MOAWAD v Minister for Immigration

[2015] FCCA 899

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOAWAD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 899

Catchwords:
MIGRATION – Migration Review Tribunal – Family Migrant (class BA) 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.476
Migration Regulations 1994, reg.1.15AA

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

Applicant: AZIZA MOAWAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 711 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: Ms A. Carr
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 711 of 2015

AZIZA MOAWAD

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 under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal made on 11 February 2015 affirming a decision of the delegate not to grant the visa applicants’ other Family Migrant (class BA) visas.  The application identifies the following grounds:

   1. The Migration Review Tribunal failed to apply the law and failed to accept my immediate need for my son, the visa applicant, who is able to be with me on 24 hour basis.

   2. The Tribunal failed to understand the serious illness and the medical condition and as a result came to a conclusion that I was evasive and the Member's conclusion that I am receiving care is wrong because what I receive does not meet my needs.

   3. I will provide detailed explanation when I receive copy of the file and I will be assisted by family members.

2. The application also identifies on the first Court 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 review applicant, who was present together with her daughter, that the Court had looked at the application and the reasons of the Tribunal and was not satisfied that it disclosed any arguable jurisdictional error, and was minded to deal with the matter within its summary jurisdiction 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’s daughter indicated that she had listened to the transcript, and that there were errors with the interpretation.  Specifically, she asserted that there was an error in relation to the interpretation in respect of the fact that it was said that her daughters were only coming for half an hour, and that they were busy.  It is very clear from para.29 that the interpreter accurately identified that evidence and that the Tribunal has quoted that evidence.  I am not satisfied that there is any arguable issue relating to the interpretation in respect of the hearing conducted by the applicant.  There is clearly no interpretation issue raised on any material matter.

5. The applicant’s daughter identified that the applicant was suffering from dementia and that there were medical reports relating to the review applicant and her daughters, and asserted that these were matters that were not taken into account by the Tribunal.  It is clear that the Tribunal was well alive to the difficulties of the applicant.  It is also clear that the Tribunal received evidence relating to these issues and concerns concerning the capacity of the applicant’s daughters to assist her.  This Court is not sitting as a Court of Appeal and is not entitled to review the merits. It is not appropriate for this Court to receive evidence on the merits that were matters to which the Tribunal had regard. None of the grounds identify any arguable jurisdictional error and nothing said by the applicant or her daughter disclosed any arguable jurisdictional error. There is no utility in granting any adjournment as the proceedings are clearly doomed to failure and to do so will only unnecessarily add to the costs of the parties and use limited court time.

6. It was open to the Tribunal to make the findings that it did, and those findings are not affected by any jurisdictional error.  It was open to the Tribunal to make adverse findings in relation to the credit of the applicant, notwithstanding that she may have a level of dementia.  It was also open to the Tribunal to make the findings in relation to the extent to which the visa applicants, and in particular the daughter’s brother, would be able to assist the review applicant.

7. The delegate refused to grant the visa on the basis that cl.116.211 was not met, because he found the applicant did not meet the requirements under reg.1.15AA. The Tribunal correctly identified the real issue as whether the first visa applicant is the carer of the review applicant. Regulation 1.15AA(1)(e) requires:

   Carer

   (1)  An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen ( the resident ) if:

   …

   (e)  the assistance cannot reasonably be:

   (i)  provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)  obtained from welfare, hospital, nursing or community services in Australia;

8. The Tribunal carefully addressed the applicant’s evidence:

   29. The Tribunal took evidence from the review applicant.  The review applicant stated that she could understand the interpreter.  She stated she had three daughters in Australia and one daughter and two sons in Egypt.  The Tribunal asked who has been caring for her.  She said that her daughter used to be her carer however, she is tired and is now unable to continue to provide care and that is why she wants her son.  The Tribunal again asked who had cared for her as it was clear she was well cared for.  The review applicant stated that her care was divided amongst her three daughters.  She stated that they came once a week and spent half an hour with her.  The Tribunal asked her to clarify that her daughters in Sydney were caring for her.  She said yes they come for half an hour but they are busy and have their own responsibilities. 

   30. The Tribunal then clarified that her daughter who previously came to Australia as her carer was providing care.  She replied with words to the effect that this daughter left a long time ago as she had an operation on her back.  She said that no one could help her as they have responsibilities or are sick.  The Tribunal asked if she was receiving any help from community services she replied that she was getting help twice a week, she said a woman comes to shower her.

   31. The Tribunal asked if her son in Egypt would be able to help as he does not speak English.  She replied that he does not need to speak English as all her doctors are Egyptian.  The Tribunal pointed out that some of the reports she provided to the Department appear to be from doctors who are not of Arabic background.  She agreed with this.  The Tribunal asked how he would drive her to appointments if he does not speak English.  She responded he could drive and he has a licence.

   32. The Tribunal then took evidence from the visa applicant.  He stated that he could not speak English however; he said her doctors speak Arabic.  He said he could drive.  The Tribunal pointed out that he was bringing with him a wife and two children and asked how he could look after his mother when all his siblings in Australia claim their health or family responsibilities stop them from caring for their mother. 

   …

   38. The Tribunal finds that the review applicant has not been completely candid with the Tribunal in relation to the care she receives.  She changed her evidence during the hearing and evidence within the statutory declarations is contradictory, the daughters state their health issues preclude them from providing any care but then indicate they are caring for grandchildren and children.  The review applicant presented as someone who was well cared for however stated she was not receiving any help from her daughters.  She earlier had said her care was divided amongst them.

   39. The review applicant currently receives care from community services.  She will continue to receive that care.

   40. The visa applicant has children and a wife.  He does not speak English while he may be able to get an interpreter for specialist appointments it would not be of any help in day to day dealings with community care and in any emergency.

   41. The representative urged that in Egypt everyone has basic English however the evidence given by the applicants was that the visa applicant did not speak English.  The applicant has a wife and two children who will accompany him to Australia.  His siblings in Australia all provided evidence that could not help due to the demands of their family.  The Tribunal is not satisfied that the applicant will not also find the demands of a sole full time carer too demanding when he has family responsibilities.

   42. The Tribunal has carefully considered all the evidence presented by the review applicant.  The Tribunal found that when it came to her care and who was providing that care the review applicant was evasive and some of the evidence provided was contradictory. 

   43. The Tribunal is satisfied that the review applicant is currently receiving care.  She has been assessed by community care and they will be able to assist if they are needed.  The Tribunal is satisfied that the review applicant’s family in Australia are providing care between themselves with the continuing assistance of community services.

   44. The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.

   45. The Tribunal finds that the applicant may be willing to provide care however the demands placed on him by family responsibilities mean he will not be able to provide continuing assistance of the kind needed under subparagraph (b)(iv), as the case requires therefore the requirements of r.1.15AA(1)(f) are not met.

   46. Given these findings the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

9. The findings made by the Tribunal were clearly open.  The applicant had a genuine hearing.  There was no error in the conduct of the review by the Tribunal.  The proceedings are clearly doomed to failure.  I am clearly satisfied 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