SZPZH v Minister for Immigration
[2011] FMCA 407
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 407 |
| MIGRATION – Review of decision of Migration Review Tribunal (“Tribunal”) – visa – tourist visa – genuineness of visa applicant’s intention to “only visit” Australia – application of relevant criteria. |
| Migration Act 1958, ss.338, 347, 357A, 358, 359, 360, 361, 422B, 425, 474 Migration Regulations 1994, cls.676.211, 676.212 & 676.221 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Saravanan (2002) 116 FCR 437 Ugochukwu v Minister for Immigration & Multicultural Affairs [2000] FCA 1602 |
| Applicant: | SZPZH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 123 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 May 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the First Respondent: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 123 of 2011
| SZPZH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was granted a protection visa after her arrival in Australia and is now an Australian citizen. She has been allocated a pseudonym for the purposes of these proceedings in order to preserve her anonymity.
On 6 July 2010 the applicant’s mother, the visa applicant, lodged an application for a Tourist (Class TR) subclass 676 visa which was sponsored by the applicant. On 16 September 2010 a delegate of the first respondent (“Minister”) refused the application because he was not satisfied, pursuant to cls.676.211 and 676.221 of sch.2 to the Migration Regulations 1994 (“Regulations”), that the visa applicant’s expressed intention to only visit Australia was genuine. That decision was affirmed on review by the second respondent (“Tribunal”) and the applicant has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The Tourist (Class TR) subclass 676 visa is for people seeking to visit or remain in Australia for the purposes of visiting an Australian citizen or an Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicant. Alternatively, it may be granted to people seeking to visit or remain in Australia for a purpose that is not related to business or medical treatment.
The criteria for the grant of a subclass 676 visa are found pt.676 of sch.2 to the Regulations. Relevantly in this case, a primary criterion to be satisfied at the time of application is cl.676.211 which requires the visa applicant to satisfy the Minister that his or her “expressed intention to only visit Australia is genuine”. This criterion must also be satisfied at the time of decision: cl.676.221(2)(a).
Background facts
The department
In a statutory declaration dated 31 August 2010 which was submitted in support of her application for a subclass 676 visa, the visa applicant made the following declarations:
a)she and her husband along with their three children, six grandchildren and three nieces lived together on a farm in Zimbabwe which she inherited from her parents;
b)all of them work on the farm; they do not have other jobs. The farm is therefore essential to her family’s survival;
c)the title to the farm and all its related accounts are in her name and purchases cannot be made without her authorisation or signature. As such, it would be impossible to run the farm in her absence;
d)in addition to running the farm, she also performs many of the household duties such as cooking and cleaning. She also takes care of the children as well as her husband who is partially blind;
e)were she to come to Australia, she would only be able to stay for a short visit as her family in Zimbabwe rely on her to take care of them; and
f)she has not seen the applicant or the applicant’s two eldest children since they came to Australia in 2001 and has not yet met the applicant’s youngest child.
The visa applicant also submitted, amongst other things, statutory declarations signed by the applicant on 10 March 2009 and 24 June 2010. The applicant’s 2009 statutory declaration had initially been submitted in support of the visa applicant’s previous application for a sponsored family visitor visa which had been refused by the Minister’s department on 26 March 2009. According to the applicant’s 2009 statutory declaration:
a)she and her husband as well as their three children were granted refugee status in Australia;
b)she contracted HIV as a result of the persecution she experienced in Zimbabwe and, until shortly before she made the statutory declaration, had mostly been well. She and her husband had separated about a year earlier and she found it difficult to cope in the circumstances;
c)she felt that she needed her mother for company and emotional support. Until she regained her strength, her mother would also be able to assist her in caring for the children; and
d)she cannot return to Zimbabwe to visit her mother because of the persecution she experienced there.
In her 2010 statutory declaration the applicant declared that she had been unwell and had been struggling to maintain her household. She said that she had been experiencing some mobility problems due to an infection in her knee, although she anticipated that she would be well within a three month period. She also declared that she was in the process of moving house and having her mother in Australia would help to alleviate some of the stress from this process. She said that she did not believe that her mother would want to stay in Australia as she would miss her family and her home in Zimbabwe too much.
On 16 September 2010 the visa applicant’s application for a subclass 676 visa was refused by the Minister’s delegate as he was not satisfied that her expressed intention to only visit Australia was genuine. He noted in this connection that the visa applicant had been refused a visitor’s visa on four previous occasions and had not previously travelled to countries comparable to Australia. The delegate was not convinced in the circumstances that the visa applicant had the background or capacity for the kind of travel she proposed or that she had a record of compliance with the kind of visa for which she applied. The delegate was not satisfied that the visa applicant was likely to depart Australia before the expiry of her tourist visa, were it to be granted, and formed the view that she was using a tourist visa to circumvent the migration regulations.
The Tribunal
On 21 October 2010 the applicant lodged an application for review of the delegate’s decision with the Tribunal. Her application was accompanied by written submissions which stated, amongst other things, that in addition to the problems with her leg and her HIV status, the applicant had recently been diagnosed with cervical cancer. She submitted that she was the sole carer for her three children and had been struggling to care for them and to maintain a household. The submissions also stated that the visa applicant only wished to come to Australia for a holiday and that, due to her family’s reliance on her in Zimbabwe, the visa applicant would not be able to be absent for more than three months.
At a hearing before the Tribunal on 17 December 2010 the applicant submitted a letter from the Senior Area Counsellor and the Senior Staff Specialist at the Royal Prince Alfred Hospital in support of the visa applicant’s application for a visa. The letter referred to the applicant’s health condition and stated that she had no support in Australia and was worried about how her children would manage if she required further treatment. The letter also stated that the applicant would benefit from having the visa applicant come to live with her to assist her while she raised her family and coped with illness. The letter stated that the applicant’s mental health was at risk and that this would be improved by the support of the visa applicant.
The applicant and her daughter also gave oral evidence at the hearing.
In its Findings and Reasons the Tribunal accepted that the visa applicant had considerable incentives to return to Zimbabwe, including the care of her husband, children and grandchildren and her farm. However, in the Tribunal’s view the visa applicant had a much stronger incentive, and perhaps a need, to remain in Australia to provide care and support to the applicant and her grandchildren. In reaching this conclusion the Tribunal noted the following:
a)it was not impossible for the visa applicant to transfer authority and responsibility for the farm to another relative in Zimbabwe, given that such arrangements would be made for her trip to Australia;
b)the Tribunal did not accept that the care provided by the visa applicant to her husband could not be provided by one of her relatives, noting that alternative arrangements had been made for the duration of her trip to Australia;
c)given that the visa applicant had several family members in Australia and intended to remain here for a lengthy period of three months, the Tribunal did not accept that linguistic or cultural considerations would prevent her from wishing to remain;
d)the letter from the Royal Prince Alfred Hospital suggested that the applicant had no support in Australia and was concerned about how her children would manage if she needed further treatment. In addition, evidence before the Tribunal indicated that the applicant’s health remained poor; she had recently been diagnosed with cancer and this could require treatment and further hospitalisation. The Tribunal was concerned that for the visa applicant these matters might outweigh her other obligations in Zimbabwe and would provide a strong incentive for her to remain in Australia to care for the applicant and her grandchildren; and
e)in the Tribunal’s view, the proposed three month period of stay was not consistent with the visa applicant’s claimed commitments in Zimbabwe.
Having considered the totality of the visa applicant’s circumstances, the Tribunal was not satisfied that her intention to only visit Australia was genuine. The Tribunal was therefore not satisfied that the visa applicant met the requirements of cl.676.211 of the Regulations and accordingly affirmed the decision of the delegate to not grant her a subclass 676 visa.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The second respondent breached their requirement under s.360(1) of the Migration Act 1958 (‘the Act’) in failing to invite the visa applicant to attend a hearing, and thus failing to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”, being directly in contravention of the act.
2.Alternatively, should the first ground fail, the second respondent failed to afford the visa applicant procedural fairness in making adverse findings in relation to the visa applicant’s intentions without affording the visa applicant the opportunity to give evidence.
3.The second respondent impermissibly took into consideration the visa applicant’s intentions beyond the life of the visa.
4.The second respondent made their decision that ‘the visa applicant does not satisfy the requirements of cl.676.211’ of sh2 of the Migration Regulations 1994, being criteria to be satisfied at time of application (cl.676.211 of sch.2 of the Regulations), and in doing so improperly taking into consideration circumstances of the review and visa applicants that arose subsequent to the making of the visa application, and were therefore not available at time of application.
Breach of s.360
The first ground of the application was particularised as follows:
a. The second respondent gave the review applicant an invitation to appear, which she accepted;
b. The second respondent did not give the visa applicant an invitation to appear;
c. The second respondent had the power under s. 366 of the Act to “allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone”;
d. Accordingly, the ‘applicant’ who had the ability to “give evidence and present arguments relating to issues arising in relation to the decision under review”, in the context of s.360 of the Act, being the visa applicant, was not invited.
Section 360 of the Act relevantly provides:
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …
Applicant’s submissions
The applicant submitted that the Act expressly required that the visa applicant be invited to the hearing and, secondly, that it intended that a visa applicant be invited.
The applicant submitted that, properly understood, the reference in s.360 to “the applicant” referred not just to the review applicant but also to the visa applicant. In support of this submission the applicant referred to the meaning of “the applicant” in s.425, a provision relevantly identical to s.360 but applicable to hearings of the Refugee Review Tribunal (“RRT”). She submitted that as every applicant to whom s.425 applies is not only a review applicant but also a visa applicant then, by analogy, in s.360 “the applicant” should also be interpreted as a reference to both the review applicant and the visa applicant.
The applicant also observed that neither the Act nor the Regulations defined the term “applicant” but the form which must be completed in order to make an application to the Tribunal referred not only to the “review applicant” but also to the “visa applicant” and enquired whether the visa applicant would require an interpreter. She submitted that this implied that it was contemplated that the visa applicant would attend such hearing as the Tribunal held.
Consideration
As submitted by the Minister, this ground is misconceived.
Section 425 of the Act does not assist in an understanding of s.360 in the fashion suggested by the applicant. While in the protection visa application process those who apply to the RRT will always be both the visa applicant and the review applicant, the current matter demonstrates that such is not necessarily the case in reviews before the Tribunal. For instance, it might seem unusual to those familiar with court proceedings that in this case the only person who could seek a Tribunal review of the decision to refuse the visa applicant’s visa application was the visa applicant’s daughter, yet, in the circumstances, that was the combined effect of ss.338(7)(b) and 347(2)(c) of the Act. Plainly the process for review of decisions on subclass 676 Tourist visa applications is different in an important respect from the review rights associated with protection visa applications. In this regard, an inspection of the definition of “MRT-reviewable decision” in s.338 of the Act reveals the range and complexities of the review regime for visas other than protection visas, of which the current application is but one example.
The Act makes it clear that the process for making review applications concerning, and decisions on, protection visas is not sufficiently similar to the provisions relating to other visas that the former can inform the latter.
Further, the manner in which the words “the applicant” are employed in div.5 of pt.5 points clearly to the conclusion that they refer to the person who has made the application to the Tribunal and to no one else. At the outset of the division, s.358 refers expressly to “an applicant for review by the Tribunal” and every subsequent provision referring to “the applicant” is consistent with that person being an applicant for review not a visa applicant. Indeed, at no point in the division is there a reference to a “visa applicant”.
Regard must also be had to the process with which div.5 of pt.5 of the Act is concerned, namely, applications to the Tribunal for reviews of MRT-reviewable decisions. As the division is concerned with applications for review, it is also necessarily primarily concerned with those who make application to the Tribunal, i.e. review applicants. The fact that the applicant to the Tribunal is not necessarily the same individual as the one who applied for the visa points strongly to the conclusion that if the drafter had intended that persons other than the review applicant were to have a right to appear before the Tribunal then such a right would have been made express and that rather than referring to “the applicant” in the singular, s.360 would have referred to the possibility of there being more than one applicant.
Additionally, the fact that the review application form asks a question concerning whether the visa applicant needs an interpreter provides no proper basis to adopt an interpretation of s.360 different from that which emerges from a construction of the words of that provision, especially given the general context in which they appear. Not only must the meaning of terms in such a form give way to the meaning of those terms in the statute and regulations on which the form is based but there may be any number of reasons why a form is drafted in the way it is. In order to make out the sort of argument advanced by the applicant it would at least be necessary to demonstrate that the particular question on the form applied to no reviews other than those involving refusals of class 676 Tourist visas. The applicant has not done this.
As a result, s.360 did not operate to require the Tribunal to invite the visa applicant to give evidence in the event that it was unable, on the papers, to reach a favourable decision on the review application. Consequently, the fact that the Tribunal did not extend such an invitation is not indicative of error on its part.
Further, although the Tribunal had the power under s.359 to invite the visa applicant to give oral evidence and, had the applicant made a request pursuant to s.361 that it do so the Tribunal would have had to have considered such a request, it was nevertheless under no obligation to accede to the request. In this case, the Tribunal was not asked by the applicant to seek that evidence and was thus not required to consider whether to exercise that discretion. Moreover, the Tribunal was under no general obligation, of its own motion, to seek evidence from the visa applicant and the evidence does not support a conclusion that, in the circumstances, it was obliged to do so in order to conduct its review properly.
In circumstances where the Tribunal was not obliged to call the visa applicant and was not required, by reason of a s.361 request, to specifically consider such a course, the fact that it did not seek evidence from the visa applicant does not amount to a miscarriage of discretion or a failure to conduct a proper review of the delegate’s decision.
Denial of procedural fairness/natural justice
The second ground of the amended application was particularised as follows:
a.In failing to afford the visa applicant procedural fairness the second respondent breached the rules of natural justice including the rule of audi alteram partem;
b.The second respondent made adverse findings against the visa applicant without affording the visa applicant opportunity to comment;
i.The second respondent stated in the Findings and Reasons of the Decision Record (starting page 160 of the Green Book, herein referred to as ‘the Decision’) that; “she claims that the purpose of her mother’s visit is to reassure her mother that she and the children are coping well. The Tribunal is concerned that this evidence is contrary to the documentary evidence presented with the application.”;
ii.In the second respondent not inviting the visa applicant to the interview this contrary evidence was not put to the visa applicant and accordingly constitutes a breach of natural justice;
c.The second respondent, was required and, gave consideration to the intentions of the visa applicant;
i.The second respondent did not put those considerations as to the visa applicant’s intentions to the visa applicant;
ii.The second respondent stated in the Findings and Reasons of the Decision that “the Tribunal is concerned that the visa applicant’s desire to be with her daughter and grandchildren in Australia may encourage the visa applicant to remain in Australia” (at 34);
iii.At no time has the visa applicant said she ‘has a desire to be with her daughter and grandchildren’;
iv.The second respondent further states in the Findings and Reasons of the Decision that “although the Tribunal accepts that the presence of her husband will form a strong incentive for the visa applicant to return to Zimbabwe, the Tribunal does not accept that it was be determinative to her intentions.” (at 33);
v.The second respondent further states in the Findings and Reasons of the Decision that “the Tribunal is not satisfied that the visa applicant’s intention only to visit Australia is genuine.” (at 41);
vi.In the second respondent not inviting the visa applicant to the interview the visa was not given opportunity to present arguments.
Applicant’s submissions
The applicant submitted that as the visa applicant was a person whose rights were affected by the Tribunal decision, the latter had a right to be heard by the Tribunal. In this regard, the applicant referred to s.357A(3) of the Act which provides that in applying pt.5 of div.5 the Tribunal “must act in a way that is fair and just”.
The adverse findings which the applicant submits the Tribunal made in relation to the visa applicant were the following:
a.The second respondent stated in the Findings and Reasons of the Decision Record (starting at page 160 of the Green Book, herein referred to as ‘the Decision’) that; “she claims that the purpose of her mother’s visit is to reassure her mother that she and the children are coping well. The Tribunal is concerned that this evidence is contrary to the documentary evidence presented with the application.”
b. The second respondent further stated that; “The Tribunal finds that the proposed period of stay is consisted [sic] with the purpose of the visa applicant’s trip but not consistent with the visa applicant’s claimed commitments in Zimbabwe.”
The applicant also referred to other passages from the Tribunal’s decision concerning its perception of the visa applicant and her motivation. She said that she, as the review applicant, could not definitively comment on the visa applicant’s intentions.
The applicant submitted that in the context of this review, defining the term “applicant” to mean “review applicant” did not amount to an application of the division which was fair and just and thus it amounted to jurisdictional error.
Consideration
The applicant’s arguments based on s.357A do not reflect the meaning which the words “fair and just” carry in s.357A(3) where it is said that:
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
The sub-section should not be understood as creating substantive rights. As the Full Court of the Federal Court said in Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427 in relation to the equivalent provision relevant to RRT hearings, s.422B(3):
Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Div 4: see Eshetu’s Case at [158]. (at 432 [15])
That is to say, s.357A(3) is not a “free standing obligation” which creates rights which can be enforced. Consequently, any breach of the Tribunal’s natural justice obligations must be framed by reference to particular provisions of div.5 of pt.5 which create those obligations, not by reference to s.357A(3).
I have already found, in relation to the first ground of the amended application, that s.360 does not refer to a visa applicant and does not require the Tribunal to invite a visa applicant to a hearing in the event that it cannot, on the papers, make a favourable decision on the review. In those circumstances, such duty as s.357A(3) may impose on the Tribunal did not, in the circumstances, oblige it to invite the visa applicant to appear before it to give evidence and present arguments.
Nor did the visa applicant have a residual common law right to appear before the Tribunal. The parliament has determined that the only persons who may apply to the Tribunal are those referred to in s.347 and it is to those persons only that the Tribunal has any procedural fairness obligations. As Brennan J said in Kioa v West (1985) 159 CLR 550:
If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (Water Conservation and Irrigation Commission (NSW) v Browning). When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised. (at 619) (reference omitted)
In cases such as this one, where access to the Tribunal has been limited by the relevant statute to a narrowly defined class of persons, the legislation must be understood as excluding all others from a right to make a case to it, even if they are the person most directly affected by the outcome of the review. On the basis that the Tribunal, in relevant circumstances, is required by s.360 to invite the review applicant to a hearing, but is required by no other provision of div.5 of pt.5 to invite anyone else, it must be concluded from the text of the Act and the administrative framework which it has erected for the conduct of Tribunal reviews that it provides a right of appearance before the Tribunal to review applicants only. The Act has displaced whatever presumption may have existed that the visa applicant had a right to be heard by the Tribunal.
Consequently, even though the visa applicant’s rights were undoubtedly going to be affected by the Tribunal’s review, no provision in div.5 of pt.5 provided her with a right to appear before the Tribunal or obliged the Tribunal to permit her to appear before it. Section 357A(3) did not operate to alter this situation.
For these reasons, the second ground of the amended application is not made out.
Irrelevant consideration taken into account
The third ground of the amended application was particularised as follows:
a.s.31(3) of the Act gives the power for the Migration Regulation 1994 (the Regulations) to prescribe criteria for the grant of a visa;
b.reg.2.03 prescribes the criteria to be satisfied for grant of a visa being satisfying the relevant schedule 2 criteria;
c.cl676 of sch2 in the Regulations sets out the criteria for grant of a Tourist Visa Subclass 676, and this criteria is limited;
d.cl676 of sch2 of the Regulations does not assess the applicants intentions beyond the primary criteria at time of application and time of decision;
e.In Findings and Reasons of the Decision the second respondent speculates about the potential deterioration of the review applicant’s health and potential need for the review applicant to undergo further medical treatment (at 36), the second respondent then goes on to state that the potential deterioration of the review applicant’s health “cause a very significant concern to the Tribunal because they suggest that the visa applicant’s intention may be to remain in Australia to assist her daughter with the care of the children and her physical and mental health…The Tribunal is concerned that these matters may outweigh, for the visa applicant, her other obligations in Zimbabwe and will provided a strong incentive for the visa applicant to remain in Australia, at least on a temporary basis, to care for her daughter and grandchildren.” (at 37) (emphasis added);
f.At the hearing of 17 December 2010 the second respondent impermissibly searched for intentions beyond the life of the visa by asking review applicant “If you do need some medical help later on and there is nobody here to look after your children and your mother’s visa is expiring or about to expire. How would you handed it then? What would happen then?” (line 17, page 9 of Annexure A to Affidavit of Trupti Bapat);
g.In Findings and Reasons of the Decision the second respondent further states; “that she (the visa applicant) may have a much stronger incentive, and perhaps a need, to remain in Australia to provide the care and support to the her daughter and grandchildren in Australia” (at 40) (emphasis added);
h.In so considering and making findings on the aforementioned points, the second respondent made an impermissible search beyond the life of the visa.
Applicant’s submissions
The applicant referred to Minister for Immigration & Multicultural Affairs v Saravanan (2002) 116 FCR 437 where Marshall J held that the Tribunal had impermissibly taken into account a visa applicant’s intentions concerning the period after his proposed tourist visa rather than his intention concerning the period of currency of that visa. His Honour said:
To the extent that the MRT attempted to address the correct question it was distracted by its impermissible search for the purpose of the respondent beyond the life of the visa for which application had been made. (at 445 [45])
In this case the applicant submitted that the Tribunal had impermissibly taken into account what it speculated might be the visa applicant’s conduct following the expiry of any tourist visa which she might be granted. She pointed to the concern which the Tribunal expressed that, because of the applicant’s ill health, the visa applicant might wish to remain in Australia after the expiry of the tourist visa and look after the applicant and the applicant’s children. The applicant submitted that the Tribunal sought to discover such an intention by questions it posed to her at its hearing. She submitted that the Tribunal had thereby taken an irrelevant consideration into account.
Consideration
The criteria against which the Tribunal had to test the visa applicant’s application were cls.676.21 and 676.22 which relevantly provide:
676.21 Criteria to be satisfied at time of application
676.211 The applicant satisfies the Minister that the applicant’s expressed intention to only visit Australia is genuine.
676.212 The applicant seeks to visit Australia, or remain in Australia as a visitor:
(a) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or
(b) for a purpose other than a purpose related to business or medical treatment.
…
676.22 Criteria to be satisfied at time of decision
676.221(1) The applicant meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant satisfies the Minister that the applicant’s expressed intention to only visit Australia is genuine; and
(b) the applicant continues to satisfy the criteria in clauses 676.212 and 676.213; …
Consequently, the Tribunal had to consider whether the visa applicant’s “intention to only visit Australia” was genuine, a criterion which the visa applicant had to satisfy both at the time of application and at the time of decision. As such, the test which the Tribunal had to apply in this case was different in a significant respect from the test which it had to apply in Saravanan’s case where the time of application criteria contained provisions like the current cl.676.212 but not the current cl.676.211. Consequently, in this case unlike Saravanan’s case, it was appropriate and necessary that the Tribunal consider whether at the time of application the visa applicant intended to “only visit” Australia.
In Ugochukwu v Minister for Immigration & Multicultural Affairs [2000] FCA 1602, Katz J considered a time of decision criterion for the grant of a tourist visa which was expressed in terms that:
the applicant satisfies the Minister that the expressed intention of the applicant to visit Australia is genuine.
It can be seen that this is essentially identical in effect, if not precisely in terms, to the current cl.676.221(2)(a). His Honour discussed how that provision should be understood and applied:
Given that par 686.221(2)(c) of Sch 2 to the Regulations requires the applicant to satisfy the Minister, at the time of the decision, that the expressed intention of the applicant only to visit Australia “is” (not “was”) genuine, the Minister’s inquiry is into the present genuineness of the applicant’s earlier expression of intention to the Minister; it is not the genuineness of that expression of intention when made. In substance, what par 686.221(2)(c) of Sch 2 to the Regulations contemplates is an inquiry by the Minister into the question whether the applicant has a present intention, at the time of the Minister’s decision on the visa application, only to visit Australia. I construe that inquiry by the Minister as being one into the question whether the applicant, at the time of the Minister’s decision on the visa application, has a present intention to leave Australia at the end of the period for which the applicant has sought permission to stay in Australia. Unless the applicant satisfies the Minister that the applicant has that present intention, then the Minister must refuse the visa application. (at [7])
Applying his Honour’s reasoning to the present matter, the Tribunal’s task was to determine whether the visa applicant, at the time of applying for the visa, and also at the time of the decision if necessary, had the intention to leave Australia at the end of the period for which she had sought permission to stay in Australia.
To take into account matters such as the visa applicant’s intentions for the period after the expiry of such subclass 676 Tourist visa as she might be granted did not involve the Tribunal in considering irrelevant considerations but in weighing the evidence which was necessary for it to decide whether the applicant met the relevant criterion for the grant of the visa she sought. That question was whether, on the evidence, the Tribunal was satisfied that at the time of application the visa applicant’s intention to “only visit” Australia was genuine. In answering that question, the Tribunal was entitled to consider the intentions of the visa applicant for the period following the expiry of such tourist visa as she might have been granted.
Incorrect test applied
The fourth ground of the amended application was particularised as follows:
a.At paragraph 6 of the Decision the second respondent referred to the relevant primary criteria to be satisfied at time of application (cl676.211) and time of decision (cl676.221);
b.In Findings and Reasons of the Decision the second respondent states; “As noted above, the issue in this matter is whether the Tribunal is satisfied that the visa applicant’s intention to only visit Australia is genuine as required by cl.676.211” (at 30);
c.In Findings and Reasons of the Decision the second respondent states; “The Tribunal reaches this conclusion while having regard to the visa applicant’s circumstances and factors set out above. The Tribunal is not satisfied that the visa applicant meets the requirements of cl676.211.” (at 41);
d.In Conclusions of the Decision the second respondent states; “For the reasons given above the Tribunal finds the visa applicant does not satisfy the requirements of cl676.211.” (at 42);
e.The visa application was taken to have been made on 6 July 2010 (at 2 of the Decision);
f.In Findings and Reasons of the Decision the second respondent states; “Evidence before the Tribunal indicates that the review applicant’s health remains poor. She has recently been diagnosed with cervical cancer and may require treatment and further hospitalisation” (at 37);
g.The letter by Dr O’Connor and Loretta Healey dated 3 November 2020 (sic) states that; “In September 2010 [the applicant] was diagnosed with cervical cancer. She was very distressed, expressing that she feels her health problems are overwhelming.” (page 147 of the Green Book);
h.Thus, the second respondent made an error at law when taking the new medical diagnosis and potential deterioration of the review applicant’s health into consideration when considering whether criteria at time of application had been satisfied.
It is to be noted, as recorded above at [15], that the Tribunal affirmed the delegate’s decision on the basis that the visa applicant did not meet the requirements of cl.676.211, that is, the time of application criterion.
Applicant’s submissions
The applicant observed that although the Tribunal had, at para.6 of its decision, said that the genuineness of the visa applicant’s intent was to be assessed both at the time of application and at the time of decision, and was therefore aware of both criteria, it nevertheless only tested the visa applicant’s satisfaction of the criteria by reference to her intentions at the time of application. She submitted that the Tribunal erred by taking into account the recent deterioration in her health, a matter which could only be relevant to the visa applicant’s intention at the time of decision. The essence of the applicant’s submissions in relation to the fourth ground of the amended application was that the Tribunal erred by applying time of decision considerations to a time of application criterion.
Consideration
Although the Minister’s submissions implied that the Tribunal’s reference to cl.676.211, the time of application criterion, rather than to cl.676.221, the time of decision criterion, was a drafting error and that the Tribunal’s decision was made by reference to the time of decision criterion, I do not agree. As the visa applicant had not given evidence to the Tribunal, the Tribunal was not in a position to assess her intentions as at the time of its decision. The Tribunal decision was based on its appreciation of the visa applicant’s intentions as at the time she made the application for a tourist visa. In this regard, the Tribunal said this:
The review applicant argues that she wants her mother to visit her and her children and to see that they are doing well and are able to cope. She referred to a number of organisations and individuals who are providing assistance to her. She claims that the purpose of her mother’s visit is to reassure her mother that she and the children are coping well. The Tribunal is concerned that this evidence appears to be contrary to the documentary evidence presented with the application. (at para.36) (emphasis added)
It went on to say:
The Tribunal does not accept that the visa applicant’s claimed unwillingness to apply for a permanent visa necessarily establishes that her intention only to visit Australia is genuine. (at para.37)
and
The visa applicant intends to spend up to three months in Australia to visit her daughter and grandchildren. The Tribunal accepts that the purpose of the travel is to visit family in Australia. The Tribunal finds that the proposed period of stay is consistent with the purpose of the visa applicant’s trip but not consistent with the visa applicant’s claimed commitments in Zimbabwe. (at para.38) (emphasis added)
and
The Tribunal considers that the visa applicant has considerable incentives to return to Zimbabwe, including the care of her husband, children and grandchildren, as well as her farm. However, the Tribunal also considers that she may have a much stronger incentive, and perhaps a need, to remain in Australia to provide the care and support to her daughter and grandchildren in Australia. (at para.40) (emphasis added)
It is apparent that the Tribunal did not accept that the visa applicant ever intended coming to Australia for only a short period. Undoubtedly, the decline in the applicant’s health would have been likely to affect the visa applicant’s attitude to a return to Zimbabwe, were she to be permitted to come to Australia, but those circumstances were no more than an exacerbation of the very unfortunate situation in which the applicant was already placed at the time her mother applied for the visa. The Tribunal referred to the recent information to underline its concern that the motivation for the visa applicant’s proposed travel to Australia was always the applicant’s circumstances. The recent deterioration in the applicant’s health served only to emphasis the chronic nature of her situation, a situation which already existed at the time the visa was sought.
Consequently, I do not find that the Tribunal applied time of decision considerations to a time of application criterion or that it mistakenly referred to the time of application criterion, meaning to refer to the time of decision criterion. I find that the Tribunal assessed the visa applicant’s intentions as at the time of application and tested them against cl.676.221. As a result, I find that the fourth ground of the amended application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 2 June 2011
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