Rahimi v Minister for Immigration

[2016] FCCA 255

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHIMI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 255

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – other Family (Migrant) (Class BO) visa – whether the Tribunal’s findings lacked an evident and intelligible justification – whether adverse credit findings by the Tribunal amounted to a denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 reg.1.15(1)(c)

Applicant: FAZEL KARIM RAHIMI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2672 of 2015

Judgment of: Judge Street

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Sydney

Delivered on: 11 February 2016

REPRESENTATION

Solicitors for the Applicant: Mr Daawar
Ariana Defence Lawyers

Solicitors for the Respondents: Ms K Hooper
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2672 of 2015

FAZEL KARIM RAHIMI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision not to grant the applicant’s Other Family (Migrant) (Class BO) visa.

2. The primary visa applicant lodged an application for an Other Family (Migrant) (Class BO) visa on 10 January 2010 on the basis that he was the remaining relative of the sponsor.  The sponsor is the visa applicant’s father.  The sponsor is an Australian citizen and is the applicant to the Court in these proceedings. 

3. The delegate of the Minister refused a visa application on 30 June 2014.  That adverse finding was made in part on inconsistent and adverse evidence obtained during the interviews.  The delegate was not satisfied that the claims that the applicant’s wife’s parents and siblings were deceased and that the wife had no near relatives were accurate.  The delegate did not accept as satisfactory a death certificate purporting to confirm the death of the family members.  The delegate noted that information recorded on such documents was generally based on information provided by the person who requested it. 

4. The applicant applied for a review on 22 August 2014.  The Tribunal did not accept the oral evidence of the visa applicant or his father at the hearing and provided reasons which were open on the material before the Tribunal. Those adverse findings cannot be said to lack inevitable and intelligible justification for rejecting the evidence as to the assertion of no remaining relatives in Afghanistan. 

5. The Tribunal, on the evidence before it, found that it was not satisfied that the applicant’s spouse had no near relatives in Afghanistan.  That finding was open on the material before the Tribunal.  It was in those circumstances that the Tribunal found that the requirements of reg.1.15(1)(c) of the Migration Regulations 1994 was not met. 

6. The balance of the application are as follows:

A. Visa Applicant being the Remaining Relative of an Australian Relative (being the son of the Applicant for Review) and has no other 'near relatives' other than those permitted by regulations.

1. Breach of Procedural Fairness

The First and Second Respondent had breached procedural fairness in particular the "No Evidence Rule" as did not act fairly in reaching to the unreasonable decision did not accepting the evidentiary evidence and statement of all relevant person who gave evidence (written and oral) in support of this visa application. The decision makers did not put sufficient weight to those evidence in reaching their decision. The decision makers had no real insight of the relevant factors and information and were not aware of the administrative procedure in relation to the death certificate and the culture, way of life, security and political circumstance and religion in Afghanistan particularly in regards to Pashtoons way of tribal life. The decision was based on the decision makers’ subjective opinion in absence of relevant country information.

This decision was taken in the absence of any logically probative adverse evidence or information as required by the principle of Procedural Fairness.

The Second Respondent failed to correct the failure and error of the First Respondent and affirm his/her decision and made the same error as the First Respondent and consequently breached the rule of Procedural Fairness.

Particulars:

First and Second Respondent had breached the rule of procedural fairness in particular not finding applicants being the remaining relative of an Australian relative and has no other near relatives other than those permitted by the regulations required by cl.115.211 and cl.115 .221 and consequently criteria for a Subclass 115 Visa under the Migration Act.

First and Second Respondent did not accept the death certificate issued by a Court of law in Afghanistan and certified by the Ministry of Foreign Affairs of Afghanistan while this is the on ly way to get a death certificate or confirmation of an individual's death in Afghanistan unless the person dies in hospital and the hospital record the death and provide a hospital death certificate. There is not such an institution equivalent to our "Birth Death and Marriage Registry" in Afghanistan and decision makers did not understand this as a fact even being informed. The decision makers reach to conclusion in the absence of any probative evidence not finding that the visa applicant has no other near relatives other than those permitted by the regulations and consequently not finding being the remaining relative of an Australian relative.

First and Second Respondent did not accept the written and oral statements of relevant persons who give statement under oath or affirmation of in Statutory Declaration form. The visa applicant, his spouse and his father who is an Australian relative of the visa applicant gave written and oral evidence but the First and Second Respondent did not accept their evidence entirely claiming those evidence did not reach a level of specificity and accordingly did not put sufficient weight in reaching their decisions. First and Second Respondent did not accept those evidence in the absence of any adverse information and even country relevant to the administrative structure, geography, culture, the way of life and security situation in Afghanistan.

There is no logic in this decision arid it is baseless and strongly unfair. An unbiased and fair decision maker will not come to that conclusion have in mind the factual circumstance of the case and in the absence of any contrary probative evidence. This constitutes a breach of procedural fairness.

Likewise the Second Respondent failed to correct the failure of upholding the procedural fairness of the First Respondent and affirms the decision of the First Respondent.

1. The substance of the argument sought to be developed by the solicitor for the applicant was in essence a no evidence ground.  That proposition is clearly without substance as it was the evidence advanced on behalf of the visa applicants that the Tribunal did not accept.  Those adverse findings were open on the material.  This is not a no evidence case and whilst the solicitor for the applicant endeavoured to develop reasons why a different decision may have been open and that other questions may have been asked, that does not amount to jurisdictional error or establish that the finding of the Tribunal was unreasonable or irrational. 

2. To the extent that the grounds suggest that there was some denial of procedural fairness, that assertion has no foundation.  It is clear that there was a genuine hearing and the adverse credit findings by the Tribunal do not manifest a denial of procedural fairness.  Further, it was a matter for the Tribunal what weight to give the death certificate that was tendered.  No jurisdictional error is made out by reason of the fact that the Tribunal did not accept the visa applicant’s evidence and that of the review applicant in relation to the assertion that there were no near relatives in Afghanistan.  That was a matter for the Tribunal to decide.  This Court does not have jurisdiction to make fresh findings of fact.  The application fails to make out any jurisdictional error.  The application is dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 February 2016