Kosso v Minister for Immigration and Anor

[2018] FCCA 2116

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOSSO v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2116

Catchwords:
MIGRATION – Protection Visa – whether Migration Review Tribunal’s decision affected by jurisdictional error – where no error established in Migration Review Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.15AA
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: NAIMA ELIA GORGEES KOSSO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1351 of 2015

Judgment of: Judge Vasta

Hearing date: 26 July 2018

Date of Last Submission: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1351 of 2015

NAIMA ELIA GORGEES KOSSO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 18 May 2015, the Applicant, Naima Elia Gorgees Kosso, has asked this Court to review a decision of the then Migration Review Tribunal (“the MRT”) that had affirmed a decision of the delegate of the Minister not to grant the son of the Applicant a visa. 

2. The facts, in short compass, are that the Applicant is a citizen of this country, having come here from Iraq.  She was born in 1954 and arrived in Australia in 2008.  On 1 April 2011, a Dr Karm, of Health Services Australia, found that Ms Kosso, the Applicant, suffers from a psychiatric impairment and lower limb problems.

3. Dr Karm assigned a 30-point impairment rating.  The son of the Applicant, who resides in Germany, applied to come to this country on the basis that he was her carer. 

4. The application was not without its troubles.  That is because the son of the Applicant, Mr Toma, had previously attempted to enter Australia fraudulently.  That attempted entry into Australia is detailed in the reasons given by the then MRT. 

5. Notwithstanding that Mr Toma was resident in Germany and was not in danger of persecution, he arrived in Australia and gave officials a false name; he said that he was from Iraq and that he was trying to escape persecution.  He told the Department that his mother was living in Iraq, and gave quite a tale.  It was not too long before the tale began to unravel. Before the visa application went too far, Mr Toma, to use the vernacular, realised that the jig was up, and voluntarily left Australia and went back to Germany. 

6. In the meantime, he has married and now has two children in Germany.  His original application was that he would come to Australia and be the carer for his mother and undertake all of the duties, and his wife would now come as well and his two young children.

7. He stated that he could look after their needs and his mother’s at the same time.  The MRT had to look at regulation 1.15AA, which states that:

   (1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen ( the resident ) if:

   (a) the applicant is a relative of the resident; and

   (b) according to a certificate that meets the requirements of subregulation (2):

   (i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and

   (ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

   (iii) the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991 ), the rating that is specified in the certificate; and

   (iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   (ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and…

8. Those factors as to the disability of the Applicant were well and truly met.  The Tribunal had to be satisfied in this order that:

   a)Mr Toma was a relative of the Applicant;

   b)That Mr Toma was willing and able to provide to the Applicant substantial and continuing assistance of the kind needed;  and

   c)Then, finally, that that assistance cannot be provided by any other relative of the Applicant who is in Australia or obtained from welfare, hospital, nursing or community services in Australia. 

   The first question before the Tribunal was whether Mr Toma was actually the son of the Applicant because Mr Toma had said in his previous application, that his mother actually lives in Iraq but that he had a female relative in Australia with, it would seem, the same surname as the Applicant. 

   In the end, the MRT noted that, looking at the Applicant’s UNHCR documents from 2005, she had listed a Mr Simon Usef Toma as her son, with a date of birth of 1 January 1982 who resided in Germany.  Given all of that material, the Tribunal came to the conclusion that Mr Toma was the son of the Applicant.

9. Therefore, the requirements of reg.1.15AA(1)(a) had been met.

10. The next matter that the Tribunal turned their mind to, was whether Mr Toma was actually willing and able to provide the assistance that was needed.  To that matter, the Tribunal noted that the only evidence that they had, indicating that Mr Toma was willing and able, was his word.  Mr Toma did give some evidence to the Tribunal.  As the Tribunal noted, the concepts of willing and able are both subjective as to whether someone is actually willing, and objective as to whether they are actually able.

11. The Tribunal noted that a lot of the sort of care that the Applicant would need concerned personal care. Mr Toma said that those duties could be delegated to his wife, that is, the Applicant’s daughter-in-law. The Tribunal had some reservations about that.  Of course, the substantial care must be taken by Mr Toma, not delegated to his wife. 

12. The second aspect was that Mr Toma, now being married and having two sons that were, at the time of the assessment made by MRT, aged approximately three and one.  The Tribunal said this, at paragraph 28:

    The combination of the above two factors could suggest that Mr Toma may not be either willing or able to provide all of the assistance required.  For example, the requirement for a carer visa is that the applicant personally provides the required assistance.  It defeats the purpose of the visa if the assistance is delegated to another person.  Similarly Mr Toma has a young family to support.  This gives rise as to whether Mr Toma has in fact the ability to provide the assistance.  Having said this, the tribunal makes it clear that having young children per se does not necessarily rule out that a person cannot meet r.1.15AA(1)(f).  Similarly, having one’s spouse assist with some minor help does not necessarily rule out r.1.15AA(1)(f). In essence, the question turns on whether Mr Toma is credible when he claims that, notwithstanding concerns listed above, he is still willing and able to provide the assistance needed.

13. The Tribunal noted that Mr Toma’s past actions gave rise to credibility concerns.  The migration agent who was assisting the Applicant had written a fairly lengthy submission going to the credibility of Mr Toma.  The Tribunal reproduced that submission in whole in its reasons. 

14. The Tribunal then spoke of the past actions of Mr Toma giving rise to the credibility concerns.  They were that:

    a)he had previously attempted to enter Australia using a false passport,

    b)that he had provided false and misleading information concerning his circumstances, and

    c)in effect, had attempted to commit a fraud upon the Australian Government.

15. The Tribunal assessed those facts and took into account the submissions that had been made by the migration agent acting for the Applicant.  The migration agent had made the point that Mr Toma had changed, and Mr Toma had learnt his lessons. 

16. The Tribunal accepted that an adverse migration history or previous fraudulent actions in the past do not necessarily mean that all future applications are doomed.  The Tribunal also noted that all visa applications are considered on the merits of the particular case. 

17. The Tribunal noted that Mr Toma’s visa history was only relevant insofar as it raises concerns about his dealings with the Australian Government, and the Tribunal noted that it is true that people change. 

18. However, the Tribunal said that it only had Mr Toma’s word to go on as to whether or not he has learned his lessons as far as his attitude to Australian migration laws was concerned.  In the end, the Tribunal made this statement at paragraph 32:

    32. The proposition before the tribunal is whether Mr Toma’s evidence can be accepted at face value when he states that he is both willing and able to provide the needed assistance, notwithstanding the concerns listed above. 

    33. The tribunal is not prepared to accept Mr Toma’s evidence at face value.  The tribunal does not reach this decision lightly.  However, the tribunal is unconvinced that given his family circumstances and the concerns listed above that he is genuinely willing and able to provide the needed assistance. 

    34. The tribunal is unable to be satisfied that Mr Toma is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed.  Therefore the tribunal is unable to be satisfied that Mr Toma meets the requirements of r.1.15AA (1)(f).

19. The Tribunal then affirmed the previous decision made by the delegate for the Minister. 

20. On 18 May 2015 the Applicant, being a person who was concerned in the decision even though she herself is not the visa Applicant, but is a person who is allowed to bring an application for review to this Court, did in fact do so by filing an originating application.  That originating application listed a number of grounds for the application, and I will go to those grounds very soon. 

21. The matter had a first court listing of 10 June 2015 before His Honour Cameron J. 

22. His Honour made the usual orders as to the provision of court books and so on and had set the matter down for a call over at the end of 2015. 

23. For reasons that are not apparent to me, the matter was not mentioned again in Court until 14 December 2017.  On that date, which seems to have been a call over before His Honour, His Honour set the matter down to today’s date, 26 July 2018, to be heard at 2.15pm. 

24. On 20 December 2017, six days after his Honour had set the matter down, the lawyers for the Applicant filed a notice of intention to withdraw as a lawyer.

25. That notice gave an address for service for the Applicant, and the Applicant was served with that notice.  The lawyers did file the notice of withdrawal of lawyer on 11 July 2018.  The Court has received no communication at all from the Applicant. 

26. On 5 July 2018, the Chambers of His Honour Cameron J, wrote to the Applicant and stated to her that the time for the hearing was changed to 10.15am and that the Judge hearing the matter would now be me rather than His Honour Cameron J.

27. The matter was set down for 10.15am.  At 10.15, I was notified that the Applicant had not turned up.  I told my associate that we would give the Applicant until 10.30.  She had still not arrived at that time. 

28. I then came into Court. It seems to me that this is a matter that has been in the system now for quite some time. There is absolutely no explanation as to why the Applicant is not here. In all the circumstances, I am of the view that it is appropriate to proceed under r.13.03C (1)(e) of the Federal Circuit Court Rules 2001 (Cth) and determine the matter on the merits.

29. I do note that there have been no submissions filed for the Applicant in contravention of the orders made by His Honour Cameron J.  Therefore I turn to the originating application. 

30. Ground One is set out as follows:

    Ground 1: Jurisdictional Error – Misapplication of law or failure to ask the correct question regarding the [sic] whether the applicant was ‘willing and able’ to care for his mother

    1. The Second Respondent either misinterpreted, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.

31. There were a number of particulars which were almost in the guise of submissions that followed the particular ground.  All that those submissions actually were, was a reiteration of what the Tribunal had done, with a conclusion at the end of the particulars that therefore the Second Respondent erred by finding Mr Toma did not meet the requirements of the regulation. 

32. There does not seem to be, on my reading of the reasons, any misapplication or misunderstanding of the applicable law.  Whilst it may be said that the Second Respondent did say at paragraph 32 that the proposition before the Tribunal was whether Mr Toma’s evidence would be accepted at face value when he states that he is both willing and able to provide the needed assistance, notwithstanding the concerns listed above, the argument was that such was a wrong observation and was a wrong question to ask. 

33. It was put that it was not whether Mr Toma could be judged as being credible that should have been the issue; it is whether he was actually willing or able.  It seems to me that such a submission is drawing too fine a point.  It is trite to say before the Tribunal could come to a decision that the Applicant was willing and able, they must accept him when he says that he is willing and able.  It was noted very early on in the reasons of the Tribunal that the only evidence that Mr Toma was willing and able was that Mr Toma claims that he is willing and able. 

34. The question clearly was whether the Tribunal could accept that evidence.  Therefore, the question was whether they could accept his evidence as being credible and reliable.  In the end, the Tribunal, given all of the circumstances, came to a conclusion that it could not.  That meant that the Tribunal was not satisfied that he was willing and able.  It was not a finding that the Applicant was not willing and able.  It was a finding that the Tribunal was not satisfied that he was willing or able.  That finding was open on the evidence.

35. Given that it was open on the evidence, there is no jurisdictional error and I find no merit in ground one. 

36. Ground two is stated as:

    Ground 2: No Evidence.

    There was no evidence or other material to justify the making of the finding that the applicant was not willing and able to care for his mother, or the second respondent relied on facts, which did not exist.

    Particulars

    There was no evidence of a logical or probative basis connecting the adverse credibility finding regarding the applicant’s prior protection visa application and the finding by the second respondent that the applicant was unable or unwilling to care for his mother.

37. This ground is a misstatement of what the Tribunal actually said.  The Tribunal did not say that the Applicant was unable or unwilling to care for his mother.  The Tribunal said that they were not satisfied that he was willing and able to care for his mother. 

38. It is not a finding that means that they have looked at evidence and come to a positive conclusion that he was unable or unwilling.  It is a finding of non-satisfaction.  There can be no jurisdictional error based on a no-evidence ground of a finding of nonsatisfaction.  Therefore, I find no merit in ground two.

39. Ground three is:

    Ground 3: Relevant Considerations

    The second respondent failed to take into account relevant considerations, in the exercise of [sic] power.

40. The particulars given were that the Tribunal raised the issue of Mr Toma’s previous attempt to come to Australia including the use of a false passport and false claims; and that Mr Toma agreed that this was the case; and he gave explanations that after his mother had arrived in Australia; he was very worried about her and wanted to come and be with his mother as soon as possible; and that his mother was illiterate and an old woman who does not speak English and is very sick.  There was no one else to look after her apart from him, so he did what he did.

41. Mr Toma told the Tribunal that he apologised for attempting to come to Australia in this manner, and that the migration agent had made a submission that Mr Toma had changed and that he had learnt his lesson.  The ground that the Tribunal has failed to take into account that consideration cannot be made out.  It is very clear that the Tribunal considered the matter.  What is really complained of is that the Tribunal did not accept the force of that argument.  That does not mean that the Tribunal did not consider the matter.

42. In my view, it was a matter that the Tribunal did have to look at and they actually did do that on a reading of the reasons that they have given.  Therefore, I find no merit in that ground either. 

43. Ground four is:

    Ground 4: Irrelevant Consideratiosn

    The second respondent took into account irrelevant considerations, in the exercise of power.

44. The particulars given were that the Tribunal observed that notwithstanding the claims, various concerns arise from the facts of this case which the Tribunal enumerated at paragraphs 27 and paragraph 30. 

45. The submission is that none of those concerns have anything to do with whether the applicant was willing and able to care for his mother now.  This ground (that the Second Respondent took into account irrelevant considerations) has not been fully thought through.

46. For a Tribunal to be said to take into account irrelevant considerations means that the Tribunal was prohibited or mandated that they could not look at those particular considerations, and in defiance of the prohibition, the Tribunal still looked at those considerations.  That is not the case here. 

47. What the ground really is saying is that the Tribunal put weight on circumstances that the Applicant believes the Tribunal should not have put weight on. But that is a matter for the Tribunal. The question as to what weight or what matters it takes into consideration are matters for them.

48. As there was no prohibition in looking at those matters and considering those matters, then there is no merit in that ground. 

49. The last ground is that:

    Ground 5: Unreasonableness

    The second respondent exercise [sic] power in a manner that is so unreasonable that no reasonable person could have so exercised the power.  Alternatively, the second respondent reasoned illogically or irrationally and the findings lacked evident or intelligible justification.

50. I take this ground as being a ground that having regard to all of the circumstances, the decision that the Tribunal made was simply not open to it.

51. As I have said through the recitation of the facts upon which the Tribunal made its decision and, going through the reasoning process of the Tribunal, that decision was one that was open. 

52. Therefore, I find that there is no merit in that ground. 

53. I have looked through the reasons of the Tribunal.  I find that the Tribunal has conducted the task that it had to do in accordance with the legislation and the requirements that the Tribunal had.

54. For those reasons, I am of the view that there has been no jurisdictional error established. 

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 October 2018