Kaur v Minister for Immigration - [2005] FMCA 839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 839

MIGRATION – MRT decision – aged dependent relative visa – Tribunal not satisfied as to financial support – finding of “no evidence” – whether failed to consider sworn oral evidence – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A, Pt 8
Migration Regulations 1994 (Cth), regs.1.03, 1.05A, 1.05A(1)(a)(i), 1.05A(2), Sch.1 item 1123B, Sch.2 items 838.111, 838.212

A v Minister for Immigration & Multicultural Affairs [1999] FCA 227
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472
Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Repatriation Commission v Maley (1991) 14 AAR 278
Sochorova v Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 585
Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30

Applicant:

AVTAR KAUR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1932 of 2004

Judgment of:

Smith FM

Hearing date:

15 June 2005

Delivered at:

Sydney

Delivered on:

6 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1932 of 2004

AVTAR KAUR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 23 February 2004. The Tribunal affirmed a decision of a delegate which refused to grant an Other Family (Residence) (Class BU) visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa.
The applicant is the elderly mother of an Australian citizen, who claimed to have wholly or substantially supported her since her husband’s death in 1991 in the Punjab. He claimed to have sent her funds by money transmissions and informal means during periods when she resided in India. He also claimed to have wholly supported her during a protracted visit to Australia she made between August 1997 and March 1999, and again since her last arrival in Australia on 2 October 2001. She lodged an application for the present permanent residence visa on 29 August 2002 with the assistance of a migration agent.
A class BU visa is available to an applicant who applies in Australia and is present in Australia (see Migration Regulations 1994 (Cth) (“the Regulations”) Sch.1 item 1123B), and is nominated by an eligible family member. Of its sub‑classes, the applicant sought to qualify only under subclass 838 as an “aged dependent relative”. The critical criterion, which must be met at time of application and decision, is provided in Sch.2 item 838.212, which itself invokes definitions under the Regulations.
Counsel for both parties accepted that the Tribunal correctly identified and extracted the relevant provisions as follows:
13.One necessary criterion for a subclass 838 (Aged Dependent Relative) visa is clause 838.212, which states:
838.212The applicant is an aged dependent relative of an Australian relative.
14.The term “Aged dependent relative” is defined by regulation 1.03, which states:
aged dependent relative,
in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a)has never married, or is widowed, divorced or formally separated from his or her spouse; and
(b)has been dependent on that person for a reasonable period, and remains so dependent; and
(c)is old enough to be granted an age pension under the Social Security Act 1991.
15.The term “Australian relative” is defined by clause 838.111, which states:
Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
16.“Dependent” is defined by regulation 1.05A, as set out below:
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
(2)A person (the first person) is dependent on another person for the purposes of an application for:
[Paragraphs 1.05A(2)(a), (b) and (c) were omitted by SR No. 259 of 2000 with effect from 1 November 2000.]
(d)a Protection (Class XA) visa; or
(e)a Refugee and Humanitarian (Migrant) (Class BA) visa; or
(ea)a Refugee and Humanitarian (Class XB) visa; or
[Paragraphs 1.05A(2)(f), (g) and (h) were omitted by SR No. 259 of 2000 with effect from 1 November 2000.]
(i)a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
17.Subregulation 1.05A(2) is not applicable in this case.
These regulations give rise to at least two interesting questions of interpretation. The first is the interaction between the requirement in the definition of “aged dependent relative”, that dependency have existed “for a reasonable period”, and the requirement in the definition of “dependent” in reg.1.05A(1)(a)(i), that reliance on support have occurred “for a substantial period”. Are these two descriptions to be read together, or are they inconsistent? Should the more generally applicable “substantial period” requirement give way to the more specifically applicable “reasonable period” test?
The second is the effect of the adjective “financial” in reg.1.05A(1)(a)(i), to qualify the required “support to meet the first person’s basic needs for food, clothing and shelter”. Read narrowly, this might appear to require satisfaction that there has been provision of monetary payments by way of support, and that support given by providing material assistance “in kind” by way of food, clothing and shelter might not be enough. A broader interpretation might, however, be suggested by comparing the extended definition provided under reg.1.05A(2) for humanitarian visas, which recognises “psychological” or “physical” support as well as “financial”. This suggests that the regulation uses the word “financial” to refer to support which has a monetary value, so as to encompass most types of material support. A broad interpretation might also be suggested by the apparent objects of the visa to assist family reunion where an elderly parent is dependent upon an Australian citizen for “basic needs”.
Although these questions of construction were discussed in the course of the hearing before me, I was not referred to any authorities, and I have decided that I do not need to decide either of them. This is because Counsel for the applicant did not seek to argue as separate grounds of review that the Tribunal’s reasons showed it adopting a misconstruction on either point. As I understood him, he accepted that the Tribunal’s critical reasons could be read as taking, or at least being consistent with, a broad construction of “financial” when it decided that it was not satisfied that the applicant received “financial support” and was “financially dependent”. He also accepted that its adverse conclusion was not based upon any difference between a “reasonable period” and a “substantial period”.
Notwithstanding these concessions, Counsel for the applicant argued that the Tribunal made a jurisdictional error when arriving at its conclusion on the issue of financial dependency. This was argued to be revealed in a finding contained in its concluding paragraph, when it stated:
The Tribunal finds that there is no evidence to support a finding that the nominator provides financially for the basic needs or any other financial needs of the visa applicant.
He argued that, although the applicant had presented little, if any, relevant documentary proof of financial or other material assistance from her Australian son, there was sworn evidence from both of them that the applicant had no source of income while she was in Australia, and was supported by her son with whom she had resided in Griffith since coming to Australia. The applicant’s son had also claimed generally in writing that, before she came to Australia, he had provided direct financial support to her in India.
In response, Counsel for the Minister did not deny that such evidence was before the Tribunal and that, if believed, it might support a favourable finding on this criterion. Counsel for the Minister also did not argue that an error of law and jurisdictional error would arise, if the sentence identified by the applicant were read as containing a finding which denied that there was such evidence in the material before it. However, he argued that the sentence should not be so read.
There is authority supporting the applicant’s side of this argument. Thus, in Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50, a Full Court recently accepted that “an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence” and that “this error will amount to jurisdictional error if the Tribunal’s decision is based on such finding” (see [5] and [13], where their Honours prefer to label the error as a failure to take account of relevant material, rather than “no evidence”). Identification of a similar error arising from an erroneous finding of “no evidence” on a material issue was made by another Full Court in Repatriation Commission v Maley (1991) 14 AAR 278 at 285‑6, based on Mason CJ’s discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑6.
Counsel for the applicant also referred me to authority where jurisdictional error has been found in a failure of a Tribunal to address material factual claims made by a visa applicant, by making findings which assess that evidence against visa criteria (citing NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63] and Sochorova v Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 585 at [16-17]). The error found in those cases may also come generally into a “failure to take relevant considerations into account” ground of judicial review. However, I consider that the applicant’s challenge is better examined by reference to the above authorities which have found error in an express finding of “no evidence” such as is challenged in the present Tribunal’s reasoning.
An illuminating authority in this area is the judgment of Gummow J in Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472. This is a case where a delegate referred to a series of factual claims made by a visa applicant and responded to each by stating “there was no evidence” supporting it. His Honour analysed the situation at 479-80:
I bear in mind the caution that it is not for the Court to study administrative decisions too finely or precisely and that they are to be regarded carefully but sensibly and not over zealously in the pursuit of error; see Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 at 554, per Lockhart J; Minister for Immigration and Ethnic Affairs v Pashmforoosh (unreported, Federal Court of Australia, Davies, Burchett and Lee JJ, 28 June 1989), pp 12-13.
I would not treat the references in the paragraphs I have set out from the s 13 statement as indicating that the delegate was dissatisfied because in various respects there was “no evidence” in a technical sense. I treat the reference as being to a lack of probative material confirmatory of what the applicant had put. The difficulty is whether the delegate in referring to “claims” by the applicant is to be read as denying to those “claims” probative value.
No doubt it would be open to the decision maker in a particular case to find the material put forward by the applicant to be of insufficient weight in the absence of substantiation from other sources. But it would, in my view, be a misconstruction of the legislation for the delegate to take the view that as regards the matters dealt with in the particular paragraphs in the s 13 statement in question here, as a matter of law she could not act solely upon material put forward by the applicant. To act on that footing, in my view, would be to fall into an error of law.
The question is not free from difficulty, but I have reached the conclusion that the delegate did not fall into an error of law of this kind. I read the paragraphs in question as indicating that the delegate was taking the position that in this particular case she would not find what was put forward by the applicant to be of sufficiently probative force in the absence of other material to substantiate it.
After Broussard, the High Court gave further strong directions that a court in a judicial review proceeding should not seek to give a Tribunal’s language a reading assiduous to locate error (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291). Counsel for the Minister referred to this authority, and also cited two cases where a Full Court found that a Tribunal’s framing of conclusion in terms of “no evidence” should be read as intending to say no more than that “there was no evidence capable of satisfying it on the issues in question” (see A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [1] and [18-23], and Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18]). In these cases, the surrounding circumstances and the context of the finding indicated that the “no evidence” finding could not have been intended to be understood literally.
Gummow J’s discussion in Broussard (supra) has pertinence to the present case, due to a subsidiary argument made by Counsel for the applicant. This was that, if the Tribunal’s reasons could not be read as showing that it had overlooked the general sworn evidence of the applicant and her son, its finding extracted above showed that it had misconceived what was legally required by way of evidence before the Tribunal could be satisfied as to the dependency criterion. Counsel submitted that the finding set out above showed that it had erroneously insisted upon corroborative financial documentation, and as a result had wrongly failed to consider the sworn general evidence, in the sense of take it into account to be weighed as probative evidence. In the terms of Gummow J, the Tribunal had denied the general and oral evidence “probative value”. This misconception explained why the Tribunal’s “no evidence” finding should be read literally, and as revealing error.
To assess these submissions, it is necessary to consider the Tribunal’s finding in its context. Unfortunately, its reasoning is terse, ambiguous, and lacking a full discussion of the evidence before the Tribunal. It is difficult to discover why the Tribunal was not persuaded to accept the general sworn evidence of the applicant and her son as to her financial dependency, particularly since its reasons do not contain any rejection of their general credibility.
In my view, the relevant reasoning is found in the following two paragraphs:
31.At the hearing the visa applicant confirmed her migration history as set out in the Department and Tribunal files. In response to questions from the Tribunal the visa applicant testified to the effect that she supported herself in India from land that she sold 5 years ago. Asked whether she could produce evidence of this sale she said that she could not do so. Asked whether her other children resident in India support her, she said that they did not. At the hearing the nominator gave sworn evidence to the effect that he wholly supports his mother financially. Questioned about how he transfers money to her he claimed that he does so by giving money to friends who give it to his mother. Asked why he chooses this method, he stated that he also transfers money via someone in Hong Kong.
32.Based on the above oral and documentary evidence the Tribunal is not satisfied that at the date of application or at the date of decision the visa applicant meets criteria for grant of a Other Family (Residence) (Class BU) visa. This is because the Tribunal finds that the visa applicant is not financially dependent upon her nominator as that term is understood in the relevant regulations. The evidence in support of the visa applicant’s claim, other than her oral testimony comprises an undated certified copy of an affidavit stamped on 28 November 2003 to the effect that on 15 October 2001 Joginder Kaur withdrew 1500 rupees from an account that she holds jointly with the visa applicant. This affidavit does not disclose the source of the 1500 or whether the rupees were withdrawn for the benefit of the visa applicant. The Tribunal notes that the visa applicant entered Australia on a visitor visa on 2 October 2001 and was in Australia on 15 October 2001. This is the date on which Joginder Kaur claims to have withdrawn 1500 rupees. In oral evidence the nominator claimed that he provides his mother with financial support by sending money for her through friends. The Tribunal notes that there is no documentary evidence of financial transfers after 1993. There is no evidence that the nominator has paid for the visa applicant’s travel tickets or any other expense that she has incurred at any time. The Tribunal finds that there is no evidence to support a finding that the nominator provides financially for the basic needs or any other financial needs of the visa applicant. Accordingly, the Tribunal finds that the visa applicant has not discharged her evidentiary burden that she is and has been financially dependent upon the nominator for a reasonable time. (emphasis added)

After giving careful consideration to the Tribunal’s reasons, I have decided that the Tribunal did not intend in the challenged sentence (which I have emphasised) to express a conclusion that there was no evidence before it upon which it might find that financial dependency was established. I cannot accept that the Tribunal might have overlooked the general sworn evidence, and failed to have taken it into account for that reason. Most significantly, it expressly reminded itself in the previous paragraph that “at the hearing the nominator gave sworn evidence to the effect that he wholly supports his mother financially”. Within the paragraph containing the challenged statement, the Tribunal refers to “the evidence in support of the visa applicant’s claim, other than her oral testimony (emphasis added)”. This suggests that the Tribunal was aware that there was relevant oral evidence which it should consider.
Moreover, I consider that it is a mistake to read the challenged sentence as providing a general, over‑all, conclusion on all the evidence. To read it in this way overlooks the structure of ideas expressed in paragraph 32. In this paragraph, I consider that the Tribunal has expressed its principal conclusion in its first two sentences, and in its last sentence: “Accordingly, the Tribunal finds that the visa applicant has not discharged her evidentiary burden that she is and has been financially dependent upon the nominator for a reasonable time”.
I do not consider that the Tribunal should be understood as engaging in a sequential reasoning process in the intervening sentences, including the sentence picked out for attention by the applicant (c.f. Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14]). Rather, these sentences give some particular explanations for the adverse conclusion. Clearly, the Tribunal has given particular attention to the lack of corroborative documentary evidence, but in my opinion it was entitled to do this so long as it did not think that the general sworn evidence could not be accepted in the absence of corroborative documentary evidence.
In this context, I consider that the significant idea in the challenged sentence is the reference “no evidence to support a finding …(emphasis added)”, and read the reference to “evidence to support” as a reference to documentary corroboration. To that extent, I accept the applicant’s subsidiary argument. However, I do not accept the further submission that the Tribunal was requiring such evidence exclusively. I read the sentence as saying no more, and no less, than that the Tribunal, when coming to its ultimate conclusion on financial dependency, has put weight, even significant weight, on the lack of documentary corroboration. I cannot read it as saying that the Tribunal did not weigh the sworn general evidence of the applicant and nominator.
In my opinion, this reasoning was legally open to the Tribunal, even if the merits of its conclusion are not clear. Thus, I am inclined to think that, in its reasons, the Tribunal has insufficiently weighed the general evidence in the light of other evidence supporting the credibility of the witnesses and the inherent likelihood that the applicant was being supported by her son. I would also caution a Tribunal able to receive sworn oral evidence against becoming preoccupied with the benefits of corroborative contemporaneous documentary evidence to assist fact‑finding. However, in my opinion the factual assessments of the Tribunal were legally open to the Tribunal on the material before it, and I have been unable to locate jurisdictional error arising out of my concerns.
I should indicate that, when considering the submissions of the applicant’s Counsel, I gave consideration to passages in the transcript before the Tribunal to which my attention was drawn. In these, the Tribunal constituted by Ms Goodman at times does show a desire to receive corroborative evidence. Thus, for example:
MS GOODMAN: So how have you been supporting yourself for the last 12 years?
THE INTERPRETER: I’m getting all assistance from my son. Mr Gurnam Singh.
MS GOODMAN: We’re having trouble tracing this assistance. We’re doing our best. You made this application in 2002.
THE INTERPRETER: Yes Member.
MS GOODMAN: And the very first receipt that we can find is in June 1991.
THE INTERPRETER: Yes Member.
MS GOODMAN: We don’t have any records before that and we need to show that you were dependent on your son for some time before August 2002.
THE INTERPRETER: Member, my older son he used to – sometime he would visit me but now I’ve got – I don’t know what his whereabouts.
MS GOODMAN: We don’t have any record of that. We don’t appear to have or should I say – I’m sorry I’ll rephrase that. We are looking for the records. Your agent is looking for these records. I need to have some kind of record. You’ve underlined an amount for October 2001. How do I know that that came from Australia?
Counsel for the applicant put emphasis on the Tribunal’s statement:

“I need to have some kind of record”
. However, I have great difficulty using such a statement in the course of a hearing as providing significant evidence explaining one sentence in a written statement of reasons delivered subsequently. Moreover, the reference to “need” is ambiguous as to whether the Tribunal was doing no more than emphasising the desirability of the applicant presenting or pointing to corroboration of financial support, or was giving her legal opinion on what evidence was probative. The circumstances of the present hearing, in my opinion, point to the former rather than the latter interpretation of the transcript.
Counsel for the applicant also drew my attention to a statement at the end of the hearing where the Tribunal said: “Look, I think that she can establish her dependence because she was here as a visitor all the time”. It would seem that the Tribunal member subsequently changed her opinion in relation to this. However, I cannot draw from this circumstance support for the jurisdictional error which Counsel argued before me. I note that he did not attempt to draw any procedural fairness concern out of the Tribunal’s statement.
For the above reasons, I am unable to accept the arguments presented by Counsel for the applicant in support of the ground of review relied upon, and must dismiss the application.
My above reasons were written after the parties’ submissions in the proceeding had closed, but before the applicant filed a further amended application pursuant to leave given at the hearing with the object of aligning her application with the submissions presented by her Counsel. The terms of my leave were clear and allowed the applicant only to file an application “relying on ground 1 of the original application as particularised in the written submissions”. The document filed on 15 June 2005 contains particulars which might arguably go further than this. However, the applicant did not seek to make further submissions, and I have read the document as doing no more than re‑formulating the arguments which were presented at the hearing. I consider that I have fully addressed these in my above judgment. In these circumstances, and in view of my conclusions on those arguments, I did not consider it necessary to recall the parties for further submissions, as was requested to my associate by the respondent’s solicitor.
The parties are agreed as to a consequential costs order.

I certify that the preceding twenty‑nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 6 July 2005