Nduhiye v Minister for Immigration
[2015] FCCA 2953
•4 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NDUHIYE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2953 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misapplied the relevant visa criteria and made findings which were unreasonable, irrational and unsupported by any evidence. |
| Legislation: Migration Act 1958, ss.46, 47, 54, 55, 104, 363A, 366D, 474, 477 Migration Regulations 1994, regs.1.03, 1.14, 2.07, item 1108 of sch.1, cls.117.111, 117.211, 117.212 and 117.221 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 NBNB v Minister for Immigration & Border Protection (2014) 220 FCR 44 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 |
| Applicant: | ESPERANCE NDUHIYE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 296 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 22 October 2015 |
| Date of Last Submission: | 22 October 2015 |
| Delivered at: | Sydney (by video link to Adelaide) |
| Delivered on: | 4 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Cox SC (by video link to Adelaide) |
| Solicitor for the Applicant: | Ms N. Schwarz (by video link to Adelaide) |
| Solicitors for the Respondents: | Mr A. Markus of the Australian Government Solicitor’s office |
ORDERS
The application for an extension of time to bring this proceeding be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
ADG 296 of 2015
| ESPERANCE NDUHIYE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24 October 2012 Mr Donatien Niyimbona, Ms Fides Nahimana and Ms Theopiste Nshimirimana (“the visa applicants”), all of whom are citizens of Burundi and at that time had not yet turned eighteen, applied to what is now the Department of Immigration and Border Protection (“Department”) for Child (Migrant) (Class AH) subclass 117 (Orphan Relative) visas. Their applications were sponsored by their half-sister, Esperance Nduhiye, the applicant in this proceeding. On 2 December 2014 a delegate of the first respondent (“Minister”) refused to grant the visa applicants visas on the basis that they did not meet cl.117.211 of sch.2 to the Migration Regulations 1994 (“Regulations”). Ms Nduhiye, as the visa applicants’ sponsor, then applied to the second respondent (“Tribunal”) for a review of that departmental decision. On 7 July 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the orphan relative visas.
On 14 August 2015 Ms Nduhiye applied to this Court for judicial review of the Tribunal’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and so Ms Nduhiye has applied for an extension of that limitation period.
For the reasons which follow, the application for an extension of the time within which to bring this proceeding will be dismissed.
Relevant legislation
The criteria for the grant of an orphan relative visa are set out in pt.117 of sch.2 to the Regulations which relevantly provides:
117.111
In this Part:
Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
...
117.21 Criteria to be satisfied at time of application
117.211
The applicant:
(a)is an orphan relative of an Australian relative of the applicant; or
(b)is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).
117.212
The applicant is sponsored:
(a) by the Australian relative, if the relative:
(i)has turned 18; and
(ii)is a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen; or
...
117.22 Criteria to be satisfied at time of decision
117.221
The applicant:
(a)continues to satisfy the criterion in clause 117.211; or
(b)does not continue to satisfy that criterion only because the applicant has turned 18.
“Orphan relative” has the meaning given to it by reg.1.14 which provides:
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 all relevant times reg.1.03 relevantly provided:
relative, in relation to a person, means:
(a)in the case of an applicant for a Subclass 200 (Refugee) visa or a Protection (Class XA) visa:
(i)a close relative; or
…
(b) in any other case:
(i)a close relative; or
...
close relative, in relation to a person, means:
…
(b) a child, parent, brother or sister of the person; …
Background facts
Primary applications
In a statutory declaration dated 11 October 2012 and provided in support of the visa applicants’ applications, Ms Nduhiye declared:
a)when she was young her family fled from Burundi to Tanzania to escape the civil war in Burundi. She had lived in a refugee camp in Tanzania until she was granted a visa to travel to Australia;
b)after her mother’s death her father remarried. Her father and his second wife had three children, the visa applicants;
c)her father was diagnosed with HIV/AIDS and died in Tanzania in 2005. Her step-mother then took her half-siblings and disappeared;
d)in 2007 she, the applicant, was granted a refugee visa and migrated to Australia;
e)in 2009 she asked a friend to locate her step-mother and the visa applicants in Burundi. Since then she had been sending them money for their rent, food and other basic needs as her step-mother had HIV/AIDS and could not work;
f)her step-mother’s health had worsened because she could not access medication in Burundi and could die at any time; and
g)as her father had died and her step-mother was ill, she was the only remaining source of support for the visa applicants.
The following documents were also provided in support of the visa applicants’ application:
a)a letter from the visa applicants’ mother dated 25 August 2012 granting Ms Nduhiye permission to take the visa applicants to Australia. The visa applicants’ mother stated that she was unable to look after them because she was “unhealthy” as a result of her HIV-positive status;
b)a certificate dated 10 July 2012 from the community administrator of Cankuzo town, Burundi stating that the visa applicants’ mother was destitute; and
c)a medical certificate dated 11 April 2012 from the Cankuzo Hospital in Burundi certifying that the visa applicants’ mother had been diagnosed as being HIV-positive in October 2007 and had been receiving anti-retroviral medication since April 2011.
On 4 August 2014 the Department wrote to the visa applicants seeking their comments on information which indicated that their mother was not permanently incapacitated. That information was a report prepared by a panel physician at the International Organization for Migration, Dr Mburu, which stated that the visa applicants’ mother was “fully capable of activities of daily living and work to earn a living” and that she was her own caregiver. The letter also noted that information available to the Department indicated that persons living with HIV/AIDS were able to provide care to their children.
On 18 August 2014 the visa applicants’ migration agent wrote to the Department stating that the visa applicants had advised Ms Nduhiye on 16 August 2014 that their mother had gone missing and they were unable to locate her. In a statutory declaration dated 22 August 2014 Ms Nduhiye declared that the visa applicants and their mother had moved to Kenya following the lodgement of the orphan relative visa applications. She declared that Mr Niyimbona had telephoned her on 16 August 2014 to advise her that his mother had not returned home that day. Ms Nduhiye stated that her husband, Gerve Nzehimana, was planning to travel to Kenya to look after the visa applicants and to search for her step-mother.
On 30 October 2014 the visa applicants’ migration agent provided to the Department a statement made by Mr Nzehimana on 30 October 2014. In it he stated that he had arrived in Kenya on 27 August 2014 and for about two months had looked for the visa applicants’ mother in Kenya and Burundi but had been unable to find her.
As already noted, on 2 December 2014 a delegate of the Minister refused to grant the visa applicants’ applications. The delegate was not satisfied that at the time the applications for the visas were made the visa applicants’ mother was permanently incapacitated, missing or dead. The delegate therefore concluded that the visa applicants did not meet the requirements of cl.117.211 of sch.2 to the Regulations.
Tribunal review
Ms Nduhiye sought a review of the delegate’s decision with the Tribunal. In support of that review application she relevantly provided:
a)a statutory declaration dated 8 April 2015 in which she stated that her step-mother was still missing. She stated that she did not think that she could legally adopt the visa applicants as they resided in Kenya but neither she nor they were Kenyan citizens. In a further statement dated 8 May 2015 Ms Nduhiye stated that on 28 April 2015 the Kenyan police had told the visa applicants that they had to return to Burundi because they are not Kenyan citizens;
b)a letter dated 31 January 2015 purportedly signed by seven of the visa applicants’ neighbours. They stated that the visa applicants’ mother had disappeared on 16 August 2014 and they did not have any information about her whereabouts;
c)a letter dated 30 January 2015 from the Mbagathi Hospital in Nairobi, Kenya stating that the visa applicants’ mother had last been seen at the hospital on 15 August 2014;
d)a police report dated 5 September 2014 noting that Mr Niyimbona had reported his mother missing on 18 August 2014; and
e)a letter dated 28 January 2015 from the Australian Red Cross stating that Ms Nduhiye had approached the agency in December 2014 to seek assistance in locating her step-mother. The letter stated that the Australian Red Cross was waiting for a progress report on the case from the Kenyan Red Cross.
At a Tribunal hearing on 1 July 2015 Ms Nduhiye stated that before her step-mother disappeared she had mostly slept and her siblings had done all the housework. She stated that her step-mother was still missing and that she had no known relatives.
The Tribunal also received evidence by telephone from Mr Niyimbona. He stated that while they were still in Burundi his mother’s HIV/AIDS status had rendered her unable to do anything. He stated that she had spent most of her time in bed, had been weak and had been assisted to walk. Mr Niyimbona stated that on 16 August 2014 when he and his sisters returned from school, their mother had disappeared although they did not know how she had managed to leave the house. He stated that he and his sisters did not feel safe in Kenya and the police had recently told them to return to Burundi.
The Tribunal received further evidence from Patrick Munezero, the visa applicants’ neighbour in Kenya. Mr Munezero stated that he had lived next to the visa applicants for a year and a half. He stated that the visa applicants’ mother had been weak but he had observed her sitting outside their house and going inside. He stated that on 16 August 2014 she had been sitting outside and he had greeted her on his way to work.
At the Tribunal hearing the migration agent acting for Ms Nduhiye and the visa applicants submitted that because the visa applicants were not in Burundi and had not been born there, the process of adopting them was complex and Ms Nduhiye had not undertaken that process.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to not grant the visa applicants orphan relative visas. While it accepted that the visa applicants’ mother had been diagnosed with HIV/AIDS in October 2007, the Tribunal did not accept that she had been permanently incapacitated at the time their visa applications were made. In reaching that finding, the Tribunal found that Mr Niyimbona’s evidence that his mother had been so ill that she had been unable to do anything was inconsistent with the evidence of their neighbour that she had sat outside and had been able to go inside by herself. It also found that the report by Dr Mburu supported a finding that the visa applicants’ mother had not been permanently incapacitated and had been able to work and attend to aspects of daily life, which was inconsistent with Mr Niyimbona’s evidence. The Tribunal preferred Dr Mburu’s report, which it found had been written on the basis of medical expertise, and concluded that Mr Niyimbona had exaggerated the extent of his mother’s poor health in order to enhance his and his sisters’ case. It therefore did not accept his claims in that regard. The Tribunal also noted that in her statutory application dated 11 October 2012 Ms Nduhiye had declared that the visa applicants’ mother’s condition had worsened and that she could die at any time. However, the Tribunal gave that claim negligible weight because it was not the opinion of a health professional and noted that the visa applicants’ mother had still been alive in August 2014. The Tribunal concluded that the visa applicants did not meet the definition of orphan relative in reg.1.14(b) of the Regulations and therefore did not meet cl.117.211(a) of the Regulations.
Having found that the visa applicants did not meet cl.117.211(a) of the Regulations, the Tribunal went on to consider cl.117.211(b) and whether the visa applicants had been adopted by an Australian relative. In that regard it noted that country information on adoption in Burundi indicated that customary adoption is not recognised there and that formal adoption is the only recognised form of adoption. As there was no evidence or claim made that Ms Nduhiye had commenced adoption proceedings in relation to the visa applicants, the Tribunal found that the visa applicants also did not meet cl.117.211(b).
Application for extension of time
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a)…
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); …
The Tribunal’s decision was dated 7 July 2015 which means that Ms Nduhiye had until 11 August 2015 to commence this proceeding. As the application was not filed until 14 August 2015, it was brought out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicant considers it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case Ms Nduhiye made an application in writing for an extension of time by including such a request in her application commencing this proceeding. Further, her initiating application specified why she said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing this proceeding. In the circumstances of this case, that question will be determined by whether Ms Nduhiye has a satisfactory explanation for the delay in commencing the proceeding and whether the allegations made in the substantive application (for judicial review) have reasonable prospects of success.
I note that the Minister concedes that the delay has not caused him any prejudice.
Satisfactory explanation for the delay
I am willing to accept that, as Ms Nduhiye alleged, the delay in filing her application was caused by the difficulty she encountered in obtaining legal assistance. Noting that the application was out of time by only three days, I accept that as a satisfactory explanation for the delay in commencing the proceeding.
Reasonable prospects of success
It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Under r.13.10(a) of the Federal Circuit Court Rules 2001 a proceeding is liable to be dismissed if it lacks reasonable prospects of success. Consequently, before the Court would conclude that it was in the interests of the administration of justice to extend the time within which to bring this proceeding, Ms Nduhiye had to demonstrate that she had reasonable prospects of proving that the Tribunal’s decision was affected by jurisdictional error. I have concluded that she has not done so.
In her amended application Ms Nduhiye alleged:
The decision of the Administrative Appeals Tribunal (the Tribunal) was affected by jurisdictional error in that:
1.The Tribunal failed to comply with ss 54 and 55 of the Migration Act 1958 (the Act), in that the Tribunal failed to have regard to the additional information provided on 18 August 2014 that the mother of the visa applicants was of unknown whereabouts as of 16 August 2014, and therefore failed to determine whether the visa applicants satisfied the definition of “orphan relative” in r 1.14 of the Migration Regulations 1994 (the Regulations) on that alternative basis.
2.The finding of the Tribunal that it was not satisfied that the visa applicants’ mother was permanently incapacitated (prior to her disappearance on 16 August 2014) on the basis that the Tribunal had no reason to doubt the accuracy of Dr Mburu’s report (para 54) was unreasonable, irrational, supported by no evidence and/or not based on findings or inferences of facts supported by logical grounds in that, among other matters:
2.1.the “report” of Dr Mburu was not a report at all but a single bullet-point “comment” without any proper factual basis or reasoning in support of the “comment”;
2.2.the content of Dr Mburu’s “comment” was contradicted by oral testimony given by the mother’s son and the mother’s neighbour;
2.3.the First Respondent did not call Dr Mburu to give oral evidence such that the “comment” could not be tested;
2.4.the neighbour’s testimony that the mother was able to go outside and sit (para 49) was not inconsistent with a finding that the mother’s power, capacity or ability to care for her three children had been permanently impaired, but the Tribunal wrongly treated that testimony as if it was so inconsistent.
3.The Tribunal misconstrued cl 117.211(b) of the Regulations in that the Tribunal considered that it was a requirement for the grant of an orphan relative visa that the visa applicants have been adopted by the Australian relative.
Ground 1
The first ground of the amended application does not have reasonable prospects of success because, contrary to the allegation it makes, the Tribunal had no duty to apply or follow ss.54 or 55 of the Act. Those sections provide:
54 Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
Those provisions concern administrative action taken by the Minister or his delegates and do not apply to the Tribunal. Further, there are no equivalent statutory provisions which apply to the Tribunal. Consequently, the allegation as pleaded has no prospects of being made out.
Nevertheless, the Tribunal was obliged at common law to consider all material before it which might have had a bearing on the outcome of the review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72].
Ms Nduhiye alleged that the Tribunal erred because it had failed to consider information received in August 2014 to the effect that the visa applicants’ mother had disappeared and so, given that their father had died some years earlier, the visa applicants met the definition of “orphan relative” set out in reg.1.14, quoted earlier at [5]. Ms Nduhiye argued in this regard that it was sufficient that that test be met at the time of determination of the review and that it was not necessary that it also be met at the time of application, notwithstanding the terms of pt.117 of sch.2 to the Regulations which groups certain applicable criteria under the heading “Criteria to be satisfied at time of application” and certain other applicable criteria under the heading “Criteria to be satisfied at time of decision”.
Ms Nduhiye submitted that the headings found in pt.117 of sch.2 to the Regulations, and specifically the heading “Criteria to be satisfied at time of application”, did not “provide support for a general conclusion that the criteria [spoke] exclusively to satisfaction at the time of original application”. Relying on Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251, Ms Nduhiye argued:
The evident purpose of the “orphan relative” requirement in clause 117.211(a) of Schedule 2 is to ensure that when the Minister or Delegate decides upon the application for a visa, the applicant will have demonstrated that he or she is an “orphan relative”. ... A construction permitting the requirement to be satisfied based on information provided after the date of the original application but before the Minister’s or Delegate’s decision is to be preferred on the basis that it does not compromise the purpose of the relevant Regulation … and the alternative construction (that the Minister or Delegate may only have regard to the situation at the date of original application) would lead to unfairness and absurdity.
She also argued in the alternative that provision of the additional information amounted to the making of a second, supplementary application which the Tribunal should have considered.
For the following reasons, I am not persuaded that either of those arguments has reasonable prospects of success.
As with the visa criteria considered by the High Court in Berenguel’s case, the headings in pt.117 of sch.2 to the Regulations are not defined. However, the criteria in pt.117 have to be construed in context as the relevant criteria in Berenguel’s case were. Importantly, in Berenguel, the High Court said:
Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. (at 255 [26])
In contrast, the terms of pt.117 of sch.2 do point to the headings of that part having some substantive meaning. As was said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ... (references omitted) (at 381-382 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ)
Clauses 117.211 and 117.221 are related provisions and clearly concern different points in the visa application process in that cl.117.221 states that it will be satisfied if the visa applicant continues to satisfy the criteria set out in cl.117.211. Clause 117.211 plainly refers to one point in time and cl.117.221 refers to a later one. It is therefore not insignificant that cl.117.211 is found under the heading “Criteria to be satisfied at time of application” while cl.117.221 is found under the heading “Criteria to be satisfied at time of decision”. The headings appear to identify the different points in time to which the clauses relate.
The substance of cl.117.211(a) has not been amended since it was added to the Regulations in 1999 by the Migration Amendment Regulations 1999 (No.13) and cl.117.221 has not been altered at all in that time. Importantly, the explanatory statement which accompanied the Migration Amendment Regulations 1999 (No.13) relevantly said:
Part 117 – Orphan Relative
New Part 117 inserts visa Subclass 117 (Orphan Relative) (“Subclass 117”)
…
New Division 117.2 sets out the primary criteria in respect of a Subclass 117 visa. …
…
New Subdivision 117.21 sets out the time of application primary criteria.
New subclause 117.211(1) requires the applicant to be an orphan relative of an Australian relative of the applicant.
…
New Subdivision 117.22 sets out the criteria to be satisfied at the time of decision in respect of a Subclass 117 visa.
Under new clause 117.221, the applicant must continue to satisfy the criterion in new clause 117.211 or does not continue to satisfy that criterion only because the applicant has turned 18.
In light of the wording of the two provisions and the contents of the explanatory statement, I conclude that the headings under which cls.117.211 and 117.221 respectively appear have a substantive function such that cl.117.211 is to be understood as a criterion which must be satisfied at the time a visa application is made and that cl.117.221 is to be understood as a criterion which must be satisfied at the time a visa application is determined by the relevant decision-maker. The upshot of that conclusion is that events which occurred after the visa applicants’ application was made to the Department could have no bearing on whether the visa applicants satisfied cl.117.211. Consequently, the Tribunal did not err by not considering whether the disappearance of the visa applicants’ mother meant that they satisfied the criteria for the grant of the subclass 117 visas because it was not relevant to that question.
Ms Nduhiye also argued that the requirement in the visa application form that an applicant advise the Department of any change of circumstances indicated that the visa criteria for the grant of the visas in question only had to be satisfied at the time of decision. However, the contrary is the fact. The requirement to which reference was made tends to emphasise the function of cl.117.221, which is to ensure that a situation which may earlier have satisfied cl.117.211 continues to obtain. Even so, rather than having any particular relevance to cls.117.211 and 117.221, the requirement in the visa application form is likely simply to reflect s.104 of the Act which applies to all visa applications and states:
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
...
(4) Subsection (1) applies despite the grant of any visa.
I am not of the view that Ms Nduhiye has reasonable prospects of proving that the requirement in the visa application form that an applicant advise changes in circumstances has any bearing on the meaning and operation of cls.117.211 and 117.221.
The subsidiary issue raised by Ms Nduhiye, that the provision of information concerning her step-mother’s disappearance amounted to a second set of visa applications which had to be considered by the Tribunal, takes the matter no further. First, a valid application for a visa can only be made in accordance with s.46 of the Act which relevantly stated on 18 August 2014, the date when Ms Nduhiye submits the visa applicants should be taken to have made the “supplementary applications”:
46 Valid visa application
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) …
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; …
...
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4)Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b)how an application for a visa of a specified class must be made; and
(c)where an application for a visa of a specified class must be made; and
(d)where an applicant must be when an application for a visa of a specified class is made.
As at 18 August 2014, reg.2.07 relevantly provided:
2.07 Application for visa—general
(1)For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a)the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b)regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c)the relevant item of Schedule 1 sets out other matters relating to the application.
(3)An applicant must complete an approved form in accordance with any directions on it.
The visas which the visa applicants sought were a subclass of the Child (Migrant) (Class AH) visas provided for by item 1108 of sch.1 to the Regulations. As at 18 August 2014 that item relevantly stated:
1108. Child (Migrant) (Class AH)
(1) Form: 47CH.
(2) Visa application charge:
(a) first instalment (payable at the time the application is made):
(i) for an applicant:
(A) who appears to the Minister, on the basis of information contained in the application, to be an orphan relative; or
(B) whose application is combined, or sought to be combined, with an application made by that person:
First instalment Item Component Amount 1 Base application charge $1 450 2 Additional applicant charge for an applicant who is at least 18 $725 3 Additional applicant charge for an applicant who is less than 18 $365
(ii) for any other applicant:
First instalment Item Component Amount 1 Base application charge $2 370 2 Additional applicant charge for an applicant who is at least 18 $1 185 3 Additional applicant charge for an applicant who is less than 18 $595 (3) Other:
(a) Application must be made outside Australia.
…
(4) Subclasses:
101 (Child)
102 (Adoption)
117 (Orphan Relative)
No evidence was adduced to suggest that the requirements of the Regulations in relation to completion of the correct form, payment of the fee or place of lodgement were satisfied by the visa applicants such that valid “supplementary applications” could be considered to have been made and it seems from Ms Nduhiye’s written submissions in reply that she accepted this. However, even if “supplementary applications” had been made, s.47 of the Act requires valid visa applications to be considered by the Minister, not the Tribunal. The Tribunal has no role in the preliminary assessment of visa applications.
Even so, the Tribunal had an obligation to consider all the claims which Ms Nduhiye made: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. Significantly, however, neither Ms Nduhiye nor her adviser who appeared at the Tribunal hearing expressly made a claim based on the disappearance of the visa applicants’ mother even though reference was made to it. In the absence of compelling reasons to conclude otherwise, when an applicant is professionally represented before the Tribunal, as was the case here, it must be assumed that the claims that the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed. If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. In those circumstances the Tribunal had no obligation to consider a claim based on the disappearance of the visa applicants’ mother.
It may be presumed that no claim of that sort was made by or for Ms Nduhiye and no consideration given to it by the Tribunal because it was correctly appreciated that such a claim would not have had any prospects of success as the facts on which it was based would not have satisfied cl.117.211. That is to say, even if it had been made, such a claim would have failed and so the Tribunal’s failure to consider it did not affect the outcome of the review and did not amount to error: NBNB v Minister for Immigration & Border Protection (2014) 220 FCR 44 at 46-47 [4], [5].
Ground 2
In the second ground of her amended application Ms Nduhiye alleged that it had been unreasonable, irrational and not open to the Tribunal on the facts to find that there was no reason to doubt the accuracy of Dr Mburu’s medical report which stated that in February 2014 the visa applicants’ mother had been “fully capable of activities of daily living and work to earn a living”. The report stated:
The client currently lives in
Own home
Number of months
5
Number of years
5
The client’s current caregiver is
SELF
Their relationship to the client is
Other
Comments
SELF – SHE IS FULLY CAPABLE OF ACTIVITIES OF DAILY LIVING AND WORK TO EARN A LIVING
The basis of the allegation made in the second ground of review was that the report was short, that contradicting evidence had been given by one of the visa applicants and by one of their neighbours in Nairobi, that Dr Mburu had not been called to give evidence and have her evidence tested and that the Tribunal wrongly concluded that the neighbour’s evidence was inconsistent with Ms Nduhiye’s allegation that her step-mother had been incapacitated by illness and unable to care for the visa applicants. However, those allegations would not have reasonable prospects of success were time to bring this proceeding to be extended.
The second ground of the amended application principally challenged the weight which the Tribunal gave to particular evidence. That is not a basis on which to make a finding of jurisdictional error. The other matter it raised was a procedural one and concerned the fact that Dr Mburu had not been called by the Tribunal to give oral evidence. The error implicitly alleged in that connection was that Ms Nduhiye had been denied the ability to cross-examine the doctor on her report. However, Ms Nduhiye would not have been able to question or cross-examine Dr Mburu because the Act prevents it: ss.366D and 363A of the Act.
The allegations made in the second ground of the application were given more substance in submissions but not such that they were thereby shown to have reasonable prospects of success. Particularisation of matters which Ms Nduhiye contends should have persuaded the Tribunal to reach a different view on the persuasiveness of Dr Mburu’s report did not take the matter anywhere. For instance, Ms Nduhiye’s contention that Dr Mburu’s report should have addressed matters which Ms Nduhiye thought were important had nothing substantial to say regarding the doctor’s conclusions based on her examination of the visa applicants’ mother. Further, even though they were not canvassed in her very short comments, it was not demonstrated that the doctor had not considered such matters. Specifically it could not reasonably be inferred that Dr Mburu had failed to consider whether the visa applicants’ mother was sick with HIV/AIDS and not able to look after her children as Ms Nduhiye asserted. Further, Ms Nduhiye’s reliance on what Heydon JA said in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 731-745 [64]-[89] was not to the point as the rules of evidence do not apply in the Tribunal and the fact that the report was brief and did not record a patient history could only go to the weight to be given to the report and not to whether the Tribunal could rely on it.
I find that the contention advanced in submissions that Dr Mburu’s report may have concerned someone other than the visa applicants’ mother is, on balance, disproved by the citation of a particular reference number in both Dr Mburu’s report and a departmental email concerning the visa applicants’ mother. Contrary to Ms Nduhiye’s submissions I do not consider it plausible that the citation of the same number in those two documents is not indicative of a connection between them. I conclude that the citation of that number identifies Dr Mburu’s report as one concerning the visa applicants’ mother.
The other matters raised by Ms Nduhiye in submissions only served to suggest that it would have been open to the Tribunal to reach a different decision concerning the health of the visa applicants’ mother. However, Ms Nduhiye did not demonstrate that such a decision was the only one open on the evidence or that no reasonable Tribunal would have made the findings actually made by the Tribunal. For those reasons the allegation that the Tribunal’s findings were unreasonable, irrational and not open to it would have no reasonable prospects of success.
Ms Nduhiye also referred to Stretton v Minister for Immigration & Border Protection (No 2) (2015) 231 FCR 36. That case concerned different legal issues and was not relevant to this matter.
Ground 3
The third ground of the application would also have no reasonable prospects of success as it is based on a misconstruction of the Tribunal’s reasons.
In her written submissions Ms Nduhiye argued that the Tribunal had operated on the basis that the grant of a subclass 117 visa requires a visa applicant to have been adopted by an Australian relative. She contended that this alleged misunderstanding by the Tribunal of the Regulations was evidenced in its statement at para.58 of its reasons:
As there is no evidence of adoption by the Australian relative, the Tribunal finds that cl.117.211(b) is not met at time of application.
That statement followed the Tribunal’s discussion of the relevant criterion at para.56 of its reasons where it said:
Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.
Clause 117.211 was quoted earlier in these reasons at [4]. Clause 117.211(b) is an exception to the operation of cl.117.211(a) which permits a visa applicant to qualify as an orphan relative of their Australian relative even if the visa applicant has been adopted by that relative. The Tribunal did not misunderstand this and its consideration of cl.117.211(b) should be understood as an example of thoroughness rather than as a misapplication of the relevant visa criterion.
Conclusion
Although I have found that Ms Nduhiye has provided a satisfactory explanation for the late filing of her application, I have also found that her application for judicial review would not have reasonable prospects of success.
Consequently, Ms Nduhiye’s application for an extension of time to bring this proceeding will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 4 November 2015
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