Madol v Minister for Immigration - [2011] FMCA 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MADOL v MINISTER FOR IMMIGRATION

[2011] FMCA 5

MIGRATION – Review of decisions – delegate of the Minister for Immigration and Citizenship – visa – humanitarian visa.

Migration Act 1958 (Cth), s.477
Migration Legislation Amendment Act (No. 1)2009 (Cth)
Migration Regulations 1994 (Cth), reg.1.05A, 1.12AA, Schedule 2 cl.60.1, 202.211, 202.222

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25

Applicant:

THIANG AYUEL MADOL

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 326 of 2010

Judgment of:

Riethmuller FM

Hearing date:

6 August 2010

Date of Last Submission:

6 August 2010

Delivered at:

Melbourne

Delivered on:

20 January 2011

REPRESENTATION

Counsel for the Applicant:

Ms Spitzer

Solicitors for the Applicant:

Holding Redlich

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application for an extension of time be refused.
The application filed on 3 March 2010 be dismissed.
The application for costs be dismissed.
.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 326 of 2010

THIANG AYUEL MADOL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

The applicant is a child born in Sudan in 1996. He came to Australia in 2004 on a refugee and humanitarian class XB visa with his uncle and his uncle’s family. He was granted citizenship in Australia on 27 November 2006. The applicant applies with respect to a delegate’s decision to refuse to grant his mother a special humanitarian visa to travel to Australia on 21 November 2007.
The reasons given for the refusal were brief, stating in substance that:
Your application was considered against the criteria in each of the subclasses. Your application was refused because I (as a delegate of the Minister) am not satisfied that the criteria in each of the subclasses was met. In summary, I am not satisfied that there are compelling reasons for giving special considerations to granting your visa having regard to particular factors in the criteria. The attached page shows the criteria not met by you for each of the subclasses.
The terms of the decision letter on this occasion also includes a list of clauses under the regulations that the visa was considered against. There are a total of seven visa subclasses against which this application was considered. Each requires consideration of the degree of persecution.
The application made to this Court was lodged on 3 March 2010. This is well outside the 35 day time limit provided for by s.477(1) of the Migration Act. However, the Court has power to extend the time limit under s.477(2) of the Act. I note that as a result of the transitional provisions (the Migration Legislation Amendment Act (No. 1) 2009), the delegate’s decision is taken to have been made on 15 March 2009 for the purpose of considerations with respect to the time limits in this case.
On 23 December 2006 a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 5
Decision Date: 20 January 2011

CaseChat Overview and Summary

In Madol v Minister for Immigration, the applicant sought judicial review of a decision to refuse to grant him a Class XB visa. The decision was made by the delegate under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The applicant argued that the delegate erred in failing to consider the compelling family circumstances as required by the Migration Regulation and the Migration (Evaluation of Social and Economic Contribution) (Prescribed Matters) Order 2009. Specifically, the applicant claimed that his strong family ties with his uncle, who had recently been granted a permanent visa under the Humanitarian Program, should have been given significant weight in the decision-making process.

The central legal issue before the court was whether the delegate erred in failing to adequately consider the compelling family circumstances as outlined in the relevant regulations and policy. The applicant argued that the delegate did not sufficiently weigh the close family connection with the proposer in Australia, as required by the policy. The respondent contended that the delegate had appropriately considered the compelling family circumstances and that there was no error of law in the decision.

The court found that the delegate had not erred in their consideration of the compelling family circumstances. The policy indicated that split family applicants satisfy the compelling reasons criterion based on their close family connection with the proposer in Australia. The court noted that the applicant's circumstances, as described in his uncle's visa application form, provided an arguable basis for strong family ties with his uncle as his carer and adoptive parent. However, the court held that the possibility of an error was not sufficient for the applicant to succeed in his claim for judicial review. The court emphasised that the applicant needed to demonstrate a clear error of law for the decision to be quashed.

Accordingly, the court dismissed the application for judicial review. The court refused the application for an extension of time, dismissed the application filed on 3 March 2010, and also dismissed the application for costs.

Orders

Orders of the court

The application for an extension of time be refused.

The application filed on 3 March 2010 be dismissed.

The application for costs be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The case is difficult for the applicant in that pursuant to s.66 of the Act the delegate was not obliged to give reasons. Section 66 provides:66 [Notification of decision](1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and (c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made. (3) This subsection applies to an application for a visa if: (a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and (b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa. (4) Failure to give notification of a decision does not affect the validity of the decision. (5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person. Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person. The section has been the subject of a decision of the Full Court of the Federal Court in Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 where the Full Court said:[16] On judicial review the court may receive evidence and enquire into what were in fact the reasons for the impugned administrative decision: Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1980) 151 CLR 170 at 253, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally obliged to give reasons. There may well not be such an obligation; there is no inherent legal requirement for an administrative decision-maker to give reasons: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what in fact were the reasons, despite the decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review, to the extent that review is permitted (as for example in the present case where review is limited to jurisdictional error). [17] Whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 196 ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire and the like recording advice to the decision-maker or documents recording the decision-maker’s own preliminary thoughts or working notes. Such documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question. (emphasis added)

Ratio Decidendi

Legal Principle Established

In any event the policy does not appear to be as straightforward as the applicant argues. Clause 60.1 (the policy referred to by the applicant) provides:60.1 General considerationsOfficers must weigh each of the factors listed above according to the applicant’s circumstances and decide whether, overall, there are compelling reasons for giving special consideration to granting a visa. The applicant’s circumstances may, when considered cumulatively, present compelling reasons for giving special consideration to grant a visa. Alternatively, if very little weight has been attached to one factor, but another has been accorded great importance, the overall effect having regard to all the factors is that the criterion has been satisfied.Under policy, split family applicants satisfy the compelling reasons criterion on the strength of their close family connection with the proposer in Australia. The fact that an applicant’s entry to Australia has been proposed by an immediate family member who has recently been granted a visa under the Humanitarian Program should be given very significant weight when assessing this criterion.In all other cases, officers should take the following considerations into account when weighing these factors and deciding whether there are compelling reasons to consider granting a visa. Clause 47 of the policy referred to by the respondent provides:“Split family” is a colloquial term for an application for a Class XB visa if the applicant is a member of the immediate family of a person who entered Australia as the holder of a permanent Class XB visa or a special assistance visa or who was granted a permanent Subclass 866 (Protection) visa in Australia, and is proposed in accordance with form 681 by that person.…For each of the Class XB permanent subclasses, Schedule 2 primary criteria provides for a visa to be granted to a split family applicant who is a member of the immediate family of the proposer. These split family provisions reflect the policy intention that entrants under the offshore Humanitarian Program purposed immediately family members for entry to Australia under the same visa subclass (rather than have the family apply for a visa under the Family Migration program).For split family cases schedule 2 secondary criteria allows for the grant of a visa to a member of the immediate family of the main applicant.Member of the immediate family may include a spouse or dependent child, and in limited circumstances a parent. A parent can only be a member of the immediate family if their child (ie the child who is the proposer or main applicant) has not turned 18.Note that this is more restrictive than member of the family unit, as required by non-split family cases. The circumstances of the applicant, as described in his uncle’s visa application form, provides an arguable basis that his strong family ties are to his uncle as his carer, and adoptive parent (see supplementary court book, page 3). As a result, the facts of this case do not demonstrate an error of law by the delegate. The possibility of an error is not sufficient for the applicant to succeed.