Mahamud v Minister for Immigration & Citizenship
[2025] FedCFamC2G 789
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mahamud v Minister for Immigration & Citizenship [2025] FedCFamC2G 789
File number(s): MLG 741 of 2020 Judgment of: JUDGE BINGHAM Date of judgment: 30 May 2025 Catchwords: MIGRATION LAW – judicial review of decisions of the Administrative Review Tribunal to not grant Child (Migrant) (Class AH) visas – sponsor and five visa applicants – assessment of the sponsor and applicant’s evidence – Tribunal relied on unwarranted assumption – assumption was material to decision – Tribunal misapplied regulation 1.14(b) – application allowed Legislation: Migration Act 1958 (Cth) ss 359 and 361
Migration Regulations 1994 (Cth) reg 1.14
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
Kim v Minister for Immigration & Anor [2007] FMCA 798
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submissions: 4 March 2025 Date of hearing: 4 March 2025 Place: Melbourne Counsel for the Applicant: Mr White Solicitor for the Applicant: Mulbridge Lawyers Counsel for the Respondents: Mr Grant Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
MLG741 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HODAN MAHAMUD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the Administrative Review Tribunal quashing the decision of the Administrative Appeals Tribunal dated 28 January 2020.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal requiring it to reconsider and determine the Applicant’s application according to law.
3.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.30.
4.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
5.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BINGHAM
By an application filed in this Court on 3 March 2020 and amended 11 February 2025 (Amended Application), the Applicant (Sponsor) seeks judicial review of the decisions of the then Administrative Appeals Tribunal (Tribunal) pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) with respect to the Tribunal’s decisions on 28 January 2020. The Tribunal affirmed the decisions of a delegate (Delegate) of the First Respondent (Minister) not to grant Child (Migrant) (class AH) orphan relative subclass 117 visas (Visas) to the five (5) children of the Sponsor’s sister whom she proposed to sponsor (Visa Applicants).
The Sponsor relies on three (3) grounds of review (Grounds of Review). The Grounds of Review for each of the five (5) applications for review are identical. It is alleged that:
(a)The Tribunal constructively failed to exercise its review jurisdiction and/or made findings that were illogical, irrational or unreasonable by making assumptions lacking any probative or intelligible basis. (Ground 1).
(b)The Tribunal misconstrued and/or misapplied regulation 1.14(b) of the Migration Regulations 1994 (Cth) (Regulations). (Ground 2).
(c)The Tribunal exercised its powers under ss 359 and/or 361 of the of the Migration Act 1958 (Cth) (Act) unreasonably, by failing to make more than one attempt by telephone during the Tribunal hearing to contact Mahamed Abdirahman Abdullahi (Mahamed) to receive oral evidence. (Ground 3).
The Hearing proceeded before me on 4 March 2025 (Hearing) on the basis that the submissions both written and oral would refer to the Tribunal’s decision pertaining to the oldest child Mahamed and would be taken to be the submissions pertaining to each of the Visa Applicants.
These Reasons for Judgment are the Reasons for Judgment with respect to each of the five (5) applications for review of the Tribunal’s decision.
For the reasons set out below I have found that the Tribunal has made jurisdictional errors with respect to Ground 1 and Ground 2. I have dismissed Ground 3.
Visa Applications and Delegate’s Decisions
The Application for the Visas were lodged on 3 March 2015 (Visa Applications) together with witness statements of the Sponsor and Mahamed and two other adult witnesses.
The Visa Applicants were born in Somalia. At the time the Visa Applications were made the Visa Applicants were residing in Ethiopia. The eldest sibling Mahamed was born in 1998 and the youngest sibling was born in 2005.
The Sponsor has lived in Australia since 1998 and became an Australian citizen in 2003.
On 13 March 2017 the Delegate refused to grant the Visas because the Delegate was not satisfied that the parents of the Visa Applicants were dead, permanently incapacitated or had unknown whereabouts (Delegate’s Decisions).
Relevant Legislative Provisions
Clause 1.14 of the Regulations provided:
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.
At the time of making the Visa Applications in 2015 none of the Visa Applicants had turned 18 years of age. Because of the operation of Clause 117.211 of the Regulations if each of the Visa Applicants satisfy the requirements of Clause 1.14 at the time of making the Visa Applications it is immaterial if at the time the decision was/is made that they are over the age of 18 years.
THE TRIBUNAL’S DECISIONS
On 27 March 2017 the Sponsor lodged with the Tribunal an application for review seeking review of each of the Delegate’s Decisions made with respect to the Visa Applicants. The Sponsor and her representative attend a hearing before the Tribunal on 9 December 2019 (Tribunal Hearing)
On 28 January 2020 the Delegate’s Decisions were affirmed by the Tribunal as it was not satisfied that each of the Visa Applicants meet the requirements of clause 1.14(b) (Tribunal’s Decisions).
The Sponsor and the Visa Applicants contended that the Visa Applicants’ father was dead and their mother was of unknown whereabouts
It was the Sponsor and the Visa Applicants’ position before the Tribunal that the father of the Visa Applicants was shot and killed in his home and was buried in Kismanyo Somalia in about 2003 or 2004.
The Tribunal opined that if the father was shot at home and then buried by the community there would be a record that this took place. The Tribunal also observed that there was no independent evidence or information regarding the father’s death and that the evidence before the Tribunal on this issue was vague. The Tribunal also found that there was inconsistent evidence regarding whether a death certificate for the father was issued or whether it could not be found. In these circumstances the Tribunal did not accept that the Visa Applicants’ father was in fact deceased.
The Tribunal complained about the vagueness and lack of independent evidence that went to the whereabouts of the mother. It was the Sponsor’s evidence that the police had advised her that the mother boarded a boat to a place outside of Bosaso and that the mother was dead. The Tribunal made the observations that the Sponsor’s evidence regarding when her sister went missing was inconsistent referring to Sponsor’s written statement attesting to the mother going missing in 2012 as compared to her oral evidence before the Tribunal where she said that the Mother went missing in 2014. At the time of the Tribunal Hearing the Tribunal concluded that that it was about six or possibly eight years since the Mother was alleged to have disappeared.
The Tribunal found that it was reasonable to expect that some independent evidence from persons such as local police or community leaders could be provided about the disappearance of the mother and that evidence from humanitarian organisations regarding attempts to find the mother could also be provided. The Tribunal found that it could not be satisfied that the Visa Applicants’ mother could be presumed dead applying the common law presumption or that her whereabouts was unknown.
PROCEEDINGS BEFORE THE COURT
This matter was heard on 4 March 2025. Both the Applicant and the Minister were represented by Counsel.
The Sponsor relied upon the Amended Application filed on 11 February 2025, the Outline of Submissions filed on 11 February 2025 and the list of authorities filed on 3 March 2025.
The Minister relied upon the Response filed on 17 June 2020, the Outline of Submissions filed on 25 February 2025 and the list of authorities filed on 3 March 2025.
The Minister filed a Court Book on 26 August 2020.
The Amended Application contained three (3) identical Grounds of Review, as set out in paragraph [2] above, of the Tribunal’s Decisions regarding each Visa Applicant.
Counsel for the Sponsor conceded that for jurisdictional error to be found the Applicant must succeed on Ground 1 and Ground 2 together but that Ground 3 was a stand alone ground not dependant on Grounds 1 and 2.
CONSIDERATION
Ground 1
Ground 1 alleges that the Tribunal’s Decisions contained jurisdictional error as the decision was illogical or irrational or legally unreasonable. Ground 1 largely concerns the Tribunal’s reasoning for assuming evidence should or would have been available to the Sponsor to provide to the Tribunal with respect to the Visa Applicants’ father’s death in 2003 or 2004.
The Sponsor submitted that the Tribunal relied upon an unwarranted assumption and/or illogical process of reasoning. Counsel referred me to paragraph [8] in the case of BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 in making this submission which summarised the test upon which the Sponsor relied to make out her argument that jurisdictional error had occurred:
Thus a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis.
It was submitted that I should adopt that test in this case. In this case the question is whether the Tribunal findings regarding the father’s death could have been reasonably arrived at or whether they lacked “an evident and intelligible justification”.
Paragraph [23] of the Tribunal’s Decisions was identified as containing the unwarranted assumption that there would be evidence of the father’s death and that independent corroborating records should be available.
It was submitted on behalf of the Sponsor that there was no reference to anything that was said by the Visa Applicants or the Sponsor nor any reference to any independent published information on the customs or administrative processes of Somalia which would allow the Tribunal to concluded that there would be the independent corroborating evidence to support the conclusion that the father had died. It was submitted that because there was no evidence to support the view that there should be independent corroboration and as such the process of reasoning of the Tribunal arose from an unwarranted assumption and was consequently illogical. The Minister’s submitted that the assumption had a common sense grounding in universal human experience. It was submitted by Counsel for the Sponsor that this proposition should be rejected because there was evidence before the Tribunal regarding the civil war in Somalia affecting the Applicants’ ability to provide evidence of the father’s death.
The Minister submitted that the Tribunal or Court is entitled to engage in a process of inference which is reasoning by human experience and these assessments are not only permissible, they are the essence of evidentiary analysis.[1] The Minister submitted that the Tribunal’s conclusions at paragraph [23] had a proper basis as the evidence provided about the death was vague and was not supported by any independent information. Further, it was submitted that the finding should be read not as referring to a lack of an official record such as a death certificate but as to a lack of any corroborating evidence from the local community.
[1] Transcript P15:L30; citing The Republic of Nauru v WET040 [No 2] [2018] HCA 60; [2018] 362 ALR 235.
The evidence before the Tribunal was that the father died during a time of civil war and civil unrest in Somalia and the eldest of the Visa Applicants was at that time five or six years of age. A finding that there would be some record of death whether it be in the form of a formal death certificate or some record of community burial was an unwarranted assumption that was contrary to the material before it. This unwarranted assumption permeated the Tribunal’s findings about the father’s death and was an illogical or legally unreasonable finding resulting in jurisdictional error.
Ground 2
Ground 2 alleges that the Tribunal misconstrued and/or misapplied Regulation 1.14(b) of the Regulations. The Visa Applicants evidence before the Tribunal was that they had not seen their mother since 2012 and this was to some extent corroborated by the Sponsor, noting the inconsistency between the written statement and the Sponsor’s oral evidence.
Regulation 1.14(b) set out the following:
The applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.
Counsel for the Sponsor contended that the phrase “unknown whereabouts” required the Tribunal to consider whether the mother’s whereabouts were unknown to the Visa Applicants. Counsel, in reliance on paragraph [26] of the Tribunal’s Decisions, submitted that the Tribunal imposed a requirement not found in the legislative framework: namely that the Tribunal considered whether the Visa Applicants who at the relevant time were 14,12,11, 10 and 7 years of age had made enquiries regarding the mother’s whereabouts and in doing so undertook and relied upon an assessment it was not required to and imposed a test not sanctioned by the statue.
A further alternative argument was raised by Counsel for the Sponsor namely that the Tribunal erred by considering the common law presumption of death as being relevant to the assessment of the criteria for the Visas.
Counsel submitted that the case of Kim v Minister for Immigration & Anor [2007] FMCA 798, which was relied upon by the Tribunal, involved different visa criteria than in the present case as it required the visa applicant to demonstrate the death of the visa applicant’s parents. This is materially different to regulation 1.14(b) which contains the express criteria of unknown whereabouts. It was submitted that the Tribunal misdirected itself as to the application of the common law assumption of death because the Tribunal applied criteria that went beyond that found in regulation 1.14(b).
Counsel for the Sponsor submitted that the error was material as there is a possibility the error could have led to a different outcome.
In relation to the argument of the Minister with respect to the Sponsor’s primary argument it was submitted by Counsel that the regulation had two limbs. Firstly, that “whether a person is of unknown whereabouts entails what is known about the persons whereabouts” and that in this case to ask the question what efforts were made to locate the mother was natural and rational and that such a question was subsidiary to ascertaining the knowledge of the mother’s whereabouts.
Secondly, it was submitted that whether the Visa Applicants had made genuine attempts to locate their mother was one of several matters considered by the Tribunal in relation to determining whether the mother’s whereabouts were unknown. The other factors considered, it was submitted, was the evidence regrading the mother’s disappearance was vague and contradictory, it was reasonable to expect evidence could have been provided as such the Tribunal did not misconstrue or misapply the test in reg 1.14(b).
With respect to the Sponsor’s alternative argument regarding the Tribunal’s consideration of the common law presumption of death it was submitted that death was not defined in the Migration Act or Regulations and that there was no error when considering death in the Tribunal applying the common law presumption. It was further submitted that even if the common law presumption was irrelevant to the Tribunal’s task it is not irrelevant to the Tribunal’s task in the sense it was irrelevant as such no jurisdictional error rises.
With respect to the Sponsor’s primary argument on Ground 2 I agree with the submissions of Counsel for the Sponsor. It is clear from paragraph [26] of the Tribunal’s Decisions that the Tribunal did not grapple with the question of whether the Visa Applicants knew the whereabouts of their mother and was applying a criteria or requirement namely that genuine attempts be made to locate the mother or to provide substantive information as to her whereabouts. The Tribunal erred by imposing these criteria or requirements. This error constituted a jurisdictional error as the Tribunal misapplied the law.
Turning to the further alternate ground I am of the view that considering the common law presumption was in itself not a consideration required by the statute as the Visa Applicants assertion was that the mother’s whereabouts was unknown. I accept the submissions of the Sponsor that if the mother was missing for seven years that the criteria for “whereabouts unknown” would be separately satisfied without the distraction of the common law presumption.
The question is whether taking into account the common law presumption gave rise to a material error namely whether the outcome could have been different had the error not occurred.[2] I agree that the error here was not material because of the reasons contained in paragraph [26] of the Tribunal’s Decision as such no jurisdictional error occurred.
[2] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [7].
Ground 3
It is claimed that the Tribunal acted unreasonably by only making one attempt to contact the First Visa Applicant, Mahamed by telephone for the purpose of giving oral evidence before the Tribunal.
Paragraph [21] of the Tribunal’s Decisions records the relevant events. The Tribunal attempted to contact Mahamed by telephone and received a record message that “the subscriber’s telephone is switched off”. Submissions were made to the Tribunal that the failure to answer the telephone by Mahamed could be put down to the time in Ethiopia being, it was submitted between, 1:54am and 2:45am or the weather. Further the Sponsor requested that the Tribunal accept the written statement of Mahamed as his evidence in the proceeding, that Mahamed was unable to give evidence of his father’s death because he was too young when the shooting took place but that Mahamed had asked about his Mother’s disappearance and cannot provide any further information on her whereabouts. The Tribunal considered it ‘futile’ to attempt to contact Mahamed.
It was submitted on behalf of the Sponsor that the Tribunal’s conduct that is only attempting to contact Mahamed once was legally unreasonable because:
(a)The Tribunal had two different contact telephone numbers for Mahamed.
(b)The attempt to contact Mahamed occurred in the early hours of the morning Ethiopian time.
(c)There was no urgency to conclude the Tribunal review as there had been a delay of three (3) years between the filing of the review application and the publishing of the Tribunal’s Decisions.
(d)The Sponsor and Mahamed had actively engaged with the Tribunal process and there was nothing to suggest Mahamed was avoiding participation.
(e)The Tribunal must have been conscious of its own reservations as to the sufficiency of the evidence and the explanations concerning the provision of evidence in relation the Applicants’ parents.
Counsel for the Sponsor submitted that a reasonable decision maker in these circumstances would have made more effort to reach the First Applicant by phone as he was the eldest sibling and key witness in relation to his parents and one attempt to contact him was manifestly insufficient.
The Minister submitted that the Tribunal had an evident and intelligible justification for not calling Mahamed. I concur with the submission of the Minister because the Sponsor had submitted that Mahamed could not give any relevant evidence beyond the written statement that he made. The Tribunal was not obligated to make the Sponsor’s case[3] nor was it obligated to make inquiries to cure the deficiencies her case.[4]
[3] Abebe v The Commonwealth (1999) 197 CLR 510, [187].
[4] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429, [25]
In light of the position taken by the Sponsor that she was content to rely on Mahmed’s statement and that he could not add anything further about the death of his father or the whereabouts of his mother the Tribunal did not act unreasonably in only making one attempt to contact Mahamed. No jurisdictional error has been established. Ground 3 must be dismissed.
CONCLUSION
The Sponsor has established jurisdictional error in relation to Ground 1 and Ground 2. A writ of mandamus is to be issued and the matter is to be remitted to the Tribunal for reconsideration.
The Sponsor sought costs to follow the event and sought costs on scale should she be successful. Because of my findings of jurisdictional error with respect to Ground 1 and 2 the Minister is to pay the costs of the Sponsor in the amount as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Orders will be made accordingly.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 30 May 2025
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