Noujaim v Minister for Immigration

[2016] FCCA 1821

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOUJAIM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1821

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) – whether it was reasonably open to the Tribunal to conclude it was not satisfied the applicant for a Visitor (Sponsored Family) (Subclass 600) visa genuinely intends to stay in Australia temporarily – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 476(2)(a), 476(4)

Migration Regulations 1994 (Cth), sch.2, cl. 600.211

Applicant: BOUTROS NOUJAIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3402 of 2014

Judgment of: Judge Manousaridis

Hearing date: 11 June 2015

Delivered at: Sydney

Delivered on: 20 July 2016

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents: Ms N Johnson of
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3402 of 2014

BOUTROS NOUJAIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to Mr C Noujaim (visa applicant) a Visitor (Sponsored Family) (Subclass 600) visa (Visitor visa).

Application for a Visitor visa

1. To have been entitled to a Visitor visa, the visa applicant, who is a citizen of Lebanon, had to satisfy the relevant decision-maker as at the time of decision, among other things, cl.600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provides:

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)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; and

   (b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)any other relevant matter.

2. In his application for the Visitor visa dated 1 April 2014, the visa applicant stated that his parents and three sisters reside in Australia, and that the reason he wanted to visit Australia was “to see my father whom I have not seen for 17 years”. The visa applicant also stated he was employed in Lebanon as an “operations team member”, that he earns USD1,500 per month, and that he is responsible for the care of his parents’ property in Lebanon. He also stated that his father - who is the review applicant - had previously included the visa applicant in the review applicant’s application to migrate to Australia, but the visa applicant withdrew from that application because he had a good job, and he was aware his future was better in Lebanon.

3. The visa applicant supported his application for a Visitor visa with a letter from the review applicant dated 17 May 2014.[1] The review applicant stated the visa applicant “was originally included in my application and at a later stage was withdrawn because financially” the visa applicant “was not under my care”. The review applicant submitted the visa applicant has a very good job, earning $1,500 per month, and requested that the visa applicant be granted a visa for approximately one month “to give me the opportunity to see him and for him to see his sisters and their families”.

   [1] CB1

4. On 23 May 2014 the delegate refused to grant the visa applicant the Visitor visa because the delegate was not satisfied the visa applicant genuinely intends to stay temporarily in Australia.

Before the Tribunal

1. Before the Tribunal, the review applicant relied on evidence of the visa applicant’s employment with a salary and transportation allowance of USD1,068, bank statements in relation to an account operated by the visa applicant recording regular payments of his salary into the account, educational qualifications, ownership of a 2011 BMW motor vehicle, and property in Lebanon owned by the review applicant, although registered in the name of the visa applicant.[2]

   [2] CB90-91, [8]-[10]

Tribunal’s reasons for decision

1. The Tribunal was not satisfied the visa applicant genuinely intends to stay temporarily in Australia.[3] The Tribunal relied on the following matters:

   a)The visa applicant had only relatively recently commenced his current employment, and while it was claimed the visa applicant will likely be given a promotion in 2015, the Tribunal considered that prospect to be speculative and offered “very little incentive” for the visa applicant to return to Lebanon.[4]

   b)The Tribunal accepted the visa applicant earned a reasonable income by Lebanese standards. It did not, however, consider the visa applicant’s savings to be substantial, and, in any event, the savings would be transferrable to Australia.[5]

   c)The visa applicant’s current caring for the property owned by the review applicant, but registered in the visa applicant’s name, did not require the visa applicant to return to Lebanon for its care. The review applicant himself left the property when he moved to Australia. The presence of family property in Lebanon is not a strong incentive to return.[6]

   d)The visa applicant has far greater familial connection with Australia than with Lebanon. The Tribunal was of the view that “after the visa applicant’s entry to Australia the close family ties and settled nature of his family in Australia would act as an overwhelming incentive for him to seek to remain in Australia for longer than a temporary stay”.[7]

   e)The visa applicant was initially included in an application to migrate to Australia that had been subsequently withdrawn. That suggested the visa applicant had contemplated he would settle with his family at some point in the past.[8]

   f)The visa applicant and his family would be aware of the increased political and sectarian violence and danger in areas of southern Beirut, Tripoli, and areas near the Syrian border, and that would be an incentive for the applicant to remain in Australia.[9]

   [3] CB92, [20]

   [4] CB92, [22]

   [5] CB92, [22]

   [6] CB92, [23]

   [7] CB93, [24]

   [8] CB93, [25]

   [9] CB93, [26]

Conduct of hearing

1. The review applicant appeared at the hearing before me without legal representation. He relied on written submissions, and he made oral submissions. The review applicant did not in terms refer to the grounds contained in the application, although the review applicant’s written and oral submissions did to some extent overlap with the grounds stated in the application. In those circumstances, I propose to deal with the application for judicial review by separately considering each of the grounds contained in the application, and, to the extent there is no overlap, the submissions contained in the written submissions, and those the review applicant made orally.

2. After the hearing, the review applicant, without leave, filed additional material. I will also consider that material.

Grounds of application

1. The application contains three grounds. The first is:

   The Migration Review Tribunal misapprehended material evidence and failed to consider important point [sic] favouring favourable assessment.

   Particulars:

   The Tribunal had a completed 1418 with sufficient explanation about funding for stay and previous applications yet failed in assessing the applicant expressed intention to only visit Australia which is genuine. The applicant provided sufficient evidence to support a genuine visit and the Tribunal misapprehended the applicant’s evidence as well as his sponsor’s evidence and formed the impression that the visa applicant’s intention is not genuine and failed to address pertinent point being made by both applicant and sponsor as corroboration of visa applicant incentive to return to Lebanon.

2. This ground makes three claims. The first two are that the Tribunal failed to consider important points, and misapprehended material evidence. The ground does not identify, however, the point or points the Tribunal is said to have not considered, or the evidence the Tribunal is said to have misapprehended. For these reasons alone, this part of ground 1 fails.

3. The third claim, and, in truth, the gist of ground 1, is that the visa applicant and review applicant had provided evidence to the Tribunal that ought reasonably to have satisfied the Tribunal the visa applicant genuinely intends to stay in Australia temporarily.  There would be force in this ground if the material that was before the Tribunal was such that the only conclusion the Tribunal could reasonably have arrived at were that the visa applicant genuinely intends to stay in Australia temporarily. The material that was before the Tribunal and which the Tribunal considered, however, was not of that character. The matters on which the Tribunal relied for concluding it was not satisfied the visa applicant genuinely intends to stay in Australia temporarily were matters on which it was reasonably open to the Tribunal to rely.  

4. Ground 1, therefore, fails.

5. Ground 2 is as follows:

   The Tribunal’s statement failed to consider the personal circumstances such as his employment, his assets, his promotion which encourage the applicant to return, yet the Tribunal assumed that the applicant’s intention is not genuine as he has a far greater familial connection with Australia than his home country and very limited ties to Lebanon which would act as an overwhelming incentive for him to seek to remain in Australia for longer than a temporary stay.

   Particulars

   The thinking to the Tribunal [sic] is not logical as the applicant does not meet any criteria to remain in Australia and the Tribunal failed to justify its way of thinking as well as the Tribunal failed to put to the review applicant and to the applicant adverse information regarding Department of Foreign Affairs advice which does not apply to the applicant as he has never been affected by violence in Lebanon.

6. This ground appears to make three claims. The first is that the Tribunal did not consider the personal circumstances of the visa applicant. I do not accept that claim. The Tribunal did consider all the matters on which the visa applicant and the review applicant relied, including the applicant’s employment in Lebanon, ownership of a motor vehicle, the review applicant’s ownership of land in Lebanon of which the visa applicant was registered as owner, and the review and visa applicants’ submission that the visa applicant lived in a safe area in Lebanon.

7. The second claim is that the Tribunal acted irrationally or unreasonably, and gave no justification, for concluding it was not satisfied the applicant genuinely intends to stay in Australia temporarily. I also do not accept that claim. The Tribunal gave reasons for concluding it was not satisfied the visa applicant genuinely intends to stay in Australia temporarily; and it was reasonably open to the Tribunal to so conclude for the reasons the Tribunal gave.

8. The third claim is the Tribunal ought to have disclosed information from the Department of Foreign Affairs (DFAT) on which the Tribunal relied. There are two things that may be said about this claim. First, it appears from the Tribunal’s reasons for decision that it did draw to the review applicant’s attention information from the DFAT “smartraveller” website in relation to the current security situation in Lebanon advising people to reconsider their need to travel and not to travel to southern areas of Beirut because of terrorist bombings. The Tribunal noted that the applicant and the applicant’s father “did not believe this would influence the visa applicant to remain in Australia”.[10] The Tribunal also referred to the explanation given to it that the applicant travelled between his home in Rachiine and Beirut regularly and had not been affected by any incidents in the past four years.[11]

   [10] CB91, [15]. What the Tribunal records in its reasons is confirmed in the transcript of the hearing before the Tribunal – see Exhibit A, page 13

   [11] CB91, [15]

9. Second, the only conceivable basis on which the Tribunal may have been obliged to disclose the DFAT information to the visa applicant would have been that it constituted “information” within the meaning of s.359A of the Migration Act 1958 (Cth). The obligations that section imposes on the Tribunal, however, do not apply to information that is not specifically about the applicant. Thus, even if the Tribunal had not drawn the DFAT information to the visa applicant’s attention, the Tribunal would not have been obliged to do so under s.359A of the Act.

10. Ground 2, therefore, also fails.

11. Ground 3 is as follows:

    The Tribunal’s reasoning is affected by error of law as it acted contrary to the evidence before it and contrary to the evidence given orally by the applicant and the sponsor. The Tribunal drew adverse inference [sic] which is not logical and that no reasonable person come to a decision disregarding the substantial evidence given by both. The decision of the Tribunal contrary to the relevant material is unreasonable and based on assumption.

12. This ground, in effect, claims it was not reasonably open to the Tribunal to conclude it was not satisfied the visa applicant genuinely intends to stay in Australia temporarily. I disagree. As I have already concluded, the Tribunal’s conclusion it was not so satisfied was one that was reasonably open to it for the reasons it gave. Ground 3, therefore, also fails.

Applicant’s written submissions

1. The review applicant’s written submissions (WS) first claim the delegate made an error by ignoring the evidence identified in the WS. Whether or not the delegate made any error, however, is not relevant to the application that is before me. The delegate’s decision is a “primary decision” as that expression is defined in s.476(4) of the Act. Under s.476(2)(a), this Court does not have jurisdiction in relation to primary decisions.

2. The WS next submit, by reference to the evidence already identified, that the Tribunal  “is wrong in making a finding that my son will apply to remain in Australia as the visa he will get will prevent him from doing so”. The WS urge that I listen to “the Record of Interview because my son’s evidence is correct and truthful”, and further submit that the Tribunal’s decision “is contrary to the evidence given by my son”. These submissions go no further than expressing disagreement with the Tribunal’s decision; they seek merits review. The Court does not have jurisdiction to review the merits of the Tribunal’s decision. This part of the WS, therefore, discloses no jurisdictional error by the Tribunal.

3. The WS finally refer to the Tribunal’s statement that the visa applicant “lives midway between Tripoli and Beirut and travels to Beirut for work”.[12] The WS submit the Tribunal is wrong because “my son is far from Tripoli and never had to go to Tripoli to reach Beirut as my son and I confirmed to the Tribunal”. The WS has attached to it a hand written schematic drawing which depicts the village in which the visa applicant lives, and villages through which he travels to get to Beirut without having to travel through Tripoli. This area is marked “Christian Areas – Safe Areas No need to go to Tripoli”.

   [12] CB93, [26]

4. This part of the WS appears to misunderstand the Tribunal’s findings. The Tribunal did not find the visa-applicant travelled or was compelled to travel through Tripoli, and was for that reason exposed to danger. Its finding was far more limited. The Tribunal found the visa applicant and his family would be aware of increased violence and danger in recent years in the areas identified by the DFAT information, and it is that awareness which the Tribunal considered might serve as an incentive for the applicant to remain in Australia. It is true, as the review applicant submitted to me, that he and the visa applicant gave evidence that the visa applicant lived in safety. That does not mean, however, the Tribunal was obliged to accept that the visa applicant would not be aware there was increased violence and danger in Tripoli, South Beirut, and in areas near the Syrian border, and that such awareness would act as an incentive for the applicant to remain in Australia. This part of the WS, therefore, also discloses no jurisdictional error.

Oral submissions

1. At the hearing before me the review applicant made four submissions. The first was the Tribunal incorrectly found the visa applicant lived in a dangerous area. That mischaracterises the Tribunal’s findings. As I have already noted, the Tribunal’s finding was limited to the visa applicant and his family being aware of increased violence and danger in recent years in the areas identified by the DFAT information. This part of the review applicant’s submissions discloses no jurisdictional error.

2. Second, the review applicant submitted the delegate made an error in concluding the visa applicant did not provide sufficient evidence of personal, employment, business, or cultural ties to allay concerns the visa applicant might be encouraged to remain in Australia beyond the validity of the visa. For the reasons I have already given, this Court does not have jurisdiction in relation to the decision the delegate made in this case. Whether or not, therefore, the delegate made the error the review applicant claims the delegate made is irrelevant to the application before me.

3. Third, the review applicant noted that, in the letter that accompanied the application for a Visitor visa, the review applicant acknowledged he overstayed the visa that was granted to him in 1996. He submitted, however, that he did so because of the circumstances of his daughters who needed his help. Whether that is so or not is a matter that is not relevant to whether the Tribunal made a jurisdictional error and, therefore, is not relevant to the application before me.

4. Finally, the review applicant submitted that it is not the intention of the visa applicant to apply for a Protection visa. That submission appears to have been prompted by condition 8503 to which the Tribunal referred which required that an applicant for a Visitor visa would not be entitled to a substantive visa, other than a protection visa, while remaining in Australia. Whether or not the visa applicant intends to apply for a protection visa, however, is not a matter that is relevant to the application before me.

Post hearing submissions

1. After the hearing, the review applicant filed a document titled “Additional Information”. The document has attached to it two other documents. One is a letter dated 3 March 2016 apparently from the visa applicant’s employer recording details of the visa applicant’s employment and salary. The second document appears to be a bank statement which records the monthly crediting of amounts. In the document “Additional Information”, the visa applicant submits the Tribunal acted unreasonably in its conclusions because its conclusions were contrary to the evidence.

2. The documents that are attached to the “Additional Information” were not before the Tribunal and, therefore, are irrelevant to whether the Tribunal made any jurisdictional error. The “Additional Information” otherwise repeats the submissions the applicant made at the hearing. As I have already concluded, the Tribunal’s conclusion it was not satisfied the visa applicant genuinely intends to stay in Australia temporarily was one that was reasonably open to it for the reasons it gave. The “Additional Information”, therefore, does not establish the Tribunal made any jurisdictional error.

Conclusion and disposition

1. The review applicant has not succeeded on any of his grounds, or on any of the submissions he has advanced. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 20 July 2016