Rizk-Alla v Minister for Immigration
[2005] FMCA 1869
•29 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RIZK-ALLA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1869 |
| MIGRATION – Review of decision of Migration Review Tribunal – applicant claims that Tribunal failed to address claim – findings of fact. |
| Migration Act 1958 (Cth), s.474 |
| Applicant: | EMIL ESKANDER SOLIMAN RIZK-ALLA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2931 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 November 2005 |
| Date of Last Submission: | 29 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2005 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr L. Leerdam, Phillips Fox |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Migration Review Tribunal.
That the Migration Review Tribunal be joined as Second Respondent.
That the Applicant’s applications before this Court are dismissed with costs.
That the Applicant pay the First Respondent’s costs in an amount of $3800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2931 of 2004
| EMIL ESKANDER SOLIMAN RIZK-ALLA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) by the Applicant, a holder of a Return (Residence) (Class BB) visa. The Tribunal found that the Applicant was not entitled to a Subclass 155 (Five Year Resident return) visa because he had failed to meet the requirements of clause 155.212. Further, the Tribunal found that the Applicant was not entitled to a Subclass157 (Three Month Resident Return) visa because he did not meet the requirements of Clause 157.212.
The Applicant is a national of the Arab Republic of Egypt and was born on 4 April 1963.
The Applicant has travelled to Australia on numerous occasions between 1992 and 2001.
The last date of the Applicant’s arrival in Australia was 1 November 2001.
On 29 January 2002, the Applicant lodged an application for a Return (Residence) (Class BB) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act).
On 17 July 2002, the Department refused the application for a Return (Residence) (Class BB) visa on the basis that the Applicant failed to meet the requirements of clauses 155 or 157 for the grant of visas.
On 8 August 2002, the Applicant lodged an application for review of the Department’s decision before the Tribunal. On August 2004, the Tribunal affirmed the decision of the Department that the Applicant is not entitled to the grant of a Return (Residence) (Class BB) visa.
On 20 December 2004, the Tribunal sent to the Applicant a corrigendum dated 14 December 2004, and an amended Statement of Decision. The Tribunal again affirmed the decision of the Department not to grant a Return (Residence) (Class BB) visa.
On 24 September 2004, the Applicant filed an application in this court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Order made on 7 October 2004, the applicant filed an amended application on 30 December 2004.
On 16 February 2005, the Applicant filed a further amended application (“Further Amended Application”).
The Tribunal proceeding
The Applicant gave oral evidence to the Tribunal on 20 July 2004.
The Applicant arrived in Australia on 16 April 1992, on a Subclass 105 visa sponsored by his brother. Since that time the Applicant has travelled in and out of Australia on a variety of visas, including a number of Subclass 157 (Three Month Resident Return) visas. The Applicant last arrived in Australia on 1 November 2001, pursuant to a Subclass 676 visa, the first of those being issued to the Applicant on 25 October 1998.
The visa for which the Applicant applied on 29 January 2002, was a return residence class which contained 2 subclasses, namely, Subclass 155 (Five Year Resident Return) visa and a Subclass 157 (Three Month Resident Return) visa.
Subclass 155 (Five Year Resident Return) visa
The Subclass 155 visa required the Applicant to satisfy 1 of 4 criteria identified in that subclass. Only 2 of these criteria are relevant to the Applicant, namely, subclause (2) and subclause (3A).
Subclause (2)
The first relevant criterion is in subclause (2), of Part 155 of Schedule 2 to the Migration Regulations 1994, which requires that the Applicant had been present in Australia for periods of not less than 2 years in the period of 5 years, immediately before the application for the visa, and the Applicant was the holder of a permanent visa, an Australia citizen and was not the holder of a temporary or bridging visa. The Applicant did not satisfy any of the criteria relevant to subclause (2) in that he was present in Australia for less than 2 years in the period of 5 years in the period immediately before the application for the visa and was not, at the date of the application, the holder of a permanent visa or permanent entry and was not an Australian citizen.
Subclause (3A)
The second criteria relevant to the Applicant’s situation are the requirements referred to in subclause (3A). Relevantly, they oblige the Applicant to satisfy the Tribunal in respect of 2 limbs:
“1. That the Applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and
2. That the Applicant has not been absent from Australia for a continuous period of 5 years or more since the date of the Applicant’s most recent permanent visa unless there are compelling reasons for the absence.”
Unless the Applicant is able to satisfy the Minister that he meets both requirements of this subclause he is not entitled to a subclass 155 visa.
The Tribunal considered each of the criteria referred to in the first limb of subclause (3A), namely, whether the Applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. The Tribunal considered the Applicant’s claims seriatim as set out below:
a)In relation to personal ties, the Tribunal noted that the Applicant had a brother in Australia and a cousin whom he visited once a month. However, the Tribunal noted that the Applicant did not spend his formative years in Australia, that he never worked or studied in Australia, that he never owned a home in Australia, that his parents and younger brother live in Egypt and he has a sister in Austria, that he has never been married and does not have children. For those reasons the Tribunal was not satisfied that the Applicant has substantial personal ties to Australia.
b)In relation to the requirement of substantial employment ties, the Tribunal noted that the Applicant is not employed, is not allowed to work and, that since arriving in Australia in November 2001, has not worked. The Tribunal was not satisfied that the Applicant, in the circumstances, has substantial employment ties with Australia, which are of benefit to Australia.
c)The Tribunal noted that there was no evidence that the Applicant had substantial cultural ties, which are of benefit to Australia, and for those reasons found that requirement not met.
d)The Tribunal was not satisfied that having $38,000 in an Australian bank account was sufficient to meet the criteria required under subclause (3A) that the Applicant has substantial business ties which are of benefit to Australia. The tribunal noted that there was no evidence that the Applicant was involved in any business.
Subclass 157 (Three Month Resident Return) visa
The Tribunal also considered whether the Applicant met the requirement for a Subclass 157 (Three Month Resident Return) visa. However, to be eligible for such a visa the Applicant was required to hold a permanent visa or a permanent entry permit or be an Australian citizen in the 5 years immediately prior to the application for a visa. Since 25 October 1998, the Applicant had travelled to Australia only on a variety of visitor visas and therefore the requirements of subclass 157 were not met.
Tribunal’s conclusion
The Tribunal concluded that not being satisfied that the requirements of either Subclass visa 155 or 157 are met by the Applicant it must affirm the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court.
On 16 February 2005, the Applicant filed a Further Amended Application, claiming relief on the following 3 grounds:
“1. I believe that the medical report regarding my mother illness and her kidney transplantation was completely disregarded by the immigration department. My mother medical report was not into consideration by the decision maker as he/she was wondering in the decision in the third (immigration Decision maker) page of section 8 on my MRT file no. No2/05682 “No explanation is given as to the relationship between the person about whom the report is written and Mr Rizk-ALLA” and also on the fifth page “the medical report included with the application is taken to relate to this claim, however no information has been provided as to Mr Rizk-All’s relationship with the subject of the report” which means that no one knows that this medical report regarding my mother this medical report was supposed to be one of the supporting documents to the reason I wasn’t able to stay in Australia.
2. As my case was dealt with by at least four Australian Immigration officers and I believe that they were unable to communicate an awareness of my circumstances and a lack of communication lead to the fact my application to regain my permanent residency was unsuccessful and that lead to there was no visa endorsed or issued on my passport from the day I submitted my application 29/01/2002 till 26/08/2002 inspite the fact that I asked for a a visa to be endorsed on my passport every time I visited the Immigration Department and that lead to be unlawful according to the compliance officer at that time and a complain was submitted by me on 07/08/2002 to the Department of Immigration but no reply received from them up till now.
3. Although the Australian immigration department claimed that I have insufficient cultural, business and family ties in Australia, my older brother Samir Rizk-Alla is an Australian Citizen and in the decision of the immigration they said “Examination of department records shows that Mr Riz-Alla’s brother Samir, although an Australian citizen, departed Australia on 8 May 1993 and returned to Australia on 22 November 2001. No information is provided as to the activities of Mr Samir Rizk-Alla”. My older brother has been in Australia lately since 22 November 2001 and this time he didn’t leave Australia since then and he is my closest family tie here in Australia. Also I have a sum amount of money which should be considered as an asset in regard to my business tie to Australia and it is evidenced that I want to settle down in Australia. Couldn’t able to start a business as I was waiting for the decision from the Immigration Department.”
This document does not disclose any reviewable error, and is in the nature of submissions seeking merits review. However, the Applicant addressed the Court today and identified 4 grounds upon which he relied for judicial review before this Court.
Ground 1
This ground relates to the Applicant’s claim that the Tribunal ignored his claims of absences from Australia due to the illness of his mother in Egypt. However, the Subclass 155 visa requires satisfaction by the Tribunal that the requirements, relevantly, of subclause (3A) are met. The first requirement of subclause (3A) is that the Applicant have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia. Unless those requirements are met, any reasons for the Applicant’s absences from Australia are otiose. The Tribunal considered carefully each of the requirements and the Applicant’s claims in respect of each requirement. For the reasons referred to above, the Tribunal was not satisfied that any of those requirements were met by the Applicant. The findings made by the Tribunal referred to above were open to it on the material and evidence before it.
Similarly, in relation to the requirements of subclass 157, it was necessary for the Applicant to have been the holder of a permanent visa, a permanent entry permit or be an Australian citizen before considering any reasons for the Applicant’s absences from Australia over the relevant periods.
For those reasons, it not jurisdictional error on the part of the Tribunal to fail to have regard to the Applicant’s reasons for his absences from Australia over the relevant periods.
Accordingly this ground is rejected.
Ground 2
This ground essentially relates to the Applicant’s disagreement with the Tribunal’s finding that the Applicant had no substantial business ties with Australia which are of benefit to Australia in circumstances where he had $38,000 in a bank in Australia. However, the Tribunal considered the Applicant’s claim in this regard but was not satisfied that simply having money in a bank account was sufficient to satisfy the requirement of subclause (3A) that the Applicant did have substantial business ties which are of benefit to Australia. In considering this claim, the Tribunal had regard to the Applicant’s evidence that he intended to start a business if he was granted a visa, but noted that there was no evidence that the Applicant was currently involved in any business and that the Applicant had not worked since arriving in Australia in November 2001. Those are findings of fact that were open to the Tribunal on the material before it and accordingly, do not reflect any jurisdictional error by the Tribunal.
This claim is in the nature of merits review and, accordingly, is rejected.
Ground 3
The Applicant submitted that there was no visa otherwise endorsed on his passport and that this was an error. I do not understand that claim to relevant to the application before this Court. However, I note it would appear that, when the Applicant lodged his application for a visa on
29 January 2002, he was granted a bridging visa. There is no evidence before me what type of bridging visa the Applicant was granted. However, the Respondent identified various classes of bridging visas in Schedule 2 of the Act, all of which contain the notation that no evidence need be given of the bridging visa in the passport. It would appear that the Applicant has misconceived this claim as a reviewable ground.
Accordingly, to the extent it is propounded as a ground of review it is rejected.
Other claims
The Applicant made a claim, at the outset of the hearing this afternoon, that the Tribunal had not mentioned or considered the fact that he has a brother in Australia in considering whether the Applicant had substantial personal ties to Australia which are of benefit to Australia. However, when I took the Applicant to the reference in the Tribunal’s decision to the fact that the Applicant has an older brother, who is an Australian citizen and lives in Sydney with his wife and two children, and the fact that the Tribunal noted that it was not satisfied that the Applicant has substantial personal ties to Australia, even though he has a brother here, the Applicant withdrew his claim in respect of this ground.
Conclusion
Accordingly, the Tribunal decision is not effected by jurisdictional error and is therefore a privative clause decision with which, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 29 November 2005
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