Madol v Minister for Immigration [2011] FMCA 5 (20 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MADOL v MINISTER FOR IMMIGRATION

[2011] FMCA 5

MIGRATION – Review of decisions – delegate of the Minister for Immigration and Citizenship – visa – humanitarian visa.

Migration Act 1958 (Cth), s.477 Migration Legislation Amendment Act (No. 1) 2009 (Cth) Migration Regulations 1994 (Cth), reg.1.05A, 1.12AA, Schedule 2 cl.60.1, 202.211, 202.222

Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25

Applicant:

THIANG AYUEL MADOL

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 326 of 2010

Judgment of:

Riethmuller FM

Hearing date:

6 August 2010

Date of Last Submission:

6 August 2010

Delivered at:

Melbourne

Delivered on:

20 January 2011

REPRESENTATION

Counsel for the Applicant:

Ms Spitzer

Solicitors for the Applicant:

Holding Redlich

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The application for an extension of time be refused.
(2) The application filed on 3 March 2010 be dismissed.
(3) The application for costs be dismissed.

.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 326 of 2010

THIANG AYUEL MADOL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. The applicant is a child born in Sudan in 1996. He came to Australia in 2004 on a refugee and humanitarian class XB visa with his uncle and his uncle’s family. He was granted citizenship in Australia on 27 November 2006. The applicant applies with respect to a delegate’s decision to refuse to grant his mother a special humanitarian visa to travel to Australia on 21 November 2007.
2. The reasons given for the refusal were brief, stating in substance that:
   • Your application was considered against the criteria in each of the subclasses. Your application was refused because I (as a delegate of the Minister) am not satisfied that the criteria in each of the subclasses was met. In summary, I am not satisfied that there are compelling reasons for giving special considerations to granting your visa having regard to particular factors in the criteria. The attached page shows the criteria not met by you for each of the subclasses.
3. The terms of the decision letter on this occasion also includes a list of clauses under the regulations that the visa was considered against. There are a total of seven visa subclasses against which this application was considered. Each requires consideration of the degree of persecution.
4. The application made to this Court was lodged on 3 March 2010. This is well outside the 35 day time limit provided for by s.477(1) of the Migration Act. However, the Court has power to extend the time limit under s.477(2) of the Act. I note that as a result of the transitional provisions (the Migration Legislation Amendment Act (No. 1) 2009), the delegate’s decision is taken to have been made on 15 March 2009 for the purpose of considerations with respect to the time limits in this case.
5. On 23 December 2006 a previous application for a humanitarian visa for the applicant’s mother had been made by the applicant’s uncle. That application had also been refused by a delegate who found that the mother:
   • ...had contradicted herself continually throughout the interview, particularly in regards to her husband, the parentage of her two youngest children, her whereabouts between 1996 and 2004 and the amount of times [that she] has returned to Sudan. Based on the facts I am not satisfied that [her] claims are credible. I am inclined to believe that [she] has contact with her husband and regularly travels back and forth to Sudan. Furthermore [her] credibility is further placed in doubt by her reluctance to reveal the parentage of her two youngest children, particularly the second youngest. Based on the information given by [her] I am inclined to believe [that her] husband is in fact the father of this child.

...

On balance, I am not satisfied the applicant is subject to substantial discrimination, mounting to gross violation of human rights, in the applicant’s home country and is living in a country other than the applicant’s home country and there are compelling reasons for the granting of the visa. (See applicant’s court book page 4)

6. The case is difficult for the applicant in that pursuant to s.66 of the Act the delegate was not obliged to give reasons. Section 66 provides:
   • 66 [Notification of decision]
   • (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
   • (2) Notification of a decision to refuse an application for a visa must:
     • (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
     • (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
     • (c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
     • (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
       • (i) that the decision can be reviewed; and
       • (ii) the time in which the application for review may be made; and
       • (iii) who can apply for the review; and
       • (iv) where the application for review can be made.
   • (3) This subsection applies to an application for a visa if:
     • (a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
     • (b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
   • (4) Failure to give notification of a decision does not affect the validity of the decision.
   • (5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
   • Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
7. The section has been the subject of a decision of the Full Court of the Federal Court in Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 where the Full Court said:
   • [16] On judicial review the court may receive evidence and enquire into what were in fact the reasons for the impugned administrative decision: Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1980) 151 CLR 170 at 253, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally obliged to give reasons. There may well not be such an obligation; there is no inherent legal requirement for an administrative decision-maker to give reasons: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what in fact were the reasons, despite the decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review, to the extent that review is permitted (as for example in the present case where review is limited to jurisdictional error).
   • [17] Whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 196 ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire and the like recording advice to the decision-maker or documents recording the decision-maker’s own preliminary thoughts or working notes. Such documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question. (emphasis added)
8. It is not argued that this provision is invalid.
9. The applicant argues, that unlike the first visa application for his mother the second was put as a “split family application” pursuant to clause 202.211(1)(b) of the regulations and that the delegate failed to consider the elements of this visa category.
10. In this case, however, the decision maker makes it clear that they did consider whether or not the “split family” criteria referred to in clause 202.211(2) applied, as set out in the decision letter, which refers specifically to subclass 202 and attaching an extract of the criteria.
11. The documents contained on the files confirm that the delegate did consider this as a possible split family case, as is set out in a memo of 6 November 2007 which clearly states:
    • “It is a possible split family case *** urgent pls ***”
12. In the circumstances it appears that the applicant’s application must fail.
13. The extracts attached to the decision letter are of clauses 202.222 and 202.211(2). The first imposes a requirement of ‘compelling reasons’ and the second a requirement of family membership as defined in the regulations.
14. The delegate specifically states that they are not satisfied as to ‘compelling reasons’ (see quote above). The applicant argues that the delegate erred in failing to consider a further requirement of ‘substantial discrimination’ required by clause 202.211(1)(a) at the time of the application and continuing at the time of the decision (see clause 202.221). Whilst this may be a necessary element, failure to consider it in a case where the applicant fails on a different mandatory element is not sufficient to found judicial review. If it is not a requirement, its omission is not relevant to the decision.
15. The applicant also argues that the bare statement that compelling reasons have not been established shows a failure to properly consider the correct test as it is argued that prima facie this element was satisfied if applied as described in the policy document. However, the delegate is not bound by policy. Where the Act provides for decisions without reasons, it is difficult to draw an inference that a permissible, but perhaps uncommon result demonstrates an error that is reviewable.
16. In any event the policy does not appear to be as straightforward as the applicant argues. Clause 60.1 (the policy referred to by the applicant) provides:
    • 60.1 General considerations
    • Officers must weigh each of the factors listed above according to the applicant’s circumstances and decide whether, overall, there are compelling reasons for giving special consideration to granting a visa. The applicant’s circumstances may, when considered cumulatively, present compelling reasons for giving special consideration to grant a visa. Alternatively, if very little weight has been attached to one factor, but another has been accorded great importance, the overall effect having regard to all the factors is that the criterion has been satisfied.
    • Under policy, split family applicants satisfy the compelling reasons criterion on the strength of their close family connection with the proposer in Australia. The fact that an applicant’s entry to Australia has been proposed by an immediate family member who has recently been granted a visa under the Humanitarian Program should be given very significant weight when assessing this criterion.
    • In all other cases, officers should take the following considerations into account when weighing these factors and deciding whether there are compelling reasons to consider granting a visa.
17. Clause 47 of the policy referred to by the respondent provides:
    • “Split family” is a colloquial term for an application for a Class XB visa if the applicant is a member of the immediate family of a person who entered Australia as the holder of a permanent Class XB visa or a special assistance visa or who was granted a permanent Subclass 866 (Protection) visa in Australia, and is proposed in accordance with form 681 by that person.
    • ...
    • For each of the Class XB permanent subclasses, Schedule 2 primary criteria provides for a visa to be granted to a split family applicant who is a member of the immediate family of the proposer. These split family provisions reflect the policy intention that entrants under the offshore Humanitarian Program purposed immediately family members for entry to Australia under the same visa subclass (rather than have the family apply for a visa under the Family Migration program).
    • For split family cases schedule 2 secondary criteria allows for the grant of a visa to a member of the immediate family of the main applicant.
    • Member of the immediate family may include a spouse or dependent child, and in limited circumstances a parent. A parent can only be a member of the immediate family if their child (ie the child who is the proposer or main applicant) has not turned 18.
    • Note that this is more restrictive than member of the family unit, as required by non-split family cases.
18. The circumstances of the applicant, as described in his uncle’s visa application form, provides an arguable basis that his strong family ties are to his uncle as his carer, and adoptive parent (see supplementary court book, page 3).
19. As a result, the facts of this case do not demonstrate an error of law by the delegate. The possibility of an error is not sufficient for the applicant to succeed.
20. In the circumstances, it is difficult to conclude that the delegate had failed to turn their mind to the relevant criteria in making their decision.
21. A further difficulty that confronts the applicant is that it appears open to the delegate to have concluded that he was not a dependent within the meaning of the Act at the relevant time.
22. With respect to subclass 202 there is a requirement that the applicant be a member of his mother’s “immediate family”. On ordinary principles one would consider that a child is a member of the immediate family of a parent, however the regulations provide for a specific definition in regulation 1.12AA as follows:
    • 1.12AA [Member of the immediate family]
    • (1) For these Regulations, a person A is a member of the immediate family of another person B if:
    • (a) A is a spouse or de facto partner of B; or
    • (b) A is a dependent child of B; or
    • (c) A is a parent of B, and B is not 18 years or more. (emphasis added)
23. This definition refers to a “dependent” child. The regulations provide a definition for “dependent child” as follows:

1.05A [Dependent]

(1) Subject to subregulation (2), a person (the first person ) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

• (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and
• (ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

(b) the first 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.
(2) A person (the first person ) is dependent on another person for the purposes of an application for:

• (d) a Protection (Class XA) visa; or
  • (e) a Refugee and Humanitarian (Migrant) (Class BA) visa; or
• (ea) a Refugee and Humanitarian (Class XB) visa; or
• (i) a Temporary Safe Haven (Class UJ) visa;

if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

24. In addition clause 202.211(2)(d) of Schedule 2 of the Migration Regulations requires that the applicant disclose his familial relationship with his mother at the time when he sought his own visa. The Minister says that this did not occur, nor that there is any evidence that it occurred prior to the application for the mother’s visa. It seems that, at least in an interview for humanitarian entry conducted on 25 May 2003, the applicant’s mother was identified as being missing. Whilst the mother’s name was not set out in the documents, it is clear that she was identified by description as there can only be one person who is the applicant’s biological mother. Even in court pleadings a misnomer may be overcome if the description is sufficiently clear: Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231. I do not accept that the Minister can succeed on this issue.

25. I therefore find that the applicant has failed to demonstrate any jurisdictional error. As I have determined the matter on its merits against the applicant there is no purpose to granting an extension of time. Therefore I refuse the application for an extension of time and dismiss the applicant’s application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 11 January 2011