Hussain v Minister for Immigration
[2010] FMCA 729
•28 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 729 |
| MIGRATION – Review of decision of the Migration Review Tribunal – whether Tribunal relied on a fact which did not exist – whether Tribunal’s findings were unreasonable – Tribunal’s findings reasonably open to it – Tribunal’s findings not Wednesbury unreasonable – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 476 Migration Regulations 1994 (Cth), reg.1.04, cl.1108 of Schedule 1, cl.101.211, 101.221 of Schedule 2 |
| Attiya Hussain (No.2) v Minister for Immigration & Citizenship [2010] FMCA 730 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; (1993) 115 ALR 1; (1993) 18 AAR 9; [1993] FCA 456 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 |
| Applicant: | ATTIYA HUSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 980 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 July 2010 |
| Date of Last Submission: | 8 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2010 |
REPRESENTATION
| Appearing for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 5 May 2010, and amended on 15 June 2010, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 980 of 2010
| ATTIYA HUSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 5 May 2010, and amended on 15 June 2010, made under s.476 the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 12 April 2010, which affirmed the decision of a delegate of the first respondent to refuse a Child (Migrant) (Class AH) visa to Muhammad Ali Hammad Malik, a child (“the visa applicant”).
Background
The first respondent has put before the Court a bundle of relevant documents (“the Court Book” – “CB”), from which the following is relevant as background.
The applicant before the Court (“the review applicant”) is Mrs Attiya Hussain, a Pakistani citizen and a permanent resident of Australia. In 2005 the review applicant pursued adoption of the visa applicant and his brother in Pakistan. Subsequently an application for the relevant visa was made on behalf of the child so that he could come to Australia (CB 3). The applicants were assisted by lawyers.
This judgment must be read with Attiya Hussain (No.2) v Minister for Immigration & Citizenship [2010] FMCA 730, involving Dawar Hammad Malik, the visa applicant’s brother and also a child. Relevant applications for visas in respect of both brothers were made separately, but at the same time.
The visa applicant in the current case was born on 6 June 1998. His brother was born on 19 April 1994. Ms Hussain is said to be their aunt. The application was refused on 26 October 2009 (CB 68 to CB 74).
The Tribunal
Ms Hussain applied to the Tribunal for review on 12 November 2009 (CB 75). She was again assisted by lawyers. She was invited to, and attended, a hearing before the Tribunal on 5 March 2010. The Tribunal’s account of the hearing is set out in its decision record ([15] at CB 272 to [27] at CB 274).
Following the hearing, by letter dated 12 March 2010 the Tribunal wrote to Ms Hussain inviting her comment on information which it said it considered would be the reason or a part of the reason for affirming the decision under review (CB 152 to CB 153). She responded through her representatives on 30 March 2010 (CB 203 to CB 205, CB 207 to CB 211).
The Relevant Regulatory Scheme
At the relevant time clause 1108 of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”) provided that the child migrant visa class contained a number of subclasses. It is clear, on the material before the Court, that claims were advanced only in respect of subclass 101 – “Child”.
The criteria for this subclass of visa were set out in Part 101 of Schedule 2 to the Regulations. Given clause 101.211(i) and clause 101.221(i), both at the time of application and time of decision, the visa applicant was required to satisfy:
“101.21 Criteria to be satisfied at time of application
101.211(1) The applicant:
(a) is a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25; and
(c) either:
(i) is:
(A) the natural child; or
(B) the step-child within the meaning of paragraph (b) of the definition of step-child;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or
(ii) was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
101.211(2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
101.22 Criteria to be satisfied at time of decision
101.221(1) In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a) continues to satisfy the criterion in clause 101.211; or
(b) does not continue to satisfy that criterion only because the applicant has turned 18.
101.22(2) In the case of an applicant who had turned 18 at the time of the application:
(a) the applicant:
(i) continues to satisfy the criterion in clause 101.211; or
(ii) does not continue to satisfy that criterion only because the applicant has turned 25; and
(b) the applicant continues to satisfy the criterion in clause 101.213.”
In the current circumstances the meaning of “adoption” referred to above is relevant. That meaning was as set out in reg.1-04 as it was at the relevant time:
“1-04 Adoption
(1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
(b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
(c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
(2) For the purposes of paragraph (1) (c), arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) the child‑parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1) (b):
(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.”
The Tribunal’s Decision
The Tribunal found that the visa applicant was not the biological child of Ms Hussain, nor a step-child ([34] at CB 278). This part of its reasoning is not challenged in the current proceedings.
This led the Tribunal to consider that part of the criteria that related to overseas adoption (clause 101.211(1)(c) and reg.1-04). The Tribunal found that while there was no statutory provision for adoption in Pakistan, it was prepared to accept that a type of customary adoption (“kafala”) met the relevant definition (reg.1.04(2)(a)) as an arrangement made in accordance with the “usual practice” ([38] at CB 279).
The Tribunal’s consideration then turned to reg.1.04(2)(b). The issue for resolution was whether Ms Hussain’s child-parent relationship with her adopted son was “significantly closer” than any such relationship between the child and in this case his biological parents.
The Tribunal noted statements from Ms Hussain and the child’s parents ([40] to [41]). Its key reasoning is set out at [42] (CB 280):
“The Tribunal accepts that the applicant is close to the review applicant and the review applicant has continued to talk to him on a regular basis and provide him with significant amounts of financial assistance, love and support. However at hearing, the review applicant also stated that the applicant lives with his biological parents and had done so since at least 2002 and who had a say in deciding whether he came to Australia. Given his biological parent’s day to day involvement with the applicant, the Tribunal is not satisfied that at the time of application the review applicant’s relationship with the applicant was significantly closer than the applicant’s relationship with his biological parents. Given this, the Tribunal finds that the visa applicant does not meet paragraph 1.04(2)(b). Given the above, the Tribunal is not satisfied the applicant is the natural, step or adopted child of the review applicant. Therefore, the applicant fails to meet clause 101.211.”
As the visa applicant did not meet any other relevant requirement the Tribunal affirmed the decision under review.
Application to the Court
The application to the Court, as amended, is in the following terms:
“1. The Tribunal relied upon a fact which did not exist.
PARTICULARS
a. The Tribunal found at para 42 that the visa applicant’s natural parents had a say in whether he (the visa applicant) came to Australia.
b. The visa applicant’s natural parents had not had such a “say” since 2 June 2008. CB 41-42
2. The Tribunal failed to comply with the Migration Act 1958 s.425 in that it failed to provide the Applicant with a fair hearing.
PARTICULARS
a. The Tribunal made a decision in relation to the relative closeness of the visa applicant, his biological parents and the Applicant but denied the Applicant’s request to take evidence from the visa applicant or his biological parents.
3. The Tribunal’s decision was so unreasonable that no reasonable person could have made it. The Tribunal’s decision is, therefore, vitiated by apprehended bias.
PARTICULARS
a. On all the evidence accepted by the Tribunal it was unreasonable for the Tribunal to find that the relationship between the Applicant and the visa applicant was significantly closer than any such relationship between the visa applicant and any other person.”
Before the Court
Mr R Turner appeared for the applicant. Ms A Mitchelmore of counsel appeared for the first respondent. Both parties have filed written submissions.
Leave was granted for the affidavit of Mr Turner of 8 July 2010, which annexed a transcript (“T”) of the Tribunal hearing, to be read into evidence (without objection). Mr Turner submitted that the applicant no longer pressed ground two in the amended application.
Ground One
Ground one asserts: “The Tribunal relied on a fact which did not exist”. At the hearing I sought clarification from Mr Turner as to what exact (if any) error was being asserted by this ground. I note, as the Minister’s written submissions also appear to have read it, there was some lack of clarity whether this was a “no evidence” type of complaint or otherwise (see [28] of the Minister’s written submissions).
The applicant’s factual complaint appears to arise from that part of the Tribunal’s reasoning at [42] which states that: “… the applicant lives with his biological parents and has done so since at least 2002 and who had a say in deciding whether he came to Australia”.
I understood Mr Turner to submit that the jurisdictional error alleged was that the Tribunal took into account an irrelevant consideration. That being that its reliance on the biological parents having a “say” in deciding whether the child came to Australia was “a fact which did not exist”.
The applicant referred the Court to:
1)A document headed: “Deed of Adoption” (CB 35). The terms of the “Deed” assert an agreement by the biological parents to give their son (and his brother) in adoption to Ms Hussain. The document is dated 1 February 2005. It was provided with the application for the visa (CB 1.5).
2)Two “affidavits” dated 2 June 2008 said to have been made by the visa applicant’s father and mother respectively (CB 41 and CB 42) where, relevantly, the following is said:
“That as per deed of adoption dated 01-02-2005 my above said both the children/sons have been adopted by MRS. ATIYA FIRDOUS HUSSAIN W/o Dr. MOHAMMAD HUSSAIN, Resident of 81 LEIEH, Street NFW-2440 KEMPTSEY 2440 AUSTRALIA and she is at liberty to deal with the affairs of the above said minors. She may spent over the education, health etc of both the minors. She may shift the minors any where and I have no objection if both the minors reside with her permanently at Australia as I have hand over the custody of the above said minors permanently to her.”
3)A document headed “Affidavit/Declaration” dated 2 December 2009 made by the biological parents, given to the Tribunal prior to the hearing and which asserts, amongst other things (CB 96):
“That as per deed of adoption, dated 01-02-2005 our above said both sons have been adopted by MRS. ATIYA HUSSAIN W/O DR. MUHAMMAD HUSSAIN, holding CNIC No 42301-3613540-0 Muslim, adult, resident of 81, LEITH Street West Kempasy NWS-2440 Australia. She is at liberty to deal with affairs of our these sons. Our above named both sons are entirely depending on her. She is their financially supporter in respect of education, health, food, clothing etc. She takes decision regarding their admission/transfer to/from school/college and we act upon her advice in all affairs relating to the carrier of our said sons, we have handed over the custody of our above named sons permanently to her. She is fully authorized to decide all the future affairs viz higher education, job and marriage etc, of our theses sons. She may shift them anywhere. We have no objection if our above named both sons resides with her, permanently in Australia.”
4)That part of the letter sent to Ms Hussain by the Tribunal seeking her comments:
“• In a statement by you dated 22 June 2009 you stated:
‘I know that we didn’t enter them in our immigration application before, the only reason was that they were living with their real parents and that time they (the real parents) were not sure about sending them here. But now the things are change.’
• and in a statement by your solicitors they stated:
‘We are instructed that despite our client having already adopted the children at the time of her relocation to Australia our client did not have the permission of the natural parents to move the subject children overseas. We are aware that that consent was given just prior to June 2008.’
This is relevant because the Tribunal may find that on the basis of this information and on the basis the children are still living with their biological parents that it is not satisfied the child-parent relationship between you and the children is significantly closer than any such relationship between the children and their biological parents, having regard to the nature and duration of the arrangements.”
5)The Transcript of the Tribunal hearing at T13 line 45 to T14 line 4:
“MS HUSSAIN: Yes. He was three and a half years old and Ali was just five years old, so me and my husband and the real parents, we all decided that the kids will stay with their real parents for few years or maybe one and a half years. Once – if we will settle down there, well good, then we will take them to Australia. So only that was the reason we didn’t apply for their visa”.
6)At T21 line 19 to line 29:
“THE MEMBER: -- in June 2008, stating that it was her instructions – and this is – sorry. This was sent to the Department by Vanessa McNealy (?) on 17 June 2009. Now she has said, ‘We understand’ – or ‘We are instructed that despite our client having already adopted the children at the time of her relocation to Australia, our client did not have the permission of the natural parents to move the subject children overseas. We are aware that consent was given just prior to June 2008.’
MS HUSSAIN: Yes…”
Whatever exact jurisdictional error is asserted, I understood at least the applicant’s complaint to be that the Tribunal erred in finding that the visa applicant’s biological parents had a say in deciding whether he could come to Australia.
The argument is, with reference to the material referred to above, that even if it could be said that the biological parents had some influence over their child’s migration prior to 2 June 2008, any such rights or influence were given up on that date. Therefore as at the date of application for the visa (18 June 2008) the biological parents had already given up their “say” in relation to the child’s migration to Australia to Ms Hussain.
Ground One – Subsidiary Points
Towards the conclusion of submissions by Mr Turner on this ground I understood him also to complain that, with reference to the entire sentence relied on from [42]:
“However at hearing, the review applicant also stated that the applicant lives with his biological parents and had done so since at least 2002 and who had a say in deciding whether he came to Australia”
[Emphasis added – see [26] below]
that at no point in the hearing did Ms Hussain say that the child’s parents had a say in whether he came to Australia.
This latter “subsidiary” complaint appears to rely on a reading of the Tribunal’s sentence that links what follows the second conjunctive (“and”) to what was said at the hearing by Ms Hussain.
I am reminded by what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (at 271 to 272) (with reference to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; (1993) 115 ALR 1; (1993) 18 AAR 9; [1993] FCA 456) that Tribunal decisions are not to be read with an eye attuned to error (“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”).
In my view it is at least a fair reading that what the Tribunal was saying, perhaps somewhat inelegantly, was that at the hearing Ms Hussain said that the child had lived with his parents and had done so since 2002. What then follows, if read in context of the sentence that precedes it, is that the Tribunal’s reasoning was that, in balancing the closeness of the two sets of relationships, and indeed deciding if one was “significantly closer”, what weighed against Ms Hussain’s position was that the biological parents, with whom their child still continued to live, had a say in deciding whether he came to Australia.
This reading is consistent with the Tribunal’s own account and understanding of what occurred at the hearing. I should just note that at first glance there may be some doubt as to why the Tribunal made reference to the year “2002”. The visa applicant was born in 1998. Did this mean he had not lived with his parents until 2002?
The clear answer is to be found at [18] of the Tribunal’s account of the hearing:
“The review applicant stated that the children had been given to her pursuant to Sharia law. She stated they were currently living in Clifton, Karachi and had sone [sic] so since 2002 with their biological parents”.
This is consistent with what is stated in the transcript of the hearing (see T11, line 3 to T11, line 16).
Ground One Continued
In any event, the broad thrust of the complaint in ground one is that the biological parents did not have a say in whether the child came to Australia, the Tribunal should not have found that they did, and therefore should not have found that it could not be satisfied that Ms Hussain’s relationship to the child was significantly closer than his relationship with his biological parents.
Even putting to one side that the exact legal basis for jurisdictional error has not been identified, or at least satisfactorily explained in the current case, the complaint fails. I cannot see any jurisdictional error in what the Tribunal has done.
In essence the attack did not address, or may be said to have misunderstood, the exact nature of the relevant task facing the Tribunal and was selective in its reliance on parts of the evidence before the Court.
The child applied for a child migrant visa. In the circumstances of this case, and it is not in dispute between the parties, for the visa applicant to obtain the grant of the visa the Tribunal had to be satisfied that the child, amongst other things, had been adopted overseas by Ms Hussain (clause 101.211(1)(c)(ii) of Schedule 2 to the Regulations).
In considering this the Tribunal was therefore required to have regard to reg.1.04 which relevantly governs the meaning of “adoption”.
Given that the relevant circumstances of this case did not satisfy (and nor is it in dispute) the provisions of reg.1.04(1)(a) and (b), the Tribunal was required to consider reg.1.04(1)(c). That is, whether “other arrangements entered into outside of Australia could be taken to be in the nature of adoption”.
Given the clear reference to “subregulation (2)” in reg.1.04(1)(c), this required the Tribunal to have regard to reg.1.04(2). In this regard, it found that the arrangement presented could fall into: “the usual practice” for these type of matters in Pakistan (with reference to reg.1.04(a)).
But this was not sufficient for the visa applicant to succeed. The Tribunal was also required to consider the question posed by reg.1.04(2)(b). Namely, was the child-parent relationship between Ms Hussain and the child adoptee “significantly closer” than, relevantly in the circumstances, the relationship between him and his biological parents.
The Tribunal found that, although it was close, it was not “significantly closer”.
The applicant’s attack at its highest is to assert that this was not the case. The reason advanced was to attack the Tribunal’s finding that the parents had a say in the child coming to Australia. It was said that was not the case because the parents said so in their “affidavit” of 2 June 2008.
First, the applicant’s attack is silent on the requirement in reg.1.04(2)(b) that in considering the critical question of “significantly closer” the Tribunal was required to do so by having regard to: “the nature and duration of the arrangements”.
To the extent therefore that the attack implies that the Tribunal should not have looked to events or the situation prior to 2 June 2008, then that must be rejected. There is no relevant limitation evident in the Regulations (or elsewhere) to support such an implication.
Second, the direction in the Regulation is to have regard to the nature and duration of the arrangements. In this the biological parents “affidavits” were only one piece, and certainly not the only piece of evidence, before the Tribunal on which it was entitled to draw to reach its conclusion.
In the circumstances the fact that the biological parents made this statement does not mean the Tribunal was not entitled to consider other evidence, or was bound only to consider that one piece of evidence and to ignore other evidence before it.
In the main this was other evidence that Ms Hussain herself gave to the Tribunal.
The transcript of the hearing provided to the Court by the applicant in this matter provides a basis for an understanding of the Tribunal’s ultimate reasoning and the basis from which that reasoning was derived.
The Tribunal, properly in my view, took some time at the beginning of the hearing setting out the relevant regulatory scheme referred to above (T7 to T10), and how it may apply to the circumstances of this case.
Essentially Ms Hussain’s relevant evidence begins at T11. The important and relevant elements of her evidence include:
1)The visa applicant lived with his biological parents. He had lived with them in Karachi since 2002 (T11).
2)The adoption took place on 1 February 2005 (T11, line 24).
3)In two (of a number of) applications relevant to visas to come to Australia, both made after this date (12 August 2005 and 14 May 2007), the review applicant made no mention of the child (T11).
4)The review applicant (with some technical interruption) provided an explanation (T12 and following).
5)In part the explanation was that her husband had hired a lawyer to fill out the forms (T16).
6)But ultimately Ms Hussain confirmed that the visa applicant was not mentioned in any of the applications relevant to her, her husband’s, and their natural children’s travel to Australia (T16).
7)The visa applicant child continued to live with his biological parents (T17).
8)The explanation for the omission was in part said to be a “mistake” (T17).
9)However Ms Hussain’s evidence included, at the time when she and her husband “were moving” to Australia, that: “… his mum and me both decided that he can stay with his real parents for a few more years” (T17 line 47 to T18 line 1).
10)The Tribunal referred to the statements of 17 June 2009 made by Ms Hussain and her then solicitors. Both statements were the subject of the Tribunal’s letter of 12 March 2010 to Ms Hussain (see CB 152 and [22] above).
11)The import of these statements was that Ms Hussain’s evidence was that, in explanation as to the omission of the child from her own visa application: “… they were living with their real parents and at that time they, the real parents, were not sure about sending them here”. Ms Hussain emphasised that at the time the visa applicant’s mother was not “hundred percent willing…”. The clear implication being that the mother at least had a say in whether the child came to Australia (see T21 to T23).
Ms Hussain’s husband also gave evidence to the Tribunal (T27). Again it is clear the Tribunal was concerned that, although the children were said to have been “adopted” in February 2005, at least some years later Mr and Mrs Hussain failed to make any mention of the child in relevant documentation provided to the Australian government in relation to obtaining visas for themselves and the rest of their family.
Relevantly, he confirmed the biological mother’s (at least initial) hesitation in the child coming to Australia. But then “later on” he said she agreed (T27 to T28). Although his evidence was unclear as to the timing.
While the review applicant then resumed her evidence, it was for the most part directed to how close her relationship was with the child.
Ultimately the Tribunal found that Ms Hussain and the child had a close relationship. But clearly this is not the threshold of the relevant test. The test required the Tribunal to reach a requisite level of satisfaction not just that it was close but that it was “significantly closer” than the relationship with the child’s biological parents.
I agree with Ms Mitchelmore that, based on the totality of the evidence before it, including all of the evidence given at the hearing by Mr and Ms Hussain, that it was at least reasonably open to the Tribunal to find that the relationship between Ms Hussain and the child was not significantly closer than the relationship he had with his biological parents with whom he had previously resided and continued to reside even after the adoption in 2005, and Ms Hussain’s subsequent migration to Australia.
Mr Turner seeks to rely on the “affidavit” of 2 June 2008, which asserts that the biological parents had given “custody” of the child to Ms Hussain, to argue that at least from that date it could not be said that the biological parents did not have a significantly closer relationship with their son than Ms Hussain.
But there was also evidence before the Tribunal which meant it was reasonably open to it to find that it was not “significantly closer”. The fact that he continued to live with his biological parents even after the adoption in 2005, that there was no mention of him as her child in relevant migration documents, that the biological mother at least for some time after the adoption was “hesitant” about his coming to Australia, which suggested some degree of retention of control of the general direction of his life in addition to the day to day control over his daily life, was also before the Tribunal.
It could even be said that even as late as December 2009 the biological parents saw the need to clarify their position. A further “affidavit” was submitted by Mr Turner to the Tribunal on the applicant’s behalf (CB 95 to CB 96 - item 3 at [22] above). When plainly read, this document makes an assertion as to the biological parents’ perception of the relevant relationships as at December 2009 and not earlier. That is that, irrespective of what they said in June 2008, they continued to have a say and play a role in the life of this son up to December 2009.
Further, the words:
“We have no objection if our above named both sons resides with her permanently in Australia” (CB 96.8)
would suggest that even as late as December 2009 they felt it relevant to put to the Tribunal that they had “no objections” to the sons travel to Australia. Implicit in this is that they still felt they had a right to make an objection if they would have otherwise felt it appropriate to do so.
In all, the biological parents position as stated by them is clearly that they wanted their sons to go to Australia to live with Ms Hussain. But the mere fact that they felt the need to provide this statement, and the language that was employed, at least infers they felt they still had some say in whether the child could come to Australia.
In my view, it cannot be said in the circumstances that the Tribunal “relied upon a fact which did not exist”. I cannot see jurisdictional error on the basis of the Tribunal taking into account an irrelevant consideration, making a finding for which there was no probative basis, or that it was not open to it to came to the conclusion that it did on what was before it. Whichever, or all of these sat behind the ground as stated.
Ground one is not made out.
Ground Three
Ground three asserts an apprehension of bias said to arise from a decision that was so unreasonable that no reasonable person could have made it.
It was unclear whether the applicant was asserting jurisdictional error arising out of Wednesbury unreasonableness (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223), an apprehension of bias as explained by the High Court in such cases as Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”), or both, or otherwise. No authorities were cited. At the hearing I understood the attack to be that the decision was Wednesbury unreasonable and therefore this was a strong indication of an apprehension of bias.
In essence the applicant’s complaint is that, based on all of the evidence put before the Tribunal, it was unreasonable of the Tribunal to come to the conclusion that it did.
This was said to be because Ms Hussain had provided evidence that she was responsible for the long term care, welfare (both financial and non-financial) and development of the child. That this included an extensive list of facets of his daily life. Further, that she spoke to him frequently by phone and engaged on an emotional and familial level with him, including discussion of intimate details.
Mr Turner also relied on the evidence provided by the biological parents asserting Ms Hussain’s responsibility for the child and their assertion of both the child and his brother that: “They are her children” (see CB 260 to CB 262). This was contained in a further “affidavit/declaration” made by the parents on 16 March 2010 and submitted by Mr Turner to the Tribunal in part in response to its letter of 12 March 2010 (CB 207 to CB 208).
The submission was that, as against what was described as this “overwhelming” evidence, the Tribunal relied on what it said was “the biological parents day to day involvement with the applicant”. A matter about which it had no evidence.
The conclusion therefore is that the decision made in this fashion was so unreasonable that no reasonable person could have come to it. The submission was that this provides a reasonable implication that the Tribunal’s decision is affected by jurisdictional error.
I note by way of preliminary observation that the test for apprehension of bias, as set out in such authorities as Ex parte H, is not one of “implication” but possibility. That is, that the well-informed lay observer could reasonably apprehend that the Tribunal did not bring an open mind to the consideration of the matter, or that it was not open to persuasion.
It is clear that the review applicant put a large amount of material before the Tribunal. She and her husband gave evidence. The Tribunal accepted, based on this, that she had a close relationship with the visa applicant child.
However whether this material and evidence was “overwhelming” is, on its own, not determinative of the issue before the Court. The Wednesbury test is whether the decision in the circumstances was so unreasonable that no reasonable person could have made it. At its highest the applicant’s submission is that, in the face of overwhelming evidence and no evidence to the contrary, the Tribunal’s decision was unreasonable.
In the circumstances I do not agree.
As Mr Turner himself recognised in submissions, there is a thin line between his argument and a plea for impermissible merits review.
First, it is not correct in my view to say that there was no evidence of the biological parents’ day to day involvement in the child’s daily life.
In my view it was reasonable and open to the Tribunal to draw a compelling inference from the mere circumstance that the child lived with his biological parents in Karachi. Further, that Ms Hussain was physically thousands of miles away in a different country. That in these circumstances the parents must have remained close to the child and played some role in day to day interaction or involvement with him.
Beyond this inference there was also tangible evidence before the Tribunal of such involvement. As Ms Mitchemore submitted, the review applicant herself gave evidence that the child’s father had refused to buy him a bicycle. Her evidence was that, on receiving a complaint from the child, she spoke to her brother and then he bought the bicycle after speaking to her (T31).
Whatever else can be said about this incident, it shows at least some involvement in the day to day life of the child.
Further, this “incident” illustrates the difficulty faced by the applicant in terms of the regulatory test. The hurdle is not just that Ms Hussain had a close relationship with the child, but that it was “significantly closer” than that of the child’s biological parents.
Clearly the Tribunal was persuaded on all of the evidence that there was a close relationship. But there was also evidence before it, despite submissions made by Mr Turner now, that the child continued to live with his biological parents (this was never in dispute), and that some day to day involvement existed.
As is often said, minds may differ on how all the evidence is weighed and viewed by the Tribunal. A different Tribunal member may indeed have felt satisfied that, despite being thousands of miles away, given her other substantial involvement Ms Hussain had a significantly closer relationship.
But this Tribunal could not be so satisfied. It clearly saw that as the child had been living, and that he had continued to live, with his biological parents for some years after the adoption, parents who had at least for some considerable period continued to have a say in his coming to Australia, and that there continued a day to day involvement with the child meant that it could not be satisfied that Ms Hussain’s relationship was “significantly closer”.
There was nothing unreasonable implicit in the Tribunal’s conclusion that, notwithstanding that the biological parents wanted the child to come to Australia to be with Mrs Hussain, they therefore ceased or altered their own daily and long term parental feelings and responsibilities towards the child. In fact there was evidence to support this.
The Tribunal’s decision in the circumstances was not so unreasonable in the Wednesbury sense. Nor in the absence of anything further is the test in Ex parte H made out for an apprehension of bias.
In all, ground two does not succeed.
Conclusion
With the benefit of legal assistance the applicant has put and pressed two grounds before the Court. For the applicant to succeed the Court would, at least, need to discern jurisdictional error in one of those grounds. No such error is revealed. The application is therefore dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 28 September 2010
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