PRASAD v Minister for Immigration

[2018] FCCA 1362

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1362

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant Other Family (Residence) (Class BU) (Subclass 835) visa – whether Tribunal acted unreasonably in refusing to grant the applicant adjournment for the purpose of applicant presenting his sponsor to give evidence – whether errors in interpretation led to the hearing before the Tribunal miscarrying – whether Tribunal ought to have considered evidence of applicant’s children’s dependency on applicant – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), regs.1.03, 1.15, Schedule 2, cls.835.212, 835.221

Cases cited:

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

Applicant: RAJENDRA PRASAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 249 of 2016

Judgment of: Judge Manousaridis

Hearing date: 28 April 2017

Date of Last Submission: 28 April 2017

Delivered at: Sydney

Delivered on: 1 June 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Hameed of Michael Vassili Barristers & Solicitors

Solicitors for the First Respondent: Ms H Musgrove of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 249 of 2016

RAJENDRA PRASAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Fiji, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant an Other Family (Residence) (Class BU) (Subclass 835) visa (Remaining Relative visa).

Background

1. The applicant applied for a Remaining Relative visa on 29 April 2015. He claimed to be the “remaining relative” of his sister (Sponsor) who is an Australian citizen.

2. The criteria relevant to the grant of a Remaining Relative visa were set out in part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to the application before me is cl.835.212 and cl.835.221 of Schedule 2 to the Regulations. Clause 835.212 required the applicant, at the time of application, to be a “remaining relative” of an “Australian relative”. The expression “Australian relative”, when used in relation to an applicant, is defined in reg.1.03 of the Regulations to mean “a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen”. Clause 835.221 required the applicant, at the time of decision, to continue to satisfy the criterion in cl.835.212 of Schedule 2 to the Regulations. “Remaining relative” is defined in reg.1.15 of the Regulations:

   (1)  An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)  the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

   (b)  the other person is usually resident in Australia; and

   (c) the applicant, and the applicant's spouse or de facto partner (if any), have no near relatives other than near relatives who are:

   (i)      usually resident in Australia; and

   (ii)     Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

   (d)  if the applicant is a child who:

   (i)      has not turned 18; and

(ii)     has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent ) while overseas:

at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

(2)  In this regulation:

near relative, in relation to an applicant, means a person who is:

(a)  a parent, brother, sister, step‑brother or step‑sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

(b)  a child (including a step‑child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:

(i)      has turned 18 and is not a dependent child of the applicant or the applicant’s spouse or de facto partner (if any); or

(ii)     has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse or de facto partner (if any).

1. The expressions “Australian permanent resident” and “eligible New Zealand citizen” are defined in reg.1.03 of the Regulations. Relevant to the application before me is the definition of “eligible New Zealand citizen”, which is as follows:

   eligible New Zealand citizen means a New Zealand citizen who:

   (a)at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009; and

   (b)either:

   (i)was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Category) visa that was in force on that date; or

   (ii)was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001; or

   (iii)has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.

2. On 19 May 2015 the delegate refused to grant the applicant a Remaining Relative visa.[1] The delegate found the applicant had three “near relatives” overseas, being his mother, and two adult children, and there was no evidence before the delegate that they are usually resident in Australia or that they are Australian citizens, Australian permanent residents or eligible New Zealand citizens.[2] The delegate concluded the applicant’s mother was not an “eligible New Zealand citizen” because:

   a)records of the Department of Immigration and Border Protection (Department) showed that the applicant’s mother is currently in Australia as the holder of a TY-444 visa, which is not an Australian permanent resident visa;

   b)there was no evidence the applicant’s mother is an Australian citizen or an Australian permanent resident;

   c)Departmental records indicate the applicant’s mother first entered Australia in 2003 and, therefore, did not fall within paragraphs (b)(i) or (b)(ii) of the definition of “eligible New Zealand citizen”; and

   d)there was no evidence that there had been issued to the applicant’s mother under the Social Security 1991 (Cth) (SS Act) a certificate stating that, for the purposes of the SS Act, the applicant’s mother was residing in Australia on a particular date and, for that reason, the applicant’s mother did not fall within paragraph (iii) of the definition of “eligible New Zealand citizen”.

   [1] CB69

   [2] CB72

3. The delegate also found that there was no evidence about where the applicant’s children resided or studied, and there was no evidence to show they were Australian citizens, Australian permanent residents, or eligible New Zealand citizens. The delegate also noted the applicant did not provide any information to show his children were financially dependent on him.

Course of proceeding before Tribunal

1. On 4 December 2015 the Tribunal sent to the applicant’s authorised representative an invitation to the applicant to appear before it on 12 January 2016 to give evidence and present arguments in support of his application.

2. By fax sent to the Tribunal on 10 January 2016 the applicant’s representative requested “a short postponement of the hearing”.[3] The representative stated two reasons. The first was that the applicant’s family, including the Sponsor, were in Melbourne and that “[d]ue to a sudden family emergency situation they will not be able to return to Sydney until” 14 January 2016. The representative stated that the evidence of the Sponsor “is vital and she does not want the hearing to proceed without her and unfortunately she is affected by this situation”. The representative continued:

   The delegate refusing the visa application has failed to give the visa applicant an opportunity to submit additional documentary evidence regarding the total dependency of his two children who are full time students in Fiji and his mother’s Australian immigration status. Hence the sponsor strongly feels that she must be present at the hearing to give evidence at the hearing.

   [3] CB84

3. The second reason the representative stated for seeking an adjournment were matters personal to him. He said his mother was admitted into “ICU in a critical condition which prevented me from attending my office”.

4. On the same day the applicant’s representative sent the fax to the Tribunal seeking an adjournment, the applicant made a statutory declaration.[4] In that statutory declaration the applicant stated he divorced from his wife in 2013; he has two children from that marriage, a son born in 1994 and a daughter born in 1996; both children are studying in Fiji and are “totally dependent” on the applicant “for financial support to meet their basic needs for food, clothing and shelter”; the applicant has been borrowing money from the Sponsor to educate both his children who are studying full time and do not work; the applicant’s father passed away, and the applicant only has one sister, the Sponsor, who is an Australian citizen; and the applicant has a mother “who is a New Zealand Citizen” and who “has applied for her Australian migration under the contributory parent migration on 7 August 2015” and this “application has not been finalized”. Finally, the applicant stated:

   At the hearing my sister will give evidence as to how she keeps lending me money to help my children and how my children are dependent on me for support to survive in Fiji without me.

   [4] CB86

5. The applicant’s representative’s request for an adjournment was brought to the attention of the member who was reviewing the applicant’s case. According to a case note prepared by an officer of the Tribunal, the following then occurred:[5]

   Under member’s instructions I called the rep and said the postponement request has been refused. Therefore the hearing will go ahead as scheduled tomorrow 12/1/16 @ 8:30 am. I said the issue of if the hearing needs to be postponed will be discuss [sic] at tomorrow’s hearing. Rep understood.

   [5] CB88

6. There is in evidence before me a transcript of the hearing before the Tribunal.[6] The applicant appeared with his representative. The transcript reveals that shortly after the hearing commenced the Tribunal member referred to the applicant’s representative having written to the Tribunal asking for an adjournment. The Tribunal member said he would “consider whether the adjournment is necessary after we conduct some preliminary discussion about your application”.[7] The Tribunal member then asked the applicant questions about the applicant, the Sponsor, and the applicant’s former wife, and about the applicant’s mother applying for a Contributory Parent Migration visa. The Tribunal member then explained to the applicant what criteria he had to satisfy before he would be entitled to a Remaining Relative visa. The Tribunal explained that the applicant’s mother did not fall within the definition of an “eligible New Zealand citizen”;[8] and that the Tribunal had significant concerns about whether the applicant’s “two sons . . . are ‘independent’”.[9] The Tribunal noted, however, that “there only needs to be one relative who does not meet the definition whereby” the applicant would not meet “the definition of a remaining relative”,[10] and that because the applicant’s mother does not meet the definition of “eligible New Zealand citizen”, “you do not meet the definition of a remaining relative”.[11] The Tribunal invited the applicant to comment on that statement. The applicant’s representative (who in the transcript is identified as “agent”) responded.

   [6] Affidavit of A Khatri.

   [7] Affidavit of A Khatri, page 9.6

   [8] Affidavit of A Khatri, page 15.29

   [9] Affidavit of A Khatri, page 16.8

   [10] Affidavit of A Khatri, page 16.13

   [11] Affidavit of A Khatri, page 17.19

7. The representative said his instructions were that the applicant’s mother “had been in Australia prior to 2001”.[12] In response to the Tribunal stating that it did not have any information about that, the representative said “that’s why I wanted time, so that when she comes back”.[13] The Tribunal interrupted the representative by noting the applicant “had six months”.[14] The representative said “she” informed him “she’s been in Australia at the beginning of 2000”[15]; but after further questions from the Tribunal the representative said “there’s some misunderstanding of the instructions”.[16] The representative said “if you can give me at least a couple of weeks, she’s coming back on Thursday”.[17] The representative then said he agreed “with decision, because she wasn’t here prior to 2001 . . . . So I advised them accordingly”.[18]

   [12] Affidavit of A Khatri, page 17.27

   [13] Affidavit of A Khatri, page 17.30

   [14] Affidavit of A Khatri, page 18.1

   [15] Affidavit of A Khatri, page 18.8

   [16] Affidavit of A Khatri, page 18.15

   [17] Affidavit of A Khatri, page 18.18

   [18] Affidavit of A Khatri, page 18.21

8. The transcript then reveals the following:[19]

   [19] Affidavit of A Khatri, pages 18.23-19.24

   [Tribunal]:     So you made it – regardless of the situation of the kids, let’s face it, I haven’t got any sufficient evidence about what their situation is.

   Agent:Yeah.

   [Tribunal]:     He’s providing a couple of mait [sic] transfers, from his sister. He’s not working in Australia. . .

   Agent:That – yeah. That is only in relation to the dependency of the children. I’ve advised them accordingly. That’s why then she instructed me – lodged the Contributory Parent Migration. And then. . .

   [Tribunal]:     So she lodged it after this application was. . .

   Agent:Not at the time of application. I do understand that. So I’ve advised them, they will have no migration appeal. They know that. I’ve even advised the sister.

   [Tribunal]:     Well, if they know that, they know you had six months. You’ve actually gone out of your way to apply for a Contributory Parent to overcome, or try to overcome *(inaudible: 0:25:02)

   Agent:They hope to write to Minister and…

   [Tribunal]:     Well, if they hope to write to the Minister, congratulations, but why would I be adjourning it? Because you’ve had six months to get any evidence as to her living in Australia at the time she becomes an eligible New Zealand citizen. You haven’t done anything. The Department’s records indicate that she wasn’t here, and I apologise for that, since 2003.

   Agent:Yeah.

   [Tribunal]:That sort of ties in with the sponsor situation . . . . So you know, I haven’t got any evidence to say that she, she was here in Australia on the relevant date, or that she’d been living in Australia for a year in the two years prior to that.

   Agent:I just followed my instructions made by the sponsor.

   [Tribunal]:I know you’re following instructions, but I’m wondering what documents you’re going to get to overcome the problem that. . .

   Agent:Nothing. I don’t see there there’s any  . . . proper evidence  . . . except for what she could come and tell you, I mean…

   [Tribunal]:Well, I’m not going to accept her just saying, “Of course I was here”.

   Agent:It’s up to you, Member.

9. The Tribunal member then put to the representative that he could not “accept that”, by which I find the Tribunal member intended to refer to the applicant’s mother’s saying she was in Australia. The exchange between the Tribunal member and the representative continued as follows:[20]

   [20] Affidavit of A Khatri, page 19.26-20.10

   [Tribunal]:Well. . . . if the Department’s records, which are referred to in the decision, say that she wasn’t here at that time, and . . . the decision made six months ago said that she wasn’t an eligible New Zealand citizen, and the only information that I’ve got since then from your office or from them is that she’s applied for a Contributory Parent visa in August 2015, after the decision was made, I don’t see much point. I mean if they want to apply for Ministerial Intervention, they can do that, but I don’t – unless you’ve got something you can – like I’m not…

   Agent:No I agree with you, I agree with you. But I was just following…

   [Tribunal]:Instructions. Yes.

   Agent:Instructions

   [Tribunal]:Yep.

   Agent:You know, I mean if she wanted to attend the hearing and talk to you, I couldn’t say no. I said, “Well, I’ll talk to the Member and see whether he was willing to give an adjournment. If not, let’s proceed and take the decision as it is”.

   [Tribunal]:I’ve decided to proceed because I can’t see anything she can say to me which would change the situation. And in particular, she’s applied for a Contributory Parent visa, which shows she is not an eligible New Zealand citizen.

   Agent:Yeah, yeah. I get your point, Member.

10. The Tribunal member then appears to have addressed the applicant by stating that the difficulty the Tribunal member had with the applicant’s case was that the applicant’s mother is not an eligible New Zealand citizen; and that having the applicant’s mother appear before the Tribunal to tell it that she is an eligible New Zealand citizen would not prove that she is because the Department’s records indicate the applicant’s mother only started living in Australia in 2003. The Tribunal member further said that if the applicant’s mother was not in Australia on 26 February 2001, she would have had to be in Australia for not less than one year in the period of two years immediately before that date; but there was nothing before the Tribunal that would indicate the applicant’s mother would meet that criterion. The Tribunal member said that he would not accept the applicant’s mother (or presumably the Sponsor) just stating she lived in Australia at the relevant time; that based on the applicant’s mother having applied for a Contributory Parent visa it seemed to the Tribunal that the applicant’s mother was not an eligible New Zealand citizen; and “on that basis, I see I have no option but to say . . . she is a relative who does not fall within the criteria of living in Australia and therefore” the applicant  does “not meet the definition of a remaining relative visa”, and the Tribunal member could see “no option but to affirm the Department’s decision”.[21]

    [21] Affidavit of A Khatri, page 21.2-21.18

Tribunal’s decision

1. The Tribunal found the applicant had a sister who, being an Australian citizen, as well as a “relative” and “close relative” as defined by reg.1.03 of the Regulations, was an “Australian relative” for the purposes of cl.835.212 of Schedule 2 to the Regulations. In those circumstances the Tribunal identified the issue that was before it was whether the applicant has any “near relatives” who are not usually resident in Australia and who are Australian citizens, Australian permanent residents or eligible New Zealand citizens, within the meaning of reg.1.15(1)(c) of the Regulations.

2. The Tribunal referred to the finding of the delegate that the applicant has three relatives who do not fall within the meaning of “near relatives”, namely his son, his daughter, and his mother. The Tribunal then considered whether the applicant’s mother was an “eligible New Zealand citizen” within the meaning of reg.1.03 of the Regulations. The Tribunal, with reference to the criteria prescribed by reg.1.03(1) and reg.1.03(2) of the Regulations, made the following findings:

   a)The records of the Department indicate the applicant’s mother first arrived in Australia holding a subclass 444 visa in 2003.

   b)There is no evidence before the Tribunal that indicated the applicant’s mother was in Australia on 26 February 2001 as the holder of a subclass 444 visa, or that as the holder of such a visa, she had spent periods of time that total not less than one year in the two year period immediately before 26 February 2001.

   c)There is no evidence before the Tribunal that a certificate had been issued under the SS Act “stating that the applicant’s mother was a citizen”.

1. The Tribunal concluded that the applicant’s mother does not meet the criteria for the definition of “eligible New Zealand citizen” within the meaning of reg.1.03 of the Regulations. The Tribunal, relying on this finding, found it was not satisfied the applicant has no near relatives other than those permitted by the Regulations and therefore does not satisfy reg.1.15(1)(c) of the Regulations.

2. Relying on its finding that the applicant does not meet the definition of a remaining relative on the basis of the applicant’s relationship with his mother, the Tribunal considered that it was not necessary to consider whether the applicant’s children are dependent on him or whether the fact that they reside in Fiji and are not Australian citizens, Australian permanent residents, or eligible New Zealand citizens would also prevent the applicant from meeting the definition of remaining relative.

3. The Tribunal was, therefore, not satisfied that the applicant is the remaining relative of an Australian relative at the time of application and at the time of decision for the purposes of cl.835.212 and cl.835.221 of Schedule 2 to the Regulations, and affirmed the delegate’s decision.

Grounds of application

1. The applicant’s application for review contains the following ground:

   The Migration Review Tribunal erred in failing to apply procedural fairness and depriving the visa applicant's sponsor her right to give evidence at the Tribunal hearing.

   Particulars

   (a) Error in not affording an opportunity for the sponsor of the visa applicant to be heard.

2. The applicant, however, relied on grounds contained in other documents that were filed with the Court. One of those documents is an affidavit made by the applicant in which he deposes as follows (errors in original):

   5. The Tribunal failed to consider the evidence submitted with regard to the dependency of my two children.

   6. I sought an adjournment of the hearing since my sister was a vital witness of my case who unable to attend the hearing. My sister was in Melbourne attending to a family emergency on the day of the hearing. Only a few days of adjournment was sought which was not allowed by the Tribunal, which I believe to be very unreasonable. The Tribunal failed to consider my request for a postponement and proceeded with the hearing in the absence of the sponsor, my sister thereby depriving my sister of her right to attend the hearing and give evidence with regard to the dependency of both children of my children who are full time students in Fiji.

3. Another document is one headed “Grounds of Appeal” which contained the following grounds:

GROUNDS OF APPEAL

1.The Decision was not authorised by the enactment in pursuance of which it was purported to be made.

2.Failure to provide natural justice in connection with the making of the Decision.

3.Failure to apply procedural fairness to the Applicant[.]

4.Failure to consider material evidence[.]

1. Finally, there is the document titled “Written Submissions of the Applicant” (AWS) which, under the heading “THE GROUND OF REVIEW” identifies the following five grounds:[22]

   a.Failure to provide natural justice in connection with the making of the Decision [.]

   b.Failure to apply procedural fairness to the Applicant [.]

   c.Failure to consider material evidence [.]

   d.Deprivation of his right to tender evidence before the Tribunal to wit [sic] deprivation of the Applicant’s Sponsor tendering evidence at the Hearing.

   e.The Decision was not authorised by the enactment in pursuance of which it was purported to be made.

   [22] AWS, [10]

2. I propose in these reasons to treat the grounds stated in the AWS as the grounds on which the applicant relies.

Ground (a) of AWS

1. In the AWS the applicant submits the Tribunal deprived him of a fair opportunity to provide evidence from the Sponsor “pertaining to his mother”.[23] The request for an adjournment the AWS appears to claim the Tribunal refused unreasonably to grant is that made by the applicant’s representative on 10 January 2016.[24] The applicant submits the Tribunal gave no reasons for its refusing the request for an adjournment.[25] The applicant submits that the adjournment was “critical” to the applicant’s case because, if granted, it would have facilitated the presence of the Sponsor to give evidence on the status of the applicant’s mother in Australia, and the dependency of the applicant’s children.[26] At the hearing before me Mr Hameed, who appeared for the applicant, submitted that by refusing to grant the adjournment the applicant was denied the opportunity to provide to the Tribunal a certificate of the sort to which the Tribunal referred in paragraph 22 of its reasons for decision, namely, “a certificate issued under the Social Security Act 1991 stating that she [the applicant’s mother] was a citizen” (Social Security Certificate).[27] Mr Hameed submitted that the importance of the existence of such a certificate was “discovered prior to the hearing, and . . . that was one of the reasons why an adjournment was sought”.[28] Mr Hameed further submitted that the Sponsor “was in the best position to submit any evidence concerning the applicant’s mother, given that she was the carer of the applicant’s mother, was privy to all her documentation, her financial documentation, the migration-related documentation, and, therefore, would be the custodian of it”.[29]

   [23] AWS, [10]

   [24] AWS, [10], stating “Vide Page 84 of the Court Book” which is a reference to the applicant’s agent’s fax of 10 January 2016.

   [25] AWS, [11]

   [26] AWS, [16]

   [27] The Tribunal omitted to complete a relevant part of this element of an “eligible New Zealand citizen” by omitting the words “[who], for the purposes of that Act,[was]  residing in Australia on a particular date”.

   [28] T14.10

   [29] T14.40

2. The difficulty with this ground, and the submissions made in support of it, is that they ignore what the evidence reveals occurred before the Tribunal. Yes, on 10 January 2016 the Tribunal refused to adjourn the scheduled hearing of 12 January 2016; but the Tribunal indicated it would consider the application for an adjournment of the hearing at the hearing itself. In substance, the Tribunal adjourned to the hearing of 12 January 2016 the consideration and determination of the applicant’s representative’s application for an adjournment. At the hearing the Tribunal explored with the applicant’s representative why the applicant said he needed an adjournment. The Tribunal acknowledged it did not have sufficient information about the claimed dependency of the applicant’s children; but the Tribunal member made it clear that this would not affect the outcome of the applicant’s application for review if the applicant’s mother was not an “eligible New Zealand citizen”. The Tribunal member then explored with the applicant’s representative the basis on which it could be said the applicant’s mother was an “eligible New Zealand citizen”. The Tribunal member put to the applicant’s representative that the applicant’s mother was not in Australia on 26 February 2001, and that the only documents the applicant’s representative had provided to the Tribunal after the delegate’s decision related to the applicant’s mother having applied for a Contributory Parent visa. The Tribunal explored what would be achieved if in these circumstances the hearing was adjourned; and the only purpose identified by the applicant’s representative was that the applicant’s mother (or perhaps the Sponsor or both) would give evidence that the mother was present in Australia before 26 February 2001. The Tribunal member said he was unable to see that anything the applicant’s mother (or perhaps the Sponsor) would say “would change the situation”, particularly because the applicant’s mother “applied for a Contributory Parent visa, which shows she is not an eligible New Zealand citizen”. The applicant’s representative did not submit to the Tribunal that the applicant’s mother or the Sponsor had documents or could have documents that were relevant to determining whether the applicant’s mother was an “eligible New Zealand citizen”. In particular, the applicant’s representative did not submit that there existed a Social Security Certificate in relation to the applicant’s mother; and there is nothing in the material before me, and the applicant has identified none, that could reasonably have suggested to the Tribunal that a Social Security Certificate had issued or may have issued in relation to the applicant’s mother. In those circumstances, the Tribunal cannot be said to have acted unreasonably in deciding not to grant an adjournment of the hearing to enable the applicant to make enquiries about the existence of the Social Security Certificate.

3. The applicant has not submitted to me the Tribunal acted unreasonably or irrationally or otherwise contrary to law by proceeding on the basis that, in the absence of documents, the Tribunal would not accept evidence the applicant’s mother (or the Sponsor) might give at a future hearing as to the applicant’s mother’s presence in Australia before 26 February 2001; nor has the applicant submitted that the Tribunal acted unreasonably or irrationally or otherwise contrary to law in proceeding on the basis that the applicant’s mother’s having applied for a Contributing Parent visa showed the applicant’s mother was not an “eligible New Zealand Citizen”.

4. I am not satisfied that the Tribunal provided no reasons for refusing to adjourn the hearing; or that the Tribunal’s reasons for decision afforded no evident or intelligible justification for the Tribunal’s decision not to adjourn the hearing. Given the applicant’s representative did not submit to the Tribunal that a Social Security Certificate existed in relation to the applicant’s mother, and the applicant has not identified any material that could reasonably have suggested to the Tribunal that such certificate had been or was liable to be issued, the Tribunal did not act unreasonably in deciding not to adjourn the matter.

5. It follows that I am also not satisfied that, by refusing to grant an adjournment of the hearing of 12 January 2016, the Tribunal failed to afford the applicant procedural fairness, or that it otherwise acted contrary to law.

6. This part of the applicant’s claims, therefore, fails.

Ground (b) of AWS

1. Although stated to be a separate ground, the AWS submits that ground (b) – “Failure to apply procedural fairness to the Applicant” - is a “necessary corollary to the argument pertaining to the deprivation of natural justice”, and “the submissions above are reiterated”.[30] For the reasons I have given for concluding ground (a) fails, I also conclude that ground (b) fails.

   [30] AWS, [24]

Ground (c) of AWS

1. This ground is described as “Failure to consider material evidence”; and the evidence it is submitted the Tribunal failed to consider is “evidence pertaining to the status of the Applicant’s mother”.[31] This appears to be intended to refer to the evidence the Sponsor would have given to the Tribunal had the Tribunal adjourned the hearing, as requested by the applicant’s representative on 10 January 2016. That is confirmed by the applicant’s submission that the Sponsor was “best positioned to provide evidence on the status of the Applicant’s mother vis-à-vis the Social Security Act and any certificate provided in terms of it”.[32] The applicant submits the Tribunal’s decision not to adjourn the hearing amounted to an unreasonable exercise of its discretion which deprived the applicant of an opportunity to present evidence from the Sponsor.[33]

   [31] AWS, [25]

   [32] AWS, [27]

   [33] AWS, [35]

2. This part of the AWS in substance repeats the submissions it had previously made in relation to the Tribunal’s decision not to grant the applicant’s request for an adjournment. For the reasons I have given, am not satisfied that, by refusing to grant an adjournment of the hearing of 12 January 2016, the Tribunal failed to afford the applicant procedural fairness, or that it otherwise acted contrary to law. Further, this ground assumes the Sponsor was in a position to give evidence about the existence of a Social Security Certificate, which, in turn, assumes that such certificate existed at the relevant time. There is nothing before me that suggests that these assumptions are correct.

3. There is a final matter to note. The applicant has not given any evidence that the Social Security Certificate exists or has ever existed. I asked Mr Hameed whether such a certificate in fact exists. He did not give me a direct answer. After some discussion Mr Hameed only said that “we would be more than willing to submit whatever material evidence that is available”.[34] That is as good as stating that no Social Security Certificate exists or has ever existed. That is consistent with the evidence before me. The delegate in their decision noted no Social Security Certificate had been issued; and had such certificate existed, it would surely have been provided to the Tribunal.

   [34] T46.40

4. I find, therefore, that no Social Security Certificate was ever issued in relation to the applicant’s mother. The relevance of this finding is that if, contrary to what I have concluded, the Tribunal made a jurisdictional error by not adjourning the hearing before it to afford the Sponsor an opportunity to give evidence of the existence of Social Security Certificate, relief should be withheld because had the Tribunal granted the adjournment for the purpose of the Sponsor giving evidence of the existence of the Social Security Certificate, the Sponsor would have been unable to give evidence of the existence of the certificate, or that any such certificate had ever been issued.

5. Ground (c) of the AWS, therefore, fails.

Ground (d) of AWS

1. By this ground the applicant submits that “significant errors in interpretation occurred at the” hearing before the Tribunal,[35] and that this effectively negated the applicant’s opportunity to a meaningful hearing.[36] The AWS identifies the claimed errors. The AWS refers to two authorities concerning the circumstances in which interpretation errors may affect the validity of a hearing before the Tribunal. It would be appropriate if I simply refer to the judgments of Allsop CJ and Robertson J in SZRMQ v Minister for Immigration and Border Protection.[37] In that case, the Full Court considered the significance of interpretation errors in hearings to which the common law duty of procedural fairness applied. Allsop CJ said: [38]

   [5] Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.

   . . .

   [9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair.

   [35] AWS, [41]

   [36] AWS, [45]

   [37] [2013] FCAFC 142

   [38] [2013] FCAFC 142 at [5], [9], and [10]

2. It will be seen from the last two sentences of this passage that his Honour did not consider that, at least in the case of procedural fairness at common law, it was necessary to show a causal connection between the mistranslation and the decision-maker’s actual reasoning for a mistranslation to render the process unfair. His Honour repeated this point with greater emphasis in the following passage:[39]

   Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.

   In those circumstances, while it can be put that administrative justice must be seen to be done, the preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.

   [39]SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [24]-[25]

3. Similar views were expressed by Robertson J:[40]

   Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.

   The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.

   If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.

   [40] [2013] FCAFC 142 at [67]-[69]

4. In SZSEI v Minister for Immigration and Border Protection Griffiths J said that these observations apply equally to hearings conducted under s.425 (which is equivalent to s.360) of the Act.[41]

   [41] [2014] FCA 465 at [71]

5. Before I identify the translation errors the applicant submits occurred at the hearing before the Tribunal, it will be necessary to describe how the AWS seeks to establish the translation errors. As I have already noted, there is in evidence a transcript. The transcript was prepared by a paralegal employed by the applicant’s solicitor.[42] The paralegal deposes she is fluent in both the English and Hindi languages; that she has listened to the “audio digital copy of the Hearing of the Administrative Appeals Tribunal”, and that she “transcribed the sound recording”, noting that she “translated the Hindi words to English words”.

   [42] Affidavit of A Khatri

1. The first translation error is said to occur in the following exchange as recorded in the transcript:[43]

   [43] Affidavit of A Khatri, page 6.28

   [Tribunal]:. . . and your two children who – who were not part of the application.

   Interpreter:   And her three children, who aren’t a part of the application

2. On its face, this reveals a mistranslation of the Tribunal’s member’s statement of there being two children. A few statements later, however, the Tribunal asks the same question, but it is interpreted correctly.[44]

   [44] Affidavit of A Khatri, page 7.2: “And the two children you have weren’t a part of it, of your application”.

3. The second translation error is said to occur in the following passage:[45]

   [45] Affidavit of A Khatri, page 14.11

   [Tribunal]:When did she file that?

   Interpreter:   How far did her application go?

   [Applicant]:    Uh.

   Interpreter:   Tell me clearly.

   [Applicant]:    It’s already lodged.

4. This appears to disclose an error in translation, but it did not lead to the applicant misunderstanding what the Tribunal member had asked, because the applicant answered the question himself in English without the aid of the interpreter. The passage that immediately follows this part of the transcript reveals further questions and answers which resulted in the applicant stating that the document that was the subject of the Tribunal’s questions – the applicant’s mother’s application for a Contributory Parent Migration visa – was lodged in April 2015.[46]

   [46] Affidavit of A Khatri, page 14.21

5. The third interpreting error is said to occur in the following passage:[47]

   [47] Affidavit of A Khatri, page 15.8

   [Tribunal]: That they do not fall within the definition of relatives considered outside Australia.

   Interpreter:   You are not under relatives who are outside Australia.

6. The fourth interpreting error is said to occur in the following passage:[48]

   [Tribunal]:Now, you’ve now claimed that your children are dependent.

   Interpreter:   But, you have now – you have said in that, that your two sons can live by themselves. They are ‘independent’.

   [48] Affidavit of A Khatri, page 16.7-16.8

7. This, on its face, is an obvious error where “dependent” was interpreted as “independent”.

8. The fifth interpreting error is said to occur in the following passage:[49]

   [49] Affidavit of A Khatri, page 16.13-16.15

   [Tribunal]:But there only needs to be one relative who does not meet the definition, whereby you wouldn’t meet the definition of a remaining relative.

   Interpreter:   There should only be one relative who doesn’t fulfil it for you to get the Visa.

9. Although not particularly clear, I would not consider this passage to reveal any interpretation error. The apparent lack of clarity does not appear to have caused any confusion on the part of the applicant because the applicant did not ask that there be any clarification in what the interpreter said. One possible reason for that is that it is apparent from the transcript that the applicant had some understanding of English and it may be that the applicant understood what the Tribunal member said in English.

10. The sixth interpreting error is said to occur in the following passage:[50]

    [Tribunal]:Now, there’s nothing before me to indicate that she was living in Australia on the 26^th of February 2001.

    Interpreter:   And the information I have with me doesn’t show that she has been here since January 2001.

    [50] Affidavit of A Khatri, page 16.25-16.27

11. The seventh interpreting error is said to occur in the following passage (errors in original):[51]

    [Tribunal]:Now, if that’s the case, then at the time the application was filed, you had – your mother did not meet the definition of somebody who would not be taken into account.

    Interpreter:   And that why, for your application, we can’t count your mother in the application.

    [51] Affidavit of A Khatri, page 17.3-17.27

12. In my opinion, the substance of what the Tribunal member said was accurately interpreted by the interpreter.

13. The eighth, and final, interpreting error is said to occur in the following passage: [52]

    [Tribunal]:the fact that your mother is a New Zealand citizen,

    Interpreter:   your mother, who isn’t a New Zealand citizen.

    [52] Affidavit of A Khatri, page 16.25-16.27

14. This, too, is a translation error.

15. In the AWS the applicant submits that these errors “effectively [negate] the applicant’s opportunity to a meaningful hearing”.[53] The AWS does not state how these errors had such an effect. It is not submitted the errors caused the applicant to say something he would not have said or failed to say something he would have said, had the interpretation errors not occurred. In his oral submissions, Mr Hameed submitted as follows:[54]

    the point I wish to make is that these are indicative of the lack of clarity in the document and, therefore, it casts doubt as to the integrity of the interpretation.

    [53] AWS, [45]

    [54] T27.35

16. The difficulty with this submission is that save for those parts of the audio recording which the person who prepared the transcript could not understand, the entire hearing is recorded in the transcript; and if there were errors, other than those which are identified in the AWS, they would have been identified. That no further errors have been identified is basis for not drawing the inference that the errors identified cast doubt on the entire integrity of the interpretation of the proceeding before the Tribunal.

17. In any event, it is plain from the transcript that the interpreter correctly interpreted the matters the Tribunal member indicated were the central difficulties in the applicant’s case, namely, that the applicant’s mother appeared not to be an “eligible New Zealand citizen” and the reasons why the applicant’s mother might not be an “eligible New Zealand citizen”. Further, the Tribunal member explained this issue once to the applicant,[55] once to the applicant’s representative,[56] and once again to the applicant.[57] The errors identified in the AWS occurred in the first of the three explanations. No errors of translation are said to have occurred in the second and third explanations. Finally, the applicant appears to have understood what the Tribunal member had said, whether or not there were any translation errors. That is clear from the applicant’s response to the Tribunal member’s asking whether the applicant wished to say anything further about his application. The applicant said: “Okay. We will write to the Minister”.[58]

    [55] Affidavit of A Khatri, pages 16.17-17.22

    [56] Affidavit of A Khatri, pages 16.24-20.10

    [57] Affidavit of A Khatri, pages 20.14-21.18

    [58] Affidavit of A Khatri, page 21.32

18. For these reasons, ground (d) of the AWS also fails.

Ground (e) of AWS

1. This ground claims the Tribunal’s decision “was not authorised by the enactment pursuant to which it was purported to be made”. The submission that appears to be made in the AWS is that a person would qualify as an “eligible New Zealand citizen” within the meaning of reg.1.03 of the Regulations if the applicant has a Social Security Certificate. That may be accepted; but the applicant does not submit he submitted to the Tribunal, or that there was material on the basis of which it was reasonable to expect that the Tribunal ought to have understood that the applicant submitted to the Tribunal, that a Social Security Certificate had been issued or may have been issued in relation to the applicant’s mother.

2. It appears that the applicant makes this submission because he wishes to submit that by the Tribunal refusing to grant the applicant the adjournment the applicant’s representative had sought, the Tribunal deprived the applicant from obtaining such a Social Security Certificate. As I have already concluded, however, given the applicant’s representative did not submit that there existed a Social Security Certificate in relation to the applicant’s mother; and there is nothing in the material before me, and the applicant has identified none, that could reasonably have suggested to the Tribunal that a Social Security Certificate had issued or may have issued in relation to the applicant’s mother, the Tribunal did not act unreasonably in deciding not to grant an adjournment of the hearing to enable the applicant to make enquiries about the existence of the Social Security Certificate.

3. Ground (e) of the AWS, therefore, also fails.

Other matters

1. For completeness I should refer to the other documents which may be interpreted as stating grounds on which the Tribunal made a jurisdictional error. First, there is the ground stated in the application for review. That ground is covered in at least grounds (a), (b), and (c) of the grounds stated in the AWS which I have already considered.

2. Second there is the applicant’s affidavit, the relevant parts of which I have reproduced in paragraph 23 of these reasons, in which the applicant stated the Tribunal did not consider the applicant’s evidence concerning the dependency of his children, and that, by refusing the applicant’s request for adjournment, the applicant was denied the opportunity of having the Sponsor appear before the Tribunal to “give evidence with regard to the dependency of both children of my children [sic] who are full time students in Fiji”. It is true the Tribunal did not consider the dependency of the applicant’s children on the applicant. That, however, does not reveal any jurisdictional error because, as the Tribunal stated to the applicant and his representative at the hearing, there only needed to be one relative who did not meet the definition of a “remaining relative”, and that, because the applicant’s mother did not meet the definition of “eligible New Zealand citizen”, the applicant did not meet the definition of “remaining relative”. As I have also noted, relying on its finding that the applicant does not meet the definition of a “remaining relative” on the basis of the applicant’s relationship with his mother, the Tribunal considered that it was not necessary to consider whether the applicant’s children are dependent on him or whether the fact that they reside in Fiji and are not Australian citizens, Australian permanent residents, or eligible New Zealand citizens would also prevent the applicant from meeting the definition of “remaining relative”. The Tribunal made no jurisdictional error by adopting this approach

3. Third, there is the “Grounds of Appeal”. The first three of the four grounds are expressed in such generality that I have taken them to have been the subject of the grounds stated in the AWS which I have already considered. Ground 4 – the failure to consider material evidence – appears to be the same as ground (e) in the AWS. To the extent it is intended to be broader, however, it discloses no jurisdictional error because it does not identify the material evidence the Tribunal is said to have overlooked.

Disposition

1. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  1 June 2018