Odubote v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 133
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Odubote v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 133
File number(s): MLG 1481 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 14 October 2021 Catchwords: ADMINISTRATIVE LAW – Application for judicial review of decision of the Administrative Appeals tribunal – applicant sponsor of Child (Migrant)(Class AH) visas – Tribunal decision did not disclose judicial error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476
Migration Regulations 1994 (Cth), sch 2, cl.117.223; sch. 4, cl. 4020
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 14 September 2021 Date of hearing: 14 September 2021 Place: Melbourne Counsel for the First Applicant: Mr Sorensen Solicitor for the First Applicant: Goz Chambers Lawyers Counsel for the First and Second Respondents: Mr Cunynghame Solicitor for the First and Second Respondents: Sparke Helmore ORDERS
MLG1481 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUIDEEN OLADAPO ODUBOTE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Amended Judicial Review application filed on 24 August 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $7853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 Symons
INTRODUCTION
The applicant lodged an application in this Court on 11 July 2017 seeking judicial review (‘Judicial Review Application’) of a 7 June 2017 decision of the Administrative Appeals Tribunal (‘Tribunal Decision’ and ‘Tribunal’ respectively) pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal affirmed, in part, a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Minister’) to refuse to grant Child (Migrant)(Class AH) visas (‘the visa’) to the applicant’s niece and nephew. The applicant’s interest in the Tribunal Decision and, in turn, this proceeding, is that he was the sponsor of both of these visa applications.
In accordance with orders made by the Court on 10 August 2021, the applicant filed an amended Judicial Review Application on 24 August 2021 (‘Amended Judicial Review Application’). The Amended Judicial Review Application abandoned the nine grounds identified in the original Judicial Review Application and replaced these with three new grounds of review, each of which was pursued at the hearing.
BACKGROUND
The applicant is a citizen of Nigeria and Australian permanent resident and the uncle of Ms Omotolani Omowunmi (‘the first visa applicant’) and Master Sodeeq Avodele Odubote (‘the second visa applicant’) who were born on 23 September 1996 and 5 July 1997, respectively.
On 18 March 2013, the first visa applicant applied for the visa and submitted documents that relevantly included documents recording money transfers from the applicant to the visa applicants in Nigeria, documents recording and/or attesting to the death of the visa applicants’ parents and a letter from the applicant to the Consular Officer, Australian Embassy dated 21 February 2013 (‘sponsorship letter’).
In the sponsorship letter, the applicant identified that ‘[t]he sole responsibility of care, guardian and sponsor of [the visa applicants] reside solely on me after the death of their parents (my brother and his wife). Living with me in Australia will enable me adequately monitor and train them’. The applicant also identified himself as the person with ‘parental responsibility’ for both visa applicants.
On 22 October 2015, the (then) Department of Immigration and Border Protection wrote to the first visa applicant and invited her comment on ‘evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application’. The Department’s concern was directed at a birth certificate issued in respect of the first visa applicant on 31 May 2005 in Lagos and the results of an independent verification that had ‘determined that the birth certificate is non-genuine’. The independent verification was provided by the National Population Commission on 8 September 2015.
The first visa applicant was informed that in these circumstances, she might fail to satisfy Public Interest Criterion (PIC) 4020(1), with the result that the visa application might be refused.
On 24 October 2015 and again on 29 October 2015, the applicant wrote to the Department and asserted that the birth certificate was in fact genuine and that its authenticity had been confirmed when the applicant spoke to a registrar of the Local Government and the National Population Commission.
On 16 November 2015, a delegate of the Minister (in separate decisions) refused the first visa applicant and the second visa applicant’s applications for the visa on the basis that both visa applicants did not satisfy the requirements of cl.117.223 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The delegate found that the visa applicants had given a ‘bogus document’ to the Minister and that therefore PIC 4020(1) was not met.
On 22 January 2016, the applicant applied to the Tribunal for review of the delegate’s decisions. On 13 June 2016, the applicant sent to the Tribunal attestations of birth in relation to the visa applicants dated 23 February 2016.
On 25 January 2017, the Tribunal invited the applicant to give evidence and present arguments at a hearing on 21 March 2017, which the applicant attended. The Tribunal’s decision record discloses that at the hearing, the Tribunal attempted to contact the first visa applicant and a family friend who had been taking care of the visa applicants in Nigeria (Mr Osinowo), on the phone numbers provided by the applicant. The calls were not successful. The Tribunal was not satisfied as to the identity of the person on the line when it attempted to call the first applicant and, in relation to Mr Osinowo, he did not answer the phone.
TRIBUNAL DECISION
On 7 June 2017, the Tribunal affirmed the decision under review in relation to the first visa applicant. It remitted the second visa applicant’s application to the delegate for reconsideration, with the direction that he met PIC 4020. This approach reflected the finding of the Tribunal that there was no evidence that the second visa applicant had submitted the first visa applicant’s birth certificate (this being the subject of the independent verification provided by the National Population Commission) in connection with his visa application.
In relation to the first visa applicant, the Tribunal found that she had given to an officer a bogus document and did not meet cl. 4020(1) of Schedule 4 of the Regulations. This finding reflected country information to the effect that since 1992, the National Population Commission (‘NPC’) has been the only organisation in Nigeria authorised to register births and deaths and issue attestation of births, and anterior findings including that:
(a)as the first visa applicant’s birth certificate appeared on the letterhead of the NPC, it (the NPC) was the relevant authority to verify the document;
(b)the Tribunal accepted the NPC’s advice that the birth certificate was not genuine; and
(c)although the applicant had submitted new birth certificates for the visa applicants, issued by the NPC on 23 February 2016 and which were said to be ‘genuine certificates’, the production of these certificates did not overcome the fact that a bogus document had been given previously.
The Tribunal next considered whether the requirements of cl. 4020(1) might nonetheless be waived in recognition of compassionate or compelling circumstances that justified the grant of the visa. The Tribunal noted that the applicant did not claim that there were compelling circumstances that affected the interests of Australia, and the Tribunal found that there was no evidence in this regard.
The Tribunal, having considered all the evidence before it, was also not satisfied that there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justified the granting of the visa and was not satisfied that the requirements of cl. 4020(1) should be waived.
GROUNDS OF APPLICATION
The applicant identifies three alleged jurisdictional errors, each of which directs attention to and seeks to impugn, the approach adopted by the Tribunal to the exercise of its discretion to waive cl. 4020(1) on an application of cl. 4020(4) of Schedule 4 to the Regulations.
Clauses 4020(1) and (4) of Schedule 4 to the Regulations are framed as follows:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
GROUND 1
Ground 1 of the Amended Judicial Review Application is as follows:
1.The Tribunal failed, in determining whether compelling or compassionate circumstances existed, to take into account the sponsor’s motivating sense of responsibility arising from his relationship with his brother.
The parties’ submissions
The applicant submitted that the Tribunal failed to properly address the objective evidence as to his financial support for and legal obligations towards the visa applicants.
The Minister, on the other hand, made the submission that the ground failed on the face of the decision record given that the Tribunal:
(a)summarised the applicant’s evidence concerning the relationship with his brother and that it was his responsibility now to care for the visa applicants and that no-one else can care for them (CB 152, [28]);
(b)had regard to this evidence and concluded that it was not satisfied that there were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (for the purpose of PIC 4020(4)) that would justify the granting of the visa (CB 153, [36], [38]); and
(c)took into account department policy that the possible separation of family members should a visa be refused would not generally be considered sufficient to waive the requirements of PIC 4020 (CB 153, [35]).
The Minister contended, generally, that the ground invites the Court to undertake a review of the merits of the Tribunal’s decision which would offend the constraints of judicial review.
Consideration - ground 1
The difficulty that the applicant must confront is that despite the criticism levelled against it, the Tribunal’s decision record contains both an explicit acknowledgement of the applicant’s claim that his responsibility to care for his brother’s children (the visa applicants) was a factor that informed his decision to sponsor their visa applications and evidence that the Tribunal had regard to this claim when it considered whether there were compassionate or compelling circumstances that affected the interests of the applicant, as an Australian permanent resident. This is exposed, in particular, by paragraphs [36] and [37] (CB 153) of the Tribunal’s decision record which (reproduced in full) provide:
[36]The Tribunal has had regard to [the applicant’s] evidence that it is his responsibility to take care of the children, that his siblings are not willing to care for the visa applicants, and that he is distressed as a result of the visa refusals. The Tribunal acknowledges [the applicant’s] evidence that he and his wife can only have one child and they want to care for the visa applicants in Australia. The Tribunal also acknowledges that [the applicant] was granted an Affidavit of Guardianship for both applicants on 5 August 2015.
[37]The Tribunal has considered [the applicant’s] claims about his obligations to the visa applicants in the context of other information before it. Tribunal finds that there is some doubt about the identity of the visa applicant, and also doubt about the claimed deaths of her parents. It is acknowledged that [the applicant] has been sending money on a regular basis to Mr Osinowo, which he claims is for the purpose of supporting the visa applicants. However he has only visited them on one occasion, which was almost 5.5 years ago, and the Tribunal found his knowledge of the visa applicant’s history and current circumstances to be vague.
These paragraphs are also an answer to the applicant’s contention that the Tribunal failed to address his evidence as to financial support for, and legal obligations towards, the visa applicants. The Tribunal acknowledged the applicant’s financial contributions and, insofar as it imposed legal obligations, the Affidavit of Guardianship, but found, taking a view of the whole of the evidence before it, that these considerations did not ultimately support a finding of compassionate or compelling circumstances. This approach was neither exceptional nor objectionable. I am satisfied that ground one does not disclose jurisdictional error.
GROUND 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The Tribunal determined whether compelling or compassionate circumstances existed by reference to irrelevant matters; i.e. the applicant’s lack of detailed knowledge or explanation of matters inherently beyond his knowledge as they occurred in Nigeria when he was not there; i.e. the visa applicant’s previous circumstances and documentation.
The parties’ submissions
Under the rubric of this ground, the applicant submitted – by reference especially to paragraphs [33] and [37] of the Tribunal’s decision record – that the Tribunal had failed to separately address the question of whether there were compassionate or compelling circumstances and had instead, when recording findings directed at the vagueness of the applicant’s knowledge of various matters, effectively reiterated its reasons for characterising the birth certificate as a bogus document. The applicant submitted that this purported consideration involved matters that were irrelevant to the applicant’s actual basis for claiming compelling or compassionate circumstances.
The Minister submitted that ground two was misconceived as it was open to the Tribunal, as part of its fact-finding function, to take into account a range of information including the applicant’s evidence that he had only visited the visa applicants on one occasion almost five and a half years ago, the applicant’s ‘vague knowledge’ of the visa applicants’ history and current circumstances and information relating to the death of the visa applicants’ parents and the origin of relevant documentation.
The Minister emphasised that the obligation on the Tribunal was to consider whether the requirements of PIC 4020(1) should be waived so that the identification of factors that might have undermined the ability of the applicant to obtain knowledge of the visa applicants’ circumstances (for example, that events occurred in Nigeria) missed the point.
Consideration – ground 2
Quite apart from the fact that the Tribunal’s decision record is organised in discrete sections under headings that reflect first the language of cl. 4020(1) and second, whether the requirements of cl. 4020(1) or (2) should be waived, it is clear that the Tribunal, as a matter of substance, addressed itself separately to the question of whether there existed compelling or compassionate circumstances so as to justify the exercise of the discretion to waive the requirements of cl. 4020(1).
After referring at [26] (CB 152) to meanings attributed by the High Court to the expression ‘compelling circumstances’ and the ordinary meaning of ‘compassionate’, the Tribunal then considered and explored, including through questioning of the applicant, a range of factors that were responsive to submissions made by the applicant and/or which bore a natural relationship to the statutory question under consideration.
By way of example, at [28]-[30] (CB 152), the Tribunal identified and then examined, the applicant’s submission that the visa refusal had caused him high levels of distress because it was his responsibility to care for his brother’s children and nobody else could care for them. The Tribunal in this context explored with the applicant the nature and identity of his extended family in Nigeria and the circumstances in which the Affidavit of Guardianship had been procured. These were matters that the Tribunal was entitled to explore with the applicant, and which had no affinity to the question of whether cl. 4020(1) applied to the first visa applicant.
Likewise, the Tribunal’s reasons at [31] to [34] (CB 152-153), exposed a process of questioning of the applicant that was designed to elicit information concerning the strength of his relationship to his deceased brother and the visa applicants. Again, this was a process of inquiry and analysis that was responsive to the claims advanced by the applicant and dissociated from the question of whether the first visa applicant satisfied cl. 4020(1).
In these circumstances, I am satisfied that the Tribunal did not err in the manner alleged by the applicant and fail to separately address the question of whether there were compassionate or compelling circumstances.
I am also not persuaded that the approach adopted by the Tribunal introduced matters that statutorily were irrelevant to the inquiry sanctioned under cl. 4020(4) or which operated in a manner that was unfair to the applicant. The Tribunal, contrary to the applicant’s submission, did not analyse his responses having regard to matters that inherently were beyond his knowledge. Instead, the tenor of the Tribunal’s investigation was to consider the extent to which the applicant had engaged with the visa applicants and family members residing in Nigeria to elicit relevant information. Illustrative of this approach, at [34] of the Tribunal’s decision record (CB 153), the Tribunal acknowledged that the applicant might not have wanted to know about the details of his brother’s death at the time of the accident but the reasonable expectation was that he would have asked for details at a later date.
Accordingly, in my view the Tribunal did not fall into error on the basis asserted in ground 2 of the Amended Application for Judicial Review.
GROUND 3
Ground 3 of the Amended Judicial Review Application is as follows:
2.For the foregoing reasons regarding failing to address relevant contentions and taking irrelevant matters into account. The Tribunal’s decision was also unreasonable, irrational, illogical and/or arbitrary, lacking an evident and intelligible justification and/or not based or findings or inferences of fact supported by logical grounds.
The parties’ submissions
The applicant submitted that the same alleged errors which underscored grounds one and two gave rise to an independent jurisdictional error. The applicant further submitted that the failure of the Tribunal to separately address the nature and extent of any fraud to compelling and compassionate circumstances was further evidence of the unreasonable and irrational approach adopted by the Tribunal.
By way of response, the Minister submitted that the ground had not been particularised to make it meaningful nor had it been explained how the Tribunal erred beyond the reasons given in support of grounds one and two and the ground should be dismissed on that basis. The Minister also made the submission that there was nothing in the Tribunal’s decision that could be described as arbitrary, capricious, without common sense or plainly unjust, so as to warrant it being characterised as unreasonable (compare Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [28] (French CJ).
Consideration – ground 3
While I accept that the applicant’s lack of success in relation to grounds one and two does not lead inevitably to the conclusion that he must fail in relation to ground three, I am satisfied that, on an application of the high threshold required to demonstrate legal unreasonableness (and its analogues), the Tribunal’s decision did not disclose legal error. The Tribunal decision record provides evidence of a rationally based approach to the question of whether cl. 4020(1) should be waived in the case of the first visa applicant that was responsive to submissions made by the applicant and evidence that was before the Tribunal. The Tribunal was not diverted from its task, including by the introduction of extraneous matters.
Although the Tribunal referred in its decision record to departmental policy on the application of the waiver provision, the Tribunal also understood (as was the case) that this policy did not bind it (refer [35] CB 153). In this respect, the failure of the Tribunal to deal explicitly with the nature and extent of the fraud concerning the giving of the birth certificate as a component of its consideration of the waiver provision, does not create jurisdictional consequences. It would appear, in any case, that this inquiry is more apt to apply at the stage that a decision-maker has concluded that there exist compassionate or compelling circumstances and is therefore embarking on the separate consideration of whether, in those circumstances, the discretion should be exercised (refer Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [26]). Accordingly, this ground is not made out.
CONCLUSION AND ORDERS
It follows that the Amended Judicial Review Application must be dismissed with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 14 October 2021
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