ERC17 v Minister for Immigration
[2020] FCCA 3460
•18 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERC17 & ORS v MINISTER FOR IMMIGRATION | [2020] FCCA 3460 |
| Catchwords: MIGRATION – Refugee and Humanitarian (class XB – subclass 200) visa – review of the Delegate’s decision – where the Applicants are the children of the proposer for the visa – where their mother and two siblings were granted visas – where the Delegate found that the Applicants did not satisfy clauses 200.311 of Schedule 2 of the Migration Regulations 1994 – dependency criteria and compelling circumstances criteria – question of whether the Delegate considered evidence – whether the Delegate asked itself the wrong legal question – whether the Delegate acted unreasonably or irrationally – context of the Delegate not required to provide reasons for decision – no jurisdictional error established – Application dismissed. |
| Legislation: Migration Act 1958, s.5 Migration Regulations 1994, reg. 1.05A, 1.12AA, cl. 200.222, 200.311 of Schedule 2 |
| Cases cited: CVV16 v Minister for Home Affairs and Anor [2019] FCA 1890 |
| First Applicant: | ERC17 |
| Second Applicant: | ERD17 |
| Third Applicant: | ERE17 |
| Fourth Applicant: | ERF17 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File number: | MLG 2256 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 5 October 2020 |
| Date of last submission: | 5 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr Tran |
| Solicitors for the Applicants: | Russell Kennedy Solicitors |
| Counsel for the Respondent: | Ms Symons |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 the time for the Applicants to file an application in respect of the decision of the Respondent dated 14 May 2017 be extended to 19 October 2017.
The application filed on 19 October 2017 and amended on 14 September 2020 be dismissed.
The Applicants pay the Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2256 of 2017
| ERC17 |
First Applicant
| ERD17 |
Second Applicant
| ERE17 |
Third Applicant
| ERF17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a review of a decision made by a delegate of the Respondent (‘Delegate’) on 14 May 2017. In that decision, the Delegate refused to grant the applicants Refugee and Humanitarian (class XB) (subclass 200) visas (‘visas’).
Background
The applicants are the four eldest children of the proposer for the visas (‘Applicants’). The proposer is their father. The proposer is a permanent citizen of Australia who arrived in Australia in 2013 as a holder of a visa.
On 15 August 2014, the Applicants lodged an offshore application for the visas. The applicant for the visas was their mother. The Applicants and their two younger siblings were dependent secondary applicants.
On 14 May 2017, the Delegate refused to grant the Applicants the visas (‘Decision’). The Delegate was not satisfied, inter alia, that the Applicants met the requirements contained within clause 200.311 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’).
On 10 July 2017, the mother of the Applicants and their two younger siblings were granted visas.
On 19 October 2017, the Applicants filed the application in this Court for judicial review of the Decision. Two affidavits were filed in support of the application – an affidavit of the proposer (the Applicants’ father), affirmed on 17 October 2017, and an affidavit of Kate Vanrenen, the Applicants’ lawyer, affirmed on 18 October 2017.
At the hearing before me, the Applicants relied on an Amended Application filed on 14 September 2020, written submissions and an affidavit of a solicitor, Arti Chetty, filed on 14 September 2020. The Minister filed a Court Book on 19 October 2018, and written submissions on 28 September 2020.
The Application, as initially filed, sought orders for an extension of time to file the application with this Court. The Application was supported by an affidavit from the Applicants’ solicitor. The application for the extension of time was not opposed by the Minister. I am satisfied that I should make an order that the time for the making of the Application be extended.
The relevant criteria for the visas
Relevantly, for the purposes of the present matter, the Delegate was required to assess the Applicants against criteria set out in clauses 200.222 and 200.311 of Schedule 2 to the Regulations.
Relevantly, clause 200.311 provided as follows:
‘The applicant:
(a) is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of:
(i) paragraphs 200.211(1)(a) or (aa); or
(ii) paragraph 200.212(a); or
(b) is a member of the immediate family of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.211(1)(b).’
For the purposes of the clause above, ‘member of the immediate family’ was defined in regulation 1.12AA, and the word ‘dependent’ was defined by regulation 1.05A of the Regulations, which both stated as follows:
‘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; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
(2) A person (the first person) is dependent on another person for the purposes of an application for:
(d) a Protection (Class XA) visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
1.12AA Member of the immediate family
(1) For these Regulations, a person A is a member of the immediate family of another person B if:
(a) A is a spouse or de facto partner of B; or
(b) A is a dependent child of B; or
(c) A is a parent of B, and B is not 18 years or more.’
Relevantly, and for the purposes of this decision, I refer to clause 200.311 and the Regulations I have referred to above as the ‘Dependency Criteria’.
The Applicants also needed to satisfy the criteria set out in clause 200.222 of the Regulations. That criteria relevantly provided as follows:
‘(1) If the application does not include a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a) in the case of an applicant who met the requirements of subclause 200.211(2) at the time of application—the extent of the applicant’s connection with Australia; or
(b) in any other case—the following:
(i) the degree of persecution to which the applicant is subject in the applicant’s home country; and
(ii) the extent of the applicant’s connection with Australia; and
(iii) whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
(iv) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
(2) If the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a) the degree of persecution to which the applicant is subject in the applicant’s home country; and
(b) the extent of the applicant’s connection with Australia; and
(c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
(d) the capacity of the approved proposing organisation to provide for the permanent settlement of the applicant in Australia.’
Relevantly, and for the purposes of this decision, I refer to clause 200.222 as the ‘Compelling Reasons Criteria’.
Ultimately, the Delegate was not satisfied that the Applicants met either the Dependency Criteria or the Compelling Reasons Criteria.
Relevant legal principles
The parties were largely in agreement as to the principles to be applied by the Court in the present matter, though each emphasised different aspects of those principles.
The decision under review is one in which the Delegate was not required to provide written reasons. The absence of an obligation to provide written reasons has consequences for the way in which judicial review is to be approached. In XA v Minister for Home Affairs [2019] FCAFC 166 (‘XA’), Thawley J (with whom Lee J generally agreed) usefully summarised the principles to be applied at paragraph [177], having regard to what the High Court of Australia had indicated in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173 (‘Plaintiff M64’). Thawley J stated:
‘[177] In light of the fact that there was no obligation to provide reasons, the following general principles apply to the interpretation of the decision record which the delegate prepared:
(1) The court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision: Plaintiff M64 at [25]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272, 278, 282.
(2) An error of law might be demonstrated by inference from what the delegate said by way of explanation given for the decision made; however, whether it is appropriate to draw the inference must be assessed having regard to the fact that there was no statutory requirement to provide reasons: Plaintiff M64 at [25].
(3) By reason of the fact that there was no obligation to provide reasons, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate”: Plaintiff M64 at [25] (emphasis in original); the fact that the decision does not mention a matter does not, of itself, indicate that the matter was ignored: Plaintiff M64 at [25].
(4) Related to the last point, an applicant cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings: Plaintiff M64 at [36].’
Drawing attention to the paragraph above, regard should also be had to paragraphs [197]-[198] of Thawley J’s decision, which are as follows:
‘[197] Each of the cases so far mentioned in this context concerned decisions in respect of which there was a statutory obligation to provide reasons. This is a matter of significance when considering the application of the principles expressed in those cases to the question whether an administrative decision-maker who is not subject to any obligation to provide reasons, and has not purported to provide such reasons, has engaged in an active intellectual process. For example, it was observed in Singh at [36]:
“The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.”
[198] The statement in the second sentence cannot be applied unmodified where there is no statutory obligation to provide reasons. To do so would be both contrary to logic and inconsistent with Plaintiff M64.’
It appears that shortly after providing the reasons above, Thawley J considered and applied the principles distilled above in the case of Mendonca v Tax Practitioners Board [2019] FCA 1757 (‘Mendonca’). Mendonca concerned an application for judicial review of a decision made by the Tax Practitioners Board not to investigate two complaints made by the applicant in that case against two individuals. There was no statutory requirement on the Board to provide reasons for its decision not to commence an investigation. At paragraph [54], Thawley J stated:
‘[54] Allied to this concern is the fact that the material before the Board provided what could be regarded as examples of conduct relevant to the question of contravention, but which were not mentioned in the reasons for decision. Of course, the reasons for decision must be read in a practical, common sense way understanding that there was no statutory obligation to provide the reasons. Nevertheless, as a matter of good public administration the Board chose to provide reasons intended to do more than merely document the fact of the Decision. The statement of reasons was clearly intended to explain the basis upon which the Decision was made. In such circumstances the fact that the Board was not under a statutory obligation to provide reasons does not prevent the Court from drawing an inference from the absence of any reference to the material that the Board did not consider the material or did not engage with it sufficiently to discharge the statutory function – compare: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25], [36]. One might have expected a reference to the evidence which had been provided to the Board, to which the Court was taken in argument, in circumstances where the Board proceeded on the basis that the evidence was “insufficient”, together with an explanation as to why it was regarded as “insufficient”. Further, it is one thing for evidence to be “insufficient” to establish a contravention of the Code. It is quite another for evidence to be “insufficient” to warrant commencing an investigation.’
In CVV16 v Minister for Home Affairs and Anor [2019] FCA 1890, Mortimer J stated as follows at [31]:
‘Aside from matters of fair and proper public administration, it is therefore not surprising that, in fact, a decision-maker might elect to give reasons. Having elected to do so, a supervising court on judicial review is entitled to assess the reasons given, in the terms they are given. Subject to taking account of the High Court’s observations in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25], the Court is entitled to treat what are expressed to be the reasons for the exercise of the power as the real reasons for the exercise of the power: see generally my observations in Wall v Repatriation Commission [2019] FCA 1838 at [60] and the cases referred to.’
Mortimer J was dealing with a decision of the Immigration Assessment Authority. Her Honour’s comments were made in the context of considering what Mortimer J described as a ‘procedural decision’ of the Authority, where there was no obligation to give reasons for that decision, however where the Authority had in fact given reasons for that decision.
In Kumar v Minister for Immigration & Anor [2020] FCAFC 16, a Full Court comprising Derrington and Thawley JJ stated:
‘[94] …The appropriate inference to draw from a failure to mention a submission or contention turns on the particular facts. It is permissible (even in the absence of a statutory obligation to provide reasons) to draw inferences from what the decision-maker said by way of explanation of his or her decision: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25].’
The Applicants drew my attention to Procedures Advice Manual (‘PAM’) 3 - ‘Offshore Humanitarian Program – Visa application and related procedures’. That document contemplates, among other things, that while delegates are not legally required to give reasons, decision records should clearly and logically summarise the assessment in such a way as to stand up to scrutiny by the public or an Australian court.
Counsel for the Applicant submitted that, inter alia, one would not expect a document to be prepared in a manner that can stand up to public scrutiny or an Australian Court which deliberately omitted a matter the delegate took into account (see Transcript pages 17-18).
Finally, in Plaintiff M64, the High Court considered the evaluation of the Compelling Reasons Criteria contained in clause 200.222 of Schedule 2 to the Regulations (and its equivalents). The High Court considered that the Compelling Reasons Criteria raised only one criterion for the grant of the relevant visa that being whether the Minister was satisfied that there were compelling reasons for giving consideration to granting the applicant the visa. In making that evaluation, the Minister or Delegate must have regard to the factors mentioned in subparagraphs (a) – (d) of subclause 200.222(2) of Schedule 2 to the Regulations. Further at paragraph [31], the majority stated:
‘In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a)–(c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application.’ (citations omitted)
The Minister submitted that the Amended Application invited interrogation of the Delegate’s decision to refuse to grant the visas, and that a degree of caution is required before undertaking the exercise. I accept that to be the case. I also accept the submission of the Applicants that simply because caution should be exercised does not produce the result that it is impermissible to embark upon such an exercise. Clearly the authorities indicate it is permissible to do so, within the limits articulated in decisions such as XA, Plaintiff M64 and Mendonca.
The grounds of review
The Amended Application contains five numbered grounds of review, with ground 4 not being pressed.
Prior to dealing with each of the grounds of review, it is appropriate to note that grounds 2, 3 and 5 seek to impugn the Delegate’s decision with respect to the Dependency Criteria. At the hearing of the matter, the Minister initially argued that those errors were not made out, but that in any case, an error of the kind contended for by the Applicants would not be material to the Delegate’s decision because the Delegate also found the Applicants did not meet the Compelling Reasons Criteria. Subsequent to the hearing, my Chambers received correspondence from the parties. In summary, the Minister withdrew his submissions that grounds 2, 3 and 5 should be rejected on materiality grounds and the parties agreed that any error by the Delegate concerning the Dependency Criteria would not be immaterial to the Delegate’s decision by reason of the Delegate finding that the Compelling Reasons Criteria was not met. I have therefore approached the task before me consistent with the views expressed to me by the parties post-hearing.
I now deal with each of the grounds of review.
Ground 1
The first ground of review in the Application is:
‘1. The Delegate asked himself the wrong legal question, or constructively failed to exercise his jurisdiction, by having regard to “the degree of discrimination to which the applicant is subject in the applicant’s home country” only in so far as he concluded that “I am not satisfied they have been personally subject to discrimination”.
Particulars
Whether there has been any past discrimination may be a useful guide to whether an applicant is or will be subject to discrimination in the home country. But the statutory consideration is ultimately “the degree of discrimination to which the applicant is subject in the applicant’s home country”, which is prospective (in the event he or she is returned) in perspective.’
Under this ground, the Applicants take issue with the following conclusion of the Delegate in respect of the Compelling Reasons Criteria contained on page 457 of the Court Book:
‘I accept that the applicants are members of the Hazara Shia Muslim minority. However, I am not satisfied they have been personally subject to discrimination in Afghanistan or Pakistan, or any other country. As a result, I give little weight to their humanitarian claims.’
In summary, the Applicants accepted that past incidents of discrimination are probative of a current and future risk of harm. However, the Applicants claim there was a failure to properly grapple with their claims. They pointed to various aspects of the claim to fear harm contained in the Court Book materials that they say were not engaged with by the Delegate. They submitted that no consideration was given by the Delegate to the fact that the proposer had been granted a refugee visa. Further, it was submitted that the Delegate does not appear to have considered country information about such harms, and there was no evidence of the Delegate having considered the harms the Hazara Shia Muslims could prospectively face in either Afghanistan or Pakistan.
Given the principles enunciated earlier, care needs to be taken in the circumstances of the present case with a submission that a delegate has ‘inadequately grapple[d]’ with the discrimination claims. That type of analysis in the present statutory environment where there is not an obligation to provide reasons ‘cannot be applied unmodified’: XA at [198].
I do not accept the submission that the Delegate failed to recognise the proposer had been granted a visa. The Delegate was clearly aware that the proposer arrived in Australia as an XB-200 visa holder in October 2013. So much is apparent from page 1 of the Decision (Court Book 454) where the Delegate records that ‘[t]he applicants have been proposed by their claimed husband/father [x]… who arrived in Australia as a XB-200 visa holder on 24 October 2013. He currently resides in Australia and is an Australian Permanent Resident’. I accept that there is no express reference to the proposer holding a visa in the paragraph of the Decision that deals with whether the Applicants have suffered discrimination. I regard that failure, however, as insufficient to constitute an error of the type complained of in the circumstances of this case.
The Applicants took me to various references in the material contained in the Court Book in an attempt to demonstrate that there was material before the Delegate that had not been properly engaged with and which amplified their claims in respect of discrimination. I was taken specifically to the references at Court Book pages 114, 402 and 446. I accept that those references deal with harm. The references do not, however, expressly give rise to any claim of discrimination suffered by the Applicants.
A further issue which confronts the Applicants in respect of this ground is the statement by the Delegate that the Delegate gave ‘little weight to the applicants’ claims of persecution and/or substantial discrimination’. This, in my view, indicates that the Delegate gave some weight, albeit not much, to the Applicants’ claims prior to dismissing them. The Applicants said that, in truth, that position should not be accepted because what the Delegate said in a ‘polite way’ was that ‘no weight’ was given to it. I do not accept that submission. It does not accord with the language used by the Delegate. Such a submission also seems to me to invite a review of the merits, which is impermissible.
There is then the statement made by the Delegate in the Decision that ‘I have considered all the information provided for the purposes of this visa application’ (Court Book at 458). Once again, it seems to me that this is a further barrier to the Applicants’ submission that there has been a constructive failure to exercise jurisdiction. As Thawley J notes in XA at paragraph [202]:
‘In a case where a decision-maker, obliged to provide reasons, made such a statement and the reasons omitted any reference to critical evidence relevant to a central finding of fact, it might be inferred that the decision-maker failed to consider the material, despite making the statement. Critically, however, this proposition cannot operate with equivalent force in a context where there is no obligation to provide reasons.’
When all of the above matters are considered, I find that the Delegate did not ask the wrong legal question, or fail to exercise jurisdiction as alleged. In the present statutory context, that approach does not disclose jurisdictional error.
For all of the above reasons, ground one of the grounds of review must be dismissed.
Ground 2
The second ground of review in the Application is:
‘2. The Delegate’s decision to give “little weight” to the Tazkiras was unreasonable or irrational, or involved a constructive failure to exercise jurisdiction, given that the Delegate did not find that the Tazkiras were “bogus” documents within the meaning of the Migration Act 1958 (Cth), did not find that the passports were not genuine, and having regard to the assessment of the person who actually conducted the interview (who was not the Delegate).
Particulars
Section 5 of the Migration Act 1958 (Cth) defines a “bogus document” as “a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
The Delegate said that “there is no conclusive evidence that the documentation provided by the applicants in relation to their identity is bogus”. Nor is there any finding that they are bogus. Yet in giving the tazkiras little weight, the Delegate acted as if they were bogus documents.’
Under this ground of review, the Applicants challenge the following paragraph of the Decision contained at Court Book 456:
‘In support of their identity claims, the applicants have provided Afghan identification documents (Tazkiras) and Afghan handwritten passports. While there is no conclusive evidence that the documentation provided by the applicants in relation to their identity is bogus, the experience of the Department with regards to documents issued in Afghanistan is that documents are usually issued based on the information provided by the requester and/or their witnesses rather than being based on any official records, and that they can be readily obtained through the payment of bribes. Given the physical appearance of the applicants and their confident demeanour during the interview, I place little weight on the recently obtained Tazkiras in respect to their claimed ages. I am not satisfied based on the evidence provided, both document and verbal testimony that the secondary applicants, [the Applicants], are dependent on the PA or Proposer as claimed.’
The Applicants make, inter alia, the following contentions in relation to this ground. The Delegate did not accept the Applicants were dependents of the proposer, in part, because the Delegate did not accept their claimed ages. The Delegate reached a conclusion about the Applicants’ ages without finding that the Tazkiras (identity documents) were ‘bogus’, or that the passports were not genuine. This was submitted to be an error when regard was had to, inter alia, the following.
a)The documents were government identification documents and were entitled to be given significant weight unless the document was found to be ‘bogus’;
b)The Delegate’s reasons should be properly understood to record a finding that the documents were not ‘bogus’;
c)The person who interviewed the Applicants had no concerns about the authenticity of the documents;
d)The Delegate could not rationally prefer the observations made in interview over the non-bogus documents in circumstances where the Delegate did not personally observe the Applicants himself;
e)The Delegate overstated the concerns the interviewer had expressed about the ages of the Applicants and, in any event, whatever concerns may have been expressed by the interviewer only related to the Applicant Mother and the eldest child;
f)Demeanour at interview has no necessary bearing on the veracity of identification documents; and
g)Passport information was consistent with the identity information listed in the Tazkiras, yet the Tazkiras were given little weight.
It is appropriate to commence to consider the submissions raised by reviewing the paragraph of the reasons with which the Applicants take issue (set out above at paragraph 41). That paragraph, reviewed carefully, in my view discloses the following. First, the Delegate identified the Tazkiras and the Afghan handwritten passports as being supplied by the Applicants in support of their identity claims. Second, the Delegate in the second sentence turned his attention to the conclusive (or otherwise) nature of the evidence.
The following emerges from the Delegate’s discussion about the nature of the passports and Tazkiras. First, the Delegate refers to ‘documentation’. In my view, the reference to ‘documentation’ must be taken to include the Tazkiras and the Afghan handwritten passports. Second, the Delegate notes the lack of evidence to conclude that the ‘documentation’ is ‘bogus’. Third, the Delegate draws upon Departmental experience when discussing the ‘documents’. Fourth, the Delegate refers to the physical appearance of the Applicants and their confident demeanour. Fifth, the Delegate places ‘little weight’ on the Tazkiras with respect to the claimed ages of the Applicants. Sixth, the Delegate expressly references ‘both document and verbal testimony’ in order to conclude that he is not satisfied that the Applicants are dependent on the Principal Applicant or the Proposer.
Clearly, the Delegate had doubts about the Tazkiras and the passports. It was open to the Delegate to hold those doubts given the information before him. Nothing required, in my view, the Delegate to give significant weight to the documents simply because they were government documents, given the matters to which the Delegate referred.
The Applicants’ contention that the Decision should be properly read to record a finding that the documents were not bogus is one that I would also reject. Plainly, the Delegate did not reach that finding. There is nothing that required the Delegate to make a finding that the documents were either bogus or not bogus within the meaning of section 5 of the Migration Act 1958 (Cth).
The Applicants’ submission that the Delegate’s decision to give ‘little weight’ to the Tazkiras ignores the fact that the passports contained the same information. I understand the basis upon which that submission is put, however, I would reject it. The Delegate has clearly in the preceding sentences set out his doubts about the ‘documents’. The documents include the passports and the Tazkiras. Further, in reaching his ultimate conclusion, the Delegate refers to his state of satisfaction (or lack thereof) being based on ‘both document and verbal testimony’.
Plainly, the Delegate had concerns about the Tazkiras and the passports. There was no evidence to support a conclusion that the documents were bogus. Equally, the Delegate had information that indicated ‘documents’ in Afghanistan may not be based on official records and could be readily obtained through the payment of bribes. The Delegate weighed each of these matters and other matter. The Delegate did not discount the Tazkiras. The Delegate simply gave them ‘little weight’. This was an approach the Delegate was entitled to take, and there is nothing unreasonable or irrational about that approach.
As noted above, the Applicants also took issue with other aspects of the Delegate’s reasons which expressed reservations about the ages of the Applicants including, inter alia, because the Delegate had not interviewed the Applicants himself.
Included within the Court Book commencing on page 399 is the Class XB interview report completed by the interviewing officer and considered by the Delegate. Court Book 400 contains the following extract:
‘Claimed age at interview:
[ERC17] - 22 (looks to be late 20s)
[ERD17] - 20 (looks to be mid 20s)
[ERE17] -18
[ERF17] - 16
[Sibling to Applicants] -13
No Dob provided for secondary applicant, [Sibling to Applicants]. Claims to be 10 years old.
3 elder boys look older than claimed.
PA says she had her eldest boy 8 or 9 years after married (is consistent re dates provided in application re [t]he marriage in 1985 and [ERC17]’s Dob in 1995.’
Further, the following is contained at Court Book 405. Those notes are as follows:
‘Some concerns with age of applicants. PA appears to be at least 10 years older than claimed. Elder three boys also look older than claimed. Suspect PA is falsely declaring herself to be younger in order to claim that dependents are also younger than their actual age.
Note youngest child is 10 years old, and eldest child is possibly in late 20s (but claims to be 22). Therefore, possibility of significant age difference.
Note applicants claim not to have a PoR card. Possible they do have card but are withholding this information because to withhold real age of dependents.’
The information referred to above, in my view, demonstrates that the interviewer held concerns about the ages of the Applicants beyond just the eldest child and the Applicant Mother. To the extent the Applicants submit otherwise, that submission should be rejected. It is apparent the concerns extended not just to the Applicants, but to a concern about the Applicant Mother. That is of some significance. As the interviewer noted, the age of the Applicant Mother claiming to be younger may enable a claim that the dependents are younger than the actual ages given. In the circumstances, I consider the Delegate neither overstated the concerns of the interviewer, nor overlooked the ages of the Applicants.
The Applicants sought to place much emphasis on the fact that the Delegate who made the decision was not the person who observed the Applicants at interview, and that it would be, inter alia, irrational for the Delegate in that circumstance to prefer the observations at interview over non-bogus documents. There are at least two answers to this proposition. First, the finding the Delegate made in relation to the documents was one that was open to the Delegate – see my earlier reasons above. Second, as can be seen from the above, concerns were expressed by the person who conducted the interviews about the ages of the Applicants and the Principal Applicant (the mother of the Applicants).
In my view, the approach taken by the Delegate to these matters was rational. There is nothing irrational about attributing particular weight and balancing all of the evidence, including the documents and observations, in order to reach a conclusion as to whether the Applicants were of a particular age, or were ‘dependent’.
For all of the above reasons, Ground 2 must be dismissed.
Ground 3
The third ground of review in the Application is:
‘3. The Delegate constructively failed to exercise his jurisdiction by not mentioning, and therefore not considering, the evidence which the Applicants provided during an interview in Islamabad, being letters from their school confirming their admission and leaving dates, which evidence was relevant to the question of their ages.’
The submissions of the Applicants under this ground may be summarised as follows. The Applicants submitted documentation from a number of education providers. That documentation is set out at Court Book 208 – 223. It is documentation that was obtained in the period of 2014 – 2016. The Applicants submit that it should be inferred that the Delegate did not consider this information.
The Minister contends that the documents from the education providers were considered by the Delegate. The Minister asks the Court to infer that when the Delegate states that he had regard to the evidence ‘both document and verbal testimony’, that necessarily incorporates the documents from the education providers. Further, the Minister asks the Court to draw the inference that the criticisms the Delegate made about documents being issued in Afghanistan coloured the decision-maker’s view of the education provider documents. Finally, the Minister submits that, to the extent there is any failure to refer to the document, it is not open to the Court, without something more, to infer there was a failure to take them into account, having regard to the principles enunciated earlier.
There is no express reference to the education provider documents in the Delegate’s decision. The failure to make any reference to those documents does not, however, make good the proposition that they have not been considered, given the principles distilled earlier.
The Applicants placed before the Court a ‘SMO Case Consult’ note (‘Note’), which was annexed as AC-2 to the affidavit of Arti Chetty, filed on 14 September 2020. The Note was prepared by the Delegate. The Applicants submitted the Note contained information, additional to what is contained in the Delegate’s decision, which supports a drawing of an inference by the Court that the education provider documents were not considered.
The Note records at sub paragraphs (a) to (e) information considered by the Delegate in relation to the ages of the Applicants. While the Note identifies a range of information from various sources concerning the Applicants’ ages, relevantly for the Applicants, no mention is made of the education provider documents. Near the end of the Note, it is recorded that the ‘cumulative information presented… raises concerns that the secondary applicants age has been reduced’. Further, the Note records that ‘after a review of the application I am not satisfied as to the age of the older 4 SA’s’.
The Note is a document with limitations. The most obvious of these is that it records a preliminary view or finding and concludes that the Applicants are to be afforded an opportunity to comment on the findings above. It is not a record that explains the actual decision. Further, it is simply a record of the Delegate’s view at that time, and not at the time the decision was made. Given these limitations, it provides little support for drawing the inference the Applicants ask the Court to draw.
There are two further difficulties that confront the Applicants. First, in the paragraph under challenge the Delegate says, inter alia, that:
‘…the experience of the Department with regards to documents issued in Afghanistan is that documents are usually issued based on the information provided by the requestor and/or their witnesses rather than being based on official records, and that they can be readily obtained through the payment of bribes’.
There is an argument that this comment should be taken as being limited to the passports and the Tazkiras given the sentence which precedes it. I do not accept that. If the Delegate had wanted to limit the comments to the passports and the Tazkiras, it would have been straightforward enough to say so clearly. Further, the comments of the Delegate are based upon the experience of the Department with regards to documents issued in Afghanistan, and there is nothing in the text to suggest the Department’s experience of documents in Afghanistan is limited to passports and Tazkiras. Accordingly, I am satisfied that when the Delegate is referring to documents in the extract above, it covers documents which include the education provider documents. I consider that construction to be preferable to a construction which limits the extract above to the passports or the Tazkiras.
Second, in reaching his conclusion, the Delegate expressly states that he does not reach a level of satisfaction in respect of the Applicants’ dependency ‘based on the evidence provided, both document and verbal testimony’. I regard this as a reference to documentary evidence and verbal testimony, including the education provider documents
For all of the above reasons, I am of the view that no error is disclosed by Ground 3. In my view, the ground must be dismissed.
Ground 5
The fifth ground of review in the Application is:
‘5 The Delegate’s decision that it is “highly unlikely” the Applicants are unemployed, and therefore not dependent children pursuant to Clause 1.03 of the Migration Regulations 1994 (Cth) was unreasonable or irrational, or involved a constructive failure to exercise jurisdiction.
Particulars
It is illogical to hold that age is the sole determinant for employment status, in circumstances where: (a) there is no mention or consideration of evidence that the applicants were full time students supported financially by their father; (b) the interviewer made no observation that the two youngest applicants appeared to be ‘significantly older’ than they claimed; and/or (c) the observations do not suggest they were ‘significantly older’.
This ground of review takes issue with the following finding of the Delegate’s Decision set out at page 456 of the Court Book:
‘Given I have serious concerns regarding the ages of the aforementioned secondary applicants, I find it highly unlikely that they are unemployed and still dependent on the PA, who is also unemployed.’
Also relevant to this ground is the statement in the Decision that ‘[d]uring the interview, the interviewing officer noted that [the Applicants] appeared to be significantly older than their claimed age’.
The Applicants’ contentions in respect of this ground may be summarised as follows. First, a person’s age does not have a determinative bearing on whether that person is employed or is dependent upon a parent. Second, the Delegate did not consider reasons given as to why the two eldest Applicants did not work (i.e. because they were studying). Third, there was no consideration of the evidence given by the Applicants as to how they were sustaining themselves without working. Fourth, the Delegate materially misunderstood important evidence and ‘overstated’ the interviewers concerns about the ages of the Applicants.
The Minister seeks to meet the Applicants’ submissions in a number of ways. The Minister points to the statement of the Delegate in the Decision that ‘I have considered all the information provided for the purposes of this visa application’ (at Court Book 458). The Minister says that statement is sufficient for the Court to infer that the Delegate was aware of and appreciated all of the material before him.
I accept that, in the ordinary course, and particularly in respect of this Decision and the principles which apply on review in the present circumstances, a statement of the kind referred to by the Minister would enable an inference to be drawn that all of the material and evidence had been appropriately considered. The difficulty for the Minister, however, is that the statement above that is relied on sits across from a cell in the Decision headed ‘Compelling reasons assessment’. In my view, the statement by the Delegate is properly to be read as being limited to the Delegate’s assessment of the ‘Compelling reasons assessment’.
I have some difficulty accepting the Applicants’ contention that the Delegate misunderstood or overstated the evidence gathered by the interview. The interviewer clearly expressed a concern about the ‘3 elder boys’ (see the extract from the interviewer notes at paragraph 51 above). Accordingly, any observation about the Applicants not being older than what they appeared was not limited to the two older boys. Second, the interviewer clearly expressed a concern that the Applicant mother had understated her age in order to claim the dependents were also younger than their actual age (Court Book 405). That is an observation that affects the age of all of the Applicants. I am therefore satisfied that the Delegate did not misunderstand, or overstate, the interviewer’s concerns about the ages of the Applicants.
There are two other matters that, in my view, mean that this ground ought to be dismissed and that I should draw an inference that the evidence regarding the Applicants being full time students and being financially supported by their father was considered. As I have noted earlier, the Delegate reaches a state of satisfaction based on ‘the evidence provided, both document and verbal testimony’. I have made findings about the construction of this phrase earlier in these reasons and I rely on them in respect of this ground. In my view, the reference above should be taken to include consideration of the evidence that the Applicants assert was not mentioned or considered. Further, a reading of the decision in context reveals that the Delegate made his decision in relation to the dependency of the Applicants prior to stating that it was ‘highly unlikely that they are unemployed and still dependent on the PA’. It needs to be remembered that the bar for demonstrating unreasonableness or irrationality is a high one. The Applicants, regrettably for them, have not met it.
For the above reasons, ground 5 does not reveal an error in the form of a constructive failure to exercise jurisdiction.
For all of the above reasons, the application for review must be dismissed.
The Applicants have been unsuccessful. The Minister seeks costs of $7,467. I will award costs to the Minister for $7,467.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 18 December 2020
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