Poche Engineering Australia Pty Ltd v Hitachi
[2010] FMCA 550
•28 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHODR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 550 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Class TO sub-class 300 visa – review Applicant’s prospective spouse informed the Department that the relationship had ceased and that she had withdrawn the sponsorship – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 116, 359AA, 360 Migration Regulations 1994 (Cth), cl.300.2, 300.203, 300.222 (Sch. 2) |
| Applicant: | ABDALLAH KHODR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3119 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of an Arabic interpreter. |
| Counsel for the Respondents: | Ms B. Griffin (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 22 December 2009 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3119 of 2009
| ABDALLAH KHODR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application under the Migration Act 1958 (Cth) (“the Act”) for a review of a decision of the Migration Review Tribunal (“the Tribunal”) of Tribunal member Philippa Wearne dated 20 November 2009 reference number 0906914 and handed down on 23 November 2009. The Tribunal decision affirmed the decision of the first Respondent refusing the grant of a sub-class 300 (prospective marriage) visa. On 22 December 2009 the Applicant filed an application in this court for review of the Tribunal’s decision.
The Respondent’s solicitors prepared a Court Book and this is marked Exhibit “A”. This is the only evidence before the Court.
At the first court date directions hearing held on 16 February 2010 the Applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 30 April 2010. The Applicant did not avail himself of this opportunity and proceeded with the grounds pleaded in the original application which were as follows:
1. The Migration Review Tribunal misunderstood my compelling circumstances and claim.
2. The Tribunal failed to exercise its discretion, contrary to the facts of the case.
3. The Tribunal failed to look at important information on file and failed to remit the matter to the Department as it had no adverse information and failed to take evidence from my sponsor.
Background
The Applicant is a citizen of Lebanon. The Applicant states that he has come to Australia on a tourist visa 2008 and during that visit he met and fell in love with an Australian citizen, a Miss Bassina Shanfarly. He left Australia and returned to Lebanon in June 2008. The review Applicant made an application for a Class TO sub-class 300 (prospective marriage visa) which was granted on 4 May 2009 on the basis of a sponsorship by Ms Bassina Shanfarly. The review Applicant arrived in Australia on 6 June 2009 as the holder of her visa which was valid until 4 February 2010.
On 3 July 2009 the sponsor advised the Department by letter that the relationship between her and the review Applicant had ended and that her sponsorship was withdrawn. On 31 July 2009 the Department sent the review Applicant a Notice of Intention to Consider Cancellation (“NOICC”) under s.116 of the Act. That Notice stated that the circumstances permitted a Class TO visa to be granted when the Applicant satisfied the criteria for the grant of such visa, including clause 300.213 which required the Applicant to be sponsored by the prospective spouse. The Notice referred to the withdrawal of the sponsorship by the prospective spouse noting that the review Applicant may no longer continue to satisfy this criterion. The review Applicant was invited to comment on these matters and are matters relating to discretionary considerations.
On 12 August 2009 the review Applicant appointed Ms Guilda Tabar, a community service solicitor to represent him and respond to the Departmental notice. The delegate’s decision is effectively summarised in the Tribunal’s decision record at paragraph [18] which states:
18. The delegate found that there were grounds for cancellation because the review Applicant’s prospective spouse had informed the Department that the relationship had ceased and that she had withdrawn the sponsorship. The delegate found that the Applicant was no longer sponsored by his prospective spouse and he no longer continued to satisfy the criterion for the grant of the visa. The delegate also considered the discretionary matters and decided that the reasons for not cancelling the visa were not sufficiently sufficient to outweigh the existence of the ground for cancellation. The review Applicant’s visa was cancelled on 24 August 2009.
Tribunal decision
The Applicant lodged an application for a review of the delegate’s decision with the Tribunal on 27 August 2009 and appeared before the Tribunal on 17 November 2009 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The Applicant was represented by a registered migration agent but that agent did not attend the Tribunal hearing. The Applicant was supported at the hearing by his uncle.
The Tribunal noted that in normal circumstances the grant of a Class TO sub-class 300 visa required that, at the time of the application, the Applicant was sponsored by the prospective spouse. Clause 300.2 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the regulations”) sets out primary criteria which must be satisfied by at least one member of a family unit. At the time of the application, clause 300.203 required the Applicant to be sponsored by a prospective spouse. That criteria required to be satisfied at the time of the decision includes the requirement that the sponsorship of the Applicant is still in force pursuant to clause 300.222 of Schedule 2 the regulations.
On the evidence before it the Tribunal found that the sponsorship was no longer in force and that the circumstances which permitted the grant of the visa no longer existed. Accordingly the Applicant’s sub-class 300 visa was subject to cancellation pursuant to s.116(1)(a) of the Act. (CB 103.5) The Tribunal then considered discretionary factors which might be taken into account when considering cancellation. The Tribunal referred to the Procedures Advice Manual Guidelines.
On the material before the Tribunal, it was satisfied that the visa had been properly granted in accordance with s.65(1) of the Act, however, at the time of the hearing the Applicant had confirmed that the relationship with his sponsor had ceased. The Tribunal noted that the Applicant asserted that he would suffer financial hardship if he returned to Lebanon. However, the Tribunal did not accept that the Applicant or his family would suffer hardship of a significant degree as a result of the cancellation of the visa (CB 103 at [53]). The Tribunal took into consideration current circumstances in Lebanon and noted that there was no evidence before it, which was confirmed by the Applicant, that he would face any persecutory conduct nor any other factors preventing his return (CB 104 at [54]).
Having considered all of the other discretionary evidence aided by the Procedures Advice Manual Guidelines, and giving weight to the fact that the withdrawal of the sponsorship had not occurred through any fault of the Applicant, he has complied with Australian immigration law, suffered humiliation, financial loss and loss of employment. The Tribunal was not persuaded that the visa Applicant should not be cancelled. Consequently, the Tribunal affirmed the decision of the delegate.
Consideration
At the first court date directions hearing, the Applicant was requested to file and serve in the registry a short written outline of submissions and a list of authorities 14 days prior to the hearing. This request was not complied with. When the Applicant was invited to make oral submissions, he confirmed that he had received a copy of the Minister’s written submissions and that they had been read and explained to him by his friend, Mr Toufic Laba Sakis. Furthermore, the Applicant acknowledged that he understood the submissions made against his application for review.
The Applicant stated that he wished to bring to the Court’s attention that his fiancé Ms Bassima Shanfarly is the sister of his brother’s wife. His brother is Suhan Khodr and his wife is Fatima Shanfarly. When he arrived from Lebanon, he resided at his brother’s house and was impressed by his sister in law because he found to be a housewife who was religious and a good person. He felt it was his duty to work and to save money in order to meet the expenses of his planned wedding. Unfortunately, Bassima was a person who was easily agitated and angered. Consequently the Applicant and Bassima did not get along together in a way that he had hoped. He was aware that Bassima wrote to the Department of Immigration & Citizenship withdrawing her sponsorship.
The Applicant stated that he had retained the services of Ms Guilda Tabar to respond to the letter from the Department. He indicated that this had cost him a large sum of money and he did not think that his visa would be cancelled on the following two bases: financial hardship and the family relationship between his fiancé and his sister in law. He claimed that the Tribunal neglected to consider the Applicant’s financial loss. He stated that coming to Australia involves leaving a highly remunerated position that he would not be able to return to. What was more important to the Applicant was that he was trying to avoid any family disagreements or conflict between his brother’s family and his fiancé’s family.
The Applicant also stated that the information that the Tribunal had obtained about security in the area of Lebanon (from where he came) was inaccurate because there was still a large number of terrorists who caused fear in the population.
Ms Griffin, who appeared for the Minister, indicated that she relied upon her written submissions which addressed three grounds of review pleaded by the Applicant. I will refer to those below. In response to the Applicant’s oral submissions, Ms Griffin contends that in respect of the issue concerning the possible conflict between the respective families is a matter that should have been addressed by the Tribunal. It is not appropriate for this Court to be asked to consider these claims that should have been placed before the Tribunal.
Ms Griffin then referred to the Applicant’s submission that the Tribunal did not take into account his financial hardship. Contrary to that submission, in the Tribunal’s decision at [51] and [58] (CB 103-104) the Tribunal considered the Applicant’s claim that he had suffered financial hardship. At [51] the Tribunal states:
If the visa remains cancelled the review Applicant will be without a visa and will have to return to Lebanon. The Applicant said that he does not have the money to return to Lebanon. He is in debt already to his brothers. He had a contract employment in road maintenance. He has lost this position. He brought a ring. He spent about $5000 on an engagement party. He has problems. He feels humiliated.
At [58] the Tribunal notes:
…The Tribunal also gives weight that the withdrawal of the sponsorship may not have occurred through any fault of the Applicant, that he has complied with the Australian immigration law, and that the Applicant had suffered humiliation, financial loss and loss of employment. However, these matters do not persuade the Tribunal that the visa should not be cancelled. (CB 104)
The fact that the Tribunal gave more weight to the withdrawal of sponsorship than other factors raised by the Applicant, including financial hardship does not of itself prove that the Tribunal failed to take that evidence into consideration.
The Applicant also takes issue with the country information referred to by the Tribunal. At [33] of the Tribunal’s decision (CB 100) the Tribunal records the discussion between it and the Applicant in relation to the situation in Lebanon. The Tribunal records that it noted that there were ongoing hostilities in Lebanon, that the Applicant gave a non responsive answer, and said that he did not think that this was his problem. Accordingly, the issue regarding the circumstances in Lebanon were squarely raised with the Applicant. Accordingly the Tribunal discharged any obligation it had under s.360 of the Act to raise the issue with the Applicant and provide him with an opportunity to present arguments. I am satisfied that there is no error disclosed in the way the Tribunal dealt with this issue.
The Applicant also submitted that the Tribunal did not give him a copy of his fiancé’s letter. I note that the Tribunal gave the Applicant particulars of the information contained within that letter (CB 101 at [40]). The Tribunal put to the Applicant that his sponsor had written to the Department and advised the Department that the relationship had ended. The Tribunal explained to the Applicant that this was information that was relevant because it indicated that the circumstance which permitted the grant his visa no longer existed and that a ground of cancellation existed. This information was put to the Applicant in accordance with s.359AA of the Act. The Applicant was given an opportunity to comment or respond. The Applicant advised the Tribunal that he did not wish to. The Applicant was asked whether he required any additional time to comment or respond and he indicated that he did not (CB 101 at [42]). I am satisfied that there is no jurisdictional error in the Tribunal’s approach to this issue.
Ground one
The Applicant has not further particularised this ground in respect of any “compelling circumstance” which was put but not considered or understood by the Tribunal. A fair reading of the evidence put before the Tribunal as set out in its decision record shows it carefully considered the Applicant’s claims. In the Applicant’s oral submissions made at the hearing, he has not further advanced this argument or attempted to add any particulars. In the circumstances, this ground cannot be sustained and should be dismissed.
Ground two
Again this ground of review is not particularised and no oral submissions were made in relation to this claim. The Tribunal in the decision record set out the material that it had considered in relation to the exercise of its discretion. I am satisfied that this ground cannot be sustained and should be dismissed.
Ground three
Again this ground has not been particularised nor have any oral submissions been made to identify the nature of important information that the Tribunal failed to consider in its deliberations. The “important information” which the Tribunal is alleged to have failed to consider is not identified and the nature of the assertion does not enable any inference to be drawn as to what information was not considered. The Tribunal in the decision record indicates that it considered all of the evidence put before it before making its decision.
Conclusion
The Applicant is a self represented litigant and it is acknowledged that it is difficult to present his case in a foreign language through the medium of an interpreter. It is noted that he was assisted by a qualified legal practitioner in the preparation of his response to the NOICC. These submissions were not accepted and the Department proceeded with the cancellation of his visa pursuant to the provision of s.116 of the Act. This finding was confirmed by the Tribunal.
The Tribunal was then obliged to determine whether to exercise its discretion by considering if there were circumstances that would allow the Applicant to retain a visa. These included the degree of hardship that the Applicant or any family member would suffer as a result of the cancellation, Australia’s non refoulment obligations, the circumstances in which the cancellation arose, the Applicant’s response to the Department and whether any other dependent of the Applicant would have their visa withdrawn as a result of the cancellation of the Applicant’s visa. All these issues were considered by the Tribunal and explained in the decision record. On the material before the Tribunal, it was not satisfied that any issue arose that required it to exercise its discretion overruling the cancellation.
On the material before the Court, and with the benefit of the submissions made by both the Applicant and the solicitor representing the Department, I am satisfied that no jurisdictional error has been identified. Consequently the application should be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 28 July 2010
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