NAJDI v Minister for Immigration
[2011] FMCA 602
•3 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJDI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 602 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal properly considered – whether “compelling circumstances” existed to allow approval to the applicant’s sponsorship of her husband from Egypt in circumstances where she had sponsored 2 other spouses to Australia. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 65(1); 65(1)(b); pt.8 div.2 Migration Regulations 1994 (Cth), Reg 1.20J; Part 309 of Schedule 2 |
| Babicci v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | GHADA NAJDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1262 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 August 2011 |
| Date of Last Submission: | 3 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2011 |
REPRESENTATION
| The Applicant appeared in person and was assisted by an Arabic interpreter. |
| Counsel for the Respondent: | Mr David Hughes |
| Solicitors for the Respondent: | Mr Adam Wood (Clayton Utz Lawyers) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1262 of 2011
| GHADA NAJDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 31 May 2011 and handed down on 31 May 2011.
The applicant is an Australian citizen (“the Applicant”) whose husband is a citizen of Egypt where he currently resides.
On 25 May 2010, the Applicant’s husband applied for a Partner (Provisional) (Class UF) Visa- Subclass 309 and the Applicant is his sponsor.
By a document dated 14 May 2010, the Applicant sponsored the Visa Applicant’s application for a Partner (Provisional) (Class UF) visa.
On 6 October 2010, a Delegate of the first respondent (“the Delegate”) refused the Visa Applicant’s application for a Partner (Provisional) (Class UF) visa on the basis that the prescribed criteria of the Migration Regulations 1994 (Cth) (“the Regulations”) were not satisfied.
On 25 October 2010, the Applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 31 May 2011, the Tribunal affirmed the decision of the Delegate not to grant a visa.
On 17 June 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The relevant legislative context is summarised by counsel for the first respondent, Mr David Hughes, in his written submissions as follows:
“7. The Minister’s power to grant or refuse an application for a Partner Visa is contained in section 65 of the Migration Act 1958 (Cth) (Act). That section provides that in order to grant a visa, the Minister must be satisfied that, inter alia, “the other criteria for [the visa] prescribed by this Act or the regulations have been satisfied”. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1)(a)(ii) and (b).
8. Item 1220A(4) of Schedule 1 to the Migration Regulations 1994 (Regulations) provides that the Partner Visa contains subclass 309. The criteria for a Subclass 309 Visa are set out in Part 309 of Schedule 2 to the Regulations. Those criteria include the following requirement:
“309.222 The sponsorship referred to in clause 309.213 has been approved by the Minister.”
9. In the case of the Visa Applicant, the sponsorship referred to in clause 309.213 is the Applicant’s sponsorship of the Visa Applicant’s application.
10. Regulation 1.20J provides, relevantly:
“1.20JLimitation on approval of sponsorships — spouse, partner, prospective marriage and interdependency visas
(1AA) This regulation applies in relation to an application for:
(a) a Spouse (Provisional) (Class UF) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
…
(1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse… of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:
(a) not more than 1 other person has been granted a relevant permission as:
(i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or …
…
(1A) In subregulation (1):
relevant permission means:
(a) in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive) — a visa; and
(b) in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997 — permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.
(2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.”
11. The effect of these provisions is that:
(a) the Minister cannot approve the Applicant’s sponsorship of the Visa Applicant unless “the Minister is satisfied that there are compelling circumstances affecting the sponsor”: regulation 1.20J(2); and
(b) the Visa Applicant cannot satisfy the requirements of clause 309.222 unless such a finding is made and approval is given.”
The Delegate’s decision
On 6 October 2010, the Delegate refused the Visa Applicant’s application for a Partner (Provisional) (Class UF) visa on the basis that the effect of Regulation 1.20J of the Regulations required that the Minister not approve the Applicant’s sponsorship in circumstances where the Applicant has previously sponsored 2 spouses to Australia unless the Minister is satisfied that there are compelling circumstances affecting the sponsor.
The Delegate found that as the relationship between the Applicant and her husband, the visa applicant, was of short duration and there were no children of the relationship or any other compelling reasons in the ground of the application, the sponsorship could not be approved.
The Tribunal’s review and decision
On 25 October 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 February 2011, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
On 3 March 2011, the Tribunal received the Applicant’s response to the Tribunal’s letter dated 7 February 2011.
On 10 March 2011, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 4 May 2011 to give oral evidence and present arguments.
On 29 March 2011 and 16 May 2011, the Tribunal received further documents and submissions from Mr Toufic Laba-Sarkis on behalf of the Applicant.
On 4 May 2011, the Applicant attended the Tribunal hearing and gave evidence.
The decision of the Tribunal is accurately summarised by counsel for the first respondent in his written submissions as follows:
“22. On 31 May 2011, the Tribunal wrote to the Applicant informing her that it had decided to affirm the Delegate’s decision (CB 113). The Record of Decision is set out at pages 114 to 128 of the Court Book.
23. The Tribunal’s key findings and reasons are set out at pages 125 to 128 of the Court Book.
24. The Tribunal found at [48] that the Applicant had already successfully sponsored two of her previous spouses for a visa and that, accordingly, her sponsorship of the Visa Applicant is limited by regulation 1.20J. The question, therefore, was whether there were compelling circumstances affecting the Applicant.
25. The Tribunal considered (at [12]-[14], [49]) the guidance of Moore J in Babicci v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645 at [17], the Full Court in Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285 at [24], and Crennan J in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211 at [37] on the proper interpretation of the expression “compelling circumstances” in regulation 1.20J(2), from which the following principles emerge:
(a) whether there are compelling circumstances is a matter of fact and degree for the Tribunal to determine;
(b) the Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way;
(c) what section 1.20J contemplates is that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship; and
(d) the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.
26. The Tribunal also considered (at [16], [52]) the Explanatory Statement in relation to the limitation period and waiver provisions of Regulation 1.20J, and the Departmental Procedures Advice Manual. The Tribunal found that these documents were not inconsistent with the relevant law, and ought to be adopted unless there were cogent reasons to the contrary (at [50]).
27. The Explanatory Statement provides that
“The aim of this provision is to curtail the abuse of the spouse, fiancé, and interdependent migration programs.”
28. The Statement also provides that “compelling circumstances” may include (but are not limited to) circumstances where:
(a) the previous spouse has died;
(b) the previous spouse has abandoned the sponsor, and there are children requiring care and support;
(c) the new relationship is long standing; or
(d) there are children of the new relationship.
29. The Tribunal considered each of these circumstances and found that none applied (at [51]-[52]).
30. The Tribunal noted that the relevant provisions of the Departmental Procedures Advice Manual 3 (at [17], [53]) also referred to the specific categories set out in the Explanatory Statement, and stressed that the examples are not exhaustive and that every aspect of the sponsor’s circumstances should be taken into account.
31. The Tribunal considered the following further circumstances of the Applicant which arose from her claims and evidence:
(a) her son’s illness (at [54]);
(b) her daughter’s skin condition (at [55]);
(c) her mother’s illness (at [55]);
(d) her back pain (at [55]);
(e) the fact that her children are quite young and that she and her children may suffer if she moves to Egypt to maintain her relationship with her husband (although the Tribunal also found that the children could remain in Australia with their father, given that he had a “quite close” relationship with them) (at [56]);
(f) her close connection with Australia (at [57]); and
(g) the manner in which the Visa Applicant’s initial prospective spouse visa application was handled in 2009, where the issue of the limitation on sponsorships imposed by regulation 1.20J was not raised (at [58]).
32. Having taken all of these matters into consideration, the Tribunal held at [60] that:
“the Tribunal’s overall assessment is that the relevant circumstances of the review Applicant, individually or cumulatively do not evoke interest or attention in a powerfully irresistible way such that the Tribunal is overwhelmingly inclined to exercise the discretion in favour of the review applicant and approve the sponsorship by waiving the sponsorship limitation in r 1.20J.”
33. The Tribunal therefore held at [61] that it was not satisfied that there were compelling circumstances affecting the Applicant, that regulation 1.20J therefore precludes approval of the sponsorship, and that the Visa Applicant therefore cannot satisfy the criteria in clause 309.222.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter.
On 1 July 2011, the Applicant attended a directions hearing before Registrar Hannigan. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing this morning, the Applicant confirmed that she had not filed any amended application, evidence or submissions in accordance with those directions.
The Applicant sought to read an affidavit of Toufic Laba-Sarkis affirmed on 19 July 2011 to which a purported copy of the transcript is attached, although there is no formal annexure of the transcript to the affidavit. Counsel for the first respondent objected to the Applicant reading that affidavit primarily on the ground of relevance. The Applicant was unable to identify any complaint to this Court that would have made the Transcript relevant. Leave was refused and separate reasons given by the Court.
The Applicant confirmed that she relied on the grounds contained in an the application filed on 1 July 2011 as follows:
“1. The Migration Review Tribunal failed to apply the law.
2. The Tribunal misunderstood the compelling circumstances of the Applicant. ”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of her application generally.
The Applicant had prepared written submissions that were read by the interpreter. They largely reiterated her disagreement with the findings and conclusions of the Tribunal. In the course of those submissions, the Applicant made the following relevant complaints:
(a)that the Tribunal failed to see that the decision in Babicci v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645 (‘Babicci’) did not apply to her;
(b)that the Tribunal failed to consider how she would be treated in Egypt as an Australian citizen even if her children came with her;
(c)that the Tribunal failed to accord her natural justice in considering her wellbeing and the wellbeing of her children and her mother;
(d)that the Tribunal said that the Applicant was older and could not get pregnant and used that finding against the Applicant to say the relationship was not genuine;
(e)that the Tribunal’s decision was unjust and unreasonable.
The Applicant made no further submission in support of those complaints beyond their bare assertion.
These complaints are considered below and identified as ground (a), ground (b), ground (c), ground (d) and ground (e) respectively.
Ground (a)
In relation to the Applicant’s submission that the decision in Babicci should not apply to her, the Tribunal said that “compelling circumstances” referred to in Regulation 1.20J(2) is not defined in the Act. The Tribunal referred to the principle identified by Moore J in Babicci that the Tribunal must consider whether the circumstances are such “that they evoke interest or attention in a powerfully irresistible way to the Tribunal”. The Tribunal noted that the Full Court of the Federal Court upheld Moore J’s interpretation in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [23-24].
Because the Applicant had sponsored 2 other husbands to come to Australia, the Act required that compelling circumstances exist to allow her to sponsor another husband.
In the circumstances, it is clear that the principles of Babicci are relevant to the issue of what may amount to “compelling circumstances” and the principles expressed therein were correctly applied by the Tribunal.
Accordingly, this complaint is not made out.
Ground (b)
In relation to the Applicant’s assertion that the Tribunal failed to consider how she would be treated in Egypt as an Australian citizen, there was no material before the Tribunal to suggest that the Applicant raised that issue as a matter of concern.
Indeed in her letter to the Tribunal dated 24 February 2011, and received on 3 March 2011, the Applicant stated as follows:
“I personally would love to go and live in Egypt with my husband and I am prepared to take permission from the Court to take my children with me if they are not allowed to have their stepfather here in Sydney”.
As stated above, the letters received by the Tribunal from Mr Laba-Sarkis on 29 March 2011 and 14 May 2011, annexed documents and made submissions. However, neither of those letters or the material attached could support a contention by the Applicant that the Tribunal was required to consider that the Applicant may be considered about how she would be treated in Egypt as an Australian citizen.
Further, the Tribunal found that her written and oral evidence was that she was prepared to go and live in Egypt with her husband, the visa applicant.
It is well established that the Tribunal is only required to deal with claims that plainly arise on the material before it (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1).
There was no claim made by the Applicant that arose on the material before the Tribunal of any concern by the Applicant about how she may be treated in Egypt as an Australian citizen.
Accordingly, this complaint is not made out.
Ground (c)
The Applicant’s bare assertion that the Tribunal failed to give her natural justice in considering her own wellbeing and that of her children and mother is not made out on a fair reading of the Tribunal’s decision record.
The bundle of documents identified as ‘Court Book’ and marked Exhibit 1R make clear that the Tribunal invited the Applicant to come to a hearing to give evidence and present arguments relating to the issues in her case in accordance with the legislative regime. The Applicant attended that hearing and gave further evidence. The Tribunal’s decision record notes various exchanges it had with the Applicant at hearing about her evidence.
The Tribunal gave the Applicant information that was part of the decision for affirming the decision under review in accordance with s.359A of the Act and noted the Applicant’s responses. The Tribunal also put matters of concern it had about her evidence to the Applicant at hearing and noted her responses.
Moreover, the Tribunal quoted comprehensively the relevant legislation and Regulations relating to the Applicant and considered in some detail, the jurisprudence surrounding the meaning of “compelling circumstances”. The Tribunal also had regard to the Procedures Advice Manual and the Explanatory Statement in considering the relevant Migration Regulations.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered carefully those matters that the Applicant asserted amounted to compelling circumstances, particularly in relation to her wellbeing and that of her children and mother.
The Tribunal noted in terms that in making its assessment it must have regard to the hardship and detriment that would be suffered by the Applicant if the sponsorship was not approved, including the extent and importance of the Applicant’s ties to Australia, and the consequent hardship and detriment that the Applicant may suffer if the sponsorship was not approved and she was to feel compelled to leave Australia to maintain her relationship with her husband.
The Tribunal noted that the Applicant had lived in Australia for 20 years and has children and members of her extended family and friends here and accepted that she may suffer some hardship and detriment if she felt compelled to go and live in Egypt to maintain her relationship with her husband. However, the Tribunal did not find these circumstances “compelling” for the purposes of the Regulations.
The Tribunal referred specifically to the Applicant’s own health issues which it found to be essentially pain in her back and neck due to spondylosis and the narrowing of her disc spine. However, the Tribunal was not satisfied these issues amounted to a compelling circumstance because the medical certificate provided gave no further details and the Applicant herself did not raise her health issues as compelling circumstances affecting her. The Tribunal found that her back problem was of mild severity and could be genuinely treated sufficiently with rest and anti-inflammatory medications.
In relation to the Applicant’s son’s health, the Tribunal noted that he was recently diagnosed with a serious eyesight condition and had regard to a medical report from his paediatrician. The Tribunal noted the medical report’s conclusion that there was no treatment that would be useful at present and that her son should continue wearing the old glasses with which he was comfortable, and the doctor would like to review the condition in 2011. The Tribunal also noted that the report stated that a lot of research was being done and that it was very likely that a treatment for his condition would be available before he reached adulthood. The Tribunal found that this circumstance was not such that would evoke interest and attention in a powerfully irresistible way such as to be a compelling circumstance.
The Tribunal also had regard to the Applicant’s daughter’s skin condition and her potential operation. However, the Tribunal noted that the daughter is married and lives with her husband and is in receipt of income support from the Australian Government. The Tribunal found that as her daughter is an adult and married, she should be able to deal with the skin condition herself with the assistance of her husband. The Tribunal was not satisfied that the daughter’s health problems were a compelling circumstance.
In relation to the Applicant’s mother’s frailty and illness, the Tribunal noted that her mother is about 80 years of age, frail, and has various medical issues. The Tribunal noted that the Applicant said her mother lived in Government housing a few kilometres from her house. The Tribunal noted the Applicant’s evidence that her mother requires care which she provides and receives a carer’s allowance from the Australian Government. The Tribunal noted the Applicant’s evidence that her mother had previously lived with her elder sister, who is now in a nursing home. The Tribunal noted that it asked the Applicant whether her mother could also move to a nursing home given her age and ill health and noted the Applicant’s response that her mother wished to live in her own place.
The Tribunal also noted that when it asked the Applicant whether her other siblings could care for her mother, she responded that one of her brothers was in jail, one of her sisters had depression and the other had a stroke, and her mother did not have a good relationship with her daughter in law.
Ultimately, the Tribunal found that the Applicant’s care responsibilities in respect of her mother did not amount to compelling circumstances given that her mother has 4 other children and that she may be able to move into a nursing home.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, this complaint is not made out.
Ground (d)
The Applicant’s allegation that the Tribunal used the fact that she was older than her husband and could not get pregnant to say her relationship was not genuine both misrepresents and misunderstands the Tribunal’s reasoning.
It is clear from the Tribunal’s reasons that it understood that the Applicant could only be approved to sponsor her husband to come to Australia where it was satisfied that “compelling circumstances” existed to allow sponsorship in circumstances where the Applicant had sponsored 2 other husbands to Australia. The genuineness or otherwise of the Applicant’s relationship with her husband was not a matter considered by the Tribunal and there was no finding by the Tribunal to that effect.
The Tribunal was entitled to have regard to the fact that she and her husband had no children of their own and whether the relationship with her husband has been longstanding. In considering whether the Applicant’s relationship with her husband “was longstanding”, the Tribunal had regard to the Regulations in finding that the Applicant’s relationship with her husband was not longstanding given that there was no dependant child involved in the relationship and the duration of the relationship was less than 3 years.
Again, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, this complaint is not made out.
Ground (e)
To the extent that the Applicant alleged that the Tribunal’s decision was unjust and unreasonable, such an allegation was unsupported by particulars, evidence, or submissions beyond the bare assertion.
Whilst minds may differ as to the findings that a decision-maker may make about various factual claims, unless there was no evidence to support any such finding or that such a finding was not reasonably open on the evidence and material before the Tribunal, such that no decision-maker acting reasonably could have made such a finding, there is no error in the Tribunal’s decision going to its jurisdiction. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680).
The Tribunal noted that it had considered the Applicant’s circumstances individually and cumulatively. However, the Tribunal found that they did not “evoke interest or attention in a powerfully irresistibly way such that the Tribunal is overwhelmingly inclined to exercise its discretion in favour of the [Applicants] and approve the sponsorship by waiving the sponsorship limitation in r.1.20J(1)”.
Accordingly, the Tribunal affirmed the decision under review. A fair reading of the Tribunal’s decision record makes clear that its findings and conclusions were open on the evidence and material before it and for the reasons it gave.
Accordingly, this complaint is not made out.
Otherwise, the grounds of the application do not disclose an error capable of review by this Court. The Applicant’s complaints this morning have been more in the nature of a disagreement with the Tribunal’s findings and conclusions. Such complaints invite merits which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence both at the hearing and in writing and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 3 August 2011
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