Skaf v Minister for Immigration

[2015] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKAF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1943

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal acted unreasonably or illogically in concluding it was not satisfied visa applicant genuinely intends to stay temporarily in Australia – application dismissed.

Legislation:

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

Applicant: AHMAD SKAF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 555 of 2014

Judgment of: Judge Manousaridis

Hearing date: 7 October 2014

Date of Last Submission: 30 September 2014

Delivered at: Sydney

Delivered on: 17 July 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 555 of 2014

AHMAD SKAF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 October 2013 Mr Mustapha Skaf (visa applicant), a national of Lebanon, applied to the first respondent (Minister) for a Visitor (class FA) Visitor (Sponsored Family) subclass 600 visa (Subclass 600 visa). The visa applicant claimed he applied for the visa to visit his brother (review applicant), and his brother’s family.

Background

1. To have been entitled to the grant of a Subclass 600 visa, the visa applicant had to satisfy cl.600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). At the time of the Tribunal’s decision, cl.600.211 of Schedule 2 to the Regulations relevantly provided:

   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. A delegate of the Minister refused to grant the visa applicant a Subclass 600 visa. The reasons for which the delegate refused to do so are contained in the following passage from the delegate’s reasons for decision:[1]

   I have noted that the applicant’s passport indicates that he is a 20 year old single male from Lebanon. Section 8.1 of Genguide H specifies that information contained in statistical, intelligence and analysis reports on migration fraud and immigration compliance developed by the Department about nationals from the applicant’s home country must be taken into consideration when assessing an applicant’s intentions. Departmental records indicate that the non-return rate for applicants from similar circumstances is high. The applicant has not provided sufficient evidence of personal, employment, business or cultural ties to allay concerns that the applicant may also be induced to remain in Australia beyond the validity of their visa.

   [1] CB49

Tribunal hearing

1. Both the review applicant and the visa applicant gave evidence before the Tribunal. According to their evidence, the visa applicant resides with his parents and two sisters and is not married or engaged. He is employed as a security guard and general assistant for a dentist near his home. The visa applicant owns a car, but no other major property or assets. He contributes part of his income to the household, but his father and one sister also work and earn an income.[2]

   [2] CB102, [10]

2. The visa applicant has three paternal uncles, three maternal aunts, one maternal uncle, and some cousins in Australia.[3] The visa applicant had not previously been granted an Australian visa. The review applicant, however, said that his father, mother and sister have all previously visited Australia and had complied with their visa conditions. The review applicant’s mother travelled to Australia in 2010 for his wedding, his sister visited in 2007, and his father visited in 2005.[4]

   [3] CB102, [11]

   [4] CB102, [12]

3. The review applicant informed the Tribunal the visa applicant would comply with the conditions of the Visitor visa, if it were granted to the visa applicant, because the review applicant wished to bring his mother to Australia for the birth of his second child, and that if the visa applicant were to breach any visa condition, that could jeopardise any future application his mother or other family members might wish to make. The review applicant submitted that he had always complied with the conditions of his own Australian visas, as did other members of his family who had visited Australia.[5]

   [5] CB102, [13]

4. In response to the Tribunal asking for a comment on information contained in the Department’s decision that the non-return rate for persons in similar circumstances to the visa applicant is high, the review applicant said that he has nothing to do with what other people do.[6] The Tribunal also put to the review applicant country information from the Australian government’s Smart Traveller website warning Australians to reconsider their need to travel to Lebanon generally, and not to travel to some parts of Lebanon including Tripoli. According to that website, terrorist attacks are likely and could occur at any time throughout Lebanon; that security services remain on a high state of alert following a recent increase in terrorist attacks; and that the ongoing conflict in Syria is having a destabilising effect on Lebanon.[7] Both the review applicant and the visa applicant said that the situation in their local area was safe and that they live away from the areas where there have been attacks and disputes.[8]

   [6] CB102, [14]

   [7] CB102, [15]

   [8] CB103, [16]

5. The Tribunal also put to the applicants its concerns that the visa applicant was young and single and had relatively weak ties to Lebanon. The visa applicant said he could not leave his job and parents in Lebanon; that his job was close to home, and that he is his mother’s only son in Lebanon.[9] The review applicant offered to pay a security or bond to guarantee the visa applicant’s return.[10]

   [9] CB103, [17]

   [10] CB103, [18]

Tribunal’s reasons

1. The Tribunal accepted the visa applicant has reasonably strong family ties to Lebanon in that the visa applicant lives with his parents and two sisters in their family home; the visa applicant is employed in Lebanon; he owns a car; he is his mother’s only son in Lebanon, and that the visa applicant would miss his parents if he were to leave Lebanon. The Tribunal said it placed weight on the review applicant’s compliance with his visa conditions and the visa applicant’s parents’ and sister’s compliance with their Australian visa conditions. The Tribunal accepted the review applicant’s wife was pregnant at the time of the review, that the review applicant may wish to sponsor other family members including his mother to visit him in Australia in the future, and that this provided an incentive for the visa applicant to comply with his visa conditions.[11]

   [11] CB103, [19]

2. The Tribunal, on the other hand, said the visa applicant is young and unmarried; he “could find alternative, possibly more lucrative employment in Australia”; he has family ties in Australia; the security situation in Lebanon “generally is volatile” and could deteriorate; and there was information contained in the delegate’s decision that the non-return rate for persons in similar circumstances to the visa applicant is high. The Tribunal further said that “[c]ombined with the high non-return rate and the visa applicant’s personal circumstances the Tribunal considers that the circumstances in Lebanon may encourage the visa applicant to remain in Australia beyond the period of permitted stay.[12]

   [12] CB103, [20]

3. Having identified these matters, the Tribunal concluded as follows:[13]

   The Tribunal accepts that the high non-return rate and unrest in Lebanon do not mean that every Lebanese national who visits Australia will seek to remain in Australia. However, having considered this visa applicant’s individual circumstances at the present point in time, and having weighed the circumstances which may encourage him to remain in Australia against those factors which indicate he would return [to] Lebanon, the Tribunal is not satisfied that he genuinely intends to remain stay [sic] temporarily in Australia.

   [13] CB103, [21]

4. The Tribunal was also not satisfied that the offer of providing a bond or security made by the review applicant would provide sufficient incentive for the visa applicant to return to Lebanon.[14]

   [14] CB103, [21]

Grounds of Review

1. The application filed by the review applicant contains the following grounds of review:

   (1)The Migration Review Tribunal (The Tribunal) decision is affected by error of law.

   (2)The member is bias, made a decision contrary to the evidence before the Tribunal.

   (3)The Tribunal decision is unreasonable.

Ground One

1. The application does not particularise the respects in which the Tribunal’s decision is affected by an error of law; and the review applicant who is not legally represented made no submissions in relation to this ground. Ground one, therefore, fails.

Ground Two

1. This ground contains two parts. The first is the Tribunal was biased. This part of the ground is not particularised, and the review applicant made no submissions in support of it. This part of the ground, therefore, also fails.

2. The second part of the ground is that the Tribunal’s decision was contrary to the evidence. This does not disclose any jurisdictional error. It amounts to an invitation to the Court to consider whether on the evidence before it the Tribunal erred in its conclusions. The second part of the ground, too, fails.

Ground Three

1. The application does not particularise the respects in which the Tribunal’s decision is said to be unreasonable. Nor did the review applicant make any submission which in terms claimed the Tribunal’s decision was unreasonable. Instead, the review applicant submitted the Tribunal’s decision was illogical, and that its decision was based on imaginary assumptions, rather than on evidence. The review applicant relied on three matters.

2. First, the doctor who works at the medical centre at which the visa applicant is a security guard provided a letter confirming that the visa applicant had worked there for three and a half years, that the visa applicant will be granted three months leave commencing from the day he leaves Lebanon, and that the visa applicant “will resume working as usual upon his return”.[15] Second, the visa applicant comes from an area in Lebanon which is safe and prosperous. Third, the review applicant’s father, sister, and mother visited Australia in 2005, 2007, and 2010 respectively, and each honoured the conditions of their visas.

   [15] CB37

3. These three matters do not by themselves render the Tribunal’s conclusion unreasonable or illogical. The Tribunal referred and relied on matters which it was of the view tended to show that if the visa applicant came to Australia, he would have reason for not returning to Lebanon. It was for the Tribunal to weigh those matters against the matters on which the visa applicant and the review applicant relied to show that the visa applicant had a genuine intention of staying temporarily in Australia. Nevertheless, two questions arise. The first is whether it was reasonably open to the Tribunal to form the view that the matters on which it in fact relied tended to show that the visa applicant did not have a genuine intention of remaining temporarily in Australia.

4. The Tribunal identified the following matters which it was of the view weighed against its being satisfied the visa applicant had a genuine intention of remaining in Australia:

   a)the visa applicant was young and unmarried and could find alternative possibly more lucrative employment in Australia;

   b)the visa applicant had family connections in Australia;

   c)the security situation in Lebanon generally is volatile and could deteriorate; and

   d)the information contained in the delegate’s decision that the non-return rate for persons in similar circumstances to the visa applicant is high.

5. The first three matters are matters it was reasonably open to the Tribunal to identify as weighing against the visa applicant’s having a genuine intention of visiting Australia temporarily. The fourth matter, however, requires some attention. The information to which the Tribunal refers appears to be the departmental records to which the delegate in her reasons for decision referred. That is “information contained in statistical, intelligence and analysis reports on migration fraud and immigration compliance developed by the Department about nationals from the applicant’s home country”.[16] The Tribunal did not consider the nature of the “statistical, intelligence and analysis reports” the delegate said contained the information. The Tribunal simply accepted what the delegate said was the effect of that information, namely, that the non-return rate for persons in similar circumstances to the visa applicant is high. In my opinion, it was reasonably open to the Tribunal to accept the information identified and described by the delegate as a matter that weighed against the visa applicant having a genuine intention of visiting Australia temporarily.

   [16] CB49

6. The next question is whether the Tribunal acted unreasonably in concluding it was not satisfied the visa applicant has a genuine intention of staying temporarily in Australia. In my opinion, the Tribunal did not act unreasonably in so concluding. Given the matters the Tribunal identified as weighing against the visa applicant having a genuine intention of staying temporarily in Australia, the Tribunal’s conclusion was one that fell within the range of decisions that it was reasonably open for a reasonable decision-maker in the position of the Tribunal to make. Further, the Tribunal has made evident the reasons for which it concluded it was not satisfied the visa applicant had a genuine intention of staying temporarily in Australia, and these constitute an intelligible justification for the Tribunal’s conclusion.

Conclusion and disposition

1. The review applicant has not demonstrated the Tribunal made any jurisdictional error. The application, therefore, must be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 17 July 2015