Mahal v Minister for Immigration

[2015] FCCA 449

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 449

Catchwords:
MIGRATION – Migration Review Tribunal – Other Family (Residence) (Class BU) visa – whether the Tribunal had failed to consider an integer of the applicant’s claim – procedural fairness – error in recording – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Adjournment.

Legislation:  

Migration Act 1958
Migration Regulations 1994

Applicant: JAGTAR SINGH MAHAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1330 of 2014

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Parish Patience Immigration Service

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6825. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1330 of 2014

JAGTAR SINGH MAHAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect to which the applicant seeks a Constitutional writ in respect of alleged grounds of error by the Tribunal in its decision on 23 April 2014.  The Tribunal on that date affirmed the decision of the delegate not to grant the applicant an Other Family (Residence) (Class BU) visa. 

2. The grounds of the application are as follows:

   1. The Tribunal erred in law by misconstruing the provisions Reg 1.15(2)(b) of the Migration Regulations, relating to the interpretation of the definition of “Child” for the purpose of determining if a child falls within the ambit of “Near Relative”. The requirement of regulation Reg 1.15(2)(b) is the case of child less than 18 to be included as near relative is that “the child is not wholly or substantially in the care and control of the visa applicant or…”. In other word the visa applicant’s obligation is only to prove that he has substantial control over the child.

   Particulars

   The Tribunal accepted the settled legal position that the child need not have to live with the parents in order to exercise substantial control over the child in para 52 of the order. Further the Tribunal having accepted that the visa applicant provides financial support (para 53) and facilitates attendance of group classes by the child (para 54), communicates with the child (para 56) failed to hold that the visa applicant exercised substantial control especially in view of the fact that there is no evidence to the contrary. 

   2. The Tribunal denied the applicant procedural fairness, including the capability of the applicant to correctly prepare this application.

   Particulars

   The applicant states that several statements stated in the Tribunal’s findings and decision regarding the evidence given by the applicant are erroneous. For instance the statements on e3bvidence given by the applicant regarding tenure of group classes arranged for the child, custody matters in the visa application before the delegate etc are erroneous. In order the ascertain the mistakes made by the interpreter while translating the deposition of the applicant, the applicant filed two applications for the access to the voice recorder/transcript in the Tribunal proceedings. An FOI application was filed before the Tribunal on 5/5/14 & 12/5/14 requesting to send a CD of the audio recordings and till date the applicant has not been provided with the CD. The Tribunal staff called the applicant’s brother on 9/5/14 and said the CD was not available as there was a malfunction of the recording equipment at the time of hearing. The applicant’s brother requested the Tribunal staff to reply in writing for which the Tribunal has not responded till this date. It is submitted that this has affected the ability of the applicant to controvert the substance of the statements said to have been made during the Tribunal hearing which are incorrect probably due to the error in the interpretation of the applicant’s deposition in Punjabi language.

3. At today’s hearing, counsel for the applicant, Mr Jones, moved on an application in a case for an adjournment supported by affidavits of Mr Murdoch and Mr Mahal seeking to explain why steps had not been taken in the proceedings referable to what the applicant contended was the significance of interpretation errors and the advancing of submissions in the case. 

4. The applicant was briefly cross examined by Mr Reilly, and in that brief cross examination, it was clear that the applicant was evasive and unresponsive to the questions.  His answers, I find, were less than frank as to his explanation as to his ability to attend Court before Judge Lloyd‑Jones on 22 July 2014 and to take other steps in the proceedings. 

5. The applicant’s explanation in evidence was unsatisfactory and evasive as to the statutory declaration, in which he acknowledged clearly understanding the same, was signed by him with his signatures, then sought to suggest he did not understand what the document was.  I am satisfied that the applicant is a person upon whom no reliability can be placed in respect of his evidence.  The explanation for the adjournment is, in those circumstances, without any merit, and it is appropriate that the Court proceed to hear the matter on its merits. 

6. Mr Jones, on behalf of the applicant, skilfully sought to advance and refine what might be grounds of error in suggesting that there was, as a result of interpretational difficulties, an alleged material matter. It was alleged the finding by the Tribunal was wrong in the decision of the Tribunal based on the evidence of the applicant if it had been correctly interpreted.  The applicant sought to suggest that there was an interpretation error in relation to the evidence he gave as to the duration of his child’s tuition and the focus by the Tribunal on the difference of the evidence given by the applicant between the true position of two years as opposed to the alleged position of one year in the evidence given by the applicant had it been properly interpreted.

7. This is a case where, on the evidence before the Court, a technical problem error occurred in the recording before the Tribunal at its hearing on 22 April 2014, and the technical recording problem was not appreciated until towards the end of the hearing.  At that time there is a transcript which clearly records, in summary form, the delegate engaging in the exercise of summarising, for the benefit of the applicant, the substance of the evidence that had been given that had not been recorded.  There is no suggestion of any error in that summary by the delegate, and to the extent that the applicant contends that there was an interpretational error, for the reasons I have already given, I do not accept the evidence of the applicant.

8. In any event, insofar as it was suggested that there was a materiality in the link between the one year finding because of the reference in [31] and the reasoning of the Tribunal in [54], I am satisfied that that was merely an example of the inconsistency of the applicant’s evidence and was not material. It is impermissibly reading the Tribunal’s decision with an eye to error to suggest that the one year as opposes to two years alleged interpretational problem was the basis upon which the applicant’s claim for a visa was being rejected. 

9. It is crystal clear that the applicant had to meet particular criteria under reg.1.15 and, relevantly, that the applicant had no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens.  In this regard, “near relative” is taken to mean, relevantly, a child of the applicant, being a child who has not turned 18 and is not wholly or substantially in the daily care and control of the applicant.

10. The Tribunal identified that the applicant’s child in this case was in India and was in the care and custody of the applicant’s ex‑wife, and the Tribunal carefully identified the extent to which the applicant had engaged in contact, financial support and participated in assisting the welfare of the child in order to determine whether or not the child was wholly or substantially in the daily control of the applicant. 

11. I am satisfied, on a fair reading of the Tribunal’s decision as a whole, that the issue of the applicant’s evidence as to one year or two years of tuition was not material to the adverse determination of the applicant’s claim.  Further, I am not satisfied that there was any interpretation error whatsoever in the circumstances of this case, and I do not accept the applicant’s evidence to the extent that he suggested there was such an error. 

12. The second error that Mr Jones skilfully sought to develop related to a proposition that the Tribunal had somehow misunderstood its jurisdiction in relation to reg.1.15(1)(c) and had impermissibly assumed that daily care and control required custody.  The argument was skilfully developed with an impermissibly keen eye for potential error.  However, there was no such error in the decision of the Tribunal. 

13. It is clear the Tribunal fully appreciated that its task was to make a finding of fact in relation to whether the applicant, wholly or substantially, was involved in the daily care and control of the child who had not turned 18. There was no error by the Tribunal of a kind that equated that expression as requiring custody, and the Tribunal was clearly alive to that distinction in the findings that it made. 

14. Accordingly, neither ground, both of which were developed by Mr Jones on his feet, of potential jurisdictional error have any substance.  The grounds in the application, to the extent of suggesting a misconstruction of the meaning of “child”, are also without substance, and the suggestion that the applicant was denied procedural fairness in relation to possible mistakes by the interpreter is also entirely without substance. 

15. I am satisfied that the applicant has sought to take advantage of the fortuity, of which he became aware at the hearing, that there was a technical problem with the recording to subsequently advance a meritless assertion of interpretational issue relating to the accuracy of his evidence.  That suggestion of inaccuracy flies in the face of the careful summary by the Tribunal once the problem with the recording was identified, and there is no suggestion that the applicant at that point of time raised any issue with that summary or sought any further adjournment in respect of that summary or any other opportunity to respond to that summary.

16. In its statement for reasons, the Tribunal carefully set out the nature of the review, identified what occurred at the hearing and carefully engaged in a consideration of the claims and evidence. The Tribunal addressed the issue of reg. 1.15(1)(c), relevantly, as follows:

    48. 'Near relative' for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a 'dependent child'; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

    49. Mr JS Mahal's child was two years old at the time of the visa application. Mr JS Mahal was divorced from his former spouse at the time of the visa application. Master JS Mahal will be considered a 'near relative' of Mr JS Mahal at the time of the visa application if he was 'not wholly or substantially in the daily care and control of Mr JS Mahal. According to Departmental guidelines (PAM3), the term 'care and control' is linked to the concept of guardianship and custody. 'Care and control relates to those rights and powers concerning the day-to-day upbringing of a child. A parent with the care and control of a child has the power to make ordinary decisions concerning, for example, how the child goes to school, the food the child will eat, the time the child goes to bed, discipline, the clubs the child will join and the sports to play.

17. To the extent that it was suggested that there was some error by the Tribunal, and misunderstanding of “custody”, the first two sentences of para.52 make clear that the Tribunal appreciated the distinction, and made no such error:

    52. Mr JS Mahal claims that at the time of the visa application, his son was substantially in his daily care and control. The Tribunal recognises that it is not necessary for children to reside with their parents in order to be under the parents' daily care and control. 

18. The Tribunal was prepared to accept that the applicant had periodically sent money and gifts to his son’s maternal grandparents, and accepted that his son attended classes for which the applicant had paid the monthly fee.  The Tribunal relevantly said:

    55. The Tribunal also has difficulty accepting that Mr JS Mahal would have been able to impose his instructions on his former wife in regard to all daily matters such as what his son should eat, with whom he could go on holiday, and his health, given that his wife to join him in Australia, their divorce; and her lack of support in regard to the current application.

    56. The Tribunal accepts that Mr JS Mahal has been able to have contact with his son on Skype from time to time. It also accepts that he is able to track what his son is doing. The Tribunal accepts that this interaction has become easier as his child has grown a little older.

    57. However, of particular significance to the Tribunal is Mr JS Mahal's claim at the time that the visa application was made that his son was in the care and custody of his mother in India and that he would remain so. The Tribunal considers that this was a correct statement at the time, and it was only because the delegate refused to grant the visa that Mr JS Mahal now claims that his son was substant1ally in his own daily care and control he was not able to persuade – and I will have it set out – as well as paragraph 56, 57, and

19. In para.58, the Tribunal materially found:

    58. In any event, the tribunal is not satisfied that Mr JS Mahal's son was wholly or substantially in Mr JS Mahal's daily care and control at the time the visa application was made.

20. It was for those reasons that the Tribunal was not satisfied that there are no near relatives, other than those permitted by the regulation, and therefore reg. 1.15(1)(c) was not met.  For those reasons, the Tribunal was not satisfied that the applicant is the remaining relative of an Australian Relative at the time of the application, for the purpose of clause 835.21.

21. The Tribunal concluded:

    61. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. Mr JS Mahal has made no claims to be a carer of the Australian relative and therefore does not meet the requirements of a Carer Subclass 836 visa. Mr JS Mahal was born in 1977 and is too young meet the threshold requirements of an Aged Dependent Relative Subclass 838 visa.

22. It was in those circumstances that the Tribunal affirmed the decision not to grant the applicant an Other Family (Residence) (Class BU) visa. 

23. I am satisfied that there was no error in the findings made by the Tribunal, and that the findings were open on the material before the Tribunal, and that there was no misconstruction of the regulation by the Tribunal in carrying out its review and decision-making process.  I am also satisfied that the applicant was not in any way denied procedural fairness, notwithstanding the recording problem that occurred. 

24. Even if, contrary to my findings, it was the position that there was an error in relation to the interpretation, it was not a material error, and worked no unfairness in this case, in circumstances where it is clear, on the evidence before the Tribunal, that the finding to which it came in respect of reg. 1.15(2) was clearly open. 

25. In these circumstances, there is no jurisdictional error of the kind identified in the application, or of the kind sought to be developed by Mr Jones.  In these circumstances, there is no utility in the granting of any adjournment, even if a satisfactory explanation had been provided by the applicant, which, as I said, is not the position.  Accordingly, the application is dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015