ZAAROUR v Minister for Immigration

[2016] FCCA 948

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZAAROUR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 948

Catchwords:
MIGRATION – Visitor (Class FA) visa – application refused – review of decision of Migration Review Tribunal – whether the Tribunal was obliged to take evidence from witnesses – whether the Tribunal understood the requirements of clause 600.211 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 360, 361

Migration Regulations 1994 (Cth), cl.600.211 of sch.2

Huynh v Minister for Immigration & Border Protection [2015] FCA 701
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118
Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23

Applicant: NANCY ZAAROUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 807 of 2015

Judgment of: Judge Smith

Hearing date: 14 March 2016

Date of Last Submission: 21 March 2016

Delivered at: Sydney

Delivered on: 29 April 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr P. Knowles

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 807 of 2015

NANCY ZAAROUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant lives in Australia as the holder of a permanent spousal visa. The applicant lives with her husband who, amongst other ailments, has a serious heart condition and requires surgical procedures in the near future. The applicant’s brother lives in Ramallah in the West Bank and holds a Palestinian passport. On 3 August 2014, the applicant’s brother and their mother applied for a Visitor (Class FA) visa, the stated purpose for which was to help the applicant in light of her husband’s upcoming surgery.

2. The criteria for the grant of that visa were contained in pt.600 of sch.2 to the Migration Regulations 1994 (Cth). The relevant criteria for the purpose of this application were found in cl.600.211 which provides:

   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.

3. On 11 September 2014 a delegate of the Minister made a decision to refuse to grant the applicant’s brother a visa. The delegate was not satisfied that the brother satisfied the criterion in cl.600.211 on the basis that his circumstances, combined with the current situation in his home country, left little incentive for him to return after his proposed visit to Australia.

4. As the applicant’s brother was outside of Australia at the time of the application, the visa could only be granted while he was outside the country. That meant, in turn, that he could not apply to the Migration Review Tribunal[1] for review of the delegate’s decision; however, his sister, the applicant, could and did apply for review.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

5. By letter dated 11 February 2015 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising on the review. In that letter, the Tribunal also invited the applicant to provide a brief outline of the length and purpose of her brother’s proposed stay in Australia as well as a number of other matters. It also stated:

   The Tribunal may wish to take evidence from [the brother]. Please include in your response a telephone number (preferably landline) on which the Tribunal can contact [the brother] during the hearing.

6. The letter included a document entitled “Response to Hearing Invitation” which the applicant was asked to complete and return to the Tribunal within 7 days.

7. The “Response to Hearing Invitation” included the following:

   The Tribunal may wish to take evidence from [the applicant’s brother]

   Will [the applicant’s brother] be attending by phone?

   Yes    No

   □        □ If yes, (the brother)’s telephone number (preferably) landline) ………………………………

   *(The Tribunal will contact [the brother] on this number during the hearing)

8. The applicant returned the response, ticking the “yes” box set out above, and giving a mobile telephone number.

9. The hearing was conducted on 12 March 2015 commencing at 9:11am. The applicant gave evidence through an interpreter, but the Tribunal did not call her brother in order to take evidence from him. The following extract from the transcript of the hearing reveals why it took that course:

   Tribunal:Now, today is your review, and you’re the sort of central person in that process. You have provided a telephone number for your brother in Palestine. You’ve provided a telephone number for your brother in Palestine [sic]. Yes. Do you think that there’s anything that he can tell me that you haven’t already told me today?

   Interpreter:       I don’t think so.

   Tribunal:Okay. Because we don’t commonly speak to these applicants. It is your application, but if you think there’s anything that he can add to what you’ve told me, then I’m happy to call him.

   Interpreter:       I don’t think there’s anything else.

10. The Tribunal then asked the applicant whether her husband could add anything, given that it accepted that he had health problems. The applicant responded that she did not think so and the Tribunal did not ask her husband any questions.

11. The Tribunal made its decision on the day after the hearing. It will be necessary to examine those reasons in some detail later in these reasons. For present purposes it is sufficient to set out the paragraph in which it set out its conclusions:

    [25]Weighing up the relevant matters, I accept that there is a legitimate purpose for the visa applicant to visit Australia, that visa applicant has some ties to Ramallah, that he may not wish to damage his sister’s reputation and prospects of her inviting other family members to Australia, and that to date other members of the family have a positive visa history. I have also considered the assurances made by both the visa and review applicants that the visa applicant’s stated intention to visit Australia temporarily is genuine. In the circumstances of this case, however, I consider that these factors are outweighed by the significant concerns which arise from the security situation in Ramallah, and the general circumstances of Palestinian passport holders which has resulted in a very high rate of non-return, as well as the relative weakness of the visa applicant’s family, personal and other ties to his home. I am not satisfied in this case that the visa applicant genuinely intends a short visit to Australia as claimed.

12. For those reasons, the Tribunal was not satisfied that the applicant met the requirements of cl.600.211 and so affirmed the decision of the delegate to refuse to grant the applicant’s brother a visa. The applicant now seeks judicial review of the Tribunal’s decision.

Consideration

1. There were two grounds in the application:

   1.The Tribunal made an error to make a decision which is not reasonable as it is not based on strong evidence to lead to such a decision.

   2.The Tribunal failed to take evidence from my brother, [name], contrary to the Response to Hearing.

2. At the hearing, the applicant, who appeared unrepresented, argued that it was not fair to base a decision only on statistics and not to take into account her husband’s condition. I understand that this argument was the basis for the first ground in the application.

Ground 1

1. The difficulty with the first ground is that the Tribunal did not base its decision solely on statistics and did take into account the health of the applicant’s husband.

2. The statistical information relied on by the Tribunal was that, for the year ended 30 June 2013, the non-return rate for Palestinian passport holders was 13.18%, almost 20 times the global average of 0.69%. The Minister accepted that it would have been problematic if the Tribunal had made its decision solely on the basis of that information. That concession was well made: without any understanding of the characteristics of those Palestinian passport holders who overstayed their visas, there is little, if any, logical connection between the statistic and the probability that the applicant’s brother would overstay. However, the Tribunal’s concern was not simply about the numbers of Palestinian passport holders who overstayed their visas, but the underlying reasons for that fact, namely, the unpredictable security situation in the West Bank in light of the ongoing tensions and violence between Israelis and Palestinians there. Against that background, the Tribunal assessed each of the factors relied on by the applicant’s brother to support the contention that he had a number of very real incentives to return to Ramallah after the expiry of the term of the visa but found that those factors were outweighed by other factors mentioned above.

3. It is also evident from the passage set out above that the Tribunal accepted the evidence concerning the health of the applicant’s husband. It accepted “that there is a legitimate purpose for the visa applicant to visit Australia …”. That purpose was to assist the applicant while her husband was undergoing treatment.

4. For those reasons, the first ground is rejected.

Ground 2

1. The second ground, too, must be rejected. As noted above, the Response to Hearing invitation contained a number of references to the applicant’s brother. Twice the invitation stated that the Tribunal “may wish to take evidence” from the applicant’s brother. Once, in small font in brackets, the invitation stated that the Tribunal “will contact” the applicant’s brother. However, read in context, that statement went no further than to say that, if the Tribunal did actually wish to take evidence from the applicant’s brother, it would do so by calling him on the number provided by the applicant. Properly understood, there was no indication that the Tribunal would take evidence from the brother.

2. The Tribunal was required by s.360 of the Migration Act 1958 (Cth) to invite the applicant to attend a hearing to give evidence and present arguments. Section 361 enables an applicant, that is, an applicant for review, to give written notice to the Tribunal that he or she wishes it to obtain oral evidence from a person or persons named in the notice. In this case, the applicant indicated that she wanted the Tribunal to obtain oral evidence from her husband. If such a wish is indicated, the Tribunal has to consider whether it should take oral evidence from the nominated individual in accordance with the applicant’s wish.

3. There is no question that the Tribunal did consider that request. It raised it at the hearing. Once it indicated to the applicant that it accepted the evidence concerning her husband’s health, the applicant agreed that there was nothing her husband’s evidence could add. For that reason, the Tribunal did not obtain oral evidence from her husband.

4. While the Tribunal must have regard to the applicant’s notice, there is no duty, as such, on the Tribunal to obtain that oral evidence: s.361(3), Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 (“Maltsin”) at [37].

5. The Tribunal also raised the brother’s evidence at the hearing. The relevant portion of the transcript is set out at [9] above. This shows that the applicant was aware that the Tribunal might not take evidence from her brother and indicated that she did not think that his evidence would add anything. There was nothing unfair towards the applicant in that procedure.

6. At the hearing of this matter, I raised with the Minister the possibility that the Tribunal might be obliged to afford the applicant’s brother procedural fairness given that his interests were very much at issue in the review before the Tribunal. In subsequent written submissions, counsel for the Minister very helpfully addressed that issue and referred to the decision of Griffiths J in Huynh v Minister for Immigration & Border Protection [2015] FCA 701. In that case, the Tribunal did obtain oral evidence from a visa applicant who was not the applicant on the review; however, it did so in such a perfunctory manner that Griffiths J found, at [87], that the Tribunal had acted unreasonably.

7. In light of that conclusion, his Honour did not decide the issue of whether the visa applicant was denied procedural fairness. He noted, at [106], that if that issue had to be decided, an issue may have arisen whether the applicant on review (being the appellant before his Honour) had standing to complain of procedural unfairness in respect of another person. His Honour did not indicate what the outcome of that issue might be. Although the matter was not fully argued before me, my provisional view is that there would be no impediment to the applicant raising an argument about a denial of procedural fairness to her brother. First, she is directly affected by the decision and so has standing to bring the proceedings. Secondly, as noted by the Full Court of the Federal Court in Maltsin at [54], it is at least arguable that a denial of procedural fairness to a person other than an applicant before the Tribunal may, in some circumstances, impinge on the validity of the ultimate decision. However, it is unnecessary for me to decide this issue. That is because, even if the Tribunal had to afford procedural fairness to the applicant’s brother, it fulfilled that obligation.  

8. Critically, the content of procedural fairness depends upon the statutory context in which the duty arises: Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41 at pp.503-504 [12] (Kitto J). An important aspect of the relevant statutory context is that the applicant, and not her brother, had standing to bring the application for merits review: ss.338, 347(2) of the Act. That was because she was the sister of the visa applicant. In other circumstances, the sponsor or nominator of the visa applicant has standing to apply for merits review. As such, her application for review was brought in the interests of her brother. That suggests that the Act envisages that the opportunity for the brother to present his case for a different visa outcome is the opportunity given to the applicant. There is no issue that the applicant was afforded procedural fairness.

9. Further, the brother was given the opportunity to give oral evidence by means of the Tribunal’s offer to call him if the applicant wanted it to do so. She declined that offer on the basis that his evidence would add nothing to what she had already said. There is nothing to suggest that that was not in fact the case. It may be noted that the Tribunal accepted all of the material concerning the brother’s circumstances in Ramallah: see [24] of its reasons.

10. For those reasons, there was no practical injustice as a result of the fact that the Tribunal did not telephone the applicant’s brother to enable him to give oral evidence.

Other arguments raised at hearing

1. The other issue that arose at the hearing was whether the Tribunal failed to consider matters it was required to consider or, perhaps more accurately, ask the question posed by the Act.

2. As I have noted, the relevant criterion was that in cl.600.211. The Tribunal found that the criterion was not met. Its conclusion was:

   [25] … I am not satisfied in this case that the visa applicant genuinely intends a short visit to Australia as claimed.

3. That conclusion mirrors the major clause in the chapeau to the criterion:

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted

4. That clause is qualified by the phrase “having regard to” and the three subparagraphs that follow. The Tribunal was at least aware of those subparagraphs. After stating the issue for the review, it noted:

   [8]In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

   [9]The tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611(3)): 8101 – must not work in Australia; 8201 – must not engage in study or training in Australia for more than 3 months; and 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia.

5. However, having referred to those conditions, the Tribunal did not mention them again and, at first glance, made no express findings addressed to whether or not the applicant’s brother intended to comply with them. In light of that, I raised with the Minister’s counsel the possibility that the Tribunal had failed to have regard to the matters in sub-cll.600.211(a) and (b).

6. In his written submissions on this issue, the Minister argued that there was no error for two reasons: first, the matters in sub-cll.600.211(a) and (b) were not “relevant considerations” in the sense that a failure to take them into account would be legal error; and secondly, the Tribunal had in fact considered the matters in those sub-paragraphs. I agree with the second argument but not the first.

7. The first argument was based squarely on the fact that sub-cl.600.211(c) (“any other relevant matter”) was so broadly framed to suggest that the considerations relevant to satisfaction of the criterion were not to be confined by rigid mandatory criteria. I agree that the breadth of sub-cl.600.211(c) is relevant to the proper meaning of the criterion as a whole; however, I disagree that it is determinative of it. The critical factor is that the major clause in the criterion is expressly qualified by the phrase “having regard to” and two sub-clauses that are quite specific and readily identifiable in each case. That is to say, the criterion is not simply that “the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”, but that he or she genuinely intends to stay having regard to the matters in the sub-clauses that follow.

8. In other words, the language corrals the decision-maker through the matters referred to in the sub-clauses. If the decision-maker arrives at a conclusion by some other route, then it has not answered the question posed by the criterion and has constructively failed to exercise its jurisdiction: Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23 at 270 [53]-[54] (French CJ, Gummow, Crennan and Kiefel JJ).

9. In respect of the second argument, I agree with the Minister that the Tribunal did consider the matter in sub-cl.600.211(a). It did so by finding that the applicant’s brother had never been to Australia: [16]. This necessarily addressed the issue of whether he had complied substantially with the conditions of a previous visa.

10. I also accept that the Tribunal considered whether the brother intended to comply with the conditions to which the subclass 600 visa would be subject. Although the Tribunal’s exposition of this consideration is not as clear as it might be, there are a number of indications in the Tribunal’s reasons that it did consider the intention to comply with the specific conditions referred to in [9] of its decision. First, it noted the brother’s declarations in his visa application that he would comply with the conditions imposed on the visa: [12]. Secondly, it accepted that the applicant had “an incentive to ensure her brother would comply with visa consideration and depart Australia”. Thirdly, it noted that the applicant’s brother “may not wish to damage his sister’s reputation and prospects of her inviting other family members to Australia and that, to date other members of the family have a positive visa history”: [25].

1. For those reasons, I conclude that the Tribunal understood the requirements of cl.600.211 and properly formed the state of satisfaction in respect of it required by s.65 of the Act.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  29 April 2016