Kamaraba v Minister for Home Affairs

[2019] FCCA 923

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAMARABA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 923

Catchwords:
MIGRATION – Application for orphan relative visa – failure to satisfy regulation 1.14 of migration regulations – DNA testing – application for review dismissed.

Legislation:

Migration Regulations 1994, Reg.1.14

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: ARIVELLA KAMARABA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 880 of 2018

Judgment of: Judge Egan

Hearing date: 27 March 2019

Date of Last Submission: 27 March 2019

Delivered at: Brisbane

Delivered on: 27 March 2019

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr B. McGlade

Solicitors for the Respondent: Sparke Helmore

IT IS ORDERED THAT:

1. The Review Applicant’s name in these proceeding be amended to ‘Arivella Kamaraba’ simpliciter, rather than as litigation guardian for the child.

2. The application for review filed on 3 August 2018 be dismissed.

3. The Review Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 880 of 2018

ARIVELLA KAMARABA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The review applicant brings this application on behalf of the child who is the visa applicant.  The child is a minor, and was the subject of an application for a subclass 117 (orphan relative) visa.  The child is a citizen of the Republic of Burundi, and he has resided there at all material times. 

2. The purpose of a child migrant (class AH)(subclass 117) visa is to allow a minor to come to Australia to live with a relative if the child’s parents are deceased, are otherwise unable to care for them, or cannot be found.

3. The review applicant is an Australian citizen who alleges that she is the child’s biological aunt.  On 28 June 2017, a delegate of the minister refused the visa applicant’s visa application on behalf of the child.  On 9 August 2017, the review applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.  The review applicant, as sponsor, was the correct person to make that application.  On 2 July 2018, the Tribunal affirmed the delegate’s decision.

4. The Tribunal found that the visa applicant did not meet the subclass 117 criteria for two independent reasons.  Regulation 1.14 of the Migration Regulations 1994 (“the Regulations”) sets out the relevant definition of an orphan of an “orphan relative”. The definition provides as follows:

   “1.14 Orphan relative

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

   (a)  the applicant:

   (i)  has not turned 18; and

   (ii)  does not have a spouse or de facto partner; and

   (iii)  is a relative of that other person; and

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

   (c) there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.”

5. The Tribunal came to the view that the child was not a relative of the sponsor (see CB [17] of Tribunal reasons).  At [14] of the Tribunal reasons, it was recorded that the delegate had sought DNA tests in an attempt to confirm the relationship between the applicant and the sponsor.  Those tests showed that the relationship between the applicant and the sponsor was inconclusive, but that they were “unlikely to be related”.  At [15] of the Tribunal reasons, the Tribunal was recorded as having put that information to the sponsor at the hearing, at which time the sponsor claimed that she only knew that the child was her brother’s son.

6. The applicant sponsor asserted that there was no other truth or information available to her except that  the applicant said that if they were not related, then the secret was with the applicant’s parents when they passed away.  It was noted by the Tribunal that there was no record of the death of the child applicant’s parents.  The Tribunal at [18] found that regulation 1.14(a)(iii) had therefore not been met at the time of the application, and that it had continued not to be met until the time of the decision.

7. The second basis on which the Tribunal rejected the application for the visa was that regulation 1.14(b) had not been satisfied.  That regulation required that the visa applicant cannot be cared for by either parent, because each of them is either dead, permanently incapacitated, or of unknown whereabouts.  At [20] of the Tribunal reasons, it was noted that there was no record of the deaths of the child applicant’s parents.

8. The Tribunal did not accept that there would not be some supporting evidence that the child applicant’s parents were deceased, even taking into account the volatile political situation at the time of their alleged deaths.  At [21] of the Tribunal reasons, it was noted that the applicant sponsor had provided some evidence that she had financially supported the child through the child’s carer who was apparently a friend of her family.

9. When asked why the sponsor was providing support to the carer of the child as well as her husband, rather than supporting her husband and the applicant child to enable them to live together, the sponsor replied that her husband was not settled and was spending nights “here and there”.  It was noted by the Tribunal that such evidence was inconsistent with the applicant’s earlier evidence that she had paid her husband’s rent.

10. At [22] of the Tribunal’s reasons, the Tribunal considered that it would have been more logical, if the applicant was indeed an orphan, that the applicant child would be living with the sponsor’s husband, being supported by the sponsor, until such time as both the child and the husband could travel to Australia together.  It was noted that the fact that they did not live together did not support the sponsor’s claim that the child was related to her.

11. At [23] of the Tribunal’s reasons, the Tribunal found that given the weight of the DNA evidence and the other evidence, the Tribunal was not satisfied that the applicant was not in the care of either one of his parents.  It found at [24] of its reasons that regulation 1.14(b) had not been met, and had continued not to be met, until the time of decision.  The Tribunal accordingly affirmed the decision not to grant the applicant a visa.

12. The grounds for review are set out in paragraphs 1-5 inclusive of the application as follows:

    1. The Tribunal failed to properly apply and/or interpret Regulation 1.14(b) of the Migration Regulations

    Particulars:

    i) The decision of the second respondent was unreasonable

    ii) The Tribunal had accepted that the hearing that the review applicant was consistent in her answers, yet the conclusions drawn by the Tribunal does not support what the Tribunal said at the hearing

    iii) The Tribunal did not comprehend the extent of deaths that occurred during massive flood and discounted numerous media reports.

    2. The second respondent failed to properly consider all relevant statements, based on recollections, by the Review applicant

    i) The Tribunal’s over-stringent approach resulted in an unjust exclusion of the review applicant’s evidence.

    ii) The Tribunal placed too much weight on the absence of ‘some other kind of supporting evidence’ that the child’s parents were deceased.

    3. In reaching its decision the second respondent took into account irrelevant considerations;

    4. In reaching its decision the second respondent failed to take into account relevant considerations

    5. The second respondent’s decision was an improper exercise of power

13. The first ground related to an asserted failure on the part of the Tribunal to properly apply regulation 1.14(b) of the Regulations. It is asserted that the Tribunal acted unreasonably in finding that it was not satisfied that both parents were either dead, permanently incapacitated, or of unknown whereabouts.

14. The particulars of the ground do not set out why the decision was unreasonable.  There was no factual basis provided for the assertion that the applicant was consistent in her answers, nor is there any substantiation as to how the Tribunal was said not to have comprehended the extent of deaths that occur during massive floods in and about the child’s homeland.  There was no evidence to support those grounds.

15. The Tribunal was entitled to make the findings that it did, notwithstanding that it found some of the sponsor’s answers to questions to be consistent with earlier statements made by her.  There was no basis for the assertion that the Tribunal did not appropriately take into account the answers which the sponsor gave to questions asked of her.  There is no merit to the assertion that the Tribunal acted unreasonably.

16. As to the other two particularised bases of the application, the Tribunal has appropriately considered the evidence before it.  At [20] of its reasons, the Tribunal accepted that people in and about the area  in which the child lived drowned in floods, and that in such circumstances, mass casualties had occurred in the past.  It was entitled to find, as it did, that it did not accept that there would not be some kind of supporting evidence establishing the deaths of the child’s parents.

17. There was no evidence, either in the media or otherwise, in support of the propositions advanced by the applicant in ground 1 of the application for review.  Such ground is without merit. 

18. Ground 2 of the application for review, in some respects, overlaps with the first, in terms of an assertion that the Tribunal failed to properly consider relevant statements by the sponsor.  However, there is no evidence to suggest that the Tribunal did not properly consider all of the statements before it.

19. The Tribunal is not required to set out each and every reason for, or basis for, its having arrived at its decision.  Neither is there any evidence that the Tribunal excluded from consideration any of the applicant’s evidence.  Further, insofar as the Tribunal pointed to the lack of any evidence in support of the establishment of the deaths of the child’s parents, the Tribunal was entitled to rely upon the absence of evidence confirming the death of the parents when reaching its decision.

20. There is no merit to ground 2 of the application for review. 

21. Grounds 3-5 inclusive are un-particularised assertions of breach of duty on the part of the Tribunal.  In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20-22], Gilmour J said as follows:

    “[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.

    [21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA760 at [35]:

    (This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

    [22] The first ground therefore fails.”

22. Further, the applicant seeks a merits review of the Tribunal’s decision, something which this Court is not permitted to do.

23. The Tribunal did not fail to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, and which could have supplied a sufficient link to the outcome to constitute a failure to review. [1] 

    [1]         Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25].

24. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

25. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such, respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

26. No jurisdictional error on the part of the Tribunal has been established. The application for review is without merit, and is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  2 April 2019