Eid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 499

FEDERAL COURT OF AUSTRALIA

Eid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 499 MIGRATION – application for review of MRT decision – whether tribunal erred in concluding that visa applicant's brother does not reside in Australia – whether s 474 of the Migration Act 1958 (Cth) applies Migration Act 1958 (Cth) ss 351 and 474 GEORGE EID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N42 OF 2002 TAMBERLIN J SYDNEY 9 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N42 OF 2002

BETWEEN: GEORGE EID

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 9 APRIL 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application for review is dismissed. 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 N42 OF 2002

BETWEEN: GEORGE EID

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 9 APRIL 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On this application for review of a decision of the Migration Review Tribunal ("the MRT") the short issue raised is whether the visa applicant's brother, Gaby Eid, usually resides in Lebanon. The MRT found that the visa applicant usually resided in Lebanon at the relevant times. The question, in terms of regulation 1.15 of the Migration Regulations 1994, is whether the brother is an "overseas near relative" who resided both at the time of the application and at the time of the MRT decision, in Lebanon. 2 The conclusion reached by the MRT, was that the visa applicant's brother, Gaby, did in fact usually reside in Lebanon and this meant that the visa application must fail by reason of the disqualification contained in reg 1.15(2). Mr Labasarkis, who has appeared for the applicant, by leave, on this application for review has been critical of the terms of the regulation as being unduly harsh. 3 The harshness or otherwise of regulations is a matter for the legislature and is one which the Court does not have power to prescribe. The function of the Court in this matter is to apply the law and to consider the decision of the MRT to see if there has been any error in the application of the law or in principle, shown in the reasons for decision. 4 Mr Labasarkis has referred to the evidence which was before the MRT in late 2001, almost three years after the date of the application for this visa which indicated that Gaby Eid would be returning to Australia. As at 5 October 2001, it is recorded in a file note that it had received a letter from Gaby Eid indicating that he would return to Australia at some unspecified date in the near future and copies of the family's passports and drivers licenses were furnished. 5 Gaby Eid and his family are Australian citizens but as of 2001, they had been living in Lebanon for a period of over seven years. The submission made by Mr Labasarkis, is that Gaby Eid always proposed to return to Australia and that the stay in Lebanon was temporary. In the application made on 9 November 1998, there is a reference to Gaby Eid as a brother of the visa applicant which indicated that his country of residence is Australia, "Lebanon - now temporary", so that at that stage, it was claimed that Gaby Eid was a resident of Australia and that his stay in Lebanon was "temporary". This, of course, is an assertion and does not, of itself, prove that this was the position at that time. 6 Since that application was made further material had been sent to the MRT in late 2001, before the hearing date, indicating that Mr Gaby Eid has been reassigned to Australia by his church ministry and a copy of his return ticket and letter from the Evangelical Baptist Church in Lebanon was provided. There is no dispute that this material is authentic. It is set out in a letter dated 26 November 2001 and it certifies that Brother Gaby Eid had been a pastor in the Evangelical church in Bishmizzine, Lebanon for more than five years and that he would be moving to Australia on 4 December 2001 with his family to start his ministry in a church in Australia. There were also enclosed copies of airline tickets to Australia for Brother Gaby Eid and his family. It appears that Mr Eid is in Australia at the present time and that he was ordained in Australia on the Sunday prior to the hearing before me. 7 In order to succeed in the application, it was necessary to establish the position as to the usual residence of Mr Gaby Eid as at both the date of the application for the visa and the date of the determination. In the decision of the MRT, attention was directed to the date of the application. That was three years before the additional material came to light. The majority of the additional material supports the submission that Mr Gaby Eid intended, at all relevant times, to return to Australia, however, the fact was that he had been out of Australia at the time of the application in 1998, for a substantial period in the order of five years, and at the time of the hearing of the application by the MRT, for over seven years. The MRT attached considerable weight to these considerations in reaching its conclusion. 8 The Tribunal decision does not expressly deal with the further evidence which, one might have expected, would be normally referred to by it as it was capable of providing and supporting the submission that the stay of Gaby Eid in Lebanon was always subject to the intention to return to Australia because, in fact, that is what has occurred. 9 In order to succeed, it must be shown that the decision which the Tribunal reached in this case was not open to the decision-maker. The function of this Court is not to re-hear the application on the merits and to reconsider the application as a whole, but is simply to determine whether there has been an error in principle in the present circumstances. 10 In my view, it was open to the MRT to reach the conclusion which it did on the evidence before it even though other minds may come to a different conclusion on some of the material. Accordingly, the ground for review of the application has not been made out. 11 An additional difficulty which the applicant faces is the recent amendment to the Migration Act 1958 (Cth) ("the Act") which provides in s 474 for a substantial restriction on the power of the Court to review decisions of administrative tribunals made under the Act. In the present case, in my opinion, the error which has been alleged, in relation to the decision of the MRT, is one that comes within the protection afforded by section 474. 12 The decision is one, which as counsel for the Minister has submitted, relates to the subject matter of the Act. It is on its face a bona fide attempt to exercise the power conferred by the Act and that there has been no breach of any pre-conditions to the exercise of power. There is no dispute that the decision was made in good faith but the submission was, rather, that the MRT came to a wrong conclusion. 13 In these circumstances, having regard to the constraints placed on the Court by the regulations and the limited power of the Court to review these matters and especially having regard to the protective provision in s 474 of the Act, the conclusion which I have reached is that the application for review of the decision must be dismissed. 14 In this case, in my opinion, the regulations operate in a particularly harsh manner given the circumstances which have arisen since the date of the application with the return of Gaby Eid to Australia to reside here. This matter may well be an appropriate one in which the Minister could exercise discretion and power which is conferred on him pursuant to s 351 of the Act, which is clearly designed to cover cases of unusual hardship such as the present. 15 Mr Labasarkis has made submissions in relation to the question of costs. While the normal practice is that the costs of an application for judicial review to this Court follow the outcome of the proceeding, in the particular circumstances of this case, I am persuaded by the submissions of Mr Labasarkis that this is not an appropriate case in which costs should follow the outcome and therefore I make no order as to costs in this matter. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.