Osman v Minister for Immigration
[2007] FMCA 1437
•16 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OSMAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1437 |
| MIGRATION – Migration Review Tribunal – orphan relative visa – whether the Tribunal misunderstood the difference between the date of application and the date of X-ray examination – the consequences of the Tribunal being unable to be satisfied the applicant was under 18 – whether the Tribunal mistakenly required the expert evidence to conclusively prove the applicant’s age. |
| Migration Act 1958, s.65 |
| Ashraf v Minister for Immigration & Anor [2007] FMCA 448 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Applicant VFAY v Minister for Immigration [2003] FMCA 289 |
| Applicant: | KHADAR OSMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 114 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 20 August 2007 |
| Date of last submission: | 20 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | John A. Gibson |
| Solicitors for the Applicant | Victoria Legal Aid |
| Counsel for the First Respondent: | Sharon Burchell |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 6 February 2007 and amended on 9 August 2007 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 114 of 2007
| KHADAR OSMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is the uncle of Ayan Mukhtar Aden, the visa applicant. The visa applicant claims to be a 20 year old female citizen of Somalia who currently resides in Kenya. On 19 June 2003, she applied for an orphan relative visa sponsored by the applicant. Two of the criteria for the granting of an orphan relative visa are that the visa applicant had not turned 18 years of age at the time of application and that her parents had died. In the present application, the visa applicant claimed to have been born on 5 May 1987, which would have made her 16 years and about six weeks old at the time of application.
However, the applicant had previously filed an unsuccessful application for an orphan relative visa in which her date of birth was given as 1 January 1985. That birth date would have meant that she was 181/2 years old at the time of application. The applicant claimed that an uncle, other than the present sponsor, had filled out the first application form for her.
On 6 July 2005, about two years and three weeks after the date of the second application, the visa applicant had a bone scan at Nairobi Hospital. A radiology report by Dr Bowry from Nairobi stated that the visa applicant’s bone age “was estimated at more than 20 years but less than 25 years.”
The delegate of the first respondent noted in her decision refusing the visa application that:
Based on the declared birth date of 5 May 1987, the applicant should have been 18 years old at the time of examination. Based on the medical opinion the applicant was born between 1980 to 1985, making her 17/18 to 23/24 at the time of application.
The delegate went on to note the details of the application previously filed by the visa applicant and her denial that she had made such an application until presented with virtually irrefutable evidence. In particular, the delegate noted that the visa applicant’s claimed date of birth and family composition was different in each application. The delegate also noted that the visa applicant had given false evidence about her residential address. The delegate concluded that she was unable to be satisfied of the visa applicant’s true identity, the identity of her parents, or that her parents had died.
The applicant then sought review of the delegate’s decision by the Migration Review Tribunal. The applicant’s migration agent lodged with the Tribunal a second report on the same bone scan that had been done in Nairobi on 6 July 2005. The report was given by Dr Cain at the Royal Children’s Hospital. Dr Cain referred to various features of the scan and said:
… this suggests the patient had not reached late 20’s in age.
… this is consistent with a patient of approximately 19 or 20 years of age, but is variable.
… This appearance is consistent with an almost or recently skeletally mature female, probably of at least 18 years of age at the time of the examination.
The preferred method of bone age assessment in Caucasians is using the standards of Greulich and Pyle for the left wrist. However, this often over estimates the age of members of the negro race. In view of the known variability in bone age, the radiographic study performed on this patient on 6 July could indicate that the patient was as young as 17.5 years at the time of the radiographic examination.
Conclusion
… The presence of a growth plate scar in the base of the first metacarpal suggests that the patient may have been as young as 17.5 years at the time of the x-ray examination ….
The Tribunal in its decision discussed the two reports on the bone scan and said:
Given the conflicting evidence and the vagaries associated with bone age assessment as outlined above, the Tribunal is unable to be satisfied, based on this evidence, that the visa applicant was under 18 years old at the time she applied for the visa.
The Tribunal went on to note that the visa applicant claimed that she had been forced to lie to the Department by her uncles. However, the Tribunal noted that the applicant had persisted in the lie that she had not previously filed an application during two interviews with the Department and did not admit that she had previously filed an application until confronted with the file containing a photograph of herself with a different name. The Tribunal also noted that the two separate visa applications lodged by the visa applicant contained two different family compositions and other details which made it difficult for the Tribunal to be satisfied about the visa applicant’s birth date, her correct identity or her family circumstances. The Tribunal concluded:
In these circumstances and based on all the evidence before it, the Tribunal cannot be satisfied that the visa applicant was under 18 years old at the time of application.
The applicant now seeks judicial review of the Tribunal’s decision on three grounds, namely:
a)the Tribunal misunderstood the facts and the claim by misunderstanding that the bone scan was done two years and three weeks after the date of application;
b)the Tribunal should not have found it was unable to be satisfied on the basis of the expert evidence that the applicant was under 18 years of age and should have found that it was unable to make a finding either way; and
c)the Tribunal required the expert evidence to prove the claim to an excessive standard.
Ground 1: misunderstanding of facts
The first ground of review in the amended application is:
The Tribunal failed to consider the case that the visa applicant had not turned 18 at the time of application on the evidence presented made a finding that was critical to its ultimate determination which was not supported by evidence in that the Tribunal assessed the competing expert radiological reports on a mistaken factual basis by failing to reason that as at the time of application 2 years and 3 weeks before the date of the Nairobi examination the respective assessments were 15.5 years (which equated with her claimed DOB) and 18 years old or less and/or made an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and based its conclusion in whole or in part upon the claim so misunderstood or misconstrued.
Essentially, the applicant submitted that the Tribunal failed to understand that the bone scan was done about two years and three weeks after the date of application. For the reasons which follow, I am not satisfied that the Tribunal did misunderstand that fact.
The Tribunal stated at paragraph 55 of its decision that:
In order to satisfy the definition of "orphan relative" the visa applicant must have been under 18 at the time the application was made on 19 June 2003. (Emphasis added)
In paragraph 56 of its reasons for decision, the Tribunal noted that Dr Cain had given certain age ranges “at the time of examination”. That phrase was used three times in paragraph 56. More particularly, the Tribunal noted that Dr Cain's evidence was that:
...the visa applicant may have been as young as 17.5 years at the time the examination was carried out on 6 July 2005. (Emphasis added)
In paragraph 58 of its reasons for decision, the Tribunal again used the phrase “at the time of examination” in relation to the bone scan and concluded that:
...the Tribunal is unable to be satisfied, based on this evidence, that the visa applicant was under 18 years old at the time she applied for the visa.
The Tribunal went on to consider the other evidence in the case. At paragraph 63, the Tribunal noted its concerns about the credibility of the claim that the applicant was under 18 years old at the time the visa application was lodged. At paragraph 66, the Tribunal said it could not be satisfied that the visa applicant was 18 years old at the time of application.
In these circumstances, I am unable to conclude that the Tribunal failed to understand that the time of application and the time of examination were different and that the examination took place two years and three weeks approximately after the application was filed.
The applicant noted that Dr Cain's report meant that the visa applicant might have been as young as 15.5 years at the time of application and Dr Bowry's report meant that she might have been a few weeks short of 18 years old at the time of application. The applicant argued that the Tribunal was therefore bound to find on the basis of the expert evidence that the visa applicant was less than 18 years old at the time of application.
However, that does not follow. Both doctors gave an age range such that the lowest age at time of application was 15.5 years in Dr Cain’s view and just under 18 years in Dr Bowry’s view. The applicant's submission fails to acknowledge that both doctors stated that the bone scan was indicative of a range of ages. Dr Bowry's evidence was that the visa applicant may have been as old as 23 years at the time of application.
In these circumstances, it cannot be said that the Tribunal should have been satisfied on the basis of the expert evidence that the visa applicant was under 18 at the time of application and that the Tribunal's failure to reach that state of satisfaction was necessarily indicative of a misunderstanding of the facts.
The applicant further submits that the Tribunal's finding of lack of satisfaction was not supported by evidence. Making a finding without any evidence to support the finding is a jurisdictional error. However, being in a state of non-satisfaction is not the same as making a finding. Where there is no evidence of a matter, it is obviously proper for the Tribunal to not be satisfied of that matter. Similarly, where there is insufficient evidence for the Tribunal to reach a state of positive persuasion regarding a matter, it is proper for the Tribunal to not be satisfied of that matter. That is what happened in this case.
It was not necessary for the Tribunal to be in possession of rebutting evidence to reach a state of non-satisfaction. However, in the present case, there was in fact conflicting expert evidence which in any case, indicated a range of ages. Additionally, there were inconsistent claims made in two separate applications together with a false denial that there had been an earlier claim. This ground is not made out.
Ground 2: unable to make finding
The second ground of review in the amended application is:
The Tribunal imposed an impermissible onus on the Applicant and/or exceeded what is the required standard of proof in these circumstances when it found on the competing expert evidence that it was unable to be satisfied that the visa applicant was under 18 years of age at the time of application when it should have found that it was unable to make a finding either way.
The applicant argued that the Tribunal should have said it was unable to make a finding either way on the basis of the expert evidence, rather than finding it was not satisfied the applicant was under 18 years of age. Furthermore, the applicant argued, the finding that the Tribunal was not satisfied on the basis of the expert evidence coloured its consideration of the remainder of the evidence.
I am unable to accept these submissions. A state of non-satisfaction is not a finding. If the Tribunal is not positively persuaded of an alleged fact it can only conclude that it is not satisfied of that alleged fact. In most if not all cases where the Tribunal is unable to make a finding either way about a particular matter, it will inevitably be unable to be satisfied about that matter. See, for example, SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] where the Full Court of the Federal Court said that, if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied, s.65 of the Act requires the application to be refused.
I am not persuaded that the Tribunal’s view of the expert evidence coloured its view of the remaining evidence. The expert evidence did not necessarily indicate that the applicant was untruthful. The expert evidence posited a range of ages. The lower end of the range was consistent with the visa applicant’s claims while the upper end of the range was inconsistent with her claims. In these circumstances, it was not surprising that the Tribunal was unable to be satisfied on the basis of the expert evidence that the applicant was under 18 years of age at the time of application. Being unsatisfied of the applicant’s age on the basis of the expert evidence was an entirely proper and reasonable view to take of the expert evidence. The applicant acknowledges as much by saying that the Tribunal should have said it could not make a finding either way on the basis of the expert evidence.
In these circumstances, it is not appropriate to say that the view the Tribunal took of the expert evidence coloured its view of the remaining evidence. The Tribunal did not form a negative view based on the expert evidence. It simply was not satisfied of the visa applicant’s age at the date of application based on the expert evidence.
The applicant sought support from the decision of Riethmuller FM in Ashraf v Minister for Immigration [2007] FMCA 448. In that case, his Honour concluded that the Tribunal had fallen into error by misconstruing the legislation. His Honour said at [13]:
It is apparent from these conclusions that the Tribunal considered whether or not it was satisfied that the applicant's breach of condition was due to exceptional circumstances beyond his control. The Act requires the Tribunal to consider whether or not the Minister could be satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder's control. (emphasis in the original)
However, Ashraf does not assist the applicant. It concerned a different statutory context, in which the consequences of the Tribunal not being satisfied of a particular matter should have been visited on the Minister rather than the applicant. Relevantly to the present statutory context, his Honour said at [19]:
... In cases where the requirement was for the tribunal to be satisfied that a special circumstance existed, the inability of the tribunal to make a finding one way or the other would lead to the applicant failing in the application. ...
The Tribunal was in that position in relation to the expert evidence in the present case. For the applicant to succeed, the Tribunal needed to be satisfied the applicant was under 18 years of age at the time of application. The Tribunal was not satisfied of that fact. Accordingly, the application could not succeed.
The question of the standard of proof adopted by the Tribunal is dealt with in relation to ground 3.
Ground 3: conclusive proof
The third ground of review in the amended application is:
The Tribunal misunderstood the judgment of VFAY v Minister for Immigration [2003] FMCA 289 and its decision demonstrated a misunderstanding of what is required to satisfy the criterion in subcl 117.221 when it reached its lack of satisfaction on the basis of the expert evidence that the visa applicant was under 18 in part on the dictum in VFAY “that the expert evidence does not conclusively prove the Applicant’s age” i.e. in other words expressing an approach that requires that level of proof from the expert evidence before it can be accepted.”
In Applicant VFAY v Minister for Immigration [2003] FMCA 289, Phipps FM had to decide whether the applicant was less than 18 years of age. Evidence of the applicant’s age consisted in part of bone scans and the commentary on those scans provided by expert paediatric radiologists. The bone scan in that case most closely corresponded to the standard for a 19 year old set out in the Greulich and Pyle Atlas.
However, Dr Ratcliffe, who was called by the applicant, said that the Greulich and Pyle Atlas was not created for the purpose of ascertaining a person’s chronological age and it was hazardous to attempt to use it for that purpose. It was created to ascertain means and standard deviations for skeletal age. The Atlas was derived from studies of healthy, white, middle-class children in Cleveland, Ohio, between 1931 and 1942. Other more recent though small studies suggested that the skeletons of children from some other countries matured earlier than those from Cleveland, Ohio. Dr Jensen, who was called by the respondent, said that departures from the standards in the Greulich and Pyle Atlas could be explained by socio-economic factors.
The evidence before Phipps FM of the applicant’s age was summarised at [46] as follows:
a)the applicant’s own evidence of what he has been told by his father;
b)the security guard’s evidence that he heard the applicant speaking fluent Arabic;
c)expert evidence about the use of the x-ray of the applicant’s left-hand and wrist;
d)Dr Kirby's evidence of the observation of the applicant and acceptance by the authorities that the applicant was under 18.
His Honour concluded:
[66]The expert evidence does not conclusively prove the Applicant’s age. The evidence of the security guard has the difficulties I have referred to. Dr Kirby and people apparently experienced in dealing with children at the detention centre have accepted that the Applicant’s appearance and behaviour are that of a person under the age of 18. I do not consider that the Applicant’s evidence lacked credibility. He has a story which has been consistent since his arrival in Australia and there is nothing in it which makes it improbable.
[67]Taking into account all these matters, I find that the Applicant is under the age of 18.
In a submission dated 6 September 2006, the applicant’s adviser referred the Tribunal to the decision in Applicant VFAY, said it discussed “the vagaries of bone age assessment” and noted his Honour’s “conclusion in that case that ‘The expert evidence does not conclusively prove the applicant’s age.’ ”
In its decision, the Tribunal considered VFAY in some detail. At [57], the Tribunal set out the sentence from the judgment in VFAY that the applicant had cited in the submission dated |
6 September 2006, namely, that, ‘The expert evidence does not conclusively prove the applicant’s age.’ The Tribunal then said:
The Tribunal notes the expert evidence set out in the above decision and finds that great caution should be exercised in accepting bone age as an accurate indicator of chronological age. … Given the conflicting evidence [in the present case] and the vagaries associated with bone age assessment as outlined above, the Tribunal is unable to be satisfied, based on this evidence, that the visa applicant was under 18 years old at the time she applied for the visa.
The applicant submitted that the Tribunal’s quoting of the sentence, ‘The expert evidence does not conclusively prove the Applicant’s age’, and its subsequent application, showed that the Tribunal required the expert evidence to conclusively prove the applicant’s age. In other words, it expressed an approach which requires that level of proof from the expert evidence before it can be accepted as establishing the age of the visa applicant.
I do not accept this argument. The Tribunal quoted in its reasons for decision a sentence that had been specifically referred to it by the applicant’s adviser and used the word “vagaries” in relation to bone age assessment as did the applicant’s adviser in the submission dated
6 September 2006. In doing so, the Tribunal was essentially acknowledging and accepting the submissions that were put to it. The Tribunal’s own conclusion, based on the expert evidence in VFAY, was that:
...great caution should be exercised in accepting bone age as an accurate indicator of chronological age.
That view seems to me to be entirely proper. It was consistent with the expert evidence put forward by the applicant in VFAY and with the submissions put forward by the applicant in the present case. In saying that great caution should be exercised in accepting bone age as an accurate indicator of chronological age, the Tribunal was not saying that the expert evidence needed to conclusively prove chronological age. The Tribunal was simply acting in accordance with the evidence of Dr Ratcliffe in VFAY that it is hazardous to use the Greulich and Pyle standards to ascertain chronological age. I detect nothing in the Tribunal’s reasons that suggests that it made the fundamental error of requiring conclusive proof of the applicant’s age.
The applicant also submits that the Tribunal misunderstood the decision in VFAY in that the Tribunal thought that Phipps FM had disregarded the expert evidence and had decided the issue solely on the basis of the remaining evidence in the case. The applicant says that:
[34] The Tribunal by emphasizing the quote and taking it out of context and proceeding to make the negative finding it did at [58] on the basis of the expert evidence alone was clearly expressing an approach which required a level of conclusive proof from the expert evidence before it could be accepted and have any probative force in support of the Applicant’s case. It thereby misunderstood the approach which Phipps FM had taken and fell into jurisdictional error.
I do not accept this argument. The Tribunal quoted the sentence, ‘The expert evidence does not conclusively prove the applicant’s age’, after the applicant’s adviser specifically referred the Tribunal to that sentence. It would have been surprising if the Tribunal had been able, based on the expert evidence, to reach a state of positive satisfaction that the applicant was less than 18 years of age at the time of application given:
a)the conflicts in the expert evidence;
b)the fact that the expert evidence at best indicated a range of ages; and
c)the hazards in using bone age to assess chronological age.
In these circumstances, I see no proper basis for concluding that the Tribunal fundamentally misunderstood its task by requiring the expert evidence to conclusively prove the applicant’s age.
Conclusion
For these reasons, the application must be dismissed. The first respondent seeks costs thrown away for the preparation of written submissions that were overtaken by an amendment to the application. Accordingly, I will hear the parties on the question of costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 16 October 2007
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