Ibrahim v Minister for Immigration
[2017] FCCA 882
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IBRAHIM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 882 |
| Catchwords: MIGRATION – Application for Child (Migrant)(Class AH)(subclass 117) visa – where Tribunal found applicants had provided a “bogus document” in breach of Public Interest Criterion 4020 to the Department – Tribunal’s decision not affected by jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.97, 359A Migration Legislation Amendment Regulation 2013 (No.3) Migration Regulations 1994 (Cth) regs.1.03, 1.14, clause 117.223 of Schedule 2 PIC 4020(1) |
| Badicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 Jones v Australian Competition and Consumer Commission (2002) 76 ALR 424 Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 Minister for Immigration and Citizenship v Brar (2012] FCAFC 30 SZGBR v Minister for Immigration [2005] FMCA 824 SZTWU v Minister for Immigration [2014] FCCA 12 Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 |
| First Applicant: | MAHAD SAME IBRAHIM |
| Second Applicant: | SHUKRI IMAN HUSSEIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1122 of 2014 |
| First Applicant: | MAHAD SAME IBRAHIM |
| Second Applicant: | AHMED SAME IBRAHIM |
| Third Applicant: | AWAYS SAME IBRAHIM |
| Fourth Applicant: | SAGAL SAME IBRAHIM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 1123 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 4 August 2015 |
| Date of Last Submission: | 4 August 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Counsel for the Applicants in both proceedings: | Mr Steele |
| Solicitors for the Applicants in both proceedings: | Fischer Migration Lawyers |
| Counsel for the Respondents in both proceedings: | Ms Wheatley |
| Solicitors for the Respondents in both proceedings: | Clayton Utz |
ORDERS IN BRG 1122 of 2014
The further amended application filed on 16 July, 2015 be dismissed.
ORDERS IN BRG 1123 of 2014
The further amended application filed on 22 June, 2015 be dismissed.
The applicants pay the first respondents costs of and incidental to the application fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1122 of 2014
| MAHAD SAME IBRAHIM |
First Applicant
SHUKRI IMAN HUSSEIN
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
BRG 1123 of 2014
| MAHAD SAME IBRAHIM |
First Applicant
| AHMED SAME IBRAHIM |
Second Applicant
| AWAYS SAME IBRAHIM |
Third Applicant
| SAGAK SAME IBRAHIM |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment relate to the two applications identified above.
In the first, BRG1123 of 2014, the applicants apply for review of a decision of the second respondent made on 31 October, 2014 affirming a decision of the first respondent (made on 19 March, 2014) to refuse to grant the applicants Child (Migrant)(Class AH)(subclass 117) visas. The second, third and fourth applicants are the siblings of the first applicant.
In the second matter, BRG1122 of 2014, the second applicant is the cousin of the first applicant (who is the same person as the first applicant in BRG 1123 of 2014). She claims to have been culturally adopted by the first applicant’s mother.
In each case, the applicants initially filed the applications one day late. The require an extension of time within which to bring the applications pursuant to s.477(1) of the Migration Act 1958 (Cth). The respondents have raised no substantive objection to leave being granted to extend time. No prejudice to the respondents has been alleged, or is apparent. Leave to commence the proceedings out of time should be granted. It is plainly in the interests of the administration of justice to do so.
In each case, the applicants filed a further amended application for review (on 22 June, 2015 in BRG 1123 of 2014 and 16 July, 2014 in BRG 1122 of 2014). The grounds of review are identical. All of the applicants in each of the cases rely on the same written submissions. Counsel appeared for all of the applicants in each of the applications and made submissions which applied to both applications.
The first respondent opposes the applications. The second respondent entered a submitting appearance in each case. The first respondent relied upon written submissions. Although written submissions were filed in each application, as between the applications, the first respondent’s submissions are identical.
Written submissions were initially filed by each of the parties in preparation for a hearing on 8 May, 2015. An initial outline was filed by the applicants on 21 April, 2015 the first respondent’s written submissions were filed on 24 April, 2015 and a reply to the first respondent’s written submissions by the applicants was filed on 1 May, 2015. However, on 8 May, 2015 the applicants sought and obtained leave to amend their applications for review. The amendments were significant and the hearing of the applications was adjourned so that further written submissions might be filed. The applicants filed supplementary submissions on 31 July, 2015 and the first respondent filed further written submissions on 31 July, 2015.
Subclass 117 visas
The criteria for visas of subclass 117 – Orphan Relative Visa was amended by the Migration Legislation Amendment Regulation 2013 (No. 3), so as to insert a requirement to satisfy Public Interest Criteria 4020 in schedule 4 of the Migration Regulations 1994 (Cth). There is no dispute that the amendments applied in relation to the visa applications made by the applicants in this case.
Relevantly PIC 4020 provides:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
Information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Regulation 1.03 defines bogus document as having the same meaning as in s.97 of the Act. Section 97 provides:
“Bogus document”, in relation to a person, means 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.
Also relevant, from Division 5, Part 5 of the Act is s.359A:
359A Information and invitation given in writing by Tribunal
Submissions
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
The visa applications
The first applicant is an Australian citizen. The first applicant is a citizen of Somalia, born on 15 May 1983, and was granted an onshore protection visa on 1 September, 2009. He has permanent residency in Australia. The second, third and fourth applicants in BRG1123/2014 are the siblings of the first applicant. They are Somali citizens residing in Kenya.
The second applicant in BRG1122 of 2014 is the first applicant’s cousin.
The first applicant is the sponsor of each of the other applicants’ applications for Child (Migrant) (Class AH) orphan relative (subclass 117) visas.
A central feature of the applications is the claim by the applicants in BRG1123 of 2014 that their mother, Ms Amina Hussein Farah, died in Kenya on 4 June, 2012. The second applicant in BRG1122of 2014 claims that she was the culturally adopted daughter of the first respondent’s mother, the person who is now said to be deceased. They submitted a death certificate with their visa applications.
On 4 February, 2013 the Ministry of State for Immigration and Registration of Persons from Nairobi provided a letter to the Australian High Commission in relation to the verification of the death certificate of Ms Amina Hussein Farah stating that the copy was not genuine.
On 8 March, 2013 a letter was received by the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) in relation to the death certificate of Ms Farah and a “UNHCR rations card printout”. That letter verified that the death certificate was not a true copy and was assessed as being fraudulent. The rations card still had Ms Farah registered as the principal applicant. It was noted, however, that the UNHCR stated that some families do not report deaths so that the rations are not reduced. The rations card was assessed as having ‘serious concerns’.
On 17 April, 2013 an officer of the first respondent’s Department wrote inviting comment on information that was provided with the visa applications. The letter advised that checks directly with the government of Kenya had been undertaken in relation to the claimed death certificate of Ms Farah and it was found to be fraudulent. The Department had also contacted the UNHCR to confirm the details of the rations card printout, which recorded the applicants’ mother as still being alive. Therefore, the Department was not satisfied that the applicants’ mother was deceased, as claimed. The officer stated that the applicants had provided misleading information and it could not be satisfied that the applicants were orphans. The applicants were given 28 days to respond.
On 14 May, 2013 the applicants’ migration agent provided a response, in summary noting that the UNHCR only updates its ration cards once per year and an updated copy of 29 April, 2013 was provided. This updated rations card showed that the applicants’ mother had now been removed. The applicants denied the allegations of fraud in relation to the death certificate and the migration agent submitted that the onus to prove the certificate was false rested with the Department. The migration agent also sought for the Department to inspect the original document by an Australian document verification expert.
On 27 August, 2013 pursuant to a request by the Department, the original of the death certificate was provided.
On 2 October, 2013 the Department wrote to the applicants in relation to the unfavourable information which did not support the application. The issues raised in that letter can be summarised as follows:
a)it was claimed that the third and fourth applicants were full siblings of the first applicant (sharing the same mother and father) but their dates of birth were after 1991 when it was claimed that their father left the family;
b)previous information was provided about one of the male applicants (name not provided) in relation to attending primary school in the Hagadera Camp and records for the camp schooling were requested;
c)on completion of the interview on 12 September 2013, the interviewing officers concluded that the second applicant and Shukri demonstrated characteristics of someone older than their stated ages and not under the age of 18;
d)at the interview the second applicant and Shukri wore wedding rings. They both denied they were in a relationship with each other and/or other individuals;
e)the applicants stated they had never seen the death certificate in relation to their mother, which was provided with the visa applications.
The 2 October, 2013 letter also noted the requirements of PIC 4020 and requested comment. Further information was also requested, including inter alia, evidence of their mother’s attendance at the camp hospital and who was added to the UNHCR ration card in March, 2013.
On 30 October, 2013 the applicants’ migration agent requested further information and an extension of time to respond. A substantive response was also provided, attaching a statutory declaration of the first applicant/sponsor dated 30 October, 2013 and an earlier statutory declaration dated 20 August, 2013 copies of UNHCR registration record dated 15 February, 2010 and amended in March, 2013 and a copy of the death certificate of Amina Hussein Farah as well as submissions.
On 14 February, 2014 the Australian High Commission wrote to the second applicant providing an invitation to comment on information including PIC 4020 and further adverse information. The letter also provided an opportunity to the applicants to give reasons why they believed there were compelling or compassionate circumstances affecting the interests of Australia or affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020. A response was provided on 14 March, 2014.
On 19 March, 2014 the first respondent’s delegate refused the applications on the basis that the applicants had provided a “bogus document”, in breach of criterion 4020, required to be satisfied by cl.117.223 in Schedule 2 to the Migration Regulations 1994 (Cth). The first respondent’s delegate concluded that the applicants were “subject to the Fraud PIC”. The delegate referred to public interest criterion 4020 as the “Fraud PIC”. The applicants were held to have not met the requirements of clause 117.223 of Schedule 2 to the Regulations.
The delegate noted that applicants “who are found to have provided bogus documents or misleading information to the Department are subject to the Fraud PIC”. The delegate considered a death certificate purportedly in respect of the applicants’ mother provided by them to support their application. It is this document that the delegate thought was bogus. The delegate noted that the Kenyan authorities “have determined that this death certificate does not exist on their records and is therefore a counterfeit document.” However, the delegate did not make an explicit finding in relation to the death certificate.
On 30 May, 2014 the applicants applied for review of the delegate’s decision by a migration review tribunal.
On 4 September, 2014 the MRT invited the first applicant (as the review applicant) to attend an oral hearing on 20 October, 2014. The hearing invitation noted that this matter and the related matter would be heard together.
On 13 October, 2014 the applicants’ migration agent returned the response to the hearing invitation (then amended on 17 October, 2014), a letter from the LWF local security, Kakuma Refugee Camp and a letter from the Republic of Kenya Ministry of Labour Social Security and Services.
A hearing took place on 20 October, 2014. The applicants were represented by their migration agent. They had the assistance of a Somali interpreter. Further information and comments were required by 21 October, 2014. They were provided by the applicants’ migration agent.
On 31 October, 2014 in each case the second respondent affirmed the decision of the first respondent’s delegate. The reasons for decision in both cases (BRG 1123/2014 and BRG 1122/2014) were in essential respects the same.
The tribunal summarised the issues before it as follows:
6. The issue in this review is whether the visa applicants meet Public Interest Criterion 4020 (PIC 4020) as required by cl.117.223 for the grant of the visa. Broadly speaking, this requires that:
• there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
• the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the application is granted or refused: PIC 4020(2); and
• the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
• neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the application is granted or refused: PIC 4020(2B).
7. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
The tribunal concluded in each case that the applicants had provided a bogus document, namely the mother’s death certificate. The tribunal also concluded that there were otherwise no compelling or compassionate circumstances which would permit the requirements of PIC 4020(1) to be waived.
The tribunal’s determination that the applicants had provided a bogus document was based upon the inquires made by and the information given to the first respondent’s delegate when determining the visa applications in the first instance. The tribunal did not assume the findings of the first respondent’s delegate for itself, but rather considered the information provided to the delegate. The examination of that material was not particularly fulsome, largely because the first applicant conceded to the tribunal that the death certificate that he gave to the first respondent in support of his application was false.
I have before me a transcript of the hearing before the tribunal. The parties agreed that the Court should accept the version of the transcript that was annexed to the affidavit of Emily Claire Costello filed on 20 July, 2015.
The transcript shows that the tribunal raised the death certificate of the first applicant’s mother with him. He explained that a neighbour, who was looking after the other applicants in a refugee camp referred him to another person called Ali to get the death certificate. Ali insisted upon being paid some money and then a certificate in respect of the first applicant’s mother was given to him. He could not otherwise identify Ali and had no contact details for him. Thereafter appears the following exchange between the first applicant and the tribunal member:
Member:I mean, what I’m getting at is that I mean you’ve repeatedly um stated: ‘Look this is not a bogus document. It’s not a fraudulent document’.
Member:But you really don’t have any idea.
Applicant:I realise. I was saying this document is not. I was saying yes. And it’s still saying this document is false. But I feel that. ..
Member:Sorry you say it’s what?
Applicant:I was saying this document is not false documentation but when I do the research and see the corruption and how the corruption work in there and they taking money from you and telling you they will be making you document your - even national people have to pay money if they need some document.
Member:So, so are you now saying to me that having made this recent trip um, back home um, and having seen the corruption um. and having done some research that you realise this is a fraudulent document?
Applicant:Yes, when I see the corruption. When I, when I went there and I tried to find my mum and I tried to find some documentation from Kenyan government and every single office, every place you have to at least spend money. You have to talk to someone. You have to ...
Member:So you concede that that death certificate is fraudulent? -
Applicant:This one.
Member:This one Yes.
Applicant:I believe it is.
Member:You think it is.
Applicant:Yes it is. I think it is because if they asking me money now, the money they took me they haven’t done anything with good.
Member:So you think that um, you now think that Ali just took your money.
Applicant:Yes, he took me my money.
Member:He took money and he got a fraudulent document?
Applicant:Yes.
Member:Mm. So you concede that it’s fraudulent?
Applicant:Yes.
In addition to that, the Applicants’ agent’s submissions to the tribunal on 21 October, 2014 provided:
In this regard, we respectfully submit that the applicant has no choice but to concede that there is evidence before the Minister that he has ‘caused to be given’ documents that purport to have been, but were not in fact, issued, as that is the finding of the Minister in the delegate’s decision of 19 March 2014, and cannot be proven otherwise. However, we note the following compassionate and compelling circumstances affecting the interests of the review applicant: ...
On this issue the tribunal concluded:
22. In his oral evidence before the Tribunal the applicant gave evidence regarding how he obtained the death certificate. He indicated that a female neighbour of his, who was looking after the applicants following the death of his mother, put him in contact with a man named Ali (who he did not know), who he paid to obtain the death certificate on his behalf. He conceded to the Tribunal that he now knows that there is corruption and that he believes that the death certificate obtained for him by Ali, and which he provided to the Department, is fraudulent. He claims that at the document was innocently provided by him to the Department.
23. For the requirements in PIC 4020(1) to be engaged, it is not necessary to show knowing complicity by the visa applicant in the provision of bogus documents.
24. On the basis of the evidence before it, namely the results of the documentation verification check and the review applicant’s concession, the Tribunal finds that the applicants gave a bogus death certificate to the Department in support of their application. The death certificate is bogus as it purports to have been, but was not, issued by the Government of Kenya–Births and Deaths Registry Office.
25. Given these findings the Tribunal has not gone on to consider whether the applicants have provided false and misleading information in a material particular in respect of the UNHCR registration.
26. Therefore, the applicants do not meet PIC 4020(1).
The tribunal then moved to consider if there were compassionate or compelling circumstances that would lead to the waiving of the requirements of PIC 4020. As to this matter, the tribunal firstly determined that it did not accept that the applicants’ mother was dead. The tribunal’s reasons explain:
30. … The Tribunal makes this finding not only on the basis of the provision of the bogus death certificate, but also on the basis of the UNHCR documentation which was updated in March 2013 after the date upon which the applicants claim their mother died (4 June 2012), and which lists her as alive and her marital status as married. The Tribunal places considerable weight on the UNHCR documentation which it regards as reliable. The Tribunal also has some disquiet about the timing of the claimed death of the mother, which occurred two weeks after the refusal of an application made by the sponsor to sponsor his mother and siblings under the Special Humanitarian program.
The tribunal recorded and then dealt with the four matters specifically relied upon by the first applicant to engage the waiver of PIC 4020. They were:
a)that he had spent large amounts of money trying to obtain legitimate documents;
b)that he suffers from stress and anxiety;
c)that he was trying to fulfil his legal obligations as per his mother’s wishes for him to care for her four other surviving children; and
d)that he claimed that Article 3 of the Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the child shall be the primary consideration.
The tribunal dealt with each of those matters and determined that that the requirements of PIC 4020(1) should not be waived.
The grounds of review
The further amended applications for review specifies the following grounds of review:
1. That the decision of the Second Respondent was affected by jurisdictional error because:
a. The Second Respondent failed to comply with a procedural requirement set out under section 359AA and 359A Migration Act 1958;
Particulars:
(i) At paragraph 25 of its decisions the Second respondent stated: ‘ ... the Tribunal has not gone on to consider whether the applicants have provided false and misleading information in a material particular in respect of the UNHCR registration’;
(ii) Inconsistent with the above statement, at paragraph 30 of its decisions, the Second Respondent stated: ‘On the evidence before it the Tribunal does not accept that the applicant’s adoptive mother is dead.’
(iii) At paragraph 35: ‘The Tribunal is not satisfied that the applicants are orphaned, as it does not accept that their mother is dead.’
(iv) The second respondent failed to consider whether the applicant’s mother is in fact deceased.
(v) The second respondent failed to invite the applicant to make further comment in relation to its finding that the applicant had provided false information that his mother was deceased.
b. The second respondent exercised apprehended bias
Particulars:
(i) The second respondent failed to make its own investigations to the UNHCR in relation to the status of the applicant’s mother.
(ii) The second respondent relied instead on evidence obtained by the first respondent, which remained contested by the applicant;
(iii) the second respondent showed prejudgment about the document verification process and the death certificate of the first applicant’s mother, that process being integral to the second respondent’s conclusion that the mother was not dead:
A. the second respondent failed properly or at all to consider the evidence relating to the document verification process; and
B. the second respondent put questions to the first applicant during the Tribunal hearing designed to elicit a concession that the death certificate was a bogus document.
c. The second respondent failed to consider whether the second applicant was an “orphan relative” of the sponsor within the meaning of Regulation 1.14 of the Migration Regulations 1994 (Regulations), other than because her customarily adopted mother had died;
d. The second respondent failed properly to understand or apply the requirements in interest criterion 4020(4)(b), set out in Schedule 4 to the Regulations relating to “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen”:
Particulars:
(i) the second respondent did not consider, even if the second applicant’s customarily adopted mother was not dead, whether the second applicant could live with her (paragraph 36);
(ii) the second respondent erred in finding that stress and anxiety of the sponsor could not amount to compelling circumstances (paragraph 33);
(iii) the second respondent erred in finding that the impact of the sponsor’s separation from his siblings in his ability to study, and on his present and future employment, was not relevant to whether compassionate or compelling circumstances existed.
(iii) the second respondent erred in finding that “something more than [the second applicant] being [the sponsor’s] orphaned relative is needed” to establish compelling circumstances (paragraph 35); and
(iv) the second respondent did not consider whether, even if the second applicant’s customarily adopted mother was not dead, the second applicant was nevertheless an “orphan relative” within the meaning of Regulation 1.14 (paragraph 35).
e. the second respondent’s finding that the death certificate of the first applicant’s mother was a bogus document was an error of law because:
(i) there was no, or no sufficient. evidence to support the finding;
(ii) further, or in the alternative, the second respondent failed to consider the evidence in relation to the death certificate and thereby failed to exercise jurisdiction;
(iii) in the further alternative, the second respondent took into account an irrelevant consideration, namely the first respondent’s findings about the document verification process.
Part 117 of Schedule 2 to the Regulations sets out the criteria for the grant of subclass 117 “orphan relative” visas, the relevant criteria in this case. Subclause 117.223 (time of decision criteria) required that an applicant for the visa comply with public interest criterion 4020. Public interest criterion 4020 provides:
4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period: (a) starting 3 years before the application was made; and (b) ending when the Minister makes a decision to grant or refuse the application; the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that: (a) compelling circumstances that affect the interests of Australia; or (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa.
(5) In this clause: “information that is false or misleading in a material particular” means information that is: (a) false or misleading at the time it is given; and (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.”
I will deal with each ground seriatim.
Ground 1(a)
This ground focuses upon the distinction to be made between the finding made by the tribunal that the death certificate for Ms Farah was a bogus document and the failure by the tribunal to accept that Ms Farah was deceased (described by the tribunal as a “finding”).
The finding that related to the death certificate was that it was bogus. The second finding was to the effect that the tribunal did not accept that Ms Farah was dead.
As to the first finding concerning the death certificate the applicant argues that the tribunal’s reasons show that it prejudged this issue because it merely adopted the findings that had been made by the delegate. But in my view that is not so.
The tribunal at [24] of its reasons concluded, on the basis of two matters, that the death certificate was a bogus document. Those two matters were:
a)“the results of the document verification check”; and
b)“the review applicant’s concession”.
As the applicants point out, in relation to the “document verification check” the tribunal’s consideration is set out at [16] of its reasons:
The delegate noted that the Australian High Commission in Kenya is aware that genuine paper stock is known to be illegally obtained from government press which is responsible for producing the security papers for such documents as births, deaths and marriage certificates in Kenya. For this reason the Government of Kenya requests documentation to be referred through their head office in Nairobi who maintains records for the country. While the agent has suggested that the papers be referred to a document examiner, the delegate believed that all reasonable steps had been taken to verify the authenticity of the documents and that the Kenyan authorities have determined that this death certificate does not exist on their records and is therefore considered to be counterfeit. The delegate stated that a document examiner would not be able to add further value on this matter based on the reports of the Government of Kenya, the issuer of the documents.
But as the first respondent submits, this passage appears in that part of the tribunal’s reasons where it set out the delegate’s decision, information and findings. The tribunal was not, thereby, adopting them as its own. There was evidence before the tribunal that checks with the “officer in charge of the registry” showed that the death certificate was not genuine.
Moreover, the first applicant conceded, as set out above, that the death certificate was false. So did his agent on his behalf. The tribunal acted on those concessions as it was entitled to do. In my view this shows no prejudgment by the tribunal.
As to the second finding, the applicants argue that the tribunal failed to consider whether their mother was in fact deceased at the time of the decision on the visa applications. As part of that argument, the tribunal, it is said, failed to invite the first applicant to make further comment in relation to its finding that the first applicant had provided false information that his mother was deceased. In their written submissions, the applicants narrow the enquiry under this ground to a failure of the tribunal to “allow the applicants an opportunity to comment on the UNHCR records, in circumstances where the tribunal said in its reasons at paragraph 25 that it did not make findings about whether false or misleading information was provided”.
It is necessary at this point to deal with the applicants’ argument about the way in which the delegate dealt with the information it had received from the UNHCR during the course of assessing the visa applications. The applicants submit that in relation to the UNHCR documents, the delegate made curious findings. The applicants suggest that “After having apparently noted that an updated UNHCR record dated 3 March, 2013 showed that the applicants’ mother was still alive, the delegate invited the applicants (by letter dated 17 April 2013) to comment on that document”. However, that is not what happened.
The first applicant provided a copy of a ration card with the visa applications (the document appears at p.319 of the Court Book). It was provided in 2012 when the applications were first lodged. The ration card has six people noted on it, including the applicants’ mother Ms Farah. It carried no notation that she was deceased.
No doubt excited by the claim that she had died, the first respondent’s officers obtained information from the UNHCR. Those documents, as the applicants point out in their submissions, appear at p.269 and 270 of the Court Book. The document so obtained also contains details of six people. It appears on its face to have been printed on “28-Mar-2013 3:36 pm”. It carries an area headed “Last 5 events for HUSSEIN FARAH, AMINA”. Under that section three events are specified. The oldest two carry the date 15 February, 2010 and the latest carries the date “28-Mar-2013”. To the left of that date appears the words “Individual Added to Case (CI)”. The applicants’ mother is noted on the card and it is not noted that she is deceased. On the second page (p.270 of the Court Book) in a rectangular box appears the heading “United Nations High Commissioner For Refugees”. Underneath that in the same box appears the following:
Record created 2/-Feb-010 , by mohameai
Last modified 3/-Mar-013 , by OKWIRI
By the letter dated 17 April, 2013 the first respondent’s delegate said of these matters:
This office has also contacted the United Nations High Commission for Refugees (UNHCR) to confirm details you have provided as per the ration card print out you have provided with this application. UNHCR states that according to their records, your mother has not been declared deceased. According to their records, your mother is alive and her marital status is ‘married’.
Therefore I cannot be satisfied that your mother is deceased as you claim.
In response, the applicants supplied an updated UNHCR record, dated 29 April, 2013 which showed that the applicants’ mother had been removed from the form. It contained the names of four people. The applicants, through their migration agent and lawyer claimed that the UNHCR only updated their information in such forms once per year.
The material in the Court Book demonstrates that the first respondent’s delegate check that information. An email was sent to the UNHCR office in Nairobi on 13 February, 2014 seeking confirmation that the UNHCR only updated its records once per year as claimed (p. 191 of the Court Book). A response was received which indicated that refugees could approach the UNHCR office to update their records as needed. The assertion that the UNHCR only updated their records once per year was incorrect.
The delegate again put the information that the Department had to the applicants in a letter dated 14 February, 2014. The letter specifically referred to information:
a)from UNHCR that the applicants’ UNHCR registration had been updated on 3 March, 2013;
b)it was amended again on 29 April, 2013; and
c)UNHCR in Kenya confirmed that they had an office in Nairobi and refugees could visit the office and update their registrations.
On that basis the delegate did not accept the reasons given for the inconsistency in the UNHCR registration details because the UNHCR can only update their details once per year.
The applicants argue that the difficulty with the delegate’s reasons is that the document it refers to from March, 2013 “dated 3 March 2013,” and which the applicants identify as the document at p.208 of the Court Book, “does not appear to show any amendment”. They are argue that the only document from March, 2013 which shows an amendment on its face is the document which appears at page 269 of the Court Book.
But this argument proceeds on a false premise. The document at p.208 of the Court Book is not the document to which the delegate was referring when speaking of the update on March, 2013. First, the delegate’s letter did not refer to any document at all, but rather information from the UNHCR. Second, the material shows that the document at p.208 of the Court Book is a copy of the document provided by the applicants with their initial visa applications (compare p. 320 of the Court Book). It is not a document obtained by the first respondent’s delegate. Third, the only document obtained by the first respondent’s delegate from the UNHCR relevant to this issue was the copy of the ration registration card at pp. 269-270 of the Court Book. That document did indeed show that the registration had been amended in March, 2013 as the delegate said. The document, on its face show that it had been updated on two occasions in March, 2013.
The applicants argue that nothing shows who the added individual was as noted on the updated registration details obtained by the delegate, or why they may have been “added”. Further, the applicants point out that the people listed on that document include the applicants’ mother, “who also appears on the earlier document, dated 3 March, 2013”. But, as I have endeavoured to show, there was no earlier document dated 3 March, 2013. The applicants’ submissions are mistaken about this.
The applicants argue that the document amended on 28 March, 2013 “raises troubling concerns about who may have been “added” (given that the persons appear to be the same as on the earlier document dated 3 March 2013), and the integrity of the UNHCR record system generally”. But it does not. What it does do is to falsify the applicants’ assertions that the document they provided to the first respondent with their visa applications could not be updated except once per year. The delegate’s concerns about that assertion having regard to the fact that the registration details had been updated in March, 2013 when the applicants’ mother was said to be dead was an entirely legitimate concern.
The delegate was not mistaken about the updating or amendment of the UNHCR registration details for the applicants. What the delegate put to the applicants for their comment was entirely accurate and based upon information given to it by the UNHCR as set out in the Court Book.
The applicants argue that the tribunal accepted “uncritically” the findings made by the delegate about the UNHCR records and the death certificate. However, in my view, the tribunal did not adopt that course. The tribunal did set out the matters that were before the delegate and it did record the delegate’s findings, but it did not simply adopt them as its own. What the tribunal did do was to act upon the factual matters that were before the delegate and about which the first applicant had made concessions. The tribunal said:
24. On the basis of the evidence before it, namely the results of the documentation verification check and the review applicant’s concession, the Tribunal finds that the applicants gave a bogus death certificate to the Department in support of their application. The death certificate is bogus as it purports to have been, but was not, issued by the Government of Kenya–Births and Deaths Registry Office.
(my emphasis)
However, the first applicant’s concessions did not go so far as to concede that his mother was not deceased.
The applicants are critical of the tribunal for recording:
25. Given these findings the Tribunal has not gone on to consider whether the applicants have provided false and misleading information in a material particular in respect of the UNHCR registration.
but then making a finding that it did not accept that the applicants’ mother was dead at paragraph [30] of its reasons.
But, in my view, the criticism is misplaced because at paragraph [25] of its reasons, the tribunal was concerning itself with PIC 4020(1) and its determinations about that criterion. All paragraph [25] records is that having found that the applicants had provided a bogus document in support of the visa application, the tribunal did not need to consider if they had also provided false and misleading information in a material particular (only one aspect of which may have been that the applicants’ mother was dead).
The subsequent failure to accept that the applicants’ mother was dead was not a finding that the applicants had provided false and misleading information in a material particular, but was an assessment of one of the circumstances said to justify the waiving of the PIC 4020 requirements.
In any event, as the first respondent argues, any submissions in relation to an alleged breach of s.359A of the Act must be seen in the context of the particular circumstances of the case. Pursuant to s.359A(4)(b) of the Act, the tribunal is not required to invite an applicant to comment on or respond to information which the applicant gave for the purpose of the application for review. A copy of the delegate’s decision was attached to and given to the tribunal by the applicants for the purposes of the application for review. Accordingly, information that was contained in the delegate’s decision fell within the exception provided in s.359A(4)(b) of the Act and did not need to be the subject of an s.359A(1) letter: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [12], [16], [22] and [26]; Minister for Immigration and Citizenship v Brar (2012] FCAFC 30 at [63] and [74]; SZTWU v Minister for Immigration [2014] FCCA 12 13 at [13].
In my view, this ground of review discloses no jurisdictional error by the tribunal.
Ground 1(b) – apprehended bias
The parties agree that apprehended bias is a “category of failure to exercise jurisdiction” and may give rise to a finding of jurisdictional error on the part of the tribunal.
The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision. An allegation of apprehended bias must be firmly established. It is not sufficient if the reasonable bystander merely
has“has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission (2002) 76 ALR 424 at [44]. What is necessary to give rise to an apprehension of bias is if a fair minded lay person might think that the decision maker might not bring a fair and impartial mind to the making of the decision. The hypothetical layperson is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct of which complaint is made. A mere rejection of the applicants’ claims or an unwillingness to believe the applicants’ claims does not, without more, demonstrate any lack of good faith.I have set out [24] of the tribunal’s reasons for decision above. That paragraph records that “on the basis of the evidence before it, namely the results of the documentation verification check and the review applicant’s concession” the second respondent found that the death certificate for Ms Farah was bogus.
The applicants argue that the critical error of the second respondent is that no independent consideration was given to the “critical matters raised by the applicants, but instead the second respondent has relied on the flawed analysis” of the first respondent’s delegate.
But in my view, the tribunal did not take that approach. When considering whether the applicant met PIC 4020(1), the tribunal considered whether the death certificate purportedly given in respect of Ms Farah was bogus. In dealing with that issue, the tribunal referred to the applicant’s concessions that the document was false and the document verification checks that had been undertaken with the Kenyan Government. It concluded that the death certificate was bogus. The first respondent’s concession (made by himself and his agent on his behalf) that the death certificate was false was sufficient for the tribunal to reach the conclusion about the death certificate that it did.
In the context of PIC 4020(1) the tribunal did not need to go on to determine if the applicants had provided any information that was false or misleading in a material particular – that is to say it did not need to, at that point, consider if the information about the applicants’ mother’s death was false or misleading. No analysis of the information from the UNHCR was required for that purpose.
The applicants point out that the tribunal’s reasoning process “in relation to the alleged bogus document” is set out in three paragraphs, namely [22], [23] and [24] of the reasons. I have set them out above. Paragraph 21 recounts some further information and material provided by the applicants to the tribunal, in addition to the material which was already before the delegate.
The applicants complain that “Nowhere in its reasons does the tribunal independently consider the material relating to the UNHCR records.” But in my view, when dealing with whether the death certificate was bogus, it did not need to in light of the first applicant’s concessions.
In my view, the reasons of the tribunal do not demonstrate a “preconceived notion relevant to an issue in dispute”, something necessary to establish a claim of apprehended bias. The questioning of the first applicant by the tribunal about the death certificate does not give rise to an apprehension of bias. The tribunal was bound to raise its concerns about the authenticity of the certificate with the first applicant. It would have been no surprise that the tribunal raised that issue given that it was central to the review that the tribunal was conducting.
The second issue to which the UNHCR records were potentially relevant was whether the applicants’ mother was in fact deceased. That was relevant to two matters – whether the applicants were in fact orphans and whether there were compassionate or compelling circumstances to justify waiving the PIC 4020(1)(a) requirements.
In that respect, the tribunal considered the UNHCR documents. The applicants are critical of the tribunal because the tribunal, “without explanation or analysis” merely states that it finds the UNHCR documentation to be “reliable” and that the tribunal “places considerable weight” on it. But, the tribunal specifically noted that the UNHCR documentation updated in March 2013, listed the applicants’ mother as alive at a time after the date the applicants’ claimed that she had died. It found that this, along with its finding that the death certificate was bogus, leads it to reject the claim that the applicants’ mother is dead. That reasoning demonstrates, in my view, that the tribunal turned its mind to the UNHCR information and documents. That the documents showed that the applicants’ mother was recorded on the registration card and therefore alive was open on the evidence. I accept that these were findings open to the tribunal on the material.
In my view there is no question of an apprehension of bias, and therefore no jurisdictional error is revealed by this ground.
Ground 1(c) – orphaned relatives
In connection with the tribunal’s consideration of whether there were compassionate or compelling circumstances to justify waiving the PIC 4020(1)(a) requirements there the tribunal at [35] said:
35. Thirdly, he claims that he is trying to fulfil his legal obligations as per his mother’s wishes for him to care for her four other surviving children. The Tribunal accepts that the review applicant wants the applicants to join him in Australia, where he can care for them and provide for them in accordance with his mother’s wishes, however in the Tribunal’s view this is not sufficient to establish the existence of compassionate or compelling circumstances. In the Tribunal’s view these matters do not go beyond the requirements for the grant of the visa, which requires that the applicants be the orphan relatives of the review applicant. Something more than their being his orphaned relatives is needed in the Tribunal’s view, to establish the existence of compassionate or compelling circumstances. In any event, the Tribunal is not satisfied that they are orphaned, as it does not accept that their mother is dead.
The applicants argue that the tribunal relates its finding that it was “not satisfied that they are orphaned, as it does not accept that their mother is dead” to its finding that “something more than their being [the first applicant’s] orphaned relatives is needed”.
But in my view, the applicants’ argument misapprehends the tribunal’s reasons. The tribunal does nothing more than suggest that to secure the grant of the relevant visa in circumstances where PIC 40210(1) has not been met, satisfaction of one of the primary criteria for the grant of the visa will not, of itself, be sufficient to demonstrate the necessary compassionate and compelling circumstances so as to justify the waiver of PIC 4020(1). The tribunal was not in error in suggesting that: “Something more than their being his orphaned relatives is needed in the tribunal’s view, to establish the existence of compassionate or compelling circumstances”.
The applicants point out that by reason of the definition of orphan relatives in reg 1.14 of the Regulations, it might have been the case that the applicants were orphan relatives notwithstanding that their mother, Ms Farah, was alive. As the applicant’s submit, there is no suggestion that the tribunal turned its mind to that question or invited comment on it from the applicants. The applicants argue that if the tribunal was of the view that their mother was alive, it was incumbent on it to consider whether the applicants were nevertheless able to be cared for by their mother. However, that was not the case that was put by the applicants to the tribunal. Indeed, on the case put by the applicants, they were being cared for by their mother until she died. In those circumstances, no inquiry was necessary into whether the applicants’ mother could nevertheless care for her children.
No jurisdictional error is disclosed by this ground.
Ground 1(d) – compassionate and compelling circumstances
The tribunal is given broad latitude to determine whether the particular circumstances are compassionate or compelling: SZGBR v Minister for Immigration [2005] FMCA 824 at [19]. However, the applicants argue that the tribunal erred in considering the circumstances in this case, in that:
a)the tribunal failed to consider whether the applicants could be orphan relatives notwithstanding that their mother may still be alive;
b)similarly, even if the mother is still alive, the tribunal ought to have considered, whether the first applicant, in the role of a guardian, would continue to be separated from those persons he regards as his charges. The reasons in [35] of the decision do not address that issue;
c)further, the tribunal did not consider, in [34] of the reasons, whether the impact of the separation on the first applicant’s study affected his access to “emotional support”, one of the matters referred to in the policy set out in [28] of the reasons;
d)the tribunal fettered its discretion by concluding (in [35] of the reasons) that “something more than their being his orphaned relatives” was required before those circumstances could be considered. Nothing in criterion 4020 places such a restriction on the words used. There is no reason in principle to restrict the enquiry in that way; and
e)in considering whether the first applicant’s stress and anxiety could amount to a compassionate or compelling circumstance, the tribunal wrongly rejected the contention on the basis that it was a “common” circumstance. It is irrelevant to the question of whether a circumstance is compassionate or compelling whether that circumstance is common to a particular class of people.
As the first respondent points out, the phrase compassionate and compelling circumstances is the subject of authority. In Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 at [21] O’ Loughlin J said:
There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account, except where it is appropriate to have regard to their totality.
Compelling circumstances has been considered to mean:
a)circumstances which force or drive the decision
markermaker, in a metaphorical rather than a physical sense to decide whether or not the jurisdictional fact exists for the exercise of the discretion: Badicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [21]; andb)further, that the meaning of the word “compelling” must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained, should be waived: Badicci at [23].
But the establishment of compelling circumstances or compassionate and compelling circumstances on their own is not enough. The circumstances found must:
a)affect the interests of Australia, in the case of compelling circumstances; or
b)affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen in the case of compassionate or compelling circumstances.
The first applicant made submissions to the tribunal by his agent’s letter of 21 October, 2014. The matters raised by the applicants were considered by the tribunal.
I accept the first respondent’s argument that the tribunal has approached a consideration of PIC 4020(4), in accordance with the principles from the authorities set out above. The tribunal specifically considered whether the matters affected the interests of Australia or an Australian citizen or permanent resident.
Whilst the tribunal did not consider whether the applicants could be considered orphaned relatives even if their mother was still alive, the circumstances of the case did not call for that to be considered. The applicants did not conduct the application on the basis that their mother might be alive but for some reason, known or unknown was unwilling or not capable of caring for them.
The applicant argues that even if the mother is still alive, the tribunal ought to have considered, whether the first applicant, in the role of a guardian, would continue to be separated from those persons he regards as his charges. But, if their mother was alive, no question of him being a guardian for the children would arise (indeed, it may not even arise if she is deceased). The application was not advanced on that basis.
Similarly, the first applicant did not claim that he would be affected or sought the other applicants’ emotional support. He did claim stress and anxiety, but that was considered by the tribunal.
In my view, the tribunal did not fetter its discretion. As I have set out above, on a proper construction of PIC 4020(4) something more than simply meeting the substantive visa criterion is required to justify the grant of the visa. Otherwise there would be no purpose to be served by either PIC 4020(1) or 4020(4)
Finally, the tribunal dealt with the claim by the first applicant of stress and anxiety and the evidence relied upon to support that claim take it beyond a common circumstance and was not something that was compelling so as to justify the grant of the visa.
In my view, the tribunal properly considered the matters raised and claimed to support a finding of compelling or compassionate circumstances and was not satisfied that those matters justified the grant of the visa.
In my view, no jurisdictional error is identified by this ground.
Ground 1(e)
This ground seeks to challenge the tribunal’s finding that the death certificate promoted by the first applicant in respect of his mother was bogus.
The tribunal recorded the delegate’s findings about this matter. Under the heading “The Delegate’s decision” the tribunal refers to the findings made by the delegate and notes that the applicants were invited to respond. The tribunal summarised the delegate’s decision.
The tribunal then addresses “Evidence presented to the Tribunal” commencing at [321] of its reasons. It considers further evidence provided by the Applicants in the form of documents from the Ministry of Labour Social Security and Services and the applicants’ agent’s submissions of 21 October, 2014. The tribunal refers to the first applicant’s evidence at the hearing regarding how he obtained the death certificate and his concession that he now believes the death certificate is fraudulent.
The tribunal then makes the finding, on the basis of the documentation verification check and the first applicant’s concession that the death certificate is a bogus document.
In my view, the tribunal did not simply agree with or adopt the findings of the delegate. For example, the tribunal did not make a finding that the first applicant had provided false and misleading information as the delegate had done.
There was material before the tribunal which evidenced that the death certificate was bogus, but perhaps the most significant of which were the first applicant’s concessions both in the hearing and in the written submissions dated 21 October, 2014 provided after the hearing by the his agent. I have set out the transcript of the first applicant’s evidence and the passage from the written submissions that is relevant earlier in these reasons.
The applicants are critical of the way in which the tribunal asked questions of the first applicant. But in my view the criticisms have no force. I accept the first respondent’s submissions that the tribunal sought to clarify the first applicant’s evidence and whether or not he now accepted that the document was fraudulent, given his previous denials. I accept that the questions were not designed to elucidate a concession but were designed to obtain his evidence and his position in relation to the death certificate and whether or not it was fraudulent.
In my view no jurisdictional error is identified by the applicants by this ground.
Conclusion
The applicants do not demonstrate that the tribunal’s decision is attended by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 3 May 2017
1
6
4