Tafokitau v Minister for Immigration
[2015] FCCA 1640
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAFOKITAU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1640 |
| Catchwords: MIGRATION – Application seeking review of a decision of Migration Review Tribunal to refuse to grant Family (Residence) (Class BU) visa – whether Tribunal committed error in its consideration of whether visa applicant was an aged dependent of review applicant to satisfy relevant visa criterion – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 351 Migration Regulations 1994 (Cth), regs.1.03, 1.05A(1)(a), 1.05(1)(b) cll.838.212, 838.221 of Sch.2 |
| Armah v Government of Ghana [1968] AC 192 Attorney-General (NSW) v Quin(1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 British Oxygen Co v Minister of Technology [1971] AC 610 Federal Commissioner of Taxation v Broken Hill SouthLtd (1941) 65 CLR 150 Hindi v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 1 Khan & Ors v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12 Neat Domestic Trading Pty Ltd v AWB Ltd & Anor (2003) 216 CLR 277 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 R v Murray; Ex parte Proctor (1949) 77 CLR 387 SBAP v Refugee Review Tribunal [2002] FCA 590 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 SCAS of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Shumilov & Anor v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 487 SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 |
| Applicant: | FOLOLENI NAITINGIKELLI TAFOKITAU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1683 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams on a direct access basis. |
| Solicitor for the First Respondent: | Ms A. Carr of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1683 of 2014
| FOLOLENI NAITINGIKELLI TAFOKITAU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 18 June 2014 by the applicant, Fololeni Naitingikelli Tafokitau (the “review applicant”), seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member P. Wearne on 14 May 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant Ofa Kavafolau, the review applicant’s mother (the “visa applicant”) a Family (Residence) (Class BU) visa.
The representatives of the Minister filed on 31 July 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book and Minister’s written submissions. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The visa applicant is a female citizen of Tonga, born on 9 September 1933. The visa applicant first arrived in Australia on 1 May 2003 as the holder of a Sponsored Family Visitor (Class UL) Subclass 679 visa (CB 27-36). The review applicant is the visa applicant's daughter who has been an Australian permanent resident since June 2011.
The visa applicant applied for an Other Family (Residence) (Class BU) Subclass 838 visa on 19 July 2011, on the basis that she was an aged dependent relative of the review applicant (CB 1-26). The application was refused by a delegate of the Minister, on 24 May 2013 (CB 106-109).
The review applicant applied to the Tribunal for review of the delegate's decision on 12 June 2013 (CB 110-121). The visa applicant gave oral evidence before the Tribunal on 8 May 2014. The review applicant, the review applicant's husband and Sela Pulu, the visa applicant's daughter residing in Tonga, gave oral evidence before the Tribunal (CB 147).
The Tribunal handed down its decision on 15 May 2014 (CB 158-159).
Tribunal’s Decision
The issue before the Tribunal was whether the visa applicant was an aged dependent relative of the review applicant, for a reasonable period, at the time of the visa application and at the time of decision (CB 163 at [13]).
The Tribunal found that the visa applicant was a relative of the review applicant and did not have a spouse or de facto partner (CB 164 at [26]-[27]). Consequently, the Tribunal found that the visa applicant met subparagraph (a) of the definition of “aged dependent relative”, pursuant to reg.1.03 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”) (CB 164 at [27]).
The Tribunal accepted that, since the death of the visa applicant's husband in 1999, she had resided with her daughter in Tonga and, since her last arrival in Australia, she had resided with the review applicant (CB 164 at [30]). However, the Tribunal noted that there was no supporting financial documentation from banks or financial institutions, nor had any calculations been provided in respect of expenses for food, clothing and shelter (CB 165 at [33]). Consequently, the Tribunal was not satisfied that, the visa applicant wholly or substantially relied on the review applicant for her basic needs or that the reliance on the review applicant was greater than any other person (CB 165 at [35]-[37]).
Consequently, the Tribunal found that the visa applicant did not meet the definition of subparagraph (b) of the definition of 'aged dependent relative' and affirmed the decision under review (CB 166 at [39], [41]).
Current Proceedings
The application (as amended on 30 June 2014) pleads the following seven grounds of review:
1. Jurisdictional Error – Misapplication of law or failure to ask the correct question
The Second Respondent has misconstrued or misapplied the applicable law, or has otherwise failed to ask itself the correct question.
Particulars
(a) The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied on the evidence presented that the applicant was an aged dependent relative at the time of the visa application.
2. Error
The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.
Particulars
(a) There was no evidence that it is Mrs Tafokitau’s funds that Mrs Kavafolau is reliant on to meet her basic needs, and her reliance on Mrs Tafokitau for this is more than on any other person or source of support.
(b) In respect of the other visa subclasses there is not material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
(c) The definition of ‘aged dependent relative’ was not met at the time of application and the time of decision.
3. The Failure to take into account Relevant Consideration
The Second Respondent failed to take into [account] relevant considerations in the exercise of power.
Particulars
(a) Mrs Tafokitau and another son reside in Australia.
(b) Mrs Kavafolau has been diagnosed with rectal cancer and had an operation on 20 January 2011. She continues medical check-ups.
(c) Mrs Kavafolau has been financially dependent on Mrs Tafokitau for the last 25 years.
(d) Mrs Tafokitau has stayed in Australia between 1995 and 2004 and that she and her husband migrated to Australia in 2006 on permanent residency visas that were granted in 2005.
(e) Mrs Tafokitau is willing to sponsor her mother and to accept all the costs and responsibilities that are required in sponsoring her to come and live in Australia.
(f) Mrs Tafokitau and her husband have been supporting her mother, since her father passed away in February 1999.
(g) In December 2010, Mrs Kavafolau started to complain about abdominal pain and she collapsed whilst in Australia, with tests revealing she had rectal cancer.
(h) Mrs Kavafolau had an operation in January 2011, which was costly and they are still paying hospital bills.
(i) Mrs Kavafolau is required to visit a specialist every three months or so.
(j) Mrs Kavafolau has never overstayed her visa in the different times that she has visited Australia.
(k) Documents submitted to the Department included a letter from Sydney Colorectal Services dated 22 March 2011 confirming that Mrs Kavafaolau was diagnosed with rectal cancer in November 2010 and had radiotherapy in November-December 2010.
(l) An abdominal perennial exorcism for rectal cancer was performed on 22 January 2010. Mrs Kavafolau now has a permanent colostomy and is recovering from the operation. She requires ongoing medical check ups.
(m) An opinion of the Medical Officer of the Commonwealth report dated 3 May 2013 indicated that Mrs Kavafolau had been assessed against the public interest criterion 4005 and she met the health requirement for permanent stay.
(n) An undated statutory declaration made by Mrs Kavafolau stated that she has no entitlement to any sort of pension or allowance from and government agencies in Tonga or Australia. Mrs Kavafolau has been dependent on her daughter and her daughter’s family since her husband passed away in 1999.
(c) The Tribunal accepts that Mrs Kavafolau is not in receipt of a pension from the government in Tonga or Australia. However, it accepts she was required to pay overnight fees at the hospital.
(p) Mrs Kavafolau and Mrs Pulu gave [consistent] evidence that Mrs Kavafolau had stayed with Mrs [Pulu] from the time her husband died in 1999 until she came to Australia in 2010.
(q) Mrs Pulu gave evidence that Mrs Tafokitau sent money to Mrs Pulu’s bank account in Tonga from Australia to provide for Mrs Kavafolau’s needs.
(r) Following the hearing the representative submitted evidence that Mrs Kavafolau’s accounts at South Eastern Laboratories had been paid. There is also evidence that Mrs Tafokitau is Mrs Kavafolau’s guarantor in regard to payment for health services as an inpatient in December 2013.
(s) A letter dated 9 May 2013 indicates that Mrs Kavafolau’s debt with south-eastern Local Health District remains outstanding and that Mrs Tafokitau is noted to be her guarantor for the remaining amount.
(t) In a statutory declaration made on 19 July 2011 Mrs Tafokitau requested condition 8503 to be removed from Mrs Kavafolau’s visa so she could apply for an Age Dependent Relative visa “and remain under the care of us in Australia”. A case note dated 19 July 2011 on the Department file indicated that condition 8503 was waived, Department file, folio 124.
(u) The Tribunal accepted that Mrs Tafokitau is caring for her mother, and is responsible for her, and has taken charge of her well being.
4. Without regard to the merits
The Second Respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
Particulars
(a) For the reasons particularised in grounds 1 to 4.
5. Bad Faith
The Second Respondent exercised a discretionary power in bad faith.
Particulars
(a) For the reasons particularised in grounds 1 to 4.
6. Unreasonableness
The Second Respondent exercise[d] power in a manner that is so unreasonable that no reasonable person could have so exercised the power.
Particulars
(a) No reasonable repository or power acting with due appreciation of their responsibilities would have so decided.
(b) The Second Respondent failed to give adequate weight to relevant factors of great importance.
(c) The Second Respondent gave excessive weight to irrelevant factors of no importance.
(d) There was no evidence to base the decision.
(e) The Second Respondent reasoned illogically or irrationally.
(f) The decision to refuse the visa is a disproportionate response by reference to the scope of the power.
(g) The decision to affirm the decision by the delegate lacks evident and intelligible justification.
(h) For the reasons particularised in grounds 1 to 7.
Review Applicant’s Submissions
Ground 1
The Tribunal has either misinterpreted, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.
An administrative body will commit an error of law in reaching a decision where it either misinterprets a statutory provision or misunderstands or misapplies a principle of general law. As Starke J observed in Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, a question of law arises if there was no material to justify the meaning given to the relevant words of the statute (at [155]). Misinterpretation may mean that an incorrect legal test was applied, which may result in a decision based on an absence of material to support conclusions of fact (see R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100; Armah v Government of Ghana [1968] AC 192).
The Tribunal wrongly concluded at [40] that it was not satisfied that the applicant is the aged dependent relative of an Australian relative at the time of the application and at the time of the decision for purposes of cl.838.212 and cl.838.221.
According to cl.838.212, the criteria to be satisfied at the time of the application on 19 July 2011, is that the applicant is an aged dependent relative of an Australian relative.
According to cl.838.221, the criteria to be satisfied at the time of the decision, is that the applicant continues to satisfy the criterion in cl.838.212.
According to the Migration Regulations, regulation 1.05A(1)(a), a dependent is defined as:
(a) … a person is dependent on the other person:
(i) if the person is and has been for substantial period immediate before that time, wholly or substantially reliant on the other person for financial support to meet basic needs for food clothing and shelter; and
(ii) if the person’s reliance on the other person is greater than any reliance by the first person on any other person relative was greater than their reliance on any other person or source of support; or
(b) the person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
At [8] of the Decision Record, in Statutory Declaration made on 19 July 2011, Mrs Tafokitau requested condition 8503 to be removed from Mrs Kavafolou’s visa so she could apply for an Age Dependent Relative visa, ‘and remain under the care of us in Australia.’ Department records indicate that Mrs Tafokitau was granted an AN121 visa in August 2005.
At [9], documents submitted to the Department included a letter from Sydney Colorectal Associates, dated 22 March 2011, confirming that Mrs Kavafolau was diagnosed with rectal cancer in November 2010 and had radiotherapy in November-December 2010. An abdominal perennial exorcism for rectal cancer was performed on 22 January 2010. She now has a permanent colostomy and is recovering from the operation. She requires regular ongoing medical check-ups.
At [10], the report of the Medical Officer of the Commonwealth dated 3 May 2013 found that Mrs Kavafolau had been assessed against the public interest criterion 4005 and she met the health requirement for permanent stay.
At [11], an undated statutory declaration made by Mrs Kavafolau stated that she has no entitlement to any sort of pension or allowance from any government agencies in Tonga or Australia. She has been dependent on her daughter and her daughter's family since her husband passed away in 1999.
At [30], the Tribunal accepted that ‘at the time the visa application was made in July 2011,’ that ‘Mrs Kavafolau was residing with the applicant and her family, and that she had been since her arrival in Australia in September 2010 (apart from her stay in hospital).’
At [38], the Tribunal accepted that the ‘applicant is caring for her mother’ and ‘responsible for her and has taken charge of her well-being.’
However, in the same paragraph, the Tribunal incorrectly found there was ‘no evidence’ that it is the applicant’s ‘funds that Mrs Kavafolau is reliant on to meet her basic needs.’
The Tribunal thereby misinterpreted or misapplied the law or asked itself the wrong question in two regards.
First, Mrs Kavafolau was, by the Tribunal’s own admissions, a person who is and has been for substantial period, wholly or substantially reliant on the other person for financial support to meet basic needs for food clothing and shelter; and that reliance is greater than any other person as per r 1.05A(1)(a) of the Migration Regulations.
Second, Mrs Kavafolau was, by the Tribunal’s own admissions, wholly or substantially reliant on her daughter, the applicant, for financial support because Mrs Kavafolau is incapacitated for work due to her rectal cancer and the total or partial loss of her bodily or mental functions as per r 1.05A(1)(b) of the Migration Regulations.
As such, the Tribunal has either misinterpreted, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question and has therefore erred by finding that the applicant was not an aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cl.838.212 and 838.221 of the Migration Regulations.
Ground 2
There was no evidence or other material to justify the making of the decision by the Tribunal, or the Tribunal relied on facts, which did not exist. As Mason CJ observed in Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 355-356, the law has always recognized that the existence or otherwise of evidence to support a factual conclusion is a question of law. So the making of findings and the drawing of inferences in the absence of evidence will constitute an error of law at [355].
There was no evidence, or the Tribunal relied on facts that did not exist, to find at [37], that Mrs Kavafolau did not rely wholly or substantially on Mrs Tafokitau for her basic needs or that the reliance on Mrs Tafokitau was more than her reliance on any other person at the time of the visa application.
There was no evidence, or the Tribunal relied on facts that did not exist, to find at [38], that there was no evidence that ‘it is Mrs Tafokitau’s funds that Mrs Kavafolau is reliant on to meet her basic needs,’ and ‘her reliance on Mrs Tafokitau is more than on any other person or source of support.’
There was no evidence, or the Tribunal relied on facts that did not exist, to find at [39], that ‘subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application and the time of decision.’
There was no evidence, or the Tribunal relied on facts that did not exist, to find at [40], that ‘the definition of ‘aged dependent relative’ was not met at the time of application and at the time of decision.
As such, there was no evidence, or the Tribunal relied on facts that did not exist and has therefore erred by finding that, the applicant was not an aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cll.838.212 and 838.221 of the Migration Regulations.
Ground 3
The Tribunal failed to take into account relevant considerations in the exercise of power, Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24. The ground will only be made out where the decision-maker fails to take into account a consideration, which he or she was bound to take account of in a reaching a decision (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 374 per Deane J). If the statute is merely inclusive or silent, it will be necessary to determine what considerations are impliedly specified by the statute by having regard to the subject matter, scope and purpose of the legislation (see Peko-Wallsend (supra) at [40]).
The Tribunal failed to take into account relevantly, an undated statutory declaration made by Mrs Kavafolau stating that she has no entitlement to any sort of pension or allowance from any government agencies in Tonga or Australia. As such, Mrs Kavafolau has been financially dependent on Mrs Tafokitau since her husband passed away in 1999.
The Tribunal failed to take into account relevantly, the letter from Sydney Colorectal Associates, dated 22 March 2011, confirming Mrs Kavafolau was diagnosed with rectal cancer in November 2010 and had radiotherapy in November-December 2010. An abdominal perennial exorcism for rectal cancer was performed on 22 January 2010. Mrs Kavafolau now has a permanent colostomy and is recovering from the operation. She requires regular ongoing medical check-ups.
The Tribunal failed to take into account relevantly, the statutory declaration made on 19 July 2011, by Mrs Tafokitau requesting the removal of condition 8503 from Mrs Kavafolau’s visa so she could apply for an Age Dependent Relative visa “and remain under the care of us in Australia.” Department records indicate that Mrs Tafokitau was granted an AN121 visa in August 2005.
The Tribunal failed to take into account relevantly, the report by the Medical Officer of the Commonwealth, dated 3 May 2013, which assessed Mrs Kavafolau against the public interest criterion 4005 and found that she met the health requirement for permanent stay.
The Tribunal failed to take into account relevantly, the supplementary evidence provided by the representative after the hearing that Mrs Kavafolau's accounts at South Eastern Area Laboratories had been paid. There was also evidence that Mrs Tafokitau is Mrs Kavafolau’s guarantor in regard to payment for health services as an inpatient in December 2013.
The Tribunal failed to take into account relevantly, a letter dated 9 May 2014, which indicates that Mrs Kavafolau’s debt with south-eastern Local Health District remains outstanding and that Mrs Tafokitau is noted to be her guarantor for the remaining amount.
These factors were significant and materially affected the decision. The Tribunal was required to give proper, genuine and realistic consideration to the merits of the case and failed to do so (Khan & Ors v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291. Phrases to the effect that ‘relevant material has been noted’ or ‘has been read’ do not, in themselves indicate that the decision maker has given proper consideration to the merits before them (Hindi v Minister for Immigration and Ethnic Affairs (1987) 20 FCR 1). Moreover, in failing to properly consider these factors, the Tribunal failed to have regard to the subject, scope and purpose of the legislation (see Peko-Wallsend (supra) at [40]).
As such, the Tribunal failed to take into account relevant considerations, which it was bound to do and has therefore erred by finding that the applicant was not an aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cll.838.212 and 838.221 of the Migration Regulations.
Ground 4
The Tribunal exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case, British Oxygen Co v Minister of Technology [1971] AC 610 (see Neat Domestic Trading Pty Ltd v AWB Ltd & Anor (2003) 216 CLR 277 at 320 per Kirby J). Decision makers must not blindly apply rules or policies. Rather, they must give genuine and realistic consideration to the merits of the matter before them. This means they must keep an open mind for the exceptional case (Neat Domestic Trading v AWB (supra) at 324), and give proper consideration to any argument advanced as to why the policy or rule should not be applied (British Oxygen Co v Minister of Technology (supra)). In some instances, there may be a fine line between what constitutes lawful and appropriate regard to a policy and a failure to have proper regard to the merits (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 200).
Mrs Ofa Kavafolau is an 80-year-old Tongan citizen suffering from rectal cancer. She has been a widow since February 1999. The sponsor is one of her daughters, Mrs Fololeni Naitingikelli Tafokitau. She is 57 years old and has been an Australian permanent resident since June 2011.
In the Statutory Declaration made on 19 July 2011, Mrs Tafokitau requested condition 8503 to be removed from Mrs Kavafolou’s visa so she could apply for an Age Dependent Relative visa, ‘and remain under the care of us in Australia.’ Department records indicate that Mrs Tafokitau was granted an AN121 visa in August 2005.
Documents submitted to the Department included a letter from Sydney Colorectal Associates, dated 22 March 2011, confirming that Mrs Kavafolau was diagnosed with rectal cancer in November 2010 and had radiotherapy in November-December 2010. An abdominal perennial exorcism for rectal cancer was performed on 22 January 2010. She now has a permanent colostomy and is recovering from the operation. She requires regular ongoing medical check-ups. The report of the Medical Officer of the Commonwealth dated 3 May 2013 found that Mrs Kavafolau had been assessed against the public interest criterion 4005 and she met the health requirement for permanent stay.
In an undated statutory declaration made by Mrs Kavafolau, she stated that she has no entitlement to any sort of pension or allowance from any government agencies in Tonga or Australia. She has been dependent on her daughter and her daughter's family since her husband passed away in 1999.
At [30], the Tribunal accepted that ‘at the time of the visa application was made in July 2011,’ that ‘Mrs Kavafolau was residing with the applicant and her family, and that she had been since her arrival in Australia in September 2010 (apart from her stay in hospital).’At [38], the Tribunal accepted that the ‘applicant is caring for her mother’ and ‘responsible for her and has taken charge of her well-being.’
However, in the same paragraph, the Tribunal incorrectly found there was ‘no evidence’ that it is the applicant’s ‘funds that Mrs Kavafolau is reliant on to meet her basic needs.’
For the reasons just articulated and further particularised in grounds 1 to 4, the Tribunal exercised power in accordance with a rule or policy without regard to the merits of the particular case and has therefore erred by finding that the applicant was not an aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cll.838.212 and 838.221 of the Migration Regulations.
Ground 5
The Tribunal exercised a discretionary power in bad faith, SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397, per Heerey, Moore and Kiefel JJ at [19].
The courts have emphasized that an assertion of this kind should not be lightly made and must be clearly alleged and proved (SBAP v Refugee Review Tribunal [2002] FCA 590 at [47]). As such, the ground requires something beyond a mere error or fact or law, or mere illogicality (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 759.
It requires the existence of evidence, which shows a lack of an honest or genuine attempt to perform the relevant statutory function (R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400). Some decisions have suggested that arbitrariness or capriciousness can be sufficient (Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [19]).
For the reasons articulated at [46]-[50] and further particularised in grounds 1 to 4, the Tribunal exercised its powers in bad faith and has therefore erred by finding that the applicant was not an aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cll.838.212 and 838.221 of the Migration Regulations.
Ground 6
The Tribunal exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power, Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332.
The plurality in Li (supra) held:
a)the legislature is generally taken to have intended that a statutory discretion is to be exercised reasonably, per Hayne, Kiefel and Bell JJ at [63] (see also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36);
b)the legal standard of reasonableness is not limited to what is known as Wednesbury unreasonableness, per Hayne, Kiefel and Bell JJ at [68];
c)making irrelevant considerations into account, failing to take relevant considerations into account, bad faith, dishonesty, disregard of public policy and misdirecting oneself as to the operation of the statute are all relevant to the question of whether the discretion was exercised reasonably, per Hayne, Kiefel and Bell JJ at [71]–[72]; and
d)In effect, the decision lacked an evident and intelligible justification per Hayne, Kiefel and Bell JJ at [76].
For the reasons articulated at [53]-[56] and further particularised in grounds 1 to 4, the decision by the Tribunal to deprive an 80 year old mother, suffering rectal cancer, a visa so she can be cared for by her 57 year old daughter, in her last days, when she is widowed, who requires ongoing medical attention and has little or no financial means to take care of herself, by finding she was not an aged dependent relative pursuant to cll.838.212 and 838.221 of the Migration Regulations is so unreasonable, illogical or irrational that it lacks evident and intelligible justification and no reasonable repository of power could have so reasoned.
Minister’s Submissions
The issue before the Tribunal was whether the visa applicant was an aged dependent relative of the review applicant, for a reasonable period, at the time of the visa application and at the time of decision (see CB 163 at [13]).
The Tribunal found that the visa applicant was a relative of the review applicant and did not have a spouse or de facto partner (see CB 164 at [26]-[27]). Consequently, the Tribunal found that the visa applicant met subparagraph (a) of the definition of 'aged dependent relative', pursuant to regulation 1.03 of the Migration Regulations (see CB 164 at [27]).
The Tribunal accepted that, since the death of the visa applicant's husband's death in 1999, she had resided with her daughter in Tonga and, since her last arrival in Australia, she had resided with the review applicant (see CB 164 at [30]). However, the Tribunal noted that there was no supporting financial documentation from banks or financial institutions, nor had any calculations been provided in respect of expenses for food, clothing and shelter (see CB 165 at [33]). Consequently, the Tribunal was not satisfied that, the visa applicant wholly or substantially relied on the review applicant for her basic needs or that the reliance on the review applicant was greater than any other person (see CB 165 at [35]-[37]).
Consequently, the Tribunal found that the visa applicant did not meet the definition of subparagraph (b) of the definition of “aged dependent relative” and affirmed the decision under review (se CB 166 at [39], [41]).
Ground One
The Minister understands ground one to take issue with the ultimate finding made at [40] that the Tribunal was not satisfied that the visa applicant was an aged dependent relative of an Australian relative. The particulars to ground one set out the relevant law and specific paragraphs of the Tribunal's decision and conclude that, on the basis of the evidence the visa applicant was reliant on the review applicant.
The Minister submits that the findings made by the Tribunal were open to it to make on the material and evidence before it and for the reasons it gave. Further, it was open to the Tribunal to find at [38] that the review applicant cared for the visa applicant and was responsible for the visa applicant's well-being but this did not raise to a level of the visa applicant being reliant on the review applicant.
The Minister submits that ground one seeks to cavil with the factual findings made by the Tribunal and, therefore, seeks impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259). Consequently, ground one does not raise an arguable case for the relief sought.
Ground Two
Ground two asserts that there was no evidence or other material to justify the Tribunal’s decision.
Particular (b) takes issue with the Tribunal’s references at [38] that there was ‘no evidence’ to show that the $1000 deposit came from funds held by the review applicant. Relevantly at [38] the Tribunal found:
…However there is no evidence that the $1000 deposit came from funds held by Mrs Tafokitau. There is only evidence that the amount was paid in cash by her.
On the evidence that was before the Tribunal, this is an accurate description regarding the $1000 deposit. On the Central Sydney Area Health Service form the review applicant was the visa applicant’s guarantor and the review applicant signed a declaration that she agreed to pay $1000 now and $150 a fortnight regarding the visa applicant's medical bills and payment was made in cash. Therefore, on the material before it, the Minister submits that it was open to the Tribunal to find that there was no evidence that the cash deposit made by the review applicant came from funds held by the review applicant.
Otherwise, the Minister submits that particulars (a), (c) and (d) seek to cavil with the ultimate findings made by the Tribunal which were open to it to make for the reasons it gave, and, therefore the particulars seek impermissible merits review.
Consequently, ground two does not raise an arguable case for the relief sought.
Ground Three
Ground three makes a broad assertion that the Tribunal failed to take into account relevant considerations. The particulars set out information that was before the Tribunal, some of which were ultimately accepted by the Tribunal.
The Tribunal was required to consider if the visa applicant was a dependent of the review applicant. As noted above, this required a consideration of the financial support provided by the review applicant to the visa applicant.
The Tribunal accepted at [38] of its Decision Record that the review applicant was currently responsible for the visa applicant and had taken charge of the visa applicant’s well-being. However, it was ultimately not satisfied that the visa applicant was wholly or substantially reliant on the review applicant for financial support to meet the visa applicant's basic needs for food, clothing and shelter. This finding was open to the Tribunal to make on the material and evidence before it and for the reasons it gave.
Consequently, ground three does not raise an arguable case for the relief sought.
Ground Four
The Minister submits that, contrary to what is asserted, the Tribunal did consider the merits of the case, however, its satisfaction could not be reached to find that the applicant met the visa criteria.
Consequently, ground four does not raise an arguable case for the relief sought.
Ground Five
Any allegation of bad faith or bias is a serious allegation that must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). Simply repeating particulars to other grounds in the application is insufficient to make out such an assertion.
Consequently, ground five does not raise an arguable case for the relief sought.
Ground Six
Ground six asserts that the Tribunal’s decision was so unreasonable that no decision-maker could have reached the decision.
The Tribunal found that the review applicant cared for the visa applicant and was responsible for her well-being, however, it was not satisfied that the visa applicant was financially dependent on the review applicant. This finding was open to the Tribunal to make for the reasons it gave.
As reasonable minds could differ about such reasoning, the first respondent respectfully submits that the Tribunal’s finding cannot be said to be illogical, irrational or unreasonable (Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [78], [130]-[131]; SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 at [15], [85]). Therefore, the applicant has used the word ‘unreasonable’ as an emphatic way of disagreeing with the factual findings of the Tribunal (Li (supra) at [30]).
Consequently, ground six does not raise an arguable case for the relief sought.
Consideration
Ground 1
Ground 1 of the application claims the Tribunal has misinterpreted, misconstrued or misapplied the law, or asked itself the wrong question in relation to the applicant’s visa claim. I note the applicant’s submissions above at [16]-[18] set out the law in relation to the claimed finding.
The Tribunal made the following finding at [37]-[38] and [40]:
37. The Tribunal is not satisfied that at the time of the visa application that Mrs Kavafolau relied wholly or substantially on Mrs Tafokitau for her basic needs or that the reliance on Mrs Tafokitau was more than her reliance on any other person or source of support for these basic needs.
38. Following the hearing the representative submitted evidence that Mrs Kavafolau’s accounts at South Eastern Area Laboratories had been paid. However there is no indication of who had paid the account, or how much it was. There is also evidence that Mrs Tafokitau is Mrs Kavafolau’s guarantor in regard to payment for health services as an inpatient in December 2013. However there is no evidence that the $1000 deposit came from funds held by Mrs Tafokitau. There is only evidence that the amount was paid in cash by her. A letter dated 9 May 2014 indicates that Mrs Kavafolau’s debt with south-eastern Local Health District remains outstanding and that Mrs Tafokitau is noted to be her guarantor for the remaining amount. The Tribunal accepts that Mrs Tafokitau is caring for her mother, and responsible for her, and has taken charge of her well-being. However there is no evidence that it is her funds that Mrs Kavafolau is reliant on to meet her basic needs, and her reliance on Mrs Tafokitau for this is more than on any other person or source of support.
…
40. For the reasons set out above, the Tribunal is not satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and the time of decision for the purposes of cl.838.212 and cl.838.221.
Having regard to the Tribunal’s findings noted above, when read with the entire section of the Decision Record dealing with whether Mrs Kavafolau satisfied the relevant criteria of being “dependent” on Mrs Tafokitau, I am satisfied those findings were open to the Tribunal on the material before it and for the reasons it gave: see, in particular [33]-[36] of the Decision Record.
The Tribunal noted that Mrs Kavafolau had three people who were providing her support, however, due to the lack of supporting evidence in relation to financial support, it could not be satisfied she met subparagraph (b) of the definition of “aged dependent relative”, either at the time of the application or the decision. Consequently, it found she was not an “aged dependent relative” for the purposes of cl.838.212 and cl.838.221.
Despite the contentions raised in the applicant’s submissions on this ground, I am satisfied the Tribunal did not misconstrue, misapply or misinterpret the law, or ask itself the wrong question. Rather, the ground seeks to engage the Court in impermissible merits review (see Wu Shan Liang (supra) at 272).
Accordingly, this ground cannot be sustained and should be dismissed.
Ground 2
Ground 2 of the application contends that there was no evidence or other material before the Tribunal to justify a number of its findings.
Particular (a) of this ground takes issue with the Tribunal’s statement at [37] of the Decision Record (see [31] above). In respect of this finding, it is important to have regard to what the Tribunal stated at [33] and [35]-[36] of the Decision Record, namely:
33. The Tribunal notes that the visa application itself calls for evidence of financial dependency “e.g. bank or other financial statements to be attached” to the visa application form. None were attached. The Tribunal also notes that the delegate refers to repeated requests for supporting financial information. No supporting financial documentation from banks or financial institutions has been submitted to the Tribunal. Further, there is no calculation available to the Tribunal of Mrs Kavafolau’s expenses for basic needs for food, clothing and shelter.
35. There is no supporting financial evidence of banks payments, funds transfers agency or any other institution to indicate that Mrs Kavafolau relied wholly or substantially on financial support from Mrs Tafokitau to meet her basic needs for food, clothing and shelter. There is no supporting documentation that supports a claim that Mrs Kavafolau[‘s] reliance on Mrs Tafokitau was greater than on any other person or source of support the financial support to meet Mrs Kavafolau’s basic needs for food, clothing and shelter.
36. To the contrary in the visa application, Mrs Kavafolau, indicates that she is financially reliant on the three people: Mrs Tafokitau, Daruny Viengkham and Sione Takokitau. Mrs Tafokitau identified the second named person as her daughter-in-law and the third person as one of her sons and she confirmed that they did provide financial assistance to Mrs Kavafolau. She told the Tribunal that she provided more financial support. However once again there is no supporting financial evidence of this.
In Shumilov & Anor v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 487 his Honour Beaumont J stated at [29]:
29. … However, as said earlier, the tribunal's reasons must be read as a whole in order to understand properly the process undertaken by the tribunal. …
In this respect, it emerges from the Tribunal’s reasons that it could not satisfy itself that at the time visa application that Mrs Kavafolau relied wholly or substantially on Mrs Tafokitau for her basic needs or that the reliance on Mrs Tafokitau was more than her reliance on any other person or source of support for these basic needs. It could not be satisfied because of the lack of financial documentary evidence to show the amount of financial assistance provided by Mrs Tafokitau, on the basis that there was evidence Mrs Kavafolau was receiving support from three different people. The Tribunal noted the oral evidence provided in support of this contention, but was not satisfied.
In my view, this is not a finding based on “no evidence or other material to justify” it, as these findings were open for the Tribunal to make on the evidence (or lack thereof) before it and for the reasons it gave.
In respect of particular (b), the applicant submits there was no evidence to support the Tribunal’s findings at [38] (see [32] above). In this respect, I have had regard to the Minister’s submissions and agree, that on the material before the Tribunal, it was open for it to find that there was no evidence that the $1,000 cash deposit paid by Mrs Tafokitau to Central Sydney Area Health Service came from funds held by her. I am also of the view, for the same reasons as stated above, that it was open for the Tribunal to find that there was no evidence it was Mrs Tafokitaus’s funds Mrs Kavafolau was reliant on to meet her basic needs, or that her reliance on Mrs Tafokitau for this was more than on any other person or source of support.
For the reasons stated above, particulars (c) and (d) also cannot be sustained.
A wrong finding of fact is not a jurisdictional error. Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36 per Brennan J. His Honour stated in Quin (supra) at 35:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Accordingly, this ground cannot be sustained.
Ground 3
This ground alleges that the Tribunal failed to take into account relevant considerations in the nature of evidence provided by the applicants to the Tribunal. However, on a fair reading of the Decision Record, it can be seen that the documents referred to in particulars (a)-(d) were noted at [8]-[11] of the Decision Record. The information contained within those documents was broadly accepted by the Tribunal.
In respect of the documents referred to in particulars (e) and (f), the Tribunal considered these at [38] of its Decision Record and made express findings in respect of them (see [88] above). These findings, as noted above, were open for the Tribunal to make for the reasons it gave.
As correctly submitted by the Minister, the Tribunal was required to consider whether Mrs Kavafolau was a dependent of the review applicant for the purposes of the Migration Regulations. This required a consideration of the financial support provided by Mrs Tafokitau to Mrs Kavafolau.
It accepted at [38] of the Decision Record that Mrs Tafokitau was currently responsible for Mrs Kavafolau’s well-being, however, was ultimately not satisfied Mrs Kavafolau was wholly or substantially reliant on Mrs Tafokitau for financial support to meet her basic needs for food, clothing and shelter, which meant she did not satisfy the relevant criteria for the grant of the visa. As stated above, this finding was open to the Tribunal to make on the material before it and for the reasons it gave.
Accordingly, none of the particulars to this ground can be sustained and the ground should be dismissed. I note particular (g), however, I am satisfied the Tribunal considered the relevant documents in a manner that demonstrates no error on its part.
Ground 4
Ground 4 of the application contends the Tribunal exercised a discretionary power in accordance with a rule or policy without regard to the merits of the case.
In Neat Domestic Trading Pty Ltd v AWB Ltd & Anor (2003) 216 CLR 277 his Honour Gleeson CJ stated at [17]:
17. The appellant's complaint about AWBI's withholding of approval of the bulk-export consents sought by it from the Wheat Export Authority is that AWBI was acting in accordance with a rule or policy without regard to the merits of the case. In putting its case in that way, the appellant was invoking ss 5(2)(f) and 6(2)(f) of the Judicial Review Act. The language of those provisions reflects established principles of administrative law expressed, for example, by Lord Browne-Wilkinson in R v Secretary of State for the Home Department; Ex parte Venables:
When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future … By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.
These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases … But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful.
This ground is advanced on the basis of the same contentions as raised in the particulars of Grounds 1-3.
I am not satisfied this ground can be sustained. On the basis of the Court’s findings in respect of Grounds 1-3, I am satisfied the Tribunal exercised its power in light of the circumstances before it and had regards to the merits of the case when making its decision. The applicant, through her submissions, seeks to engage the Court in impermissible merits review. Accordingly, Ground 4 should be dismissed.
Ground 5
Ground 5 of the application claims the Tribunal exercised its discretionary power in bad faith. The Full Court, in SCAS of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397, stated at [19]:
… An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107] - [108]. It is no less serious if it is said to arise from conduct of the type discussed by von Doussa J in SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs. While members of the legal profession representing disappointed applicants for protection visas may often act for reasons of high principle, and on many occasions pro bono, that is no warrant for making the serious allegation if it is not justified on the material. Because bad faith is now one of the few grounds of invalidity in respect of which s474 does not prevent judicial review, there may be a temptation to attach that label to a wide range of alleged errors of fact and law or to claim that because the decision-maker made so many alleged errors the only explanation is that he or she was acting in bad faith. …
In SBAP v Refugee Review Tribunal (supra), Heerey J stated at [49]:
… As such, it is an allegation not to be lightly made and must be clearly alleged and proved: Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8]. …
In the current matter, this allegation is pleaded on the same basis as Grounds 1-4. Given the Court’s findings in respect of the previous grounds, and noting the extremely high threshold that must be met to successfully plead an allegation of bad faith, I am not satisfied this ground is meritorious. Accordingly, it should be dismissed.
Ground 6
Ground 6 of the application raises the claim that the Tribunal exercised its power in a manner that was unreasonable or that no reasonable person could have so exercised the power.
In the course of fact finding by, in this case, the Tribunal, illogicality or unreasonableness may give rise to an error of law where the relevant fact is a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS (supra) at [130]–[132]. Therein, their Honours Crennan and Bell JJ said at [131]:
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Gummow and Hayne JJ stated in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12, at [38]:
38. The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.
In SZMDS (supra), their Honours Crennan and Bell JJ said at [130] and [135]:
130. …accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust“ or “arbitrary“ or “capricious“ or “unreasonable“ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. …
…
135. While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
In Li (supra) his Honour French CJ stated at [30]:
30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. …
Having regard to the applicant’s submissions in support of this ground, in my view this is a situation where again the applicant has sought to disagree with findings that were reasonably open to it on the material before it and the reasons it gave, particularly based on the Court’s findings in respect of the other 5 grounds of review. In my view, the finding that Mrs Kavafolau was not a dependent of Mrs Tafokitau was reasonably open to the Tribunal to make.
Accordingly, this ground cannot be sustained and should be dismissed.
Conclusion
None of the grounds of the application (as further amended) can be sustained. I have had regard to the oral and written submissions put forward on behalf of the applicant, and no error on the part of the Tribunal arises therefrom. Further, a fair reading of the Court Book and Decision Record reveal no error on the part of the Tribunal.
Accordingly, the application should be dismissed with costs awarded to the Minister.
On a final note, it is my understanding that Mr Williams has acted for the applicant on a pro bono basis. In this respect, I note Mr Williams’ attempts to assist the applicant in what is a difficult situation. I note the Minister has powers under s.351 that the applicant may wish to seek to have exercised.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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