Sawpon v Minister for Immigration

[2016] FCCA 1950

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAWPON v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1950

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Other Family (Residence) (Class BU) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider an integer of the applicants claims – whether the Tribunal misapplied the relevant law – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, reg.1.15AA, Sch.2, cls.836.221, 836.321

Applicant: MONIR AHMED SAWPON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 987 of 2016

Judgment of: Judge Street

Hearing date: 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Sydney

Delivered on: 29 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms N Johnson
Mills Oakley Lawyers

ORDERS

1. Leave is granted to the Applicant to rely on the amended application filed on 28 July 2016.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 987 of 2016

MONIR AHMED SAWPON

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) in respect of a decision of the Tribunal made on 31 March 2016, affirming a decision of the delegate not to grant the first-named visa applicant an Other Family (Residence) (Class BU) visa.

2. The first applicant is a citizen of Bangladesh and originally applied for the visa together with his family members, being his wife and two children.  The sponsor is said to be his uncle who is living at 4/52 McDonald Street, Lakemba, and was assessed with a total rating of 35 percent in relation to his impairment. 

3. The application was supported by additional information that recorded that the applicant’s uncle and his aunt were unwell.  The application referred to the sponsor having two sons in Australia.  One of the sons, the applicant’s cousin, Raymond Suliman, who was a struck-off migration agent, assisted the applicant in the completion of his visa application.  It was Raymond Suliman who is the eldest son and was caring for his parents, apparently on a carer’s pension. 

4. The application alleged that the applicant’s cousin, Raymond Suliman, had post-traumatic stress disorder, severe depression, anxiety and ADHD. It also alleged that he was studying at UTS and it was very difficult for him to care for both parents and to manage his own health issues at the same time as pursuing his educational desires.  It was said that the current circumstances were having an adverse impact on the applicant’s cousin Raymond Suliman’s personal health.  There was also an issue raised as to his cousin’s alleged belief in Islam, and it was said that the second son does not keep contact with the parents as a result of some fallout between the second son’s wife and the aunt. 

5. The application completed by the applicant, with the assistance of his cousin, had a question, number 74, “Did you receive assistance in completing this form?” to which was ticked the answer “No”. The post office box address identified on the application for correspondence was that of the cousin.  The sponsorship form had the same post office box of the cousin, Raymond Suliman, although the form in that regard acknowledged that it had been completed with assistance of the applicant’s cousin, Raymond Suliman, and identified his address at Ultimo which was the same address also given on the application completed on 4 December 2014 by the applicant.   

6. The delegate refused to grant the visa.  The delegate found that the criteria for the grant of the visa was not met by the applicant.  The delegate found that the applicant did not meet the requirements in cls.836.221 and 836.321 in schedule 2 of the Migration Regulations 1994 on the date of decision, and on 25 June 2015 refused to grant the carer visa applied for by the applicant. 

7. On 1 July 2015, the applicant applied for a review, and the representative’s details in relation to the authorised person in that application again identified the applicant’s cousin, Raymond Suliman, and provided his post office box for the receipt of correspondence, as well as the cousin’s email address. 

8. By letter dated 4 February 2016, the applicant was invited to attend a hearing on 22 February 2016.  The applicant attended that hearing and the applicant’s cousin, Raymond Suliman, also attended and gave evidence on behalf of the applicant.  In the course of that hearing, on three occasions it was identified that the cousin was not a migration agent.  The applicant acknowledged that he knew at the time the visa application was lodged that his cousin was not a migration agent.  The applicant said that he only found out that his cousin had been struck off as a migration agent during the course of the hearing. Nonetheless, the applicant continued to use his cousin to provide information to the Tribunal, including the filing of a withdrawal application on behalf of his wife and two children, after the hearing occurred on 22 February 2016.  That withdrawal was apparently in response to questions asked by the Tribunal about the applicant’s intention to bring his wife and children to Australia and his capacity to look after them, as well as his capacity to look after the sponsor. 

9. The Tribunal identified in its reasons the background of the applicant and the needs of the sponsor who was the uncle of the applicant who had entered Australia on 31 January 2008 and was granted a sub-class 116 carer visa on 2 January 2008 and that he now has the right to reside permanently in Australia.  The Tribunal identified the sponsor’s family being his wife, who was 59 years old, and his two sons, one of which is the applicant’s cousin, Raymond Suliman, who assisted in the applicant’s application for the visa.  The Tribunal made reference to the carer visa assessment certificate provided on 24 October 2013 and noted that the sponsor had a total impairment rating of 35 and was suffering from multiple medical problems and was living with and being cared for by his family. 

10. The Tribunal identified the applicant’s claims and evidence in relation to the visa, and relevantly the Tribunal found that the sponsor’s wife could reasonably provide only limited assistance to the sponsor. The Tribunal found that it would be reasonable for the son, Mr Raymond Suliman, to be able to provide a substantial amount of assistance to the sponsor. It was in those circumstances that the Tribunal found that the combination of the relatives of the sponsor in Australia and in particular the significant contribution that can reasonably be provided by their sponsor’s son, Mr Suliman, and the assistance that can reasonably be obtained from welfare and community services in Australia would more than equal the total assistance needs of the sponsor. It was in those circumstances the Tribunal found that it was not satisfied that the assistance cannot reasonably be provided by a relevant relative or obtained from welfare, hospital, nursing or community services in Australia, and therefore the requirements of reg.1.15AA(1)(c) were not met.

11. The Tribunal also considered whether or not the applicant was willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed in accordance with reg.1.15AA(1)(f). The Tribunal found that it was not satisfied the applicant was willing and able to provide to the sponsor the substantial and continuous assistance of the kind needed.

12. The Tribunal concluded that the applicant did not meet the criteria of reg.1.15AA(1)(c) and (f). The Tribunal concluded that the applicant did not satisfy cl.836.221. Accordingly the Tribunal found that the applicant did not meet the criteria for the sub-class 836 visa and affirmed the decision of the delegate.

13. On 9 June 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  On 28 July 2016, the applicant filed an amended application.  The applicant confirmed that he wished to rely upon the amended application in relation to the alleged errors by the Tribunal and the Court granted leave to do so.  The applicant also filed an affidavit annexing the transcript.  No submissions, however, were filed. 

14. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether or not the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court said in summary this meant that the Court was deciding whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.  The Court explained to the applicant that if satisfied the Tribunal’s decision was affected by relevant legal error, it would set aside the Tribunal’s decision and send it back for a further hearing.  The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicant’s application.  The applicant confirmed he understood what had been said by the Court. 

15. The Court explained to the applicant that it proposed to identify the grounds upon which the applicant wished to rely, as well as the evidence, and then hear submissions from the applicant, and then submissions from the solicitor for the first respondent, and then submission from the applicant in reply.  The applicant confirmed he understood what was said by the Court. 

16. The grounds of the amended application are as follows. 

    1) The Tribunal was unfair by not informing the applicant about the representative's communication issues:

    Particulars:

    a) The Tribunal became aware that the representative's mental health was affecting the communication between the applicant and the Tribunal (CB149). It still continued the communication without informing the applicant.

    b) There were several medical documents indicating that the representative was too unwell to manage his personal, academic life as well as caring responsibilities. For example, a letter from a clinical psychologist at UTS (CB 156), A TABS mental health plan (CB 162), the representative's own email of 2 March 2016 (CB 149)

    c) If the Tribunal informed the applicant about this issue, he would have had opportunities to additional steps to rectify the situation.

    2) The Tribunal failed to assess Mr Salomonn's health issues properly.

    Particular:

    a) The Tribunal assessed that Mr. Salomonn can provide sufficient assistance to Mr. Solaiman without having regards lo his mental health condition properly. For example, the recent letter from the psychologist at UTS (CB 156) and recent referral to psychologist by his GP (CB 162) together with letter from Psychiatrist Dr Richard Farago (CB 160), UTS special needs documents (CB139-142) and other medical documents. It is unfair or unreasonable to say that Mr Solaiman should be able to manage his caring responsibilities to both Mr Solaiman and Mrs Tahen Ara at the same time without affecting his own mental health issues and also the quality of care provided.

    3) The Tribunal failed to assess Mrs Tahen Ara's health condition properly.

    Particulars:

    a) Mr Raymond Salomonn was in receipt of carer allowance for caring for his mother Mrs Tahen Ara. (CB 168). That evidence alone was sufficient to establish that Mrs Ara was suffering from some sort of health condition for which she needed care herself. With this information and the assessment from Mrs. Ara's psychologist, and other medical documents provided for her, it was unreasonable for the Tribunal to conclude that Mrs Are was in a position to care for her husband Mr Solaiman to some extent.

    4) The Tribunal incorrectly concluded that the applicant was unable to and unwilling to care for his uncle because his intention was to work in Australia.

    Particulars:

    a) The Tribunal believed that it would not be possible for the Applicant to support his family without working full time when they returned Australia. Hence, he would not be willing to and able to provide care to his uncle. The foundation of this statement becomes untrue when the applicant claimed in the hearing that he would only do so when his situation would change, and he withdrew his wife and children from the application altogether. The Tribunal failed to have a regard to that action in making this assessment. Please see pages 21, 22 and 23 of the hearing transcript.

    5) The Tribunal made incorrect assessment of Mrs Tahen Ara's ability to work based on her Centrelink payment type.

    Particulars:

    a) The Tribunal claimed that because Mrs Tahen Ara was in receipt of Newstarts allowance from Centrelink, she must have been looking for work and therefore was in a position to care for her husband. See hearing transcript page 19. The Tribunal did not familiar itself with the social security legislation and that Mrs Tahen Ara was not in receipt of Disability Support Pension only because of her immigration status.

17. From the bar table, the applicant maintained that he had not been notified of the decision.  It is apparent that the applicant filed the application for review and his application to this court within time and that there is no potential legal error arising from the applicant’s complaints about notification.  The Court asked the applicant about his knowledge of his cousin’s cancellation as a migration agent and the applicant confirmed that at the time of making the application, he knew his cousin was not a migration agent.  The applicant had earlier asserted that it was during the hearing he became aware that his cousin was not a migration agent. 

18. The applicant confirmed that he continued to obtain assistance from his cousin in relation to the application before the Tribunal, and that his cousin acted for him in having his wife and children withdrawn from the application and in the provision of material to the Tribunal, and that his cousin had helped him in relation to the amended application filed in this Court, and that the cousin had helped him in relation to an adjournment application that was not pursued but earlier filed in this Court. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. 

19. In relation to ground 1 of the application, the solicitor for the first respondent submitted that the decision was not affected by any unfairness in relation to the applicant’s cousin’s representation.  The solicitor for the first respondent submitted that the difficulties that the applicant’s cousin had were identified in the application for the visa, and that those difficulties had been properly taken into account in the decision by the Tribunal. 

20. This is not a case where there has been any fraudulent conduct by the struck-off migration agent in assisting the applicant.  That said, it is unsatisfactory that a person who has been struck off as a migration agent is, under the legislative scheme, not barred thereafter from acting as an authorised representative on behalf of any applicant for a visa.  In the present case, there is no unfairness that has arisen from the struck-off migration agent’s role as an authorised representative.  In the present case, the applicant was aware that his cousin was not a migration agent, and it was his cousin’s parents in relation to whom the applicant was advancing the carer visa in part on grounds relating to the health and mental state of the cousin, being the struck off migration agent. 

21. The adverse findings by the Tribunal in relation to the applicant’s cousin being able to provide assistance were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 1 fails to identify any jurisdictional error. 

22. In relation to ground 2, the solicitor for the first respondent submitted that this was an impermissible invitation to review the merits.  This Court does not have jurisdiction to review the merits of the application.  I accept the submission of the solicitor for the first respondent that the Tribunal took into account the cousin’s health issues.  I accept the first respondent’s submission that it was open to the Tribunal to make the findings of fact made in relation to the ability of the cousin being the eldest son of the sponsor being able to provide assistance together with what can reasonably be obtained for welfare and community services in Australia being more than equal to the total of assistance needs of the sponsor.  Ground 2 fails to make out any jurisdictional error. 

23. In relation to ground 3, the solicitor for the first respondent submitted this was again an impermissible invitation to review the merits of the matter. The solicitor for the first respondent identified that the aunt’s health was assessed by the Tribunal in its reasons, at paras.47 and 48, and relevantly found that the sponsor’s wife could reasonably provide only limited assistance to the sponsor. That finding by the Tribunal was open and there is no failure by the Tribunal to take into account the aunt’s health condition. Ground 3 fails to make out any jurisdictional error.

24. In relation to ground 4, the solicitor for the first respondent submitted that this was again an impermissible challenge to the merits.  The Tribunal was entitled to take into account the evidence of the applicant in relation to his intention in respect of his wife and children, and that issue was raised in the course of the hearing by the Tribunal in relation to the applicant’s work history.  The Tribunal did not fail to take into account the withdrawal as family unit applicants in relation to the wife and children, but noted that there was no explanation as to why the review applicant would have done this or why the wife and children would not seek to come to Australia to be with the applicant.  The Tribunal noted that there was nothing to indicate that the relationship between the applicant and his wife had come to an end, or that he would not intend to sponsor her and her children if he was granted a carer visa. It was open to the Tribunal to make the adverse findings that it made.  There was no jurisdictional error of the kind alleged in ground 4. 

25. In relation to ground 5, the solicitor for the first respondent pointed out that the Tribunal did not assess the aunt’s ability to work and correctly focused on the aunt’s ability to provide assistance to the sponsor.  It was open to the Tribunal to take into account the Newstart allowance that the sponsor’s wife was receiving in relation to the finding made as to limited assistance only being able to be provided by the wife to the sponsor.  Nothing in ground 5 identifies any jurisdictional error. 

26. For the reasons earlier given to the extent that the applicant received assistance from a struck-off migration agent, this is not a case where that assistance in any way adversely impacted on the conduct of the review. 

27. On the material before the Court, I am satisfied that the Tribunal complied with its statutory obligations and that the applicant had a genuine and meaningful hearing.  On the material before the Court, I am not satisfied that there was any denial of procedural fairness to the applicant in the conduct of the review.

28. The amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 August 2016