Ibrahim v Minister for Immigration
[2005] FMCA 1239
•29 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1239 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a child migrant visa – issue of dependency – whether MRT overlooked relevant material or unreasonably failed to inquire into an allegation that the applicant had been attacked and raped, and was being detained against her will in Lebanon. |
| Migration Act 1958 (Cth), ss.359, 359A Migration Regulations |
Azzi v Minister for Immigration [2002] FCA 24
| Applicant: | SAMIRA IBRAHIM |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1681 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 29 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Migration Review Tribunal is joined as the second respondent to the application.
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 1 June 2005.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the application before it according to law.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1681 of 2005
| SAMIRA IBRAHIM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Migration Review Tribunal (“the MRT”). The MRT affirmed a decision of a delegate of the Minister not to grant the visa applicant a child (migrant) (class AH) visa. The decision was made on 1 June 2005. The application is brought by Mrs Ibrahim, the visa applicant's mother (the review applicant). It is supported by an affidavit made by her and filed on 14 July 2005. In that affidavit, the review applicant refers to her daughter's circumstances in Lebanon. In the affidavit, the review applicant refers to her daughter as having been raped and goes into further detail about her daughter's circumstances.
The Minister raised no objection to my receipt of the affidavit subject to my being satisfied as to relevance. The review applicant was not required for cross-examination on her affidavit. The affidavit is only relevant insofar as it throws light on the issue of the visa applicant's circumstances as raised before the MRT. The review applicant also prepared written submissions filed on 26 July 2005, on which she relied. I also received, as evidence, the court book filed on 29 July 2005. Finally, Mr Wigney prepared written submissions on behalf of the Minister which were filed on 23 August 2005.
The background to this matter is adequately set out in paragraphs 2 through to 3.4 of Mr Wigney's written submissions. I adopt the following material from those submissions as background for the purposes of this judgment:
The applicant in this matter (referred to in these submissions, consistently with the MRT’s reasons, as the “review applicant”) is the mother of Miss Imam Ibrahim (referred to in these submissions as the “visa applicant”). On 9 December 2002 the visa applicant applied for a Child (Migrant) (Class AH) Visa.[1] A delegate of the respondent refused the visa application on 24 March 2004.[2] The delegate found that the visa applicant did not satisfy a relevant criterion for the grant of a class AH visa, namely that the applicant is a dependent child of an Australian citizen as required by clause 101.211 of the Migration Regulations (“the Migration Regulations”). The visa applicant had claimed that she was financially dependent on the review applicant.
[1] The visa applicant’s visa application is at court book, pages 7-23.
[2] court book, pages 110-116.
MRT proceedings
On 23 April 2004, the review applicant applied to the MRT for a review of the delegate’s decision.[3]
[3] court book, pages 117-122.
On 21 January 2005, the MRT sent a letter to the review applicant inviting her to provide comments on information which the MRT considered would be the reason, or part of the reason, for affirming the delegate’s decision.[4] On 23 February 2005 the MRT received a detailed response to its 21 January letter prepared by the review applicant’s migration adviser, which included detailed submissions and a number of supporting documents.[5] Further documents were sent to the MRT by the review applicant, or others on her behalf, in the weeks preceding the MRT hearing.[6]
[4] court book, pages 180-182; see s.359A of the Migration Act 1958 (Cth) (“the Migration Act”). The letter also invited the applicant to give further information pursuant to s 359(2) of the Act.
[5] court book, pages 184-268.
[6] court book, pages 269-357.
The MRT convened a hearing on 5 April 2005 at which the review applicant, the visa applicant and Ms Sylvan Dayoub (the review applicant’s daughter and visa applicant’s sister) gave oral evidence.
The MRT’s decision and reasons
At paragraph 36 of its decision and reasons the MRT identifies the issue before it as being whether the visa applicant satisfied the criterion in clause 101.211 of the Migration Regulations. That criterion was whether, at the time of the application, the visa applicant was a dependant child of an Australian citizen, an Australian permanent resident or an eligible NZ citizen and (relevantly) had not turned 25.[7] The MRT also refers in its reasons to reg 1.03 and reg 1.05A of the Migration Regulations as containing, respectively, a definition of “dependent child” and a definition of the circumstances in which a person is dependent on another person.[8]
[7] court book, page 366 [36].
[8] court book, page 366 [38], [39].
The visa applicant’s claim before the MRT was, as it had been before the delegate, that she was “highly, if not totally, dependent on her mother [the review applicant] for emotional, psychological and financial support.”[9] By reference to this claim and the relevant criterion, the MRT characterized the “fundamental question” for the review as being “whether the visa applicant is wholly or substantially reliant on the review applicant for financial, psychological or physical support.”[10]
At paragraphs 44 to 51 of its reasons, the MRT analyses the evidence that was before it (that it had summarised in paragraphs 7 to 34 of its reasons) and makes a number of factual findings, including that:
a)the visa applicant had lived separately to the review applicant for almost four years and had mainly lived with and been supported by family members;[11]
b)the review applicant would not alone have been able to provide the level of support that it had been claimed she provided; some financial support was provided by the visa applicant’s sister and other money transfers had been made to the visa applicant’s brother;[12]
c)the visa applicant was working and training as a hairdresser in the period 1997 to 2001;[13]
d)the visa applicant has not studied full time and had attended several institutions between 2001 and the present.
In its final analysis of the evidence the MRT expresses doubts about the credibility of witnesses and evidence submitted by the visa applicant and states that it “appears to the MRT that earlier evidence has been contradicted in order to satisfy the visa requirements as they apply to dependent children.”[14] The MRT’s ultimate factual finding is that the visa applicant is capable of working, has experience and training in a profession and is not wholly or substantially reliant on the review applicant in order to meet her basic needs.[15] It therefore found that the visa applicant is not a dependent child of the review applicant and does not satisfy clause 101.211 of the Migration Regulations.
[9] court book, page 186.9.
[10] court book, page 367 [40].
[11] court book, page 368 [40].
[12] court book, page 368 [45].
[13] court book, page 368 [46]-[47].
[14] court book, page 369 [5].
[15] court book, page 369 [52].
In her judicial review application, Mrs Ibrahim again refers to her daughter's circumstances. The application does not, on its face, coherently point to jurisdictional error. However, Mrs Ibrahim is a litigant in person and I have considered it appropriate to examine, for myself, whether any jurisdictional error is apparent. I also permitted Mrs Ibrahim's present migration agent, Margaret Tannous, to assist her.
There are two issues requiring consideration. The first is whether the presiding member applied the correct test by reference to the relevant visa criteria. The second is whether the presiding member overlooked relevant material or failed to make an inquiry where an inquiry was properly required.
The presiding member sets out, in paragraphs 36 to 39 of the MRT decision, the visa provisions considered relevant. These appear on pages 366 and 367 of the court book. I explored with Mr Wigney whether the correct visa criteria had been reproduced. This was because it is apparent from the Butterworth's Immigration Law Service that the relevant criteria have been subject to numerous changes over the past five years.
Although the situation is not entirely clear, Mr Wigney was able to persuade me that the provisions in their correct terms are reproduced in the MRT decision. It follows that in order to qualify for a subclass 101 child migrant visa, the applicant needed to satisfy the criteria in clause 101.21 in schedule 2 to the Migration Regulations at the time of her visa application. She also had to continue to satisfy those criteria at the time of the MRT decision by reason of clause 101.22 in schedule 2 to the Migration Regulations.
The critical issue is the issue of dependency. That is relevantly defined in regulation 1.03 reproduced at paragraph 38 of the MRT decision. Because the visa applicant was over 18 years of age when she applied, regulation 1.05A was also relevant. That regulation has also been amended several times since 1999. Mr Wigney put to me, and I accept, that at all material times for the purposes of this application, the question of psychological or physical support was not relevant for determining the issue of dependency. The relevant issue was whether the visa applicant was financially dependent on Mrs Ibrahim. With that in mind the presiding member appears to have been in error in stating at paragraph 40 of the decision:
The fundamental question for this review is whether the visa applicant is wholly or substantially reliant on the review applicant for financial, psychological or physical support.
In so saying, the presiding member appears to have identified the wrong test. Mr Wigney submitted, however, that while the wrong test appears to have been identified, the correct test was applied. The ultimate finding by the MRT is set out at paragraph 52 of its decision. The presiding member said:
The Tribunal finds that the visa applicant is capable of working and has experience and training in a profession. The Tribunal finds that the visa applicant is not wholly or substantially reliant on the review applicant in order to meet her basic needs.
That is a finding which accurately reflects the relevant parts of regulation 1.05A.
The presiding member did not, in her reasons, make any finding on the question of psychological or physical dependency. The presiding member appears also not to have made any specific finding on the question of whether the visa applicant was dependent upon the review applicant at the time she applied for a visa. That is not indicative of jurisdictional error because an applicant who cannot satisfy the criterion of dependency at the time of the decision does not qualify for a visa. If a visa applicant does not qualify at the time of a decision, it is not necessary to consider the position of the visa applicant at the time of the visa application. I find that there was no jurisdictional error as a result of the presiding member identifying the incorrect test in paragraph 40 of the MRT decision.
The more substantial question, to my mind, is whether the presiding member overlooked relevant material or failed to undertake an inquiry that the MRT should have undertaken. At page 354 of the court book, is a facsimile communication from a Ms Lopes to the presiding member. The facsimile states:
I have been contacted by the wife of the applicant's pastor and also by Sylvanna the daughter of the review applicant, both in a very distressed state stating they have just received news that the visa applicant, Iman has been attacked and raped.
This unfortunately was one of the greatest fears held by the review applicant. Iman is now apparently being held as virtually a prisoner in the “sheiks” home as they are insisting she must marry the man who raped her. Mrs Ibrahim is desperately seeking a way that someone may be able to access her daughter and get her out of Lebanon.
In the mean time I ask you to make an urgent decision on this application.
Plainly, this information was a call for a quick decision. However, it was, in my view, also information that required further inquiry. If the visa applicant had been attacked and raped, and if she was being held a prisoner, and if she was being subjected to pressure to marry, those were, to my mind, issues that bore upon the capacity of the visa applicant to support herself. At paragraph 51 of the decision on page 369 of the court book, the presiding member said and I quote:
The Tribunal notes the claims made after the hearing that the visa applicant had been attacked and was moving to live elsewhere. However, these matters fall outside the considerations for the class of visa applied for.
In my view, the presiding member in so finding was in error.
The relevant criteria included the definition of “dependent child” in regulation 1.03 which dealt in part with the circumstances of a child who is incapacitated for work due to the total or partial loss of the child's bodily or mental functions. At paragraph 40 of her decision the presiding member found that that sub regulation was not relevant as there was no evidence that the visa applicant was incapacitated for work as defined. That is a debatable proposition in view of the facsimile to the presiding member from Ms Lopes. It is true that the information was not presented to the MRT as specifically bearing on the question of dependency. However, in my view it went beyond a mere request for a quick decision. It should, in my view, have been apparent to the presiding member that it was, at least, possible that the visa applicant was incapacitated for work and if she was virtually a prisoner she may not be able to support herself.
In my view, the information presented to the presiding member was information relevant to the determination of the visa application. In finding that the information was not relevant, the presiding member overlooked relevant material. If I am wrong in that finding, I also find that the MRT should have made further inquiry in the light of the facsimile.
Generally, a decision maker is entitled to limit examination to material presented by an applicant. However, there are circumstances, albeit exceptional, when something is apparent to a decision maker, which is so obviously material as to compel further inquiry. In such a case, a failure to inquire may be unreasonable: Azzi v Minister for Immigration [2002] FCA 24 at [102]-[103] per Allop J. In my view, the information presented to the presiding member meets that description. The information was so obviously relevant to the outcome of the visa application that the MRT should have looked further into it. In overlooking relevant material, and in failing to make an inquiry where an inquiry was compelled by the material, the MRT made jurisdictional errors.
Mr Wigney put to me that the outcome would have been the same even if further inquiry had been made. This is on the basis that the visa applicant had to establish, as at the time of her application and the time of the decision, that she had been dependent for a substantial period. In Mr Wigney's submission, the material before the MRT as examined by the presiding member points to an inability of the visa applicant to satisfy that test.
The position is not in my view so clear that that submission can be accepted. The presiding member had credibility concerns about some of the review applicant's evidence. It was not, however, inevitable that the review application would fail. If the presiding member had taken a more favourable view on the evidence the application might have succeeded. For the same reason, I find that it would not be futile to require a further decision to be made. A different presiding member might come to a different view on the evidence presented as to the level and duration of dependency.
I find that the decision of the MRT is not a privative clause decision as it is vitiated by jurisdictional error. I will order that the Migration Review Tribunal be joined as the second respondent to the application. A writ of certiorari will issue quashing the decision of the Migration Review Tribunal made on 1 June 2005 and a writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the application before it according to law.
On the question of costs, I am told that the applicant has not incurred any legal expenses. In the circumstances, no order for costs is called for. Lest there be any doubt I will order that there be no order as to costs. However, I note that at the time of pronouncing this order, the review applicant was not present[16] so strictly speaking the costs order is an order made in the absence of the applicant.
[16] She collapsed as the orders were being pronounced and was taken outside court to receive medical attention
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 September 2005
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