Afghan v Minister for Immigration
[2018] FCCA 3632
•11 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFGHAN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3632 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal acted in compliance with s.360 of the Migration Act – whether the Tribunal gave the applicant a meaningful opportunity to address an issue in the review – whether there was no evidence upon which the Tribunal could base its finding – whether the Tribunal took into account an irrelevant consideration – no breach of s.360 of the Migration Act made out – “no evidence” to support finding ground not made out – Tribunal took into account an irrelevant consideration – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), ss.360, 368, 476 Migration Regulations 1994 (Cth), reg.1.05A, 1.12, sch. 2, cl.309, 309.311 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
Applicant: | MIR AFGHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3342 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 February 2017 |
| Date of Last Submission: | 28 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Salvos Legal |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 5 November 2015.
A writ in the nature of mandamus issue directing the second respondent to re-hear the application for review made by the applicant on 11 July 2014 according to law.
The first respondent to pay the applicant’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3342 of 2015
| MIR AFGHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 December 2015, and as further amended on 13 February 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 5 November 2015, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse Partner (Provisional) (Class UF) visas to secondary visa applicants Ms Kubra, Ms Nadira, Ms Shagofa, Mr N Ahmed, Mr B Ahmed and Mr F Ahmed.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Alanna Lucchese, solicitor, made on 24 February 2017, annexing a copy of the delegate’s decision record relating to Ms Tahira.
c)The affidavit of Richard Hardy, solicitor, made on 31 March 2016, annexing a transcript (“T”) of the hearing before the Tribunal at which Mr Afghan, the sponsor of the “secondary visa applicants”, and his wife, gave evidence.
d)The affidavit of Richard Hardy, solicitor, made on 27 February 2017, annexing a copy of Mr Afghan’s application for review to the Tribunal dated 23 February 2017.
Background
The applicant in these proceedings is Mr Afghan who is the proposed sponsor for the partner visas. Mr Afghan was the review applicant before the Tribunal. The primary visa applicant was Ms Tahira, Mr Afghan’s wife. Ms Tahira was not a visa applicant for the purposes of the Tribunal’s decision that forms the subject of these proceedings.
Ms Kubra, Ms Nadira, Ms Shagofa, Mr N Ahmed, Mr B Ahmed and Mr F Ahmed are the secondary visa applicants for the Partner (Provisional) (Class UF) visas, and the visa applicants the subject of the Tribunal’s decision that forms the basis of the proceedings before the Court. Mr Afghan’s and Ms Tahir’s son was also included as a secondary applicant for the visa, but is not a visa applicant or the subject of the Tribunal decision that forms the basis of these proceedings.
A note of explanation regarding all of the persons involved in the Tribunal’s consideration is necessary. Mr Afghan left Afghanistan in 2008. He came to Australia sometime in 2012 (CB 5) and subsequently acquired “permanent residence” in Australia.
His wife, Ms Tahira, and their son, and Mr Afghan’s mother and his five siblings remained overseas. They all applied to come to Australia.
Ms Tahira applied for a partner visa on the basis that she was the spouse of Mr Afghan. Their son was a part of that application. The disposition of their application was the subject of another Tribunal decision which does not concern us for current purposes.
Also a part of Ms Tahira’s application were Mr Afghan’s mother and his five siblings. They all applied for partner visas on the basis of being members, for the purposes of the visa application, of Ms Tahira’s family. It is these six applicants who were the subject of the Tribunal decision now before the Court. For current purposes they can be referred to as the “secondary visa applicants” (that is, secondary to the primary visa applicant, Mr Afghan’s wife).
The secondary visa applicants made their application for the visas which was received by the Minister’s department on 13 May 2013 (CB 1 to CB 151). The delegate refused the application for the visas on 5 May 2014 (CB 180 to CB 189). The delegate stated that “[a] separate decision will be made in respect of the Primary Applicant [Ms Tahira] and the Secondary Applicant(7) does not form part of this decision record” (CB 185.9). In context, the “Secondary Applicant (7)” was Mr Afghan’s and Ms Tahira’s son.
The delegate found that the remaining six secondary visa applicants did not meet the relevant criteria for the grant of the visas. The delegate was not satisfied that the “[s]econdary [visa] [a]pplicants [were] wholly or significantly financially reliant upon the [p]rimary [a]pplicant” (CB 188.4). The delegate found that the secondary visa applicants were dependent upon the “[s]ponsor” [Mr Afghan] and not upon the “[p]rimary [visa] [a]pplicant” (Ms Tahira) and as such, were not “member[s] of the family unit” of the primary visa applicant, and therefore did not meet reg.309.311 of the Migration Regulations 1994 (Cth) (“the Regulations”) for the grant of the visas.
Mr Afghan applied for review to the Tribunal on 11 July 2014 (CB 190 to CB 193). Mr Afghan was invited to, and attended, a hearing before the Tribunal on 18 August 2015 (CB 209 to CB 212 and CB 359 to CB 361). Ms Tahira also gave oral evidence at the Tribunal hearing. Mr Afghan’s representative sent further documentation to the Tribunal via email on 14 August 2015 and written submissions on 17 August 2015 (CB 219 to CB 358). The Tribunal affirmed the delegate’s decision on 5 November 2015 (CB 366 to CB 370).
The Tribunal considered that “the issue” before it was “whether the secondary applicants are members of the family unit of the primary applicant pursuant to Regulation 1.12(1)” of the Regulations ([18] at CB 369). The Tribunal did not accept that Ms Tahira, the primary visa applicant, was the “only person to work and that she earn[t] sufficient income from part time domestic work to support eight people, seven of them adults” ([24] at CB 369 to CB 370).
The Tribunal also considered that evidence provided to the Minister’s department in the visa application, contradicted evidence before the Tribunal. This evidence was whether Ms Tahira, the primary visa applicant, was employed, or whether Mr Afghan actually supported the secondary visa applicants financially. The Tribunal emphasised that the delegate had stated that Ms Tahira had claimed to be unemployed, and that Mr Afghan “in a phone call with the delegate … declared that he provides financial support to the secondary applicants” ([25] at CB 370). The Tribunal considered the contradiction remained “unexplained” ([25] at CB 370).
Further, the Tribunal asked Mr Afghan what Ms Tahira, as the primary visa applicant, would do if she and her son were granted the relevant visas but her husband’s family were not. Mr Afghan stated that Ms Tahira “would not come as it is important that the secondary [visa] applicants are all granted visas” ([26] at CB 370). This suggested to the Tribunal that the “primary motivation” for the visa application was to “obtain a visa outcome for [Mr Afghan’s] family and not for [Ms Tahira] to be able to join her husband in Australia, along with their son” ([26] at CB 370).
The Tribunal found that the secondary applicants did not meet cl.309.311 of the Regulations and affirmed the delegate’s decision on this basis ([28] at CB 370).
The Application to the Court
At the final hearing, the applicant and the Minister were represented by their respective counsel. The Minister had filed written submissions. The applicant had filed written submissions. At the final hearing, the applicant also sought leave to rely on a further amended application filed with the Court. Leave was granted.
Following the final hearing, the matter was adjourned pending the outcome of Mr Afghan’s wife’s (Ms Tahira’s) application for review to the Tribunal, and the parties were to notify the Court of the making of that decision. The applicant’s solicitor notified the Court by email sent to chambers on 3 April 2018, indicating that the Tribunal had remitted the matter for reconsideration, but that the Court may proceed to judgment in the matter before the Court.
The Minister’s solicitor advised the Court by email sent to chambers on 7 May 2018 that the Minister no longer pressed [30] – [31] of his written submissions in light of the Tribunal’s decision concerning Mr Afghan’s wife, dated 19 March 2018. The matter was subsequently listed for directions but the listing was vacated by consent following further email correspondence to chambers from the parties prior to the listing, indicating that they agreed that no further orders or hearing were required on the substantive issues before the Court.
The grounds of the further amended application to the Court are in the following terms:
“1. [Abandoned]
2. The Tribunal acted in breach of s. 360 of the Migration Act.
(a) Failure to put to the applicant that it may not accept that the applicant’s adult siblings, or one or more of them do not work.
3. There was no evidence upon which the Tribunal could base its finding that the applicant’s adult siblings, or one or more of them, do not work.
4. The Tribunal took an irrelevant consideration into account.
Particulars
(a) What the Tribunal found to be the primary motivation to the applicant, that being to have his whole family be granted visas, and not for his wife and son to join him in Australia.”
Consideration
As set out above, Mr Afghan pressed three grounds in his further amended application. He did not press ground one. For the reasons that follow, grounds two and three are not made out. Ground four is made out and provides the basis to grant the relief sought by Mr Afghan now. Given that circumstance it is appropriate to deal with ground four first.
Ground four
Ground four asserts that the Tribunal took into account an irrelevant consideration. That is, the Tribunal found the “primary motivation” of Mr Afghan, was to have his entire (extended) family obtain visas, not just visas for his wife and son, to join him in Australia.
That directs attention to [26] and [27] (CB 370) of the Tribunal’s decision:
“26. As the Department has decided to make a separate decision in relation to the primary applicant and the secondary applicant who is their son, the Tribunal asked the review applicant what the visa applicant will do if she and her son are granted a visa but not the other members of the review applicant's family. He said if that were the case, the visa applicant would not come as it is important that the secondary applicants are all granted visas. This suggests the primary motivation for the visa application is to obtain a visa outcome for the review applicant's family and not for the visa applicant to be able to join her husband in Australia, along with their son.
27. Given these findings the Tribunal is not satisfied that at [the time the visa application was made and the time of this decision the secondary applicants were members of the family unit of the family head.”
[Emphasis added]
Mr Afghan relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”) (per Mason J at 39 – 40) to argue that the Tribunal’s finding that Mr Afghan’s motivation in the visa application involving all of the family was an irrelevant consideration for the purposes of the regulatory requirements for the grant of the visas to the secondary visa applicants.
The Minister’s response was that in Peko-Wallsend Mason J also explained:
“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal (36); Hanks v. Minister of Housing and Local Government (37); Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (38). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London (); Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (40).”
In short, the Minister’s argument was that, if what the Tribunal set out at [26] was to be viewed as being irrelevant to the regulatory task set for the Tribunal, then consideration needs to be given to the materiality of what the Tribunal said to the decision “as a whole”.
There can be no dispute that the relevant criteria for the Tribunal to consider in the current case are the matters set out at cl.309 of Sch.2 to the Migration Regulations (“the Regulations”).
For current purposes, given the nature of the application before the Tribunal as it related to the secondary visa applicants, the relevant parts of cl.309 were informed by reg.1.05A(1)(a)(i) and (ii) and reg.1.12(1) (as they stood at the relevant time):
“1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; …”
…
“1.12 Member of the family unit
(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.”
In short, those parts of the Regulations provide the framework for what is relevant to the Tribunal’s consideration in relation to the visa application by the secondary visa applicants.
There is nothing in the relevant regulatory “scheme” that can be said to provide the basis for the argument that Mr Afghan’s motivation was a relevant consideration for the Tribunal in the proper exercise of the tasks set for it by the Regulations.
The Minister submitted that at its highest what the Tribunal stated at [26] was a “suggestion” that the “primary motivation” for the visa application was to obtain a visa outcome for Mr Afghan’s entire family, not just his wife and son.
It is the case that the Tribunal does use the word “suggests” at [26]. However, I agree with Mr Afghan’s submission, that even when the Tribunal’s decision is read fairly, the reference to: “Given these findings”, as it appears at the beginning of [27], which immediately follows from [26] (and [24] – [25]), means that a part of the Tribunal’s reasons for affirming the delegate’s decision, even when read fairly, was the “suggestion” relating to motivation.
When viewed in this way it cannot be said that what the Tribunal set out at [26] was not “material” to its conclusion.
The Minister also submitted, in relation to [26], that it is not evident that the Tribunal understood, or took the view, that motivation was a part of its task in determining whether the secondary visa applicants met the criteria for the visa.
The Minister based this proposition on the following. At [18] and [19] of its decision record the Tribunal set out the “relevant” clauses of Sch.2 of the Regulations, and the requirements for family members. At [24] and [25] the Tribunal set out its findings as to the question of financial dependency. The Minister submitted that this was relevant to the consideration.
However, the Minister also submitted that the question of motivation “pops up oddly” after [25]. Nonetheless, the argument was that there was no “interplay” between what is said about motivation, and its being a material finding in the “meeting” of the visa criteria.
The Minister’s argument ultimately was that what is set out in the Regulations is not simply a “checklist”, but a matter of discretion, and satisfaction, on the part of the decision maker that the criteria are satisfied.
He sought to illustrate this submission, and its link to the “materiality” argument (as referred to above), with reference to the situation where a Tribunal member makes findings, for example, on credibility of an applicant’s claims.
That is, as explained in Minister for Immigration & Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559, the Tribunal is required to make findings of fact, which includes findings on credibility, and then apply the law. The argument was that in the current case, at [26], the Tribunal made certain findings of fact, but when it came to the application of the law (the Regulations), Mr Afghan’s “motivation” was not a part of that “application”.
Therefore given that what was said at [26] did not relate to a prescribed factor in the Regulations, it does not necessarily follow that what the Tribunal said at [26] can be characterised as taking into account an irrelevant consideration.
In short, there is nothing in the decision record that links [26] (“motivation”) to the meeting of the regulatory requirements. That is, what was said at [26] was part of the findings of fact, not the subsequent application of the law.
I do not accept the Minister’s argument. Tribunal decisions are meant to be read fairly (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). I do not, however, understand this requirement to mean that they should be read with a “constructed” view of what was said so as to arrive at a conclusion that the Tribunal only took into account relevant considerations.
It may well be that the Tribunal was concerned with the “credibility” of the visa application of the secondary applicants, given Mr Afghan’s, it must be said, “convenient” change in evidence as to the provision of financial support to his siblings following the delegate’s decision. But the task for the Tribunal was, simply, to focus on the Regulations which are relevant to the question posed by the application, which was whether the secondary visa applicants satisfied, or met, the regulatory criteria.
The question posed by the criteria in the current case was a simple, and confined, question. That is, were the secondary visa applicants wholly or substantially reliant, greater than a reliance on any other person (other than Ms Tahira), for financial support to meet basic needs, such that they met the regulatory criterion for the grant of the visa which was that they were members of Mr Afghan’s wife’s family.
I cannot see how Mr Afghan’s motivation can be said to be a part of the relevant consideration in fulfilling that task.
It may be that at the hearing the Tribunal asked Mr Afghan, as it notes in [26], what would happen if visas were granted to his wife and son, and not his siblings, so as to “test” Mr Afghan’s evidence about his “subsequent” claim that his wife was the sole financial provider to the entire family in Afghanistan.
On its face that may have been an appropriate course of questioning at the hearing. But what Mr Afghan’s argument now focuses on is not necessarily what occurred at the Tribunal hearing, but, as ground four asserts, whether in its relevant “enquiry” the Tribunal took into account an irrelevant consideration.
In the current case, what was relevant was given shape by the Regulations (as set out above). Section 368 of the Act required the Tribunal to provide a written statement of its decision. That specifically required the Tribunal to set out its reasons for the decision. That is, in essence, the reasons why the secondary visa applicants did not meet the regulatory criteria.
In this it was also required to set out “the findings on any material questions of fact” (s.368(1)(c)), and the evidence on which they were based (s.368(1)(d)).
The Minister’s submissions on “materiality” must also be seen in light of the requirement arising from s.368(1)(c), that is, the “findings” on “questions of fact” for the Tribunal as set out in its decision record, must be findings that are material to the questions of fact relevant to the regulatory criteria applicable to the secondary visa applicants.
In the current case, what the Tribunal set out at [26] must be taken to be a part of the reason, and includes findings of fact, which went to the ultimate question as to whether the secondary visa applicants were members of Mr Afghan’s wife’s family.
What the Tribunal set out at [27] cannot be ignored. The Tribunal itself links the findings at [26] (and [24] and [25]) to the reasons that it found adversely for the secondary visa applicants in relation to that question.
The finding at [26] concerning Mr Afghan’s motivation, whether it be described as a “suggestion” arising from the evidence, or a finding, was a part of the Tribunal’s reasoning process, and the factual matrix for its findings adverse to the secondary visa applicants.
That, given the regulatory requirement, was an irrelevant consideration in the sense explained in Peko-Wallsend. Therefore ground four is made out. Mr Afghan is entitled to the relief he seeks. There is no reason not to make the orders that he seeks. I will make the appropriate orders.
While I have found for Mr Afghan in relation to ground four, nonetheless, the parties made submissions in relation to grounds two and three. The consideration of those grounds is set out below.
Ground two
Ground two of the further amended application asserts that the Tribunal breached s.360 of the Act. The particular to the ground asserts that the Tribunal failed to put to Mr Afghan, at the hearing, that it may not accept that his adult siblings do not work.
The background to this ground is that, as set out above, Mr Afghan’s siblings applied for the visas as the family members of Mr Afghan’s wife’s family unit (with reference in particular to cl.309.21). That is, to be granted the visa they must satisfy that criterion.
“Member of the family unit” is defined in the Regulations at reg.1.12. For current purposes, reg.1.12(1)(e) is relevant:
“1.12 Member of the family unit
(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.”
[Emphasis added]
“Dependent” is defined at reg.1.05A. For current purposes, reg.1.05A(1)(a) is relevant:
“1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; …”
[Emphasis added]
Before the Court one of the areas of dispute was the identification of the actual issue, or issues, in the review (see further below). As is clear, Mr Afghan’s complaint in ground two, when read with the particular, is that the Tribunal did not give Mr Afghan a meaningful opportunity to address what the particulars assert was an “issue” in the review. Namely, whether the siblings, either individually or collectively, did not work.
The delegate found that:
“I am not satisfied that the Secondary Applicants are wholly or significantly financially reliant upon the Primary Applicant. The Secondary Applicants have declared that they reside with the Primary Applicant and that they are dependent on her. In this case however, the Primary Applicant has declared that she is unemployed and dependent on the Sponsor. The Sponsor in a phone call with a member of our department on 18 March 2014 declared that he provides financial support to all the applicants. He declared the Primary Applicant is not employed and he was occasionally sending money. The Sponsor further stated he had a business before migrating to Australia and the money from this business had been left to support the Primary Applicant plus the Secondary Applicants. Therefore, I consider that the Secondary Applicants are dependent on the Sponsor for financial support.”
Relevantly, the delegate found that Mr Afghan’s siblings were not “dependent” on Mr Afghan’s wife (that is, for the visa purposes the head of the family unit). The delegate found that they were dependent on Mr Afghan.
The delegate also found relevant as background to the particulars to ground two:
“Notwithstanding the lack of evidence provided, for the purposes of this decision it is accepted that the Secondary Applicants do not work and have no independent source of income.”
Before the Court, Mr Afghan submitted that in dispute with the delegate’s findings, he said in a subsequent statement provided to the Tribunal:
“29. Soon after I first came to Australia in 2012, I arranged for the transfer of around$400 to my family. I gave this to a person, who arranged for the money to be given to my family in Pakistan. I have not been able to provide more financial support to my family, because of my financial circumstances.
30. When I returned to Pakistan, I took money to buy some clothes and household goods such as oil, rice and food for my family. I paid for my family and I to eat in restaurants.
31. I speak with my family every day by telephone.
32. My mother is too old and frail to work. In our culture, she also is not expected to work.
33. My sisters and brothers have never worked. The economic situation in the area in which my family live is very bad. There is no work for my brothers. It is also very dangerous to go out in the community and work, because of attacks by extremists against Hazara and Shia people. My sisters are not married. In our culture, they are not to go out and work.
34. My wife has worked and supported the family.”
[Errors in original]
Mr Afghan submitted that there were specific aspects of his account which the Tribunal considered important (with reference to [21] – [26] of the Tribunal’s decision). This, relevantly, was the “issue” that it may not accept that Mr Afghan siblings did not work.
He relies on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] (2006) 228 CLR 152 (“SZBEL”) (at 165 – 166 [47]) to argue that the opportunity was not given to him by the Tribunal, at the hearing, to address this issue. That is, the Tribunal did not put him on notice that his account may not be accepted, and therefore the Tribunal breached s.360 of the Act.
In relation to what relevantly occurred at the Tribunal hearing, Mr Afghan, in his submissions referred to what was put to his wife at the Tribunal hearing. He then refers to T15, as to what was put to him. However, the transcript at T15 reveals questions were still being put to Mr Afghan’s wife, not to Mr Afghan:
MR AFGHAN: Tahira.
MS BANFIELD: Talia?
THE INTERPRETER: Tahira.
MS BANFIELD: Tahira. Okay. Now, Tahira, I just have been speaking to your husband about the review application, and I just wanted to explain to you how we are proceeding today. So this hearing today is about the secondary applicants to the visa application. So that is it's in relation to the department's decision about your husband's mother and siblings.
THE INTERPRETER: Okay.
MS BANFIELD: So the Department of Immigration has said that they're going to make a separate decision about the application in relation to you and your son.
THE INTERPRETER: Okay. Waiting.
MS BANFIELD: Okay. So on that, today I'm going to be asking you some questions about the claims that your husband's family are members of the family unit, and that they are reliant upon you for financial support.
THE INTERPRETER: Yes. Okay.
MS BANFIELD: Okay. So can you tell me where you are living at the moment, and who you live with.
THE INTERPRETER: We are living in Mariabad, together with my husband's mother and sibling.
MS BANFIELD: And where do you obtain your income from to support the family?
THE INTERPRETER: I'm working and I'm providing for the family.
MS BANFIELD: And what kind of work are you doing to receive income for the family?
THE INTERPRETER: At the moment?
MS BANFIELD: Yes.
THE INTERPRETER: So I work in three places, in three houses. The two are like a everyday work. I go there and I cook for them. The third house, once a week, or two days in a week, if they need me, I go in work.
MS BANFIELD: And does anyone else in the family work?
THE INTERPRETER: No. I'm the only person working.
MS BANFIELD: And why don't your husband's three brothers work?
THE INTERPRETER: So I'm the only person working, and in Mariabad there's no job for them. If they want to work they have to go to another places, and there is no safety and security for them to go and find job, and even I am concerned about their safety and security, and I said to them don't go out, stay, I work for you. I can work for you.
MS BANFIELD: Okay. And what about your sisters-in-law? Are they not able to do the kind of work that you do?
THE INTERPRETER: She is helping me at home, do the cleaning and cooking. Culturally and religiously, unmarried girl they are not allowed to go and work outside, and even for me I try to hide. Not to tell others that I am working at people's houses. It's like a shame if I tell someone about it.
MS BANFIELD: Okay. Does your husband work in Australia at the moment?
THE INTERPRETER: He said to me just recently he started to work as a taxi driver.
MS BANFIELD: Does he send any money to the family for financial support?
THE INTERPRETER: No. Only once when he went to Australia, once he send me $400. That’s it.
MS BANFIELD: And do you have any family in Pakistan?
THE INTERPRETER: Yes.
MS BANFIELD: I mean, do you have any apart from your husband’s family?
THE INTERPRETER: Yes. My family, from my family, yes. Not from the – not from my husband’s family.
MS BANFIELD: Okay. What – do you have any brothers or sisters in Pakistan?
THE INTERPRETER: Yes. My brother.
MS BANFIELD: And does he provide any assistance to you?
THE INTERPRETER: No. He has responsibility to support his own family. He cannot help me.
MS BANFIELD: And what would your husband’s family do – how would they support themselves if you – if they were not able to get assistance from you?
THE INTERPRETER: So that’s why I am here, to support them.
MS BANFIELD: What will happen if the Department of Immigration in Australia granted you and your son a visa, but not your husband’s siblings and mother?
THE INTERPRETER: It shouldn’t happen that way, and I’m waiting for everybody to get their visa.
MS BANFIELD: Okay. Does your family receive any income from anywhere else in Pakistan, like any refugee assistance, or anything like that?
THE INTERPRETER: No. No one is helping us.
MS BANFIELD: Okay. Have you been able to find work for the whole time that you’ve been in Pakistan?
THE INTERPRETER: Yes. Otherwise – yes. In the beginning I was doing embroidery, but for the last two years I working people’s houses.
MS BANFIELD: Okay. All right. I don’t have any more questions for you. Is there anything else that you want to tell me about the application, that I haven’t asked you?
In his argument before the Court, while he made reference to the delegate’s decision, Mr Afghan focused on the Tribunal’s decision so as to be able to make good the proposition he seeks to derive from SZBEL at [47]:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Some care must be taken in applying what the High Court said there to the current circumstances. This is not a case where the Tribunal made any finding that Mr Afghan was not a witness of truth, or that he embellished some aspect of his account. While the Tribunal found that he had not provided a satisfactory explanation for one inconsistency in the evidence (see [25] at CB 370) there is a difference between the Tribunal preferring one piece of evidence over another, and making a finding of adverse credibility.
In my respectful view, the focus in SZBEL was on the procedurally fair opportunity to be provided to an applicant “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (with reference to s.425, and by analogy to s.360 of the Act).
As was made clear in SZBEL at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[Emphasis added]
In his submissions, Mr Afghan identified an “issue” in the review as being whether Mr Afghan’s siblings worked. That must be tested, at first, with the question as to whether this was an issue arising in relation to the delegate’s decision.
To understand the answer to that question, attention must be given to what was actually, and relevantly, claimed before the delegate.
Before the Court, the Minister drew attention to the delegate’s decision, and in particular to that part reproduced at CB 188 and CB 189:
“I am not satisfied that the Secondary Applicants are wholly or significantly financially reliant upon the Primary Applicant. The Secondary Applicants have declared that they reside with the Primary Applicant and that they are dependent on her. In this case however, the Primary Applicant has declared that she is unemployed and dependent on the Sponsor. The Sponsor in a phone call with a member of our department on 18 March 2014 declared that he provides financial support to all the applicants. He declared the Primary Applicant is not employed and he was occasionally sending money. The Sponsor further stated he had a business before migrating to Australia and the money from this business had been left to support the Primary Applicant plus the Secondary Applicants. Therefore, I consider that the Secondary Applicants are dependent on the Sponsor for financial support.
…
In this case I find that the financial support provided to the Secondary Applicants is solely as result of the Sponsor’s familial relationship with the Secondary Applicants rather than any relationship or obligation upon the Primary Applicant. I find that the Sponsor’s support of his mother and siblings is only dependent upon his relationship with the Primary Applicant for ease of distribution, and that he would continue to support them in the same way if the Primary Applicant were not available to distribute the support.
Limited evidence has been provided to verify whether the husband/father of the Secondary Applicants is deceased. However, I have not assessed this requirement as I have found that the Secondary Applicants are not dependent upon the Primary Applicant.
For these reasons I assess that the Secondary Applicants are dependent on the Sponsor and not dependent upon the Primary Applicant. As such they are not ‘member of the family unit’ of the Primary Applicant and they do not satisfy the criteria set out in sub regulation 309.311.”
[Errors in original]
It is to be remembered that a relevant key component for the granting of the visa to the secondary visa applicants was the decision maker’s satisfaction that they were wholly, or substantially dependent for financial support on the primary visa applicant. In the current case, that is Mr Afghan’s wife.
In his decision record the delegate had regard to the claims as advanced by Mr Afghan and his wife. The delegate referred to information given by Mr Afghan to an officer of the Minister’s department that he provided financial support to all of the visa applicants. That is his wife, his son, his mother, and for immediate purposes his siblings.
The delegate also referred to Mr Afghan’s wife’s Declaration that she “is unemployed and dependent on” Mr Afghan (CB 188). For her part, Mr Afghan’s wife, as referred to by the delegate, declared in the visa application that she “is unemployed and dependent on” Mr Afghan.
Based on this information, the delegate found as set out above at [60] of this judgement.
Based on this information, the delegate reasoned that the financial support provided by Mr Afghan to his siblings (and his mother) was because of his familial relationship with them, “rather than any relationship obligation upon” Mr Afghan’s wife. The delegate found that the siblings were dependent on Mr Afghan, and not Mr Afghan’s wife. They were therefore not members of her family unit and did not satisfy the relevant criterion for the grant of the visa.
As set out above, in a statement provided to the Tribunal Mr Afghan stated that his and his wife’s earlier claims were “not correct”. He stated:
“46. In the visa application, including in the forms and information given during the application process, it was stated that my wife did not work and that I supported the family. This is incorrect. I did not know that it was important to give information about my wife’s work. The migration agents that prepared the visa application for my family and I, did not tell me that this was important.
47. In our culture, it is not respectful for a wife and mother to be working to support a family. It is regarded as shameful for me, for my wife to be working and supporting the family, so I do not talk about this much.
48. My wife has been working and earning money in Pakistan to support herself, our son, my mother and my siblings, in the past years the, including before the visa application was submitted in May 2013.” (CB 224 to CB 225)
Mr Afghan now argues that an “issue” in the review is whether Mr Afghan’s siblings do not work. The Tribunal’s breach of s.360 is said to be the failure to put to Mr Afghan that it may not accept that they do not work.
I do not agree with the applicant that this particular matter was an “issue” in the review engaging what was said in SZBEL at [47].
First, Mr Afghan’s statement to the Tribunal, which the Tribunal told him at the hearing it had read (T7 lines 22 and 23), expressed a different, and new claim, to the Tribunal. Previously, the claim was that he was the primary source of financial support for his siblings. In the statement it was said Mr Afghan’s wife was the sole financial contributor to his siblings. That is, that she worked to support the entire family.
Second, in that light therefore the Tribunal found that it did not accept that Mr Afghan’s wife “is the only person to work” (at [24]). The focus therefore was on whether Mr Afghan’s wife worked as was claimed by Mr Afghan in his statement, and as given in evidence by Mr Afghan’s wife to the Tribunal at the hearing.
Third, that “issue” was plainly not an issue before the delegate, given that before the delegate there was no real dispute that the wife did not work, and the siblings were supported by Mr Afghan.
However, that claim became “at issue” given Mr Afghan’s written statement to the Tribunal, and his wife’s oral evidence to the Tribunal. That is, the Tribunal was faced with two “conflicting” claims from Mr Afghan (and his wife). On the one hand, and before the delegate, the claim was, in essence, that she did not work and he supported the siblings, on the other hand, she worked and was the sole support of the siblings.
Fourth, importantly in my view, it was not “at issue” as to whether the siblings worked or not. What was at issue was whether Mr Afghan’s wife worked, and was the substantial financial supporter of the siblings, or not.
Fifth, before the Court, Mr Afghan’s argument, in essence, relied on the proposal that, implicit in the Tribunal’s reasoning and findings, was a “finding” by the Tribunal that the siblings did not work.
The Tribunal’s reasoning certainly makes reference to the siblings not working ([26] at CB 370). But here the Tribunal is recounting the claims made to it by Mr Afghan and his wife. That is, they claimed that the three brothers did not work because they were unable to find work and the two sisters could not work for cultural reasons.
The Tribunal made no express finding that the siblings did not work. Nor can it be said that any such finding can be inferred, that was a part of the reasoning in the review, such that it was an issue in the review. The focus was on Mr Afghan’s (later) claim, supported by his wife, that she was the only one who worked, and was the financial supporter of the siblings.
What the Tribunal did not accept was that she was the only one who worked and earned sufficient income to support eight people, and Mr Afghan’s subsequent claim (in his statement) that he did not financially support them.
Six, the Minister referred to SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 (“SZHBX”) (per Edmonds J) which provides assistance in the current circumstances. This was a case concerning the understanding of what the High Court said in SZBEL and its application. At [13] and [14] his Honour stated:
“13. SZBEL is authority that s 425 does not confine the Tribunal to the issues which the delegate considered dispositive, but does require the Tribunal to disclose to the applicant additional issues it identifies which were not considered by the delegate to be dispositive and were not argued by the applicant:
‘The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.’ ((2006) 81 ALJR 515 at [35]).
14. Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue. If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter ((2006) 81 ALJR 515 at [36]). It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.”
[Emphasis added]
The facts of this case in my respectful view fall within the understanding of the application of the principles in SZBEL as set out in [14] of SZHBX, and in particular following the words: “It is an entirely different matter…”
In the current case, following the delegate’s decision, Mr Afghan himself made a different claim as to whether his wife was working, and provided sole financial support to his siblings. Not only was this “additional evidence”, but was clearly a “change” in his claims.
As was explained in SZHBX, in the circumstances, the Tribunal did not have a duty to tell Mr Afghan that his subsequent claim that his wife was in fact working and was the sole financial support was not to be accepted.
That is, the Tribunal did not have a duty to inform Mr Afghan (to respectfully draw on SZHBX) “that because the evidence on which he… now relies is different from the evidence before the delegate”, that it “may make different factual findings” to those of the delegate.
In short, whether the siblings worked or not was not an issue in the review. The issue was whether Mr Afghan’s evidence that his wife worked and was the sole provider for the siblings was to be accepted. That issue was discussed at the hearing with Mr Afghan, and his wife (see T9 line 34 to T 10 line 46 and T14 line 46 to T16 line 13).
What the Tribunal discussed at the hearing were the claims made and, the evidence given, by Mr Afghan and his wife on which its findings were subsequently based.
That the siblings did not work may be a proposition that can be seen as a consequence of the Tribunal’s analysis, but it is not a part of the Tribunal’s reasoning such that it can be said that it was an issue in the review.
It was Mr Afghan’s evidence, and that of his wife, that the siblings did not work. The Tribunal’s reasoning did not reject this proposition. It found that (whatever their work status) it did not accept that Mr Afghan’s wife was the only one working and earning an income which provided for the substantial support of the siblings. In all, ground two is not made out.
Ground three
Ground three asserts that there was “no evidence” upon which the Tribunal could base its finding that Mr Afghan’s siblings did not work.
Mr Afghan’s submission was that there was no evidence that “the brothers” were not working. That is, it “simply” did not accept that they were not working. It did so, not by questioning Mr Afghan or his wife, but simply found, on “an impression”, that this was the case.
Mr Afghan directed attention to [24] of the Tribunal’s decision record:
“Although it was claimed the security situation is not safe for the review applicant's brothers, the Tribunal does not accept that the visa applicant is the only person to work and that she earns sufficient income from part time domestic work to support eight people, seven of them adults. In addition, six of the adults who it is claimed are the sponsor's siblings are aged approximately 19, 20, 21, 24 and 25. The parties have claimed that the three male siblings do not work as there is no employment for them and the visa applicant is concerned for their safety. The two female siblings do not work because they are unmarried and for cultural reasons are not permitted to work outside of the home. Similarly, the review applicant's mother has never worked and is not expected to work in Pakistan. The review applicant claims that his siblings have never worked. When in Afghanistan, they were studying when he had a bakery business and in Pakistan, there is no work for them.”
Mr Afghan relied on SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 (“SFGB”) (and Australasian Meat Industry Employees’ Union v Fair Work (2012) 203 FCR 389) (per Flick J) for the proposition that the Tribunal would fall into jurisdictional error if it relied on “no evidence”, and there was an absence of evidence, on which it derived its findings of fact. That is, that a finding of fact, critical to the decision which is not supported by any evidence, will reveal jurisdictional error.
Mr Afghan’s submission was that in the current case it was a vital (“critical”) component in the Tribunal’s reasoning that the family’s financial support in Afghanistan came with a contribution from Mr Afghan’s brothers. In short, there was no evidence to support that finding made by the Tribunal.
The parties did not dispute that, with respect, there is some question whether SFGB reflects the current situation of the law. Mr Afghan acknowledged there was some argument, or commentary, about this but that SFGB was Full Court authority and therefore binding on this Court. (See SZNKV v Minister for Immigration & Citizenship (2010) 118 ALD 232 at 243 [38] and the cases cited there, Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 [39] and Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 622 [31]).
In any event, it is not necessary, in the current case, to address this. That is because Mr Afghan’s ground is not made out for the following reasons which do not transgress what was said in SFGB.
The Minister agreed that in making a finding of fact, in the positive sense, the Tribunal must have some evidence. Plainly, the Tribunal cannot make findings that do not arise from, or are not probative of, the evidence before it.
However, he sought to distinguish this from a situation where the Tribunal reasoned that it could not, as in the current case, accept Mr Afghan’s claim that his wife as a “domestic” part-time worker in Pakistan was able to financially support herself, her son, her mother-in-law, and Mr Afghan’s five siblings.
As set out above in relation to ground two, the Tribunal did not make any finding of fact in the positive sense that the siblings, or even just the brothers, did not work.
At [24], on which Mr Afghan now relies for ground three, the Tribunal sought to address Mr Afghan’s claim, made after the delegate’s decision, that his wife was “the only person to work and that she earns sufficient income from part-time domestic work to support eight people, seven of them adults.”.
What is set out at [24], when at least read fairly, are the Tribunal’s reasons, its analysis of the evidence before it, as to why it did not accept that claim.
The Tribunal did not make any finding of fact in the positive sense that the brothers did not work. Rather, it reasoned that it did not accept that Mr Afghan’s wife as a part-time domestic worker was able to support eight people, including six adults in their twenties. When read fairly, it was Mr Afghan who claimed his siblings, including his three brothers, never worked.
In that light, I agree with the Minister that the obligation on the Tribunal was to address, that is to analyse and reason, in relation to, such a claim in a rational and logical manner. The Tribunal is not required to search for evidence to reject such a claim.
For that proposition, the Minister relies on WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 at [11] – [14]. I note, given Mr Afghan’s submissions, this also is a Full Court judgment binding on this Court. Given that it was concerned, directly, with the situation in the current case, it is to be applied as the Minister submits.
Again, it is important to note that the critical element, in [24] of the Tribunal’s decision record, was the Tribunal’s rejection of the claim that Mr Afghan’s wife was able to support eight people as a part-time domestic worker. This, as with the matters addressed in [25] and [26], was a part of the reason for its conclusion that the secondary visa applicants were not members of her family for the purposes of the Act.
Even if the Tribunal’s reasoning in relation to its rejection of Mr Afghan’s claim as to his wife were to be viewed as a “finding” of fact in the positive sense, it is a finding based on the evidence provided by Mr Afghan and his wife. That is, that she lived in a household of eight persons, seven of whom were adults, and worked part-time as a domestic. The Tribunal did not reject any of this evidence.
In that light, it cannot be said that there was “no evidence” to support the Tribunal’s finding as to the rejection of Mr Afghan’s claim in relation to his wife (WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347; VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350).
In all, therefore, this ground is not made out.
However, as set out above, Mr Afghan was successful in one of his grounds of the amended application. It is appropriate to make the orders he seeks. I will make those orders.
I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 11 December 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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