue
At the trial on 17 May 2021, I raised with the parties a further question arising in general terms from the grounds of review but specifically arising from the Tribunal’s decision at [17]-[23].[38] There, the Tribunal stated:
[38] CB 93
The Tribunal has also had regard to the Department's Procedures Advice Manual (PAM3) in relation to exceptional circumstances, noting that while it provides guidance, it is in no sense binding on the Tribunal. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:
•the death, serious illness or serious medical condition of a member of the visa applicant's close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
•a change in the applicant's circumstances (or the circumstances of an Australian resident) that:
could not have been anticipated at the time their visitor visa was granted and
is beyond the visa applicant’s control and
where not granting a visa would cause significant hardship to an Australian resident or citizen.
The Tribunal carefully considered the circumstances as put forward by the applicant.
The applicant told the Tribunal he came to Australia to assist his daughter in caring for his grandchild. He has three children living in Australia and one child in Lebanon.
At the time of application the applicant stated he wished to remain in Australia until 11 December 2019. He said he needed to stay to help his daughter with looking after his granddaughter. He stated he was self-funded and he would receive assistance from his daughter and son in law if needed.
The applicant told the Tribunal that although the period he had requested had mostly passed he was still needed to assist his daughter with the care of her child especially now she was pregnant and awaiting the birth of another child. Her present pregnancy had been complicated by her having been diagnosed with gestational diabetes.
When asked what were the exceptional circumstances the applicant wanted the Tribunal to take into account the applicant said he wanted to be able to stay in Australia to assist his daughter with the care of her child. When asked why he was needed now he said it was difficult for his daughter as her husband worked long hours and she was alone a lot and needed assistance. It was particularly important for his daughter to minimise her stress levels and that was hard when she was on her own with an active toddler.
Whilst the Tribunal was mindful of the applicant's wish to remain in Australia to assist his daughter with her caring responsibilities the Tribunal was also mindful that he had previously been granted a temporary visa for this purpose and that there was no real change in the situation since the visa had been granted. The Tribunal was not satisfied the circumstances as relied on by the applicant were exceptional circumstances for the grant of the visa.
The question arising is whether the Tribunal erred by not determining whether the gestational diabetes affecting Ms Bou Merhi’s second pregnancy was a “serious medical condition” for the purposes of the PAM3 and hence an exceptional circumstance.
As was pointed out in oral argument by the Minister’s counsel, the Tribunal is not bound by the PAM3 and could have departed from it. It does not, however, appear to me that it did. It was also raised in oral argument by the Minister’s counsel that there was an inadequate evidentiary basis for the proposition that the Tribunal erred at [23] in stating that there had been “no real change” in the situation since the visitor visa had been granted (in 2017). Obviously, Ms Bou Merhi had become pregnant a second time and Mr Merhi and his wife wished to extend their stay in order to support their daughter. As the Tribunal found, that was not an exceptional circumstance. If, however, Ms Bou Merhi had been diagnosed with gestational diabetes for the first time during her second pregnancy, then it would seem to me that there had been a real change in her situation. With the benefit of hindsight, that is obvious. The Tribunal, of course, could not foretell the future. It could, however, consider whether the gestational diabetes was something new and whether it was serious. The Tribunal decision is silent on those issues which, it seems to me, were critical to the outcome of the review.
The relevant medical records are contained in the court book at CB 66-67. I was told that they show an abnormal test result indicating gestational diabetes.
The transcript of the Tribunal hearing[39] shows that Ms Boutros expressly raised the issue of gestational diabetes with the Tribunal at the hearing. It appears that this was the first time that issue was expressly raised, although the medical records had been furnished to the Tribunal on or about 26 August 2019.
[39] annexed to Ms Dunn’s affidavit at page 11 of the annexure, Transcript, page 6
Importantly, at [21] of its reasons the Tribunal noted that Ms Bou Merhi’s “present pregnancy” had been complicated by her having been diagnosed with gestational diabetes. There is no indication that the condition occurred in Ms Bou Merhi’s first pregnancy and it appears to me that the Tribunal was dealing with it as a new issue associated with the second pregnancy.
In those circumstances, in my opinion, the Tribunal needed to determine whether the gestational diabetes condition associated with the second pregnancy was a “serious medical condition” for the purposes of the PAM3 which the Tribunal had chosen to follow. If it was, then that finding may very well have determined the outcome of the review favourably for Mr Merhi (and Ms Boutros).[40]
[40] Boutros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1053
I also raised during argument the question of what the position would be if the matter were to be remitted to the Tribunal. The Tribunal would be dealing with the matter on the now current facts. Those facts include that Ms Bou Merhi has fallen pregnant for a third time and given birth to a healthy daughter who is now four months old. It follows that the factual case for the issue of the visa may be weaker now than it was at the time of the Tribunal decision, but the Minister did not submit that remittal to the Tribunal would be futile. There are a range of possible outcomes, including that Mr Merhi and his wife could withdraw their visa or review applications and depart Australia when circumstances permit, by arrangement with the Minister’s Department.
CONCLUSION
I conclude that Mr Merhi has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 18 June 2021
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