Makhmudkhodjaeva v Minister for Immigration
[2019] FCCA 2992
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAKHMUDKHODJAEVA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2992 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a child migrant visa – refusal of a related sponsorship application by the child’s mother – failure to supply a police clearance relating to the sponsor’s de facto partner – whether the Tribunal conflated the considerations bearing upon the sponsorship application with those bearing upon the visa application considered – whether the Tribunal considered the reasons for the failure to provide the police clearance considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.375A Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration v Singh [2016] FCAFC 183; (2016) 244 FCR 305 Minister for Immigration v SZJSS (2010) 243 CLR 164 Minister for Immigration v SZMTA (2019) 93 ALJR 252 NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Singh v Minister for Immigration (2017) 253 FCR 267 |
| First Applicant: | NOZIMA MAKHMUDKHODJAEVA |
| Second Applicant: | MAFTUNAKHON MAKHMUDKHODJAEVA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2587 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 October 2019 |
| Date of Last Submission: | 25 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth |
ORDERS
The application as amended on 13 June 2019 and augmented by the applicant’s submissions filed on 2 October 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2587 of 2018
| NOZIMA MAKHMUDKHODJAEVA |
First Applicant
| MAFTUNAKHON MAKHMUDKHODJAEVA |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal made on 14 August 2018. The Tribunal affirmed the decision of a delegate of the Minister (delegate) not to grant the second applicant, Maftunakhon, a child migrant visa.
The following statement of background facts is derived from the submissions of the parties.
The first applicant, Ms Makhmudkhodjaeva, was at the time of the Tribunal decision a permanent resident of Australia and is now an Australian citizen. She is the biological mother of Maftunakhon, who was born on 22 September 2006. Maftunakhon is a citizen of Uzbekistan.
On 1 October 2014, Ms Makhmudkhodjaeva applied to sponsor Maftunakhon to migrate to Australia.[1]
[1] Court Book (CB) 1
On 28 October 2014, Maftunakhon applied for a Child (subclass 101) visa.[2]
[2] CB 13
On 16 February 2017, the Minister’s Department informed Ms Makhmudkhodjaeva (through her representative) that it was satisfied that she was in a de facto relationship with Mr "M,"[3] and that he was required to provide relevant police clearance certificates to satisfy regulation 1.20KB(12) of the Migration Regulations 1994 (Cth) (Regulations). The Minister’s Department further informed Ms Makhmudkhodjaeva that Mr M would require both Australian and overseas clearances.[4]
[3] the name has been anonymised
[4] CB 243
Ms Makhmudkhodjaeva responded (through her representative) by letter dated 21 March 2017, enclosing a statement by her. She stated that she was currently single, had never been in a de facto relationship with Mr M and had conceived her second child together with Mr M while she was in a relationship with her former husband due to "mistaken identity and intoxication".[5] Ms Makhmudkhodjaeva’s representative submitted that as Ms Makhmudkhodjaeva was not in a relationship a police clearance did not need to be provided for anyone except Ms Makhmudkhodjaeva.[6]
[5] CB 312
[6] CB 311
On 1 June 2017, the delegate refused to grant Maftunakhon a subclass 101 visa on the basis that the limitation on approval of sponsorship in regulation 1.20KB applied, there was no approved sponsorship in force and therefore, clause 101.222 of Schedule 2 to the Regulations was not met.[7]
[7] CB 339-342
On 19 June 2017, the applicants applied to the Tribunal for review of the delegate's decision.[8] Ms Makhmudkhodjaeva attached a copy of the delegate's decision to the application for review.[9]
[8] CB 344
[9] CB 350
On 29 June 2017, a delegate of the Minister issued a certificate and notification regarding the disclosure of certain information to the Tribunal under s.375A of the Migration Act 1958 (Cth) (Migration Act).[10]
[10] CB 343
On 1 August 2018, Ms Makhmudkhodjaeva’s representative provided further materials to the Tribunal.[11]
[11] CB 372
On 7 August 2018, Ms Makhmudkhodjaeva appeared before the Tribunal with her representative to give evidence and present arguments.[12]
[12] CB 399
On 14 August 2018, the Tribunal affirmed the delegate's decision not to grant Maftunakhon a subclass 101 visa.[13]
Tribunal decision
[13] CB 406
Non-disclosure certificate
The decision record indicates that at the hearing, the Tribunal advised Ms Makhmudkhodjaeva that certain information in the Minister’s Department’s file is the subject of a s.375A certificate, which prevented the Tribunal from disclosing any information referred to in the certificate as it would be contrary to the public interest. The Tribunal invited Ms Makhmudkhodjaeva to comment on the validity of the certificate, however, she made no comment.
The Tribunal told Ms Makhmudkhodjaeva the information it considered relevant was that Departmental records indicated that Ms Makhmudkhodjaeva and Mr M were recorded consistently as residing at the same address and that this was also recorded in the delegate's decision made on 1 June 2017.
The Tribunal found the certificate to be valid. The Tribunal considered the information that is the subject of the certificate, was of the view that some of the information was relevant to the review and placed some weight on the information.[14]
[14] CB 407 [10]
Legislative scheme
The Tribunal considered the issue in the review was whether at the time of the decision, the sponsorship had been approved and was still in force.[15]
[15] clause 101.212 and clause 101.222 (CB 408 [11]; CB 410 [23])
The Tribunal considered that regulation 1.20KB limited the Minister's discretion to approve sponsorships.[16] Relevantly, regulation 1.20KB(12) provided:
In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:
(a) the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and
(b) the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.
[16] CB 408 [12]
Findings
Based on evidence provided in the sponsorship and credit card authorisation forms, the Tribunal found that Ms Makhmudkhodjaeva and Mr M were living at the same address and in a de facto relationship at the time of the visa application. The Tribunal noted that Ms Makhmudkhodjaeva had not provided evidence to support that Mr M lived elsewhere at the time of the visa application.[17]
[17] CB 409 [16]
The Tribunal found that Ms Makhmudkhodjaeva and Mr M were in a de facto relationship at the time they decided to have another child together (Ms Makhmudkhodjaeva gave birth to their second child together on 14 June 2016) and was found to have continued to be in a de facto relationship.[18]
[18] CB 409 [17]
The Tribunal found that in circumstances where Mr M was serving a seven year prison term, if he remained in Australia and wished to visit his children after being released from prison, appropriate police checks in Australia and from overseas should be provided in relation to the visa application.[19]
[19] CB 409 [18]
The Tribunal considered that on 16 February 2017, the Minister’s Department informed Ms Makhmudkhodjaeva (through her representative) that the Minister’s Department was satisfied that she was in a de facto relationship with Mr M, and that he was required to provide relevant police clearance certificates to satisfy regulation 1.20KB(12).[20] The Tribunal considered Ms Makhmudkhodjaeva's response (through her representative) by letter dated 21 March 2017 that she was not in a de facto relationship with Mr M and did not believe that she had to provide police clearances for him.[21] The Tribunal considered that Ms Makhmudkhodjaeva made no further request for an extension of time to provide the police checks and did not provide any further information to suggest the parties were not in a de facto relationship.[22]
[20] CB 409 [19]
[21] CB 409 [20]
[22] CB 410 [21]
In circumstances where the Tribunal was satisfied Ms Makhmudkhodjaeva and Mr M were in a de facto relationship, the Tribunal found it was appropriate that they provide police certificates to satisfy regulation 1.20KB(12).[23]
[23] CB 410 [22]
The Tribunal found that because Ms Makhmudkhodjaeva failed to provide the police check for her de facto partner Mr M within a reasonable time as requested by the Minister’s Department, there was no approved sponsorship in force and Maftunakhon did not satisfy regulation 1.20KB.[24] Accordingly, the requirements in clause 101.222 were not met[25] and the Tribunal affirmed the decision not to grant Maftunakhon a subclass 101 visa.[26]
[24] CB 410 [24]
[25] CB 410 [25]
[26] CB 410 [27]
The current proceedings
These proceedings began with a show cause application filed on 13 September 2018.
The matter came before me for a show cause hearing on 16 May 2019. At that time, I made a show cause order in the following terms:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why the relief sought should not be granted in relation to the following issues:
a. whether the Administrative Appeals Tribunal (following the decision of the delegate) conflated the considerations bearing upon the application for sponsorship with those bearing upon the application for the visa;
b. whether the Administrative Appeals Tribunal failed to give proper consideration to the information that the alleged de facto partner of Ms Makhmudkhodjaeva was serving a seven-year sentence of imprisonment, in particular by reference to the Administrative Appeals Tribunal’s finding at [22] that that person and Ms Makhmudkhodjaeva had consistently resided at the same address and were in a de facto relationship; and further,
i. that the visa applicant may be an adult at the time that person is released from prison; and
ii. that at the time that person is released from prison, he may be subject to a character assessment and possible visa cancellation.
I also provided the applicants with the opportunity to file and serve an amended application and additional evidence.
An amended application was filed on 13 June 2019. I note that the grounds in the amended application are consistent with the issues addressed in the show cause order.
At the trial I had before me as evidence the court book filed on 19 November 2018 and two affidavits made by Ms Makhmudkhodjaeva. The first was made on 13 September 2018 and accompanied the initial show cause application. The second was made on 7 January 2019 and annexes documents said to have been omitted from the court book. The Minister objected to the receipt of that evidence on the basis of relevance and also because of the form of the documents annexed. The documents annexed purport to be emails and other communications but are in fact some form of transcript or ex post facto representation of such correspondence. I nevertheless received the affidavit subject to relevance and submissions. In the result, to the extent that the documents have any relevance at all, they bear on the process of visa consideration preceding the Tribunal decision.
Ms Makhmudkhodjaeva and the Minister also filed pre-hearing written submissions in preparation for the trial and made oral submissions at the trial.
At the trial, Ms Makhmudkhodjaeva stated from the bar table that the person in respect of whom she had been required to obtain a police clearance had had his visa cancelled and faced detention and deportation once he has completed the sentence of imprisonment he is currently serving. I gave Ms Makhmudkhodjaeva 14 days to provide evidence of that statement.
Ms Makhmudkhodjaeva’s written submissions extended beyond the grounds in the amended application and the show cause order. In particular, the submissions addressed a non-disclosure certificate (which had been a subject of a ground in the original show cause application), and also made allegations of bad faith. I agreed to hear Ms Makhmudkhodjaeva’s submissions in relation to the non-disclosure certificate but declined to hear submissions in relation to the allegations of bad faith.
I gave the Minister 14 days to make any further submissions concerning the issue of the non-disclosure certificate. On 24 October 2019 the Minister’s solicitors informed my chambers that on that issue, the Minister would rely upon the Minister’s submissions prepared for the show cause hearing.
On 1 November 2019, Ms Makhmudkhodjaeva filed a further affidavit in which she deposes as to the cancellation of Mr M’s visa. Annexed to that affidavit is a Notice of Cancellation under s.501(3A) of the Migration Act dated 11 June 2019.
On 4 November 2019 I granted leave to the Minister to file and serve short written submissions responsive to that affidavit. Submissions were filed on 11 November 2019.
Ms Makhmudkhodjaeva lodged further submissions responsive to the Minister’s submissions on 25 November 2019.[27] I have considered those submissions.
[27] Filed on 27 November
Consideration
This is, to the best of my recollection, the first case of a child migrant visa that I have had to deal with. The primary issues in dispute between the parties concern the peculiarities of the Tribunal’s jurisdiction in relation to this class of visa, and the issue of police clearances in respect of persons who it might be anticipated would play a role in the child migrant’s life in Australia. The visa criteria require a sponsorship approval which, in turn, requires relevant police clearances. While the Tribunal clearly had jurisdiction to review the visa refusal, it is not apparent that it had jurisdiction to review the rejection of the sponsorship, although, in order to provide a meaningful review, the Tribunal needed to address the sponsorship issue. The reality appears to be that the visa approval is inextricably linked with the sponsorship approval and decision makers (whether at first instance or on review) for practical purposes need to deal with both.
It should also be observed at the outset that the circumstances of Ms Makhmudkhodjaeva and her daughter evoke sympathy. Ms Makhmudkhodjaeva became distressed at the hearing before me and understandably so. She has been separated from her daughter for a number of years and has been frustrated by the long and ultimately unsuccessful efforts she has made to obtain for her daughter a child migrant visa. Her daughter currently resides in Uzbekistan with her grandparents. Maftunakhon has no father living and the circumstances of the case, being highly unusual, would merit further consideration by the Minister and his Department. That further consideration could become pressing if Mr M is to be deported to Uzbekistan, because of the reason given for the cancellation of his visa. In short, Mr M could pose a risk to Maftunakhon in Uzbekistan.
While the circumstances of the case evoke sympathy for Ms Makhmudkhodjaeva, on the legal issues raised, I agree with the submissions of the Minister.
Ground 1: the sponsorship decision and the visa decision
By Ground 1, the applicants contend that the Tribunal conflated the considerations relevant to the approval of the sponsorship and the considerations relevant to the visa application.
The delegate decided the question of the sponsorship approval and the visa application concurrently.[28] The Tribunal effectively adopted the same approach. Specifically, the Tribunal:
a)identified the relevant issue as to whether clause 101.222 was satisfied, specifically whether there had been a sponsorship approved by the Minister that remained in force;[29]
b)came to its own view that it was appropriate to require police checks in respect of both Ms Makhmudkhodjaeva and Mr M and that, accordingly, regulation 1.20KB(12) should be applied.[30] It is implicit in this finding that the Tribunal did not exercise the power of the Minister to approve the sponsorship; and
c)concluded that clause 101.222 was not met because there was no approved sponsorship in force.
[28] CB 341, especially the final two paragraphs
[29] CB 408 at [11]
[30] CB 410 at [22]
This reasoning does not show any error. The Tribunal did not conflate the considerations relevant to the approval of sponsorship and the visa application. Rather, the Tribunal simply recognised the interconnected nature of sponsorship and the grant of a visa. Without an approved sponsorship, the visa could not be granted. The Tribunal recognised this requirement.[31]
[31] see especially at [23]-[25]
Although not expressly articulated in Ground 1, there is an issue as to whether the Tribunal has the power to review the decision of the delegate not to approve the sponsorship (as opposed to the decision of the delegate to refuse the visa application).
I agree with the Minister that the better view is that the Tribunal does have power to decide for itself whether to approve the sponsorship. Section 349(1) of the Migration Act provides that “[t]he Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision”. The “Part 5-reviewable decision” in this context is the decision to refuse the visa application. However, in the present case, the decision to approve the sponsorship is bound up with, and should be considered part of, the decision to grant the visa. There is no separate statutory power to approve a sponsorship for a subclass 101 visa. In this sense, the sponsorship is different to a sponsorship under Division 3A of Part 2 of the Migration Act and Part 2A of the Regulations.
Even if this is not correct, however, there was no jurisdictional error in the Tribunal considering for itself whether or not to approve the sponsorship. This is because any error had no material impact on the ultimate decision.[32] This in turn is because, if the Tribunal had no power to consider for itself whether to approve the sponsorship, it would have been inevitable that the decision under review would be affirmed. There was no sponsorship approved by the Minister in place and, on this alternative analysis, the Tribunal had no power to change that. Nor was the Tribunal required to defer making its decision. There was, for example, no capacity for the applicants to seek to overcome this difficulty by proposing a different sponsor.[33]
[32] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [45]-[46]
[33] Singh v Minister for Immigration (2017) 253 FCR 267 at [81]-[90]
Ground 2: consideration of prison sentence
Ground 2 alleges that the Tribunal failed to give “proper consideration” to the evidence of Ms Makhmudkhodjaeva to the effect that Mr M was serving a prison sentence. It is clear that the Tribunal had some regard to the claim that Mr M was in prison.[34] The requirement that the Tribunal give “proper consideration” to a particular piece of evidence (or “proper, genuine and realistic consideration”) must be applied with care lest the distinction between merits review and judicial review become blurred.[35]
[34] CB 409 at [18]
[35] see Minister for Immigration v SZJSS (2010) 243 CLR 164 at [30]
Three particular aspects of the Tribunal’s reasoning are referred to in Ground 2 and my show cause order:
a)first, the Tribunal’s finding at [22] to the effect that Ms Makhmudkhodjaeva and Mr M are “consistently recorded as residing at the same address”;
b)secondly, the Tribunal’s apparent failure to consider the possibility that Maftunakhon may be an adult by the time Mr M is released from prison; and
c)thirdly, the Tribunal’s apparent failure to consider the possibility that, if released from prison, Mr M may be subject to character assessment and possible visa cancellation.[36]
[36] which has in fact eventuated: see [34] above
As to the first issue, I accept the Minister’s submission that the reasoning at [22] shows no error. Ms Makhmudkhodjaeva and Mr M were “consistently recorded” as living at the same address. The Tribunal’s finding to that effect was correct. Indeed, there was no record to the contrary. The fact that Mr M is now in prison does not undermine this finding. The Tribunal did not suggest that Ms Makhmudkhodjaeva and Mr M were still residing at the same address. Further, it is possible to be in a de facto relationship with a person even though that person has been sent to prison.
Likewise, the second and third matters raised by Ground 2 also identify no error. It may be accepted that the apparent purpose of the discretion in regulation 1.20KB(12) is to protect visa applicants who are minors. That does not mean, however, that the Tribunal was required to consider every possible future event which may bear upon the question of whether Mr M might pose a risk to Maftunakhon upon release from prison.
It would have been speculative for the Tribunal to consider whether or not Maftunakhon would still be a minor upon Mr M’s release. There was no information before the Tribunal (or this Court) to suggest when the prison sentence commenced. Moreover, there is presumably some possibility that the prison sentence would finish before the expiry of seven years, for example if parole were granted.
Similarly, at the time of the Tribunal decision, it would have been speculative for the Tribunal to consider whether or not Mr M may have his visa cancelled and removed from Australia after the prison sentence. Nothing was before the Tribunal as to the circumstances of his offending, his personal circumstances or his visa status. The Tribunal was not required to engage in an assessment of each and every possibility. Crucially, the applicants never advanced any contention before the Tribunal to the effect that Mr M posed no risk to Maftunakhon because he would have no contact with her prior to her becoming an adult. The Tribunal was not required to perform some “constructive or creative activity” in order to expose an issue that was not raised.[37]
[37] NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]
While Ms Makhmudkhodjaeva’s affidavit of 1 November 2019 establishes that Mr M’s visa was cancelled by notice dated 11 June 2019, that was about ten months after the Tribunal decision, and thus it could not have had any bearing upon that decision.
In any event, the Tribunal did not proceed on the basis that Mr M would necessarily have any contact with Maftunakhon. Rather, the Tribunal considered it appropriate to require Ms Makhmudkhodjaeva to provide the police checks because there was a possibility of such contact “if Mr [M] remains in Australia and wishes to visit his children after being released”.[38] The Tribunal therefore approached the issue on the basis that it was possible that Maftunakhon would have contact with Mr M. It was not necessary for the Tribunal to consider each and every speculative matter which might bear upon the likelihood of this possibility.
[38] CB 409 at [18]
The non-disclosure certificate
On 29 June 2017 a delegate of the Minister issued a certificate and notification under s.375A of the Migration Act in respect of the information contained in folios 347 to 401 (of the Departmental file). The certificate described the information as "documents that may play a part in possible Centrelink Fraud Investigation/criminal records of the sponsor's estranged partner/Allegation."
That delegate certified that the disclosure of the information would be contrary to the public interest for "multiple reasons," including:
i. Documents or information provided by other Commonwealth agencies, in respect of which that agency contends that its disclosure to the applicant would be contrary to the public interest
ii. Personal information relating to individuals other than the review or visa applicant
iii. Where it is the department's view that sensitivity in the information exists, but the information provider has not expressed concern, for example, an anonymous "dob in" letter that may unknowingly identify the person to the review enquiry or the visa applicant or former visa holder
It is now well established that notification under s.375A enlivens an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review.[39]
[39] Minister for Immigration v Singh [2016] FCAFC 183; (2016) 244 FCR 305 cited in SZMTA
The decision record indicates that at the hearing, Tribunal advised Ms Makhmudkhodjaeva that certain information in the Departmental file is the subject of a s.375A certificate, which prevented the Tribunal from disclosing any information referred to in the certificate as it would be contrary to the public interest. The Tribunal invited her to comment on the validity of the certificate, however, she made no comment.
The Tribunal told Ms Makhmudkhodjaeva the information it considered relevant was that Departmental records indicated that she and Mr M were recorded consistently as residing at the same address.
The available evidence indicates that the Tribunal disclosed the fact of notification to Ms Makhmudkhodjaeva and there was no denial of procedural fairness.
In any event, an incorrect and invalid notification or alternatively a breach of procedural fairness, could not result in a jurisdictional error in the present case. Any breach would be immaterial because, as the Tribunal observed, the information it considered relevant was also recorded in the delegate's decision, which the applicant provided to the Tribunal for the purpose of the application for review.[40]
[40] SZMTA at [44]-[45], [48]-[49]
I have considered whether the position is in any way altered by the recent decision of the High Court in BVD17 v Minister for Immigration.[41] I am satisfied that there has been no change concerning the relevant issues of principle. That decision was, of course, made in relation to the legislation bearing upon fast track reviews before the Immigration Assessment Authority. I am satisfied that in the present case the Tribunal complied with its legal obligations in relation to the non-disclosure certificate.
[41] [2019] HCA 34
Conclusion
Ms Makhmudkhodjaeva has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 December 2019
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