AKOUCH v Minister for Immigration
[2017] FCCA 673
•5 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKOUCH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 673 |
| Catchwords: MIGRATION – Out of time application – arguable grounds established – leave to proceed out of time granted – last remaining relative criteria – country information – failure to engage with material – jurisdictional error established. |
| Legislation: Migration Act 1958, ss.359AA, 359A, 476, 477(2) |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 | ||
| Applicant: | AKOUCH AKOUCH | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2620 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 13 February 2017 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms. Costello |
| Solicitors for the Applicant: | Esser Legal Barrister & Solicitor |
| Counsel for the Respondents: | Mr. Hill |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That pursuant to s.477(2) of the Migration Act 1958 leave is granted for an extension of time.
That a writ in the nature of certiorari be issued to quash the decision of the Second Respondent dated 19 February 2014.
That a writ in the nature of a mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
That the First Respondent is to pay the Applicant’s costs in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2620 of 2015
| AKOUCH AKOUCH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision of Tribunal dated 19 February 2014. The applicant relies on the amended grounds of review set out in the amended application that was handed up at the beginning of the hearing. The first respondent did not object to the applicant relying on it.
Application for leave to proceed out of time
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) an applicant must file an application for judicial review within 35 days of the migration decision being made. The Federal Circuit Court of Australia (“Federal Circuit Court") has a discretion to extend the time pursuant to s.477(2) which states:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The applicant filed his application for jurisdictional review on 26 November 2015. The application is filed 18 months out of time.
Foster J conveniently summarises the issues the Court must consider when considering an out of time application in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [45] to [48]:
Section 477(2) requires an applicant for an extension of time to make his or her application in writing and to specify in that application why the applicant considers that it is necessary in the interests of the administration of justice to make the order (s 477(2)(a)). The section also requires that the Federal Magistrates Court be satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time before making such an order. The material to which the Court’s attention will ordinarily be directed for the purpose of the Court’s consideration of whether it is so satisfied will be the material relied upon by the applicant for an extension of time. The Federal Magistrates Court will not be confined to a consideration of the applicant’s material alone but that material will nonetheless constitute an important part of the material upon which the Federal Magistrates Court might reach the requisite level of satisfaction.
There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
More recently in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 Mortimer J made the following comments with respect to out of time applications at [62] and [63]:
As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
The applicant has given a written explanation for the delay, although his affidavit explaining this was filed very late. He says he received advice from his pro bono lawyers that he had the options of applying for ministerial interventional or applying for judicial review. It is clear from this that the applicant was aware of the option of applying for judicial review. In out of time applications before this Court it is common for the application to raise applying for ministerial intervention as a reason for not applying for judicial review. Often they say they did not know about the option of applying for judicial review and the time limit for filing such an application.
The applicant’s evidence in this case is quite different. He says he was advised of the advantages and disadvantages of both applying for ministerial intervention and judicial review. His advisors told him that his circumstances should be regarded sympathetically by the Minster as he already has refugee status in the United States of America (“USA”) and had a child in Australia. His advisors told him that they had not been able to identify an error.
His affidavit does not say when the Minister refused to intervene. Rather he says in November 2015 he received advice from the barristers that his lawyer engaged that he did have grounds for judicial review.
In SZOEC v Minister for Immigration and Citizenship [2012] FCA 129 Bromberg J at [15]:
I accept the Ministers characterisation of the applicant’s conduct as demonstrating that resort to the Court was the applicant’s “Plan B”, to be utilised if his other potential remedies were exhausted. As Jessup J (with whom Gyles and Besanko J agreed) said at [29] of Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, circumstances of that kind do not provide an acceptable explanation for a failure to lodge an appeal within time.
In Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 Jessup J said at [28] to [30]:
I turn next to consider the other matter about which counsel for the applicant made submissions before us, namely, whether the applicant has provided an acceptable explanation for failing to lodge a notice of appeal within the 21 days prescribed by O 15 r 2 of the Rules of Court. As with the circumstances which faced the Federal Magistrate, the only explanation proffered on behalf of the applicant was that, after the publication of the Federal Magistrate’s judgment, he requested the Minister to substitute a decision more favourable to him than that of the Tribunal. He did that on 21 June 2007 (ie on the last day upon which he might have regularly lodged an appeal), and received an unfavourable response by letter dated 30 August 2007. His application for an extension of time was made a little over a month later again.
I do not think that the applicant’s approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.
This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors. The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives, keenly aware of the significance of time limits. Be that as it may, the fact is that there is no evidence before the court which would make inappropriate the inference, which I would draw, that the applicant and his advisors, being fully conscious of the time limit provided by the Rules of Court, chose not to appeal within that time.
Mr Hill, appearing for the Minster submits that the delay in this case was extensive. The applicant’s affidavit makes it plain that he was aware that applying for a judicial review was an option and this weighs against granting the extension. Mr Hill refers to the comments of Jessep J in MZABO v Minster for Immigration and Border Protection [2016] FCA 980 at [5]. In that case as is the case here, the Minster did not argue that he would be prejudiced by an extension of time. Jessup J said “[o]n the other hand, there is a clear public interest in the prompt disposition of allegations that officers of the Commonwealth have acted in excess of, or have failed to exercise, their jurisdiction under statute.” This is an important consideration. As it is also an issue that impacts on the administration of justice.
The delay in this case is significant. His explanation for delay, consistent with the authorities referred to above, is not adequate. However, the applicant has established an arguable case. In this regard I refer to the discussion of the grounds of review discussed in the next section. On balance I find that it is in the interest of justice to grant leave.
Grounds for review
The applicant relies on an amended application for judicial review which he was given leave, without objection, to hand up in Court.
Grounds 1 and 2 are no longer relied on.
The grounds were argued out of order. I will deal with them in the same order for ease of reference.
Ground 8
This ground addresses country information. The applicant complains that the Tribunal failed to take into account country information which was submitted by the applicant’s representative and which is at page 120 of the Court Book (“CB”)
The applicant’s migration agent made written submissions setting out country information including information at page 21 of the CB. As at 2001 more than 1.9 million people with killed in South and Central Sudan and over 4 million people were displaced from their homes. The war continued until 2005.
The submissions go on to state that the applicant’s family’s village was raided and the family was scattered. His parents and two brothers have been missing for over 23 years. The submissions attach case law on the common law presumption of death.
The submissions continue with further country information including reference to one in five people dying in South Sudan during the civil war. More than 80% of the population were displaced. It also refers to the famine resulting from the civil war and that the civilian death toll was the one of the highest since World War II.[1] The country information goes on to provide other information including information about the Lost Boys of Sudan. The applicant was one of the thousands of boys who were accepted as refugees into the US. It was only with the help of resettlement services many years later that applicant discovered that his sisters are living in Australia.
[1] CB pages, 134 to 141.
Ms Costello outlined other country information in her oral submissions. It is not necessary to set it all out.
Mr Hill handed up an aide memoire with respect to country information setting out some of the general legal principles. I will not set those out. In essence Mr Hill submits that the Tribunal did not commit a jurisdictional error in not referring to the country information expressly as both MZYTS v Minister for Immigration & Anor [2012] FMCA 1109 and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 are distinguishable. He submits that in this case the Tribunal recognised that it would be difficult to obtain official records in time of unrest and acknowledged evidence about that and Mr Hill argues that the country information that appears at CB 134 to 154 elaborates on those claims but does not change the nature of those claims. In those circumstances he submits it was not necessary for the Tribunal to refer to the country information.
Applicant WAEE v Minster for Immigration (2003) 236 FCR 593 is authority for the proposition that the Tribunal does not need to refer to every piece of evidence and that an inference that the Tribunal has failed to consider an issue should not readily be drawn when the reasons are otherwise comprehensive and the particular matter may be “subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected” as referred to in [47] of that decision. Mr Hill submits that whilst the Tribunal did not cite the country information by name it is clear from its reasons that it deals with the matters raised in the country information being the difficulties in obtaining records, the fact that many people died in the civil war etc.
The applicant submits that as the Tribunal does not address the country information which was so important to the applicant’s claim that that Tribunal failed to engage in its statutory task. The Tribunal decision does not discuss and reject this country information, it simply does not discuss it. The applicant refers to [43] of the decision which says:
“The Tribunal has considered all of the evidence before it. The Tribunal accepts the oral evidence that the separation of the applicant from his parents and two brothers occurred in a time of armed conflict and civil unrest and that the applicant and his siblings in Australia have not heard from their parents or two brothers since 23 or 24 years ago.”
Ms Costello submits that this statement is not enough to be satisfied that the Tribunal took into account the county information. If the Tribunal took into account the country information and rejected it, then it needed to say so. The applicant argued that the country information corroborated the applicant’s oral evidence. The reference to “armed conflict and civil unrest” understates the situation. Ms Costello submits the country information provided by the applicant’s migration agent not only highlighted the loss of life from the war itself, but also from famine. It also referred to the high number of people displaced.
The Tribunal referred to the written submissions by the applicant’s representatives in general terms. The applicant’s representatives made pre-hearing written submissions which referred to the country information and post-hearing submissions which addressed the cultural issue which arose at the hearing. The Tribunal refers to engaging with the post-hearing written submission at [31].
In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 the Full Court of the Federal Court (“Full Court”) discussed the concept of the Tribunal failing to carry out its statutory task. It said:
“31 Before both the Federal Magistrates Court and this Court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
…
38 That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.
46 Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
…
49 The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].”
The discussion above is a helpful one. In the circumstances of this case I find the inference can be made that the Tribunal failed to consider the pre-hearing submissions and, in particular, the country information to which they referred. It is not a case where the reasons are “otherwise comprehensive” or that it was “subsumed in findings of greater generality”. Apart from a passing reference at [4] acknowledging it had the applicant’s written submissions there is no engagement with them at all. This is in contrast to the applicant’s post hearing submissions.
With respect to the complaint that the Tribunal failed to consider country information, the applicant relies on the recent Full Court decision of ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 and referred to [62] to [66] which state:
“As Robertson J stated in SZRKT at [122] it is not always a jurisdictional error for the Tribunal in reviewing the rejection of a protection visa claim to ignore relevant material, including corroborative evidence. Rather, as his Honour observed at [112] by reference to the Full Court’s decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], whether the Tribunal is obliged to consider a document will depend on the circumstances of the case and the nature of the document. With specific reference to the situation where corroborative evidence is ignored, his Honour added that other relevant factors include:
(a) the cogency of the evidentiary material; and
(b) the place of that material in the assessment of the review applicant’s claims.
It is appropriate to apply these principles to the question whether the Tribunal’s evident failure to consider the relevant contents of the Home Office Report gave rise to jurisdictional error.
The Minister accepted that there is no specific reference in the Tribunal’s reasons for decision to the submission dated 2 December 2014 which was provided to the Tribunal or to the Home Office Report which accompanied it. The Minister submitted, however, that the mere failure by the Tribunal to refer to material did not mean that it was not considered, having regard to the fact that the Tribunal’s obligation under s 430 of the Migration Act to prepare a statement of reasons did not require it to identify or discuss each item of evidence to which it had regard. Relying upon Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [346] per McHugh, Gummow and Hayne JJ, the Minister emphasised that the Tribunal’s obligation was to set out its findings of fact which it considered to be material to the decision and to the reasons it had for reaching that decision.
It may be accepted that, merely because there is no express reference to the solicitor’s submission or the Home Office Report information in the Tribunal’s reasons, does not necessarily mean that the matter was not considered by the Tribunal at all (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594 (SZGUR) at [31] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (SZSRS) at [34]). But as the Full Court further observed in SZSRS at [34]:
… where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
The reference to MZYTS is a reference to the Full Court’s earlier decision in Minister for Immigration and Border Protection v MZYTS (2013) FCAFC 114; 230 FCR 431 (MZYTS). In that case, the Full Court found that the Tribunal had fallen into jurisdictional error by not considering the most recent country information which had been provided to it. The Tribunal’s reasons for decision contained no explicit reference to country information which had been provided to it by the visa applicant in a post-hearing submission. The Full Court stated at [52]:
In the present case, the issue is squarely whether the Tribunal's reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant's claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.”
The applicant further submits that given that the Tribunal actively engaged with the post-hearing submissions one would expect to see a similar engagement with the pre-hearing submissions. There is considerable force in that submission.
I find that the applicant’s complaint under this ground is made out. I do not accept the first respondent’s submissions. The Tribunal erred by failing to actively engage with the material before it which dealt with an essential aspect of the applicant’s claim.
Ground 3
Ground 3 complains that the Tribunal breached s.359A of the Migration Act by failing to put clear particulars of the information provided by Mr Nicknora’s oral evidence at the Tribunal hearing.
Mr Nicknora, the applicant’s brother in law gave oral evidence at the Tribunal hearing.
Section 359A requires the Tribunal to give the applicant particulars of information which the Tribunal considers would be a reason for affirming the decision under review. The section goes on to give details of its obligations. It does not apply to information the applicant has given.
The applicant relies on Kanagul v Minister for Immigration and Anor [2014] FCCA 1219 as authority for the proposition that evidence a witness gives is information. In that case the primary judge had a copy of the transcript of the hearing before the Tribunal. The primary judge observed that it was not disputed that oral evidence given by a witness on the applicant’s behalf may enliven s.359A of the Migration Act.
The applicant says that the burden is not on the applicant to provide a transcript to show that s.359AA was not complied with. The applicant also says that if it was put to the applicant orally the Tribunal would have referred to s.359AA. With respect to the transcript I do not accept this submission. It is for the applicant to make his case. In appeals in family law matters it is for the appellant to place the transcript before the Full Court if he or she wishes to argue an appeal point which relies on the transcript. Whilst in a different context I do not see why the same should not apply here. Indeed in many judicial review applications arguments are made without reference to the transcript or the need for one. Only certain review points require the transcript in order to successfully argue the point.
When considering s.359A the Tribunal’s reasons is a starting point.[2] Mr Hill also relied on the High Court of Australia (High Court”) decision of SZBYR v Minister for Immigration and Citizenship & Anor [2007] HCA 26 and in particularly the comments of the plurality at [17] and [18] for the proposition that information does not include doubts, inconsistencies or the absence of evidence.[3]
[2] See Bani Hani v Minister for Immigration & Anor [2016] FCCA 483 at [120].
[3] Mr Hill also referred to SZTGV v Minister for Immigration and Boarder Protection (2015) 229 FCR 90 at [18].
At [41] the Tribunal finds that the post-hearing written submissions with respect to the visa application form were inconsistent with Mr Nicknora’s oral evidence at the hearing. It is important to note that the inconsistency referred to is not between the oral evidence of the applicant and the oral evidence of Mr Nichnora.
This ground has not been made out.
Ground 4
Ground 4 concerns the findings the Tribunal made about the evidence with respect to the applicant’s missing parents and two brothers. This ground states that the Tribunal erred when it found that there was no evidence that the applicant’s parents and brothers were dead or presumed dead when in fact there were several pieces of evidence which supported a finding that they were dead or presumed dead.
The applicant refers to [33] of the decision which says:
“The Tribunal has considered all of the evidence before it in relation to the current circumstances of the applicant’s parents and two brothers. .. The Tribunal does not accept the submission that there is overwhelming evidence that the missing family members are dead. There is no evidence before the Tribunal that the applicant’s parents and his two brothers are deceased. There have been no witness statements or any official records provided to the tribunal to indicate these people are deceased.”
The above paragraph is particularly troubling in light of the country information. The country information supports the applicant’s contention that there are no records of civilians who went missing in the Sudanese civil war. They were last seen 23 or 24 years ago. The Tribunal needed to give more reasons than what it did to find there was no evidence.
The applicant submits that [33] shows the Tribunal’s reasoning and shows that it ignored the evidence referred to the particulars for ground 4, set out in the amended application for judicial review. There is much force in this submission. There is also evidence from the social worker and the country information with respect to the USA accepting thousands of lost Sudanese boys as orphans in the USA. The applicant’s counsel also referred to her written submissions where she sets out references in the Tribunal’s decision which refer to evidence that support a finding that the applicant’s parents and brothers are dead. One wonders what evidence they could provide in the negative? The Tribunal does not clearly state that it rejected the evidence of Mr Nicknora’s evidence about the lack of death records.
The Minster argues that the applicant has misunderstood the Tribunal’s reasons at [33]. It says:
“The Tribunal has considered all the evidence before it in relation to the current circumstances of the applicant's parents and two brothers Mr Peter Bo Deng and Mr Khot Deng Akuoch. The Tribunal does not accept the submission that there is overwhelming evidence that the missing family members are dead. There is no evidence before the Tribunal that the applicant's parents and his two brothers are deceased. There have been no witness statements or any official records provided to the Tribunal to indicate these people are deceased.”
The Minster argues that the correct reading of this paragraph is not that the Tribunal is saying that there is no evidence, rather that it is saying there is no direct evidence. He then refers to [34] where the Tribunal states that the applicant must establish that he has no near relatives. Regulation 1.15 of the Migration Regulations 1994 (Cth) makes that clear.
The Minister argues that the Tribunal goes on to acknowledge in [34] that direct evidence is not the only form of evidence the Tribunal may accept. It says at [34]:
“In certain situations (such as significant civil unrest) an applicant may genuinely be unable to provide supporting documentation verifying their claims. The Tribunal is not bound by technicalities, legal forms or rules of evidence and has to make its own finding. It is therefore not appropriate for decision-makers to draw too closely upon the rules of evidence applied in civil proceedings and it is inappropriate for the tribunal to apply curial devices such as presumptions of law or fact: A v MIMA (1999) 53 ALO 545 at [41]. In cases before the Tribunal, the common law presumption of death may be a relevant consideration in the circumstances, but should not be strictly applied”.
Mr Hill referred to Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789. In that case Sackville J found that the common law presumption of death did not arise on the facts before the Migration Review Tribunal. He also referred to the decision of Kim v Minister for Immigration & Anor [2007] FMCA 798 (“Kim”) where McInnis FM found that Tribunal erred when dealing with a case concerning reg.1.15 when it considered whether or not the relatives were missing but did not go on to consider whether or not they were dead. Mr Hill argues that the Tribunal did not make that mistake here as the Tribunal did engage with the presumption and referred to it at [35].
At [36] the Tribunal expresses concern about the information in the visa application which failed to mention the applicant’s brothers and the reference to the applicant’s parents “living in South Sudan but address and location unknown”. At [37] the Tribunal rejected the explanation given by the applicant and his witnesses and finds that Dinka tradition does not prevent a person from stating that a person is missing. The Tribunal goes on the make adverse credibility findings with respect to inconsistent evidence about who completed the application form.
Mr Hill submits that [43] refers back to the common law presumption of death which is set out at [37]. The presumption is that if at least 7 years have elapsed and one would ordinarily have expected to have heard from that person during that time, then if there is no contradictory evidence that person should be presumed dead. The Tribunal found that in the circumstances of this case, given that the applicant and his sisters were living in different continents they would not expect to hear from them. This means that the presumption is neutral and it does not assist.
Mr Hill argues that it is for the applicant to satisfy the Tribunal in accordance with reg.1.15 that his parents and brothers are dead and if he cannot do that then the application must be refused.
I accept the submissions that the common law presumption of death does not apply in these circumstances but there was a significant amount of other material supporting the applicant’s contentions that his parents and brothers are dead. Paragraph 34 sets out general statements of law. Paragraph 33 does not indicate that the Tribunal turned its mind to the indirect evidence that supports the applicant’s case, for example the lack of official records.
The complaint under this ground has been made out.
Ground 5
Ground 5 contended that the Tribunal misconstrued the meaning of having no near relative in reg.1.15(1)(c). It is useful to set out that regulation in full.
1.15 Remaining relative
(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a) the other person is a parent, brother, sister, step‑brother or step‑sister of the applicant; and
(b) the other person is usually resident in Australia; and
(c) the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:
(i) usually resident in Australia; and
(ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens; and
(d) if the applicant is a child who:
(i) has not turned 18; and
(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:
at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2) In this regulation:
near relative, in relation to an applicant, means a person who is:
(a) a parent, brother, sister, step‑brother or step‑sister of the applicant or of the applicant’s spouse or de facto partner (if any); or
(b) a child (including a step‑child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:
(i) has turned 18 and is not a dependent child of the applicant or the applicant’s spouse or de facto partner (if any); or
(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse or de facto partner (if any).
The term ‘no near relative’ is not defined in the regulations.
The issue is whether or not the applicant has any near relatives living outside Australia. The applicant argues that in the context of the regulation the meaning of no near relative can mean the relative is dead, presumed dead or missing.
Helpfully Mr Hill provided the Explanatory Memorandum which was published when the amendment to reg.1.15 was introduced. It states that the purpose of the amendment was to relevantly give Australian citizens the opportunity to sponsor a remaining relative “who would otherwise be left in an isolated situation overseas.” It was also to restrict eligibility so that “only applicants left in genuinely isolated situations overseas will be eligible”.
The applicant argues that he falls into that category. He has USA citizenship. He will be able to live there if his application is refused but he will living in isolation from his family. His sisters and his child live in Australia.
Mr Hill relies on the decision of Lindsay FM (as he then was) of Goodreau v Minister for Immigration and Citizenship & Anor [2009] FMCA 35 (“Goodreau”) which also involved a consideration of reg.1.15. In that case the father had been missing for many years but the circumstances were such that the applicant would not have expected to hear from him and therefore the common law presumption of death did not apply. It was not enough for the father to be missing. In reply to Ms Costello submitted that Goodreau is authority that the regulation is confined to life or death. At [5] Lindsay FM said:
“ [T]he actual controversy is whether the father is alive but the key question for the tribunal to determine is not whether he is alive but whether the applicant has a near relative who is not usually resident in Australia or an Australian citizen or permanent resident. The distinction is an important one ...”
Lindsay FM then refers to the decision of McIinnis FM in Kim. In that case the Court found that the Tribunal had made a jurisdictional error by making a finding as to an alleged consistency that was actually a false dichotomy. The applicant’s claim was to the effect that person went missing in the Pol Pot regime they were likely to have been killed and if they had not been seen since, they were presumed dead. The error was in the Tribunal finding that there was an inconsistency between a claim that a person is missing and a claim that a person is missing presumed dead.
Ms Costello also pointed out that Goodreau primarily concerned whether or not fresh evidence should be permitted which went to the issue of presumption of death so that the case is not on point with the circumstances here.
Turning to the Explanatory Memorandum and the new regulation amended the definition of “remaining relative”. The purpose was to restrict eligibility to ensure that only applicants who would be left in “genuinely isolated situations overseas” would be eligible. The definition in the previous version of reg 1.15 was broader. The Explanatory Memorandum refers to that regulation as being the person having no near remaining relative if they do not have a relative living in the same country and do not have more than three overseas near relatives and “have not had contact with those overseas near relatives within a reasonable period before they applied for the Visa.” The intention clearly it was to make the eligibility requirements more restrictive. It would seem from reading this passage that the previous version of the regulation would have allowed for a relative to have been missing rather than dead or presumed to be dead (applying the common law presumption).
Mr Hill acknowledged the statement in the Explanatory Memorandum with respect to “genuinely isolated situations” but points out as a matter of statutory interpretation the statute, not the extrinsic materials, must be applied. The regulation is harsh but the wording is plain.
As I have found that the Tribunal has made jurisdictional errors under other grounds it is not necessary for me to determine this matter.
Ground 6
Ground 6 is a failure to consider complaint. The applicant alleges that the Tribunal failed to consider the applicant’s submission that there were no computer record keeping systems or organised paperwork in South Sudan.
The applicant argues that the Tribunal ignored the corroborating letter form the Red Cross in which it reached its finding that there was no evidence that the applicant’s parents and brothers are dead. The Red Cross has expertise in finding lost refugees. The Red Cross letter supports the applicant’s evidence that his family has exhausted all avenues for searching for his parents and brothers. The Tribunal mentions the letter at [16] and refers to the fact that the Red Cross determined that the family has exhausted the available search options. The complaint is really that the Tribunal failed to actively engage in the material before it.
Ms Costello relies on the authorities setting out the proposition that ultimately identifying the type of jurisdictional error is not as important is being satisfied that a jurisdictional error has been made. The Tribunal, whilst mentioning the Red Cross letter, does not make a finding about it. Really this can be seen as part of the complaint under grounds 8 and 4.
Ground 7
Under this ground the applicant complains that the Tribunal’s decision was legally unreasonable.
This ground was not argued before me at the hearing. It is not necessary for me to address this ground further.
Conclusion
I am satisfied that the Tribunal did fall into jurisdictional error by failing to consider the country information the applicant placed before it and by failing to actively engage in the material before it.
Costs
In order save the parties further legal costs in appearing at the handing down of the decision to make submissions as to costs I had counsel address those at the end of the hearing. Both seek costs in accordance with sch.1 pt.3 of the Federal Circuit Court Rules. In addition the applicant seeks the setting down fee of $745 if the fee was not waived. Schedule 1 part 3 deals with costs in migration matters. Schedule 1 parts 1 and 2 deal with costs in family law and general federal law matters and child support matters respectively. Significantly parts 1 and 2 provide for disbursements including court costs. Schedule 3 does not. Presumably the intention was that disbursements not be included for migration matters.
I will order that the first respondent pay the applicant’s costs in accordance with the scale in the sum of $7,206.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 5 April 2017
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