Hagos v Minister for Immigration

[2008] FMCA 1178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAGOS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1178

MIGRATION – Judicial review of rejection of application for child (migrant) visa – meaning of “orphan relative” under reg.1.14 of the Migration Regulations.

Migration Act 1958

Migration Regulations 1994, rr.1.14; 117.211

Associated Provincial Picture Houses v Wednesbury Corp [1984] 1 KB 223
Fraser v Minister for Immigration [2002] FCA 1575
Minister for Immigration  v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1
Minister for Immigration v Le [2007] FCA 1318; (2007) 242 ALR 455; (2007) 164 FCR 151; (2007) 97 ALD 112
Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155; (1985) 6 FCR 155; (1985) 7 ALN N79
SZBEL v Minister for Immigration [2006] HCA 63; (2006) 93 ALD 300; (2006) 81 ALJR 515; (2006) 228 CLR 152; (2006) 231 ALR 592

Applicant: SELAMAWIT HAGOS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 647 of 2007

Judgment of: Riethmuller FM

Hearing date: 11 February 2008

Date of Last Submission: 11 February 2008

Delivered at: Melbourne

Delivered on: 25 August 2008

REPRESENTATION

Counsel for the Applicant: Mr A Krohn

Solicitors for the Applicant: Erskine Rodan and Associates

Counsel for the Respondents: Mr W Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 18 May 2008 is dismissed.

2. The Applicant do pay the Respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 647 of 2007

SELAMAWIT HAGOS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is the sponsor of five siblings who sought Child (Migrant) (Class AH) visas to migrate to Australia from Ethiopia.  The visa application was made on the basis that the applicants were within the extended definition of ‘orphan relatives’, as a result of claims with respect to the illness of their mother with whom they presently reside. 

2. On 16 May 2005, a delegate of the Minister refused to grant the visa applicant’s visas, and on 31 August 2005 the sponsor applied to the Migration Review Tribunal for a review of the delegate's decisions. On 10 April 2007, the Tribunal affirmed the delegate's decision not to grant visas, handing down the Tribunal decision on 19 April 2007. In May 2007, the applicant applied to the Court for judicial review. The findings of the Tribunal turned upon the meaning of ‘orphan relative’ in reg.1.14 of the Migration Regulations, which was a relevant condition for the visas under reg.117.211.  Regulation 1.14 provides:

   s.1.14An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

   a)the applicant:

   i.has not turned 18; and

   ii.does not have a spouse; and

   iii.is a relative of that other person; and

   b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

   c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant. [emphasis added]

3. The Tribunal did not accept that the visa applicants' mother was permanently incapacitated within the meaning of the Regulations, after traversing a variety of pieces of evidence that were placed before the Tribunal (see paras.51 to 59 of the decision). As the Tribunal did not accept that the visa applicants had satisfied reg.1.14(b), the Tribunal did not make a formal determination as to whether all of the visa applicants were in fact under 18 (see reg.1.14(a)(i)).

4. The applicant seeks orders quashing the decision on a number of grounds:

   a)That the Tribunal failed to ensure a medical examination was carried out;

   b)That the Tribunal ought to have accepted the evidence of a doctor who had examined the visa applicants' mother;

   c)The Tribunal failed to properly consider difficulties of interpreting; and

   d)The Tribunal failed to determine the ages of the visa applicants.

Ground 1 – ensuring medical examination conducted

1. This ground concerns the failure of the Tribunal to complete an independent medical examination of the mother of the visa applicants.  It is encompassed by ground 3(b) of the grounds as set out in the application and item 3 of the outline provided by counsel for the applicant. 

2. The medical condition of the visa applicants' mother was a significant issue in the proceedings.  Evidence given by the visa applicants and a doctor, Dr Muruth, was inconsistent as to the details of the extent of the mother's alleged paralysis and the date of its onset.  For example, the Tribunal identified that the primary visa applicant had stated that in 1998 the mother was able to do everything to care for the children.  In oral evidence, Dr Muruth stated that the mother had been paralysed since 1997 due to a stroke.  However, in documents provided by the review applicants to the Tribunal in 2006, they indicated that the paralysis was a ‘recent’ condition. 

3. At the hearing, I was referred to many of the items of evidence before the Tribunal, such as:

   a)The statutory declaration of 28 April 2003, where the sponsor simply referred to her mother having had a ‘long illness.  She was not work and we helping by my older brother …’.  Later she said that:

   My mother is not working due to her illness and my sibling are too young to look for work.

   There is no description of the illness, nor mention of the claims of paralysis. 

   b)At p.58 of the Court Book, a document apparently signed by a doctor of the Makelle Hospital described as a "sick leave paper" simply says of the mother:

   Needs follow-up - avoid stress.

   c)A further hospital certificate dated 15 February 2006 stated:

   This patient is on follow-up since 1997 for severe hypertension and chronic renal failure with left-sided hemi paresis.  Patient is regularly seen every month and getting … intermittent physiotherapy.  Despite this, patient is not able to support herself and always looked after by attendants.

   (The reference to 1997 is in the Ethiopian calendar and equivalent to 2005).

   d)In a statutory declaration of 17 March 2006, the sponsor said that her mother was very sick and had been sick since 1997 as a result of chronic renal failure and hypertension.  She went on to say:

   Recently, the left side of her body became paralysed and she has to sit in a chair all day because it is extremely hard for her to get up. 

   e)In a letter from the solicitor for the applicants of 11 April 2006, it was stated that the mother's illness became increasingly worse around 1997 when she was no longer able to look after the children.  The solicitors submit that an explanation for why the child S may have claimed that his mother sometimes cooked after that time on the basis that there must have been a misunderstanding with the translator. 

   f)When Dr Muruth gave evidence he said that the mother had been paralysed on the left side since 1997 due to a stroke and sought to explain the sick leave paper on the basis that it was a mistake on his behalf and that the information provided to the Tribunal was based upon medical records (see paras.30 to 35 of the decision).

4. Not surprisingly, with this difficult array of evidence the Tribunal sought to arrange an independent medical examination. A Tribunal officer on behalf of the Tribunal member made inquiries within the department in July 2006 as to the location of a panel doctor, and the practicalities of obtaining an examination. The department advised that there was not a panel doctor in Makalle-Tigray, and that the panel doctors were all based in Addis Ababa, but did provide a list of the panel doctors.

5. On 24 July 2006, the Tribunal wrote to the solicitors for the applicant indicating that in view of the inconsistencies the Tribunal required an independent medical assessment by a panel doctor, and requested a response. The response from the solicitors for the applicant on 24 July 2006 was:

   Please let me know when you have organised the independent medical assessment by a panel doctor.  Please also ensure that you provide the address of the panel doctor and the date of the assessment to Mrs Latay Geber Michael. 

   I understand from the doctor's evidence that Mrs Geber Michael is paralysed on one side.  Please ensure that such independent medical assessment by a panel doctor therefore takes place at her home.

6. On 14 August 2006, the Tribunal advised the applicant that it required the applicant to arrange the assessment by a panel doctor, enclosing a list of panel doctors in Ethiopia and indicating that whilst the doctors may travel to Makalle-Tigray, the Tribunal had no information as to the details.

7. On 15 August 2006, the solicitors for the applicant explained difficulties with the mother attending Addis Ababa (which is said to be two days' travel, although far closer by air), and asking whether the Tribunal would cover the cost of obtaining the evidence. 

8. On 27 September 2006, the solicitors for the applicant advised that they had contacted a number of doctors but none were prepared to travel to Makalle-Tigray to see one patient.  It is not clear from the letter whether or not the applicant had offered to meet the reasonable fees for the doctor being out of surgery for a period of time, nor whether it was offered to fund a flight.  On 6 November 2006, the sponsor agreed to pay the fee for a medical examination as requested ($548) and asked when the money would be required. 

9. On 21 February 2007, the Tribunal advised that the panel doctor had tried to contact the mother by telephone but without success, and that her son had advised that his mother is ‘not available during working hours’ and was then on ‘holy water treatment’.  He also advised that it was impossible for his mother to travel by ambulance or plane for the examination as suggested as an alternative by the doctor.  The Tribunal returned the cheque provided for the fee to the visa applicant.

10. The visa applicant wrote a response denying that the son had advised that the mother was not available, and confirmed that the mother was then receiving holy water treatment, at a church 5 to 10 minutes walk from the home, being taken there by stretcher. 

11. The email from the doctor setting out the comments of the son also advised that the doctor's next mission to a location near Makalle would be in April 2007.  This email is at the end of a lengthy series of emails in attempts to make the arrangements. 

12. On 21 February 2007 the Tribunal advised that it was no longer prepared to delay finalising the matter and proceeded on the basis of the information that was then before it.  The Tribunal made a decision on 10 April. 

13. On 22 March 2007, in the letter from the solicitors for the applicant, the history of the difficulties of obtaining an examination are recounted, however, the applicant did not at that time put in place any specific arrangements to demonstrate that an examination could in fact take place. 

14. Evidence from the solicitors for the applicant filed on 29 February 2008 was to the effect that they had now located a doctor who was prepared to fly to Makalle-Tigray at the Australian Government’s request, and that it could be undertaken in two to three days (depending upon airflight availabilities).  That doctor was not aware of any medical missions to Makalle-Tigray in 2008 or since October 2007. 

15. On the material before me I accept that it is possible to arrange an examination (based upon evidence provided by the applicant), and therefore the question that must be determined is whether or not the Tribunal ought to have continued to pursue arrangements to obtain this further evidence or were entitled to proceed to make a decision.  As was stated by Kenny J in Minister for Immigration v Le [2007] FCA 1318; (2007) 242 ALR 455; (2007) 164 FCR 151; (2007) 97 ALD 112

    [60] The authorities establish that the Tribunal has no general obligation to initiate inquiries or to make out an applicant's case for him or her.  

16. Her Honour proceeds to list a very large number of authorities to this effect.  However, her Honour notes that there is authority for the limited proposition that in certain "rare or exceptional circumstances" the Tribunal's failure to inquire may ground a finding of jurisdictional error because the failing may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corp [1984] 1 KB 223.

17. Her Honour goes on to explain at para.63:

    [63] The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the enquiry: see Prasad at 169–170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 (“Videto”) at 178 per Toohey J; Luu v Renevier (1989) 91 ALR 39 (“ Luu v Renevier”) at 47–50 per Davies, Wilcox and Pincus JJ; Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 (“Detsongjarus”) at 143 per Pincus J; Rahman at [30] per French J; Tickner v Bropho (1993) 40 FCR 183 at 197–198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 (“Yang”) at 579 per Ryan and Finkelstein JJ. This proposition is also discussed in other cases, such as Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289–90 per Mason CJ and Deane J and 321 per McHugh J. In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries: see Prasad at 169–170 per Wilcox J and Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at 73–74 per Allsop J; but contrast SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [20]–[22] per Edmonds J.

18. By way of example, in Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155; (1985) 6 FCR 155; (1985) 7 ALN N79, Wilcox J stated that:

    A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come.  Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example, by unreasonably failing to ascertain relevant facts which he knew to be readily available to him.  The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited.

19. Whilst a formal medical assessment is usually readily available information in Australia, that is not always the case in countries such as Ethiopia. This case demonstrates that the Tribunal went to some lengths to obtain a relevant medical report, and for much of this process the applicant was well aware that the Tribunal desired better evidence and of the substance of the defects in the evidence before the Tribunal. It must have been apparent to the applicant that obtaining the relevant medical report was crucial to her case. The letter of the solicitors for the applicant of 22 March 2007 proceeds on the basis that a panel doctor would not travel to Makalle to carry out the examination. It does not suggest that the solicitors will facilitate such an examination.

20. Whilst the Tribunal officer in the letter where the Tribunal refused to grant further time referred to the fact that "guarantees could not be given" when a medical examination could take place. I do not accept that this statement should be read as indicating that the Tribunal required some formal guarantee or detailed guarantee. Rather, it appears to me that the Tribunal member was indicating that in circumstances where the material did not indicate further attempts to obtain a report were likely to succeed, the Tribunal did not pursue the matter further: see generally Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1.

21. On the material before the Tribunal, it does not appear to me to be a case that could fall within the broad category of decisions that are so unreasonable no reasonable person would make them.  It appears to me that a reasonable decision-maker could well conclude that a medical report was not likely to be reasonably available in a reasonable time frame, despite the benefits it may entail on the evidence, and therefore proceed to make a decision. 

22. Whilst it is clearly arguable that it would also have been open to the decision-maker to undertake a further attempt to obtain such medical evidence, the test in judicial review proceedings is whether there is a jurisdictional error.

23. In the circumstances, I therefore find that this ground is not made out.

Ground 2 – Whether Dr Muruth's evidence should be accepted

1. This ground is encompassed by grounds 2 and 3(c) of the grounds in the application, and grounds 2 and 4 of the outline.  The applicant argues that the Tribunal's decision that it did not accept that the visa applicant's mother was paralysed amounts to a finding that the doctor was dishonest or incompetent, but that there is no evidence upon which to base such a finding. 

2. It is argued that in the absence of contradictory medical evidence the Tribunal were bound to accept the evidence of Dr Muruth. The applicant relies upon the High Court decision in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 93 ALD 300; (2006) 81 ALJR 515; (2006) 228 CLR 152; (2006) 231 ALR 592, where a Tribunal had failed to adequately notify an applicant of the issues that were likely to be dispositive of the application. It is said that the Tribunal in this case ought to have put to the doctor that he was untruthful or incompetent.

3. The transcript of the evidence of the doctor shows that he gave evidence that the mother had a stroke by 1997 (see p.22).  The Tribunal member did go on to put to the doctor that the report provided earlier (in 2003) ‘did not give any picture like you are giving today, to the Tribunal’ (see transcript p.24.43).  The Tribunal member was told by the doctor that the doctor had not written the report but either he or another person had referred to the patient notes (see transcript p.24). 

4. It must have been clear to the doctor that there was some question as the veracity or reliability of his evidence, given the contents of the earlier report which failed to disclose such a significant medical condition as paralysis. This was put to him by the Tribunal member seeking an explanation. That the issue was put politely, rather than in a confronting or combative manner, is sufficient and indeed preferable. It appears that the Tribunal member has struck an appropriate balance between putting the issue and treating the witness with appropriate dignity and respect.

1. The terms of the earlier medical report were specifically referred to in a s.359A letter of 22 February 2007 to the applicant and later in the letter the Tribunal officer listed a large number of potential inconsistencies in the evidence relating to or surrounding the mother's medical condition, pointing out:

   There is inconsistent information provided regarding when Letay Guber Michael became paralysed; regarding when she ceased to be able to provide any care for her children, and regarding who cared for the children after the onset of her incapacity.  The Tribunal may not be satisfied that accurate information has been provided, and may not be satisfied that the visa applicants could not be cared for because their parent Letay Guber Michael was permanently incapacitated at the time of the application.

2. Whilst the Tribunal's questioning of the doctor (in difficult circumstances, given the poor quality of the phone connection, as is apparent from the transcript) was not as detailed or meticulous as one might observe of a barrister cross-examining a doctor in similar circumstances in a courtroom, it nonetheless raised with the doctor a significant issue with respect to previous documents emanating from the hospital.  Thereafter, the Tribunal clearly placed the applicant upon notice with respect to the doctor's evidence and the inconsistency of that evidence with other evidence given in the proceedings. 

3. The question of whether or not a person was paralysed to one side of their body is capable of being the subject of evidence by a layperson as to their normal observations of a person's functioning and therefore the evidence of the other witnesses in the proceedings were relevant to this question.

4. The fact that ultimately, in light of all the evidence, the Tribunal were not persuaded to accept the evidence of the doctor does not amount to a finding that the doctor was lying. It is common for a court to hear the evidence of various persons and not be persuaded to the relevant standard without being persuaded that a person is necessarily lying to the Court.  A similar situation occurs before Tribunals.

5. I do not accept that the conduct of the Tribunal member was insufficient to properly identify this as an issue in the hearing for the witness to assume, nor that the Tribunal member failed to give the applicants proper opportunity to put relevant evidence on this issue. I therefore reject this ground of the application.

Ground 3 – claims of difficulties with interpreting

1. This ground is identified as ground 1(a) and 3(a) of the grounds of application, and covered by issue 1 in the outline.  The applicant says that the Tribunal failed to properly consider the difficulties of the sponsor communicating in English and that the visa applicants were minors at the time that they were interviewed by an officer of the department.  It is argued that these are matters that the Tribunal needed to consider and that it failed to do so in determining the matter. 

2. Issues relating to difficulties with interpreting a language were raised in the solicitor's response to the 359A letter (see Court Book p.212).  These matters were addressed by the Tribunal.  The Tribunal heard evidence orally from the sponsor.  The Tribunal member identified that there were allegations of mistranslation (see para.38), and at para.57. The Tribunal addresses issues relating to the knowledge of the visa applicants as to the relevance of various material. 

3. I do not accept that the Tribunal member ought to have made inquiries of the interviewer of the children in Ethiopia before the Tribunal could make findings as to the evidence before it. It was open to the Tribunal to proceed upon the material. Inquiries were not likely to be dispositive of an issue before the Tribunal. I do not accept that the Tribunal were required to take such a step.

4. The Tribunal is a Tribunal that regularly conducts reviews of cases where a persons' first language is not English, and must regularly deal with difficulties relating to interpretation.  There is no evidence of specific interpreting difficulties that has been placed before the Court.  I am not satisfied that the Tribunal failed to have proper regard to these issues when assessing the evidence before it.  I therefore find that this ground is not made out. 

Ground 4 – failure to determine ages of visa applicants

1. This ground is encompassed by ground 1(c) of the application.  It is argued that the Tribunal failed to exercise jurisdiction in that they failed to make a determination as to the age of some of the visa applicants. 

2. This issue arose as the Tribunal had concerns as to the true age of the visa applicants, all of whom claimed to be under 18. X-rays were obtained of the visa applicants for the purpose of analysis, and the Tribunal received reports indicating that their estimated age was above 25 years. The solicitors for the applicants provided further information to the effect that this could be explained by medical conditions that the children may have suffered as minors.

3. Ultimately, however, the Tribunal made a decision with respect to an aspect of the case that was an essential element to the grant of a visa.  This decision was not in the applicants' favour.  I do not accept that a Tribunal must make decisions as to every aspect of a visa application once an applicant has failed on an essential element.  It appears that a similar view was taken by Weinberg J in Fraser v Minister for Immigration [2002] FCA 1575 at 44. I therefore find that this ground is not made out.

4. As the applicant has not established a ground for judicial review, I must dismiss the application. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate:  Katherine Sudholz

Date:  20 August 2008