Badaoui, Amira & Anor v Minister for Immigration & Multicultural Affairs [1998] FCA 1674

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 199 of 1998

BETWEEN: AMIRA BADAOUI Review Applicant

and: mohamad abbas el chami

Visa Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE of order: 25 august 1998

where made: SYDNEY

the court orders that:

The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 199 of 1998

BETWEEN: AMIRA BADAOUI Review Applicant

and: mohamad abbas el chami

Visa Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 25 august 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: I have before me an application for review of a decision made by the Immigration Review Tribunal ("the Tribunal") concerning an application made for a visa on behalf of Mohamad Abbas El Chami ("the Visa Applicant"). On 8 March 1996, an application was made at the Australian Embassy in Beirut for a Class TR subclass 676 Tourist (Short Stay) Visa. That application was refused on 23 March 1996 by a delegate of the Minister. On 24 June 1996, the Visa Applicant's mother, Amira Badaoui, ("the Review Applicant") applied to the Migration Internal Review Office for a review of the primary decision. On 15 November 1996, a review officer affirmed the decision to refuse the visa. On 31 January 1997, the Review Applicant applied for review of the decision by the Tribunal. On 13 February 1998, the Tribunal affirmed the decision under review not to grant the visa to the Visa Applicant. It is from that decision that a review is sought in this Court. It is common ground that the decision is a judicially reviewable decision within section 475 of the Migration Act 1958 (Cth) ("the Act"). The only grounds, however, upon which the decision may be reviewed are those set out in section 476(1) as explained by subsections (2), (3) and (4) of that section. The application for an order for review refers to several grounds which would fall within section 476(1). In the course of argument, however, counsel for the applicants indicated that the only ground to be pressed was ground 4, as explained by ground 5, in the notice of appeal. The grounds were stated as follows: 4. That there is no evidence or other material to justify the making of the decision. 5. The evidence and material before the decision maker were such as to establish the relevant criteria for the granting of the subject visa. Counsel indicated specifically that section 476(4)(a) was relied upon. Section 476(4)(a) effectively provides that the ground specified in section 476(1)(g) is not to be taken to have been made out unless the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material from which the person could reasonably be satisfied that the matter was established. It was contended that two findings were made as to which it was said the decision maker could not reasonably be satisfied on the basis of the evidence or other material before the decision maker. The first finding was the ultimate conclusion of the Tribunal. The second was the apparent finding that the Visa Applicant had engaged in a marriage which was not genuine. In order to explain the significance of those issues, it is necessary to say something about the legislative framework within which the decision was made. The criteria for the visa in question are set out in Schedule 2 of the Regulations. Clause 676.221(1) of the Schedule provides for criteria which must be satisfied at the time of decision, being that the applicant meets the requirements of subclauses (2), (3) or (4). The relevant subclause is subclause (2), which provides as follows: An applicant meets the requirements of this subclause if: …………………………………………………………………… (c) the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine; and …………………………………………………………………… (e) the applicant satisfies public interest criteria 4001 to 4005, 4011, 4012 4013 and 4014; Schedule 4 sets out public interest criteria. Paragraph 4011 relevantly provides as follows: (1) If the applicant is affected by the risk factor specified in subclause (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry. (2) An applicant is affected by the risk factor referred to in subclause (1) if: ………………………………………………. (b) the applicant has all the characteristics of a class of persons specified by the Minister by Gazette Notice for the purposes of this paragraph. It is common ground that the Visa Applicant has the characteristics of a class so specified, being a man from Lebanon who is over the age of 20 years. It was necessary, therefore, if the Visa Applicant was to obtain the visa in question, that the decision maker be satisfied that there is very little likelihood that the Visa Applicant will remain after the expiry of any period during which he might be authorised to remain after entry. The Visa Applicant has made quite a number of applications to migrate to Australia and has made a number of visitor visa applications. It appears that applications were made in 1988, 1989 and 1990 in order to migrate to Australia and that visitor visa applications were made in 1992, 1993, 1994, 1995 and 1996. The Tribunal observed that the various visitor applications gave a confused picture of the Visa Applicant's marital status and a confused history of his children. Information was obtained by the Tribunal from the migration agent acting for the Visa Applicant. The significant complaint which is made on behalf of the applicants concerns the conclusions reached by the Tribunal in relation to one of the Visa Applicant's purported marriages. The Tribunal pointed out to the Review Applicant that the file contained a divorce certificate, which suggested that her son had been married to one Majdalin Bill who was the holder of an Australian passport. The Review Applicant explained that Ms Bill was a neighbour of hers who had gone to Lebanon with her and who had liked her son and her son had liked her. However, there were some problems in Lebanon with communication with the Embassy and the whole matter fell through. The reasons of the Tribunal record the Review Applicant as saying "He just divorced her, they did not practically get married". The Tribunal recorded that Ms Badaoui said that when she took Ms Bill to Lebanon, Ms Bill was "sick". Ms Badaoui said that Ms Bill "still has that type of disease" and "seems to be mad, for that reason we didn't want her". The Tribunal recorded that Ms Badaoui had gone to Lebanon with the idea that possibly her son would marry this lady and migrate to Australia but they dropped the idea. In its findings the Tribunal recorded that the Visa Applicant entered into a marriage with Majdalin Bill in January 1989. On the basis of this marriage, he applied to migrate to Australia. That application was refused as the Department was not satisfied that it was a genuine marriage. One reason given for this was the fact that the Visa Applicant did not speak English and Majdalin Bill did not speak Arabic. The evidence before the Tribunal suggests that the Department was right in its conclusion that this was not a genuine marriage and that it was entered into for the purposes of assisting the Visa Applicant to migrate to Australia. The Visa Applicant was divorced from Ms Bill on 21 December 1993. The Tribunal has before it visitor visa applications made by the Visa Applicant in 1992 and 1993 prior to this divorce. These applications do not mention that he was married to Ms Bill and therefore had a wife in Australia. The Tribunal was unable to accept the excuses put forward by the Visa Applicant and his brother, Mr Nasser El Chami, for the non inclusion of that information. The Tribunal considered that the non disclosure reflected badly upon the Visa Applicant's credibility. The ultimate conclusion which the Tribunal reached was that it was unable to make a finding that there is very little likelihood that the Visa Applicant would remain after the expiry of the visitor visa. The Tribunal considered that it was more likely that he would overstay and attempt to remain in Australia. It was said on behalf of the applicants that no reasonable person, on the basis of the material before the Tribunal, could have reached those conclusions. It was also suggested that there was a ground of review based on failure by the Tribunal to make further inquiries as to those matters. In that regard, the Review Applicant sought to read two affidavits before me. The first was an affidavit of Susie David sworn 20 August 1998 which annexed a number of certificates of divorce, marriage, birth and the like together with medical reports. The second affidavit was one by the Review Applicant of 19 August 1998 which reviewed much of the history of the Visa Applicant from a personal point of view. After considerable debate, I rejected that material as being irrelevant to the issue before me. The rejected material was said to be relevant to the extent that it indicated the additional material which might have been obtained had the Tribunal made further inquiries. Readily obtainable and ascertainable facts which are relevant to an issue before the Tribunal should be obtained by the Tribunal. However, there does not appear to me to be any basis upon which the Tribunal could be criticised in relation to the matters in question. I received into evidence without objection a transcription of the proceedings before the Tribunal. It is clear that, in the course of that hearing, the Tribunal requested further information along the lines of the information which is annexed to Ms David's affidavit and such information was in fact furnished. The reasons of the Tribunal record the fact that, in mid November 1997, the Tribunal was provided with material comprising a copy of a family register from Lebanon which provided the names and birth dates of the Visa Applicant's eleven children, birth certificates of three of the Visa Applicant's children born in 1983, 1986 and 1987, evidence of Overseas Visitors' Cover with Medibank, a letter from the Visa Applicant's bank in Lebanon, marriage certificates, a statutory declaration by the Review Applicant that the Visa Applicant is living in her home in Tripoli and evidence of funds in the name of the Visa Applicant's brother in Australia. It is clear that the applicants were given ample opportunity to provide any information they wished in relation to the family background of the Visa Applicant. Further, when invited to point to any erroneous findings in that regard made by the Tribunal, counsel for the applicants was unable to do so. The Tribunal made findings concerning the personal position of the Visa Applicant, his children, his marriages and the like. The Tribunal engaged in a balancing exercise not only in relation to the considerations which might lead to the conclusion that the Visa Applicant was more likely than not to return to Lebanon but also in relation to the considerations which might lead to the Visa Applicant remaining after the expiry of his visitor's visa. Briefly, one can summarise those balancing considerations on the basis that while the Visa Applicant has a wife in Lebanon with whom he lives with three children under the age of 18, his income in Lebanon is very much limited. On the other hand, the Visa Applicant has four children living in Australia as well as seven siblings and his parents. He has divorced twice the wife to whom he is presently married, once when she was pregnant. It is certainly difficult to draw final conclusions concerning the relationship which a man from Lebanon might have with his wife, particularly when they are Muslims and the law which might be applicable to them in relation to family matters is very much different from that applicable in Australia. Nevertheless, it is clear that the relationship which the Visa Applicant has with his present wife is one which has been subject to difficulties in the past. The Visa Applicant has exhibited a significant desire to come to this country. Specifically, the reason for his coming to Australia at present is because his mother is old and ill. One can understand and have the utmost sympathy for the relationship between mother and son and one can understand entirely why the Review Applicant desires to have one of her children come to see her and why a son might wish to see his mother. However, that is not the consideration which is before me. Nor was it the only consideration before the Tribunal. It is, of course, one of the matters which had to be taken into account by the Tribunal in reaching its conclusion. However, it reached the conclusion after considering all of the material. The specific matter about which complaint is made concerns the conclusion in relation to the marriage to Majdalin Bill. It was suggested that the applicants were not given ample opportunity to deal with the possible conclusion that the Tribunal might reach that the marriage was not a genuine one. However, it is very difficult to see how such a submission can be put with any force in the light of the material before me in relation to the proceedings before the Tribunal. The following questions were put to the Review Applicant in the course of the hearing before the Tribunal: Question: I have a copy here of a divorce paper from Lebanon which suggests that your son was divorced from a person called Magdalen Bill who was the holder of an Australian passport. Do you know anything about that? Answer: Correct. Yes. She was a neighbour of mine here and she went to the Lebanon and she liked my son and my son liked her and there were some problems over there in communication with the Embassy and therefore the whole matter fell through and he just divorced her. They didn't practically get married. Question: But this says they were divorced, how could they be divorced and not be married. I do not understand? Answer: Well, they didn't get married. When I took her along she was sick, she had some type of disease and she still has that problem. She seems to be mad and for that reason we didn't want her. Question: So was your son going to apply to come to Australia on the basis of this marriage with Magdalen Bill? Answer: Well I accompanied her to Lebanon for the purpose of marriage. We both went together. Question: Right, okay. And then was your idea that your son would migrate to Australia because he was married to this lady? Answer: Possible, but we have dropped the idea, we didn't want the migration nor that marriage. That evidence seems to be almost conclusive as to the marriage being not a genuine one. It is hard to see how, in the light of that, the Tribunal could possibly have come to a different conclusion in that matter. There is every basis, it seems to me, for the Tribunal concluding that the Visa Applicant is a person who was prepared to engage in a marriage which was not genuine in order to delude the Australian authorities into allowing him to migrate to this country. The conclusion that it reflects badly upon the Visa Applicant's credibility, is one which, it seems to me, is well supported by the material before the Tribunal. In the light of that conclusion and in the light of the competing considerations which I have set out above, there is also ample evidence from which a Tribunal could conclude that it is more likely than not that the Visa Applicant would overstay his visa and attempt to remain in Australia. That is not to say that I would necessarily have come to the same conclusion or that anyone else would necessarily have come to the same conclusion. However, the only question for me on this review is whether or not the person who made the decision was required by law to reach the decision only if a particular matter was established and there was no evidence or other material from which the person could reasonably be satisfied that the matter was established. Insofar as the relevant matter is the likelihood that the Visa Applicant would remain after the expiry of the visitor visa, it seems to me that there is ample material from which a person could reasonably be satisfied as to that matter. Insofar as the basis of the challenge is the conclusion concerning the marriage to Majdalin Bill, it is not for me to reach a conclusion one way or the other. However, I am certainly satisfied that there was evidence or other material from which the Tribunal could reasonably be satisfied that the marriage was not a genuine one. In those circumstances, the challenge to the decision fails and the application should be dismissed with costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett