NAKAD v Minister for Immigration

[2017] FCCA 2855

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAKAD & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2855

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Partner (Temporary) (Class UK) visas – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl. 820.211(2)(d)(ii) of Schedule 2

First Applicant: MONA NAKAD

Second Applicant: MARIA NAKAD

Third Applicant: JULIAN NAKAD

Fourth Applicant: JOSEPH NAKAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3644 of 2016

Judgment of: Judge Street

Hearing date: 21 November 2017

Date of Last Submission: 21 November 2017

Delivered at: Sydney

Delivered on: 21 November 2017

REPRESENTATION

Counsel for the Applicant: Mr A K Flecknoe-Brown

Solicitors for the Applicant: Legal Edge Australia

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $6,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3644 of 2016

MONA NAKAD

First Applicant

MARIA NAKAD

Second Applicant

JULIAN NAKAD

Third Applicant

JOSEPH NAKAD

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision the Administrative Appeals Tribunal (“the Tribunal”) made on 21 November 2016 affirming a decision of the delegate not to grant the applicants Partner (Temporary) (Class UK) visas. The first applicant is the mother of the three other applicants who are her children and have been included as dependents.

2. The first applicant arrived in Australia with the three children on 15 January 2008 as holders of Electronic Travel Authority visas valid until 8 January 2009. They departed Australia on 24 August 2009 and returned on 18 August 2010 on another visitor visa which ceased on 18 January 2011.  On 18 January 2008, the first applicant and her three children were dependents on her previous husband’s Temporary Work (Skilled) Onshore (UC 457) visa. That visa was refused on 28 May 2008. An appeal to a differently constituted Tribunal was lodged and on 20 June 2008 a differently constituted Tribunal affirmed the refusal of the Temporary Work (Skilled) Onshore (UC 457) visa on 29 September 2009. On 17 January 2011, the first applicant lodged an application for a further stay with her children as visitors. On 24 August 2011, the first applicant lodged an application for Ministerial intervention. It was determined not considered on 25 November 2011.

3. The applicant lodged an application for a protection visa on 18 January 2011. That was refused on 18 April 2011. The applicant applied to the Tribunal for review which was refused on 30 June 2011. The associated bridging visa ceased on 8 August 2011. On 3 November 2011, a Bridging Visa E was granted and on 16 December 2011 the applicant lodged an application for review in the Federal Magistrates Court as it then was. On 19 December 2011, an associated bridging visa E was granted with the application for judicial review. On 17 February 2012, the application for judicial review was dismissed.

4. On 7 March 2012, the first applicant lodged an application for Child (Residence) (Full) (BT 802) visa, which included her children. On 9 March 2012, the Child (Residence) (Full) (BT 802) visa application was found to be invalid as there was no valid sponsorship.  On 16 March 2012, there application for the Child (Residence) (Full) (BT 802) visa was refused for the three children. An appeal was lodged on 11 April 2012 to a differently constituted Tribunal and that Tribunal affirmed the refusal on 13 June 2012.  The first applicant lodged an application on 17 July 2012 for a judicial review to the Federal Magistrates Court, as it then was. That application was dismissed on 4 April 2013. On 22 April 2013, the first applicant lodged an appeal for judicial review to the Full Federal Court which was dismissed on 1 August 2013.

5. On 30 July 2013, the first applicant lodged another application for protection. That application was determined to be invalid on 22 October 2013. The applicant then sought again Ministerial Intervention on 29 October 2013. On 28 November 2013, the application for Ministerial intervention was not referred.

6. It was then, on 27 November 2013 that the first applicant applied for a Partner visa, (Temporary) (Class UK) and Partner (Residence) (class BS) visa which was refused by a delegate on 6 March 2014. The applicant applied for review on 27 March 2014. A differently constituted Tribunal made a decision on 10 October 2014 which was set aside by orders of a Judge of this Court on 7 April 2016. The matter was remitted for further hearing to the current Tribunal.

The current Tribunal’s decision

1. The applicant was invited to attend a hearing on 21 November 2016, which the applicant attended. The Tribunal in its reasons on 21 November 2016, identified the background to the current decision. The Tribunal identified that the two issues were whether the applicant met the Schedule 3 criteria and if not, whether there were compelling reasons for not applying them.

2. The Tribunal identified that the last substantive visa expired on 18 January 2011. Accordingly, the Tribunal found that the Schedule 3 criteria was not met. The Tribunal then turned to consider whether there were compelling reasons for not applying the criteria. The Tribunal referred to the applicant’s claim that she fears for her wellbeing should she be required to pursue a migration outcome in Lebanon or the United States of America. The Tribunal noted the applicant told the Tribunal that she cannot go back to Lebanon and will not go back to America. The Tribunal observed that the applicant had not provided any corroborative evidence that might assist in satisfying the Tribunal that she fears for her wellbeing should she return to either country.

3. The Tribunal then made reference to the absence of a detailed history of any previous threats or intimidation, documentary evidence of the existence of any direct threat, or testimony from another person which speaks to a threat, real or perceived, a medical report from any person for the treatment of past injuries, or a police report or any previous incidents or injuries. The Tribunal found that as the applicant’s claim of fear is unsubstantiated, the Tribunal was unable to reasonably conclude that a specific threat exists to the first applicant’s welfare should she return to either Lebanon or America. Accordingly, the Tribunal was not satisfied that the claimed threat gave rise to compelling reasons why the Schedule 3 criteria should not be applied.

4. The Tribunal referred to other considerations, and also referred to the relationship with her ex-husband’s brother. Whilst the first applicant claimed her relationship with the ex-husband had ceased, they continued the protection claim because they wanted what was the best for their children. The Tribunal noted that the first applicant maintained that sentiment at the Tribunal’s hearing. The Tribunal observed, according to the applicant’s own evidence, she placed the migration outcome she desired over and above her obligation to provide the Department with accurate information. The Tribunal found that this raised concerns with regards to the applicant’s past credibility. The Tribunal nonetheless, was prepared to consider the applicant’s claims at face value, but found none of the reasons provided to the Tribunal were compelling so as not to apply the Schedule 3 criteria.

5. The Tribunal found it was not satisfied that there is a compelling reason or reasons not to apply the Schedule 3 criteria 3001 in the present case. The Tribunal found the applicant does not meet the requirements of cl 820.211(2)(d)(ii) and affirmed the decision under review. 

Before this Court

1. The ground in the amended application is as follows:

   1. The Second Respondent's decision as to whether it was satisfied that the criteria for the grant of a Subclass 820-Partner visa was infected with jurisdictional error, in that the state of satisfaction was not lawfully reached, being irrational and illogical.

   Particulars

   (a) The Tribunal Member, at [9] CCB200), treated the First Applicant's previous oral and written evidence as to her departure from the United States and her fears for her well-being should she return there as lacking credit or having no weight absent “corroborative evidence.”

   (b) The Tribunal Member concluded that “Because the [first] applicant’s claim is unsubstantiated, the Tribunal is unable to reasonably conclude that a specific threat exists should she return”.

   (c) The Tribunal Member gave no reasons for treating the First Applicant's evidence as being of no weight absent corroboration.

   (d) The Tribunal Member assumed, without evidence. that corroboration by documentation was a necessary condition for giving the First Applicant's evidence any weight at all.

   (e) The Tribunal Member's treatment of the Applicant's evidence in the above respects could not be justified by the “concerns" described at [11] (CB 200) of the Tribunal's reasons, because the Tribunal asserted that it had “considered each of the [first] applicant's claims at face value” in spite of those concerns.

   (f) Accordingly, the Tribunal's conclusion with respect to whether the First Applicant had a fear for her well-being should she return to the United States of America. and therefore that there were no “compelling circumstances” within cl 820.211 (2)(d) of Sched 2 to the Migration Regulations 1994 (Cth), lacked any intelligible or rational foundation in the material before the Tribunal.

Consideration  

1. Mr Flecknoe-Brown of counsel, skilfully submitted that the decision was affected by legal unreasonableness in respect of the finding by the Tribunal that no specific threat exists to the applicant’s welfare should she return to either Lebanon or America. Mr Flecknoe‑Brown endeavoured to characterise the reasons as ones in which the Tribunal had referred solely to corroborative evidence. 

2. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal’s reasons in referring to the want of corroborative evidence identify want of a history of previous threats or intimidation. That is a reference to history from the applicant. The Tribunal’s reasons manifests an evident and intelligible justification for the adverse finding in relation to the conclusion that the Tribunal was unable to be reasonably satisfied that a specific threat exists to the applicant’s welfare should she return to Lebanon or America. That adverse finding was not dependent alone upon corroborative evidence. That finding cannot be said to be legally unreasonable and cannot be said to be irrational or illogical. No jurisdiction error as alleged in ground 1 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 December 2017