Mohamed v Minister for Immigration

[2016] FCCA 3231

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMED v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3231

Catchwords:
MIGRATION – Child (Class AH) (Orphan Relative Subclass 117) visa – Tribunal’s failure to consider evidence of the son of the missing woman – failure to properly consider whether children were in fact “orphans” – failure to consider critical fact – jurisdictional error found – constitutional writs issued.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.14, cl.117 of Sch.2

Cases cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: HASSAN QASSIN MOHAMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1427 of 2014

Judgment of: Judge Wilson

Hearing date: 26 October 2016

Date of Last Submission: 26 October 2016

Delivered at: Melbourne

Delivered on: 15 December 2016

REPRESENTATION

Counsel for the Applicant: Mr A. Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr L. Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 20 January 2014.

2. An order in the nature of a writ of mandamus issue directing the

   
   

   second respondent to hear and determine the application for review according to law.

3. The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1427 of 2014

HASSAN QASSIN MOHAMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue in this case was whether the Tribunal’s failure to give active intellectual engagement to the evidence of the visa applicant’s nephew Ali Hussein Mohamed amounted to jurisdictional error.

2. The visa applicant Hassan Qassin Mohamed (“the applicant”) applied for a Child (Class AH) (Orphan Relative Subclass 117) visa for his nephews Ali and Omar Hussein Mohamed.[1] The applicant’s success in gaining such a visa depended on the delegate being satisfied that, among other things, Ali and Omar were in fact orphans. The delegate was not satisfied that Ali’s and Omar’s mother was dead, permanently incapacitated or of unknown whereabouts. In reaching that conclusion, the Tribunal reasoned –

   a)the applicant gave inconsistent accounts as to how the mother came to be separated from Ali and Omar;

   b)the applicant and Ali gave inconsistent evidence as to how Ali and Omar came to be cared for by their present carer;

   c)there was no documentary or other objective evidence corroborating the claim that the mother was dead, permanently incapacitated or of an unknown whereabouts;

   d)the inconsistencies were sufficiently serious as to render the applicant’s evidence unreliable; and

   e)in the circumstances, there was no evidence on which the Tribunal could have relied to reach the required state of satisfaction that the mother was dead, permanently incapacitated or of unknown whereabouts.[2]

   [1] Court Book filed 5 December 2014 at pp.12-56.

   [2] Contentions of fact and law of the applicant filed 10 September 2015 at [16].

3. Ali gave direct evidence that since 2008 his mother’s whereabouts had been unknown. The applicant said the Tribunal did not give active intellectual engagement to Ali’s evidence. The Minister said the Tribunal did.

4. The question in this application for judicial review was whether the Tribunal fell into jurisdictional error in its consideration of cl.117 of Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) as given context by reg.1.14 of the Regulations.

Synopsis

1. For the reasons that follow, in my judgment the Tribunal did fall into jurisdictional error and its decision must be quashed.

The issue in context

1. Ali gave direct evidence about his mother’s whereabouts, a matter specifically addressed by the Tribunal at paragraph 23 of its reasons.[3] The important passage of that paragraph was as follows –

   When asked about his mother’s disappearance, Ali told the Tribunal that his mother left Marka in 2008 when she went to Mogadishu alone, and that he has not heard from her since that time.[4]

   [3] Court Book filed 5 December 2014 at pp.190-196.

   [4] Court Book filed 5 December 2014 at p.194.

2. The Tribunal then reviewed the evidence of the visa applicant, the uncle, and concluded it was unreliable for a variety of reasons. Ultimately, the Tribunal stated that it had considered all of the evidence before it, cumulatively, and the Tribunal concluded that r.1.14(b) of the Regulations was not satisfied. The Tribunal’s precise observations at paragraph 33 were as follows –

   Having considered all of the evidence before it cumulatively, including the inconsistency of the evidence, the Tribunal cannot be satisfied that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Accordingly, the Tribunal finds that r.1.14(b) was not met at the time of the application.

3. Nowhere did the Tribunal separately address Ali’s evidence, recorded at paragraph 23 of the Tribunal’s reasons. The Tribunal seemed to have ignored Ali’s evidence as the Tribunal stated in the final sentence of paragraph 29 of its reasons that the totality of the evidence was not “cogent or credible”.[5]

   [5] Court Book filed 5 December 2014 at p.195.

4. Then, in paragraph 32 of its reasons, the Tribunal stated as follows –

   It is up to the review applicant to make his case. The Tribunal considers that the evidence of the claimed death of the applicants’ father and disappearance of their mother is unconvincing as it amounts to little more than mere assertion.[6]

   [6] Ibid.

5. The Tribunal may well have considered that the evidence of the visa applicant was unconvincing. It may also have rejected the evidence of all the witnesses mentioned in paragraph 27 of its reasons. However, the Tribunal did not pass at all on the evidence of Ali.

6. Counsel for the Minister invited me to read the Tribunal’s findings as building to the crescendo expressed in paragraph 33, as quoted above.

   
   

   I accept that contention, if it could be properly said that the “crescendo” expressed in that paragraph addressed the totality of the evidence. However, it did not address the totality of the evidence.

   
   

   The Tribunal assessed the evidence as if Ali had not given evidence at all. He plainly had. Ali gave crucial evidence. He spoke of the whereabouts of his mother. That was a key issue. The Tribunal was not at liberty to gloss over that evidence as if it had not been given.

   
   

   The Tribunal was required to address Ali’s evidence by not merely referring to it, as it did in paragraph 23 of its reasons, but by stating why it rejected that evidence. The Tribunal said nothing on the point, especially on the question of whether Ali was a witness whose evidence was to be rejected for some reason.

7. In relation to a witness whose evidence was so important on the issue of whether Ali and Omar were orphans, one would have expected the Tribunal to have challenged Ali with the other evidence on which the Tribunal relied for the purpose of inviting Ali’s response. It did not do that. The Tribunal said no more about Ali’s evidence than was recorded in paragraph 23 of the Tribunal’s reasons. Ali’s evidence was direct.

   
   

   It was highly probative to the issue before the Tribunal. It was very far from being “mere assertion” as the Tribunal used that phrase in paragraph 32 of its reasons.

8. In my view, the Tribunal failed in its obligation to consider the totality of the evidence against cl.117 and reg.1.14 (b) of the Regulations.

9. It is true that the Tribunal did not need to refer to every piece of evidence that was put before it. Equally, a failure by the Tribunal to refer to a particular piece of evidence does not necessarily mean that the Tribunal thereby fell into jurisdictional error. However, a failure to consider an important fact may, for the purposes of Craig v State of South Australia[7] or Minister for Immigration and Multicultural Affairs v Yusuf,[8] amount to the Tribunal failing to take into account a relevant consideration. To my mind, Ali’s evidence was very much a relevant consideration that the Tribunal was obliged to take into account.

   
   

   The Tribunal’s failure to do so amounted to its failure to take into account a relevant consideration.

   [7] (1995) 184 CLR 163.

   [8] (2001) 206 CLR 323.

10. Curiously, the Tribunal referred to Ali’s evidence yet it did nothing by way of a consideration of that evidence.

11. Of course, it is necessary to have in mind why the Tribunal’s failure to address Ali’s evidence was so important. To my mind, his evidence was relevantly probative for the self-evident reason that he was the son of the person whose whereabouts was said to have been unknown. To my way of thinking, a son’s account of his mother’s last known sighting was important and more likely to be more probative than other, possibly second-hand or circumstantial accounts of her last sighting. That direct evidence from a person (Ali), likely to be very aware of his mother’s movements, was not compared by the Tribunal to the other evidence on which the Tribunal relied, especially the evidence from the persons mentioned in paragraph 27 of its reasons.

12. The Tribunal may have had good reason for discounting, dismissing or even rejecting the evidence of the persons mentioned in paragraph 27 of its reasons. But that left Ali’s evidence otherwise untouched.

    
    

    The Tribunal gave no reason for not accepting Ali’s evidence.

    
    

    The Tribunal’s reasons, expressed in the first sentence of paragraph 33 of its reasons, were not a legitimate or legally sound basis on which the Tribunal could be said to have validly rejected his evidence.

    
    

    The Tribunal did not address the evidence of the one person who gave probative, relevant and germane evidence on a key matter about which the Tribunal needed to be satisfied.

13. Had the Tribunal considered Ali’s evidence, it may (repeat, may) have come to the same ultimate conclusion. But that is little more than a guess. The Tribunal should have, but it failed to, weigh Ali’s direct evidence on a critical issue against the other evidence the Tribunal said to have amounted to little more than mere assertion.

14. In my judgment, the Tribunal failed to take into account a relevant consideration and therefore it fell into jurisdictional error.

15. I do not accept Mr Brown’s “crescendo” argument. This was not a case to which the principles expressed in cases such as Collector of Customs v Pozzolanic Enterprises Pty Ltd[9] or Minister for Immigration and Ethnic Affairs v Wu Shan Liang[10] applied, in the sense of the undesirability of minutely scrutinising the Tribunal’s reasons for the existence of error. One need not scrutinise the Tribunal’s reasons finely to see that the Tribunal simply sidestepped a critical issue by referring to what Ali said then not considering it. Nor was this a case in which I was undertaking a merits review. To that end, during debate

    
    

    Mr Brown cautioned me against undertaking a merits review, yet he also acknowledged that by delving into the evidence of Ali I was in fact required to examine that evidence (he called it “crucial evidence”).[11]

    [9] (1993) 43 FCR 280.

    [10] (1996) 185 CLR 259.

    [11] Transcript of Proceedings, 26 October 2016 at p.15.

16. Had the Tribunal examined carefully Ali’s evidence, it would have considered whether Ali and Omar were in truth orphans. Rather than doing that, the Tribunal focussed on the evidence of persons named in paragraph 27 of its reasons whose evidence the Tribunal found unsatisfactory.

17. The decision of the Tribunal cannot stand. I make orders quashing it. This case must be heard and determined according to law by a differently constituted Tribunal.

18. The application for judicial review has succeeded. The Minister must pay the applicant’s costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 15 December 2016