FEDERAL COURT OF AUSTRALIA

El Saghir v Minister for Immigration and Border Protection [2016] FCA 1430

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In June 2013 the Appellant lodged an application for an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the “Migration Act”).

2    On the facts presented, the Appellant entered Australia in December 2012. She was then 65 years of age and claimed that her husband was deceased. She thereafter returned to live in her family home in Lebanon for a period of six months. When in Australia she lived with her son and claimed that she was reliant upon him. The son claimed that he had been supporting his mother since 2004.

3    A delegate of the Minister refused the Appellant’s visa application in February 2014. The delegate concluded that the Appellant failed to satisfy cl 838.212 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”).

4    An application for review of the delegate’s decision was filed in March 2014 with the then Migration Review Tribunal. A hearing before that Tribunal was held on 28 April 2015 and the Tribunal affirmed the delegate’s decision the following day.

5    In June 2016 the Federal Circuit Court of Australia dismissed an application seeking judicial review of the Tribunal’s decision: El Saghir v Minister for Immigration & Anor [2016] FCCA 1596.

6    The Appellant now appeals to this Court. She appeared before the Court unrepresented and was assisted by an interpreter and her son. The Respondent Minister appeared by Counsel.

7    The appeal is to be dismissed with costs.

Clause 838.212

8    Clause 838.21 of Sch 2 to the Migration Regulations provided as at the relevant date as follows:

Criteria to be satisfied at the time of application

…

838.212 The applicant is an aged dependent relative of an Australian relative.

9    The phrase “aged dependent relative” is further relevantly defined in reg 1.03 as follows:

“aged dependant relative” in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:

(a)    …; and

(b)    has been dependent on that person for a reasonable period, and remains so dependent; and

(c)    …

Dependent has the meaning given by regulation 1.05A.

10    Regulation 1.05A(1), in turn, provides the following definition of the term “dependent”:

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

...

11    In the circumstances of the present case, the “applicant” is the “aged dependent relative”. The claim was that the mother was dependent upon her son, a permanent resident of Australia. The son was referred to by the Tribunal as the “sponsor”.

The Grounds of Review & Appeal

12    Before the Federal Circuit Court, the grounds of review then relied upon were expressed as follows:

1.    The Member of the Migration Review Tribunal misunderstood my evidence and my son’s evidence as to the question of dependency and failed to rely on my letter to the Tribunal with attachments dated 21/4/2015.

2.    The Tribunal failed to apply the law and misunderstood my circumstances as I will provide the transcript soon.

3.    I have been dependent on my Australian son after my late husband died in 1984. I do not have any income as stated in the decision record.

4.    I strongly feel that the decision of the Tribunal is unreasonable.

13    The Notice of Appeal, filed in June 2016, set forth the Grounds of Appeal as follows:

1.    With respect to His Honour Judge Smith he failed to take into consideration that the Tribunal acted contrary to the evidence before it and the fact that the applicant was and continues to be dependent on her Australian son since he migrated to Australia.

2.    The Court Book has faded two pages which were overlooked by the Tribunal and by His Honour Judge Smith as well as evidence of financial support which was also overlooked.

3.    I have not received the full judgment yet but once I receive it I will provide evidence to support my argument.

14    Notwithstanding the difference in the manner in which the grounds of review and the Grounds of Appeal have been expressed, it is understood that the first Ground of Appeal seeks to re-canvass the arguments that were previously advanced and rejected before the Federal Circuit Court.

Acting contrary to the evidence – jurisdictional error

15    No detailed exposition of the relevant principles is necessary to resolve the first Ground of Appeal. But it nevertheless remains prudent to address in skeletal form some generally accepted principles.

16    The starting point must be to acknowledge the basic principle that an application for judicial review is not an application which permits of an untrammelled review of the factual merits of an administrative decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. As a general proposition, the task of evaluating evidence and making findings of fact is the province of the administrative decision maker; the task of the Court on an application seeking judicial review is the correction of legal error: R v District Court; Ex parte White (1966) 116 CLR 644 at 655 per Windeyer J. The Court undertaking judicial review has no jurisdiction “simply to cure administrative injustice or error”: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J.

17    The ability to impugn factual findings made by an administrative decision maker is within a narrow compass.

18    Of present relevance is the prospect that jurisdictional error in an administrative decision may be exposed by a failure to take into account corroborating facts relevant to a claim: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105. A “failure to have regard to relevant material” which is fundamental may also go to jurisdiction: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21]. So, too, may jurisdictional error be exposed by making a finding of fact not based on probative evidence: Sagar v O’Sullivan [2011] FCA 182 at [60], (2011) 193 FCR 311 at 322 per Tracey J.

19    In limited circumstances it may be open to conclude that a decision maker who reaches a conclusion which is so contrary to the evidence may demonstrate a reasonable apprehension of bias by reason of a mind predisposed to reach a conclusion irrespective of the evidence: cf. SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] to [38] per von Doussa J; SZHOP v Minister for Immigration and Multicultural Affairs [2006] FCA 1640 at [23] per Jacobson J; SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301 at [21] per Jacobson J; Reece v Webber [2011] FCAFC 33 at [47], (2011) 192 FCR 254 at 271 per Jacobson, Flick and Reeves JJ. But such a case is certainly not the norm.

20    Notwithstanding the manner in which the first Ground of Appeal is expressed, it may thus be accepted that a decision made by the Tribunal which does not properly take into account the mother’s evidence or that of her son may potentially expose jurisdictional error.

21    No jurisdictional error is exposed, however, where an administrative decision-maker has considered and evaluated the evidence and reached a factual conclusion open to it on the evidence available: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10, (2001) 75 ALJR 542 at 548 to 549. McHugh J there summarised the position as follows:

[36]    If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

Similarly, Kirby J observed in Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, (2001) 179 ALR 513 at 518 to 519:

[25]    For all this, I consider that the applicant has said all that, unaided, he can say in complaint about the decision of the Tribunal. His essential complaint is that the Tribunal came to the wrong decision in his case on the facts placed before it. That is not a complaint that, without more, enlivens the jurisdiction of this Court to provide a constitutional writ. Specifically, it is a complaint that falls short of showing jurisdictional error on the part of the Tribunal …

See also: SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 at [120], (2010) 187 FCR 109 at 141 to 142 per Flick J (Besanko J agreeing).

22    Similarly, when considering a decision of the former Refugee Review Tribunal, North and Lander JJ have observed that “an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claim is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim”: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28], (2010) 115 ALD 303 at 309. See also: MZYNA v Minister for Immigration and Citizenship [2012] FCA 159 at [36], (2012) 127 ALD 276 at 283 per Gordon J; SZQPZ v Minister for Immigration and Citizenship [2012] FCA 853 at [29] per Kenny J; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [45], (2013) 212 FCR at 115 per Robertson J; Hinton v Minister for Immigration and Border Protection [2015] FCA 408 at [54], (2015) 146 ALD 184 at 198 per McKerracher J.

23    Nor does the rubric of unreasonableness permit of any greater scrutiny of factual conclusions: Re Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21, (1999) 197 CLR 611 at 654. Gummow J there summarised the position as follows:

[137]    ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

See also: Gleeson CJ and McHugh J at [39] to [46], (1999) 197 CLR at 626 to 628.

24    It is, accordingly, “extraordinarily difficult in proceedings for judicial review to challenge findings of fact”: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [562], (2005) 148 FCR 446 at 584 per Weinberg J.

25    Mere disagreement by a party with the factual conclusion reached, and an assertion that a different factual conclusion should have been reached, does not expose error susceptible of challenge on an application for judicial review.

A decision contrary to the evidence?

26    The first Ground of Appeal is perhaps curiously expressed.

27    It is expressed more in terms of an error on the part of the Federal Circuit Court Judge to conclude that the decision of the Tribunal was “contrary to the evidence” rather than a failure “to take into consideration” some evidence of relevance. So expressed, it has the potential to invite merits review rather than judicial review. It has the potential to accept that there is in fact evidence supporting one conclusion and also evidence supporting a contrary conclusion and the very real potential to invite a Court to impermissibly reach a factual conclusion “contrary” to that of the decision-maker. The Ground as drafted, significantly perhaps, stops short of contending that there was “no evidence” before the Tribunal that could support its conclusion. It is also a Ground which fails to expressly address the requirement imposed by the definition in reg 1.03, namely the requirement that the mother “has been dependent” on her son “for a reasonable period, and remains so dependent” and the requirement imposed by reg 1.05A(1)(a)(i), namely that the mother “has been for a substantial period immediately before that time” dependent on her son.

28    But such difficulties may be left to one side because the reasons of the Tribunal address the evidence that was relied upon by the mother and her son and proceed to make findings of fact open to it upon the basis of such evidence. And the findings as made by the Tribunal are focussed upon the requirements imposed by reg 1.03 and reg 1.05A(1)(a)(i). The reasons for decision of the Tribunal recount the mother’s evidence as to the financial support she had received from her son. In recounting this evidence, the Tribunal put to the mother what it perceived were inconsistencies in the account being provided. The reasons for decision, thus provided in part as follows (without alteration):

21.    The applicant gave evidence at a hearing. She said that when she was in Lebanon she lived in the family home. She said she had a grove on her home and she had some produce from that grove which she sold. She said that her sons particularly, her sponsor had sent her money. The applicant put to the applicant and sponsor that there was earlier statements provided which indicated her other sons assisted with her support and that she spent time with her other son and a sister when living in Australia. The applicant said that she had a daughter in Lebanon and all her relatives lived there. She said that when she was in Australia the sponsor supported her. She said she only visited her other sons and sister for a few days or maybe a weekend since she had been living in the sponsor’s house in Australia.

22.    The sponsor stated that he had been supporting his mother since 2004. He said he supported her in Lebanon. He said he was the main support. The Tribunal pointed out that his mother had the family home in Lebanon and had recently returned to spend 6 months there. He asserted that he supported his mother.

23.    The Tribunal put to the applicant that she had provided contradictory evidence. She said that at the present time the sponsor was keeping her and she lived in his house. The Tribunal pointed out that it was also looking at the time before the application. The Tribunal explained that it was also looking at a substantial period before the application. The applicant repeated that her son the sponsor was keeping her.

The Tribunal thereafter proceeded to make the following findings of fact (without alteration):

25.    The applicant claims that she had been reliant on the sponsor since she moved into his house in December 2012. Since that time she has returned to live in Lebanon for six months in the family home. The time of application was June 2013. The Tribunal accepts that from December 2012 the applicant has lived with the sponsor however prior to that time the evidence as set out above and supplied to the Department by the applicant indicates that she obtained shelter from the family home in Lebanon and food and some income from land attached to the family home. The evidence on the previous statements and provided by the applicant at hearing is that prior to coming to Australia in December 2012 she received support from her (step) sons in Lebanon and sons in Australia.

26.    The Tribunal accepts that the sponsor has provided some support to his mother however at the time of application she had only been living in his home for six months. The Tribunal does not accept that this is a substantial period or reasonable period within the definition as defined above.

27.    The Tribunal finds that previous to moving to Australia the applicant was reliant on her family home for shelter and a combination of her sons and land for her food and other needs including clothing.

28.    The Tribunal after considering all the evidence is not satisfied that the applicant was for a substantial period immediately prior to the application wholly or substantially reliant on the sponsor for financial support to meet her basic needs for food, clothing and shelter. The Tribunal finds she was reliant on a combination of all her sons and family home and land in Lebanon.

29.    For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application.

29    So expressed, it was the conclusion of the Tribunal that the mother was not “for a substantial period immediately prior to the application wholly or substantially reliant on the sponsor” which doomed the first Ground of Appeal (as drafted) to failure. This conclusion, dependent as it is upon an evaluation of the evidence – including potentially inconsistent evidence – was a factual conclusion open to be reached upon the evidence. Subject to any error in the construction of reg 1.03 or reg 1.05A(1)(a)(i), a factual conclusion is normally beyond the reach of judicial review undertaken by the Federal Circuit Court or this Court, and does not expose jurisdictional error. The fact finding task is entrusted to the Tribunal alone and, short of legal error in the construction of the Migration Regulations or jurisdictional error, cannot be impugned upon an application seeking judicial review.

30    There is, moreover, no express identification in the first Ground of Appeal of “the evidence” which the Appellant contends should dictate a contrary conclusion to that reached by the Tribunal. Presumably “the evidence” sought to be relied upon is the entirety of the evidence given by the mother and her son which was not accepted by the Tribunal. But the findings of the Tribunal remain findings open to be made.

31    The Federal Circuit Court Judge was correct in concluding that no jurisdictional error had been exposed by the findings of fact made by the Tribunal. That Judge was also correct in concluding that there had been no failure properly to take into account and consider a letter provided to the Tribunal and dated 21 April 2015. That was a matter expressly referred to by the Tribunal at para [19] of its reasons for decision and by the Federal Circuit Court in its reasons for decision: [2015] FCCA 1596 at [12] to [19] and [21]. It was by reference to this letter, in particular, that the Appellant contended that the decision was “contrary to the evidence”.

32    The first Ground of Appeal as drafted is, with respect, no more than a challenge to the factual conclusions reached by the Tribunal; as were the grounds of review advanced before the Federal Circuit Court.

Questions in need of resolution

33    A question raised by the Court with Counsel for the Minister focussed upon the conclusion of the Tribunal at para [26] of its reasons for decision that the six-month period between December 2012 and June 2013 was not “a substantial period or reasonable period…”.

34    The identification of the correct period of time may assume central importance to the decision-making process: the longer the period of time selected, the more difficult it may be for an applicant to establish substantial reliance; the shorter the period of time, the greater may be the ease with which substantial reliance may be established.

35    Questions were raised in respect to:

    the apparent tension in language between reg 1.03 (i.e., “a reasonable period”) and reg 1.05A(1)(a)(i) (i.e., “a substantial period”);

    the manner in which either or both expressions were to be interpreted, including a question as to the relevance of such factors as the age and health of the “aged dependent relative”; and

    the potential absence of findings of fact on the part of the Tribunal.

If, for example, the conclusion were to be reached that the six-month period was “a substantial period or reasonable period”, there was no finding as to the extent to which the mother was “substantially reliant” on the son during that period. Given the Tribunal’s conclusion that the six-month period did not satisfy the requirements of the definition in reg 1.03 and reg 1.05A(1)(a)(i), it was (of course) not necessary for the Tribunal to make any findings as to the mother’s reliance on the son during that period.

36    In many cases a mere conclusion such as that expressed by the Tribunal at para [26] of its reasons for decision may well not satisfy s 368(1) of the Migration Act which relevantly provides as follows:

Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must … make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

…

37    It would not be a sufficient answer in response to a failure to comply with s 368(1) to say that the Tribunal’s conclusions as to what constitutes “a substantial period or reasonable period” is a question of fact beyond the scope of judicial review. The failure to comply with the statutory requirements imposed by s 368(1) would remain. Although it may well be a matter for the Tribunal to make a finding of fact as to what would (or would not) constitute “a substantial period or reasonable period”, it would remain necessary for the Tribunal to set out its reasons for so concluding and to refer to the evidence upon which its finding of fact was based.

38    Even though the Appellant was unrepresented both before the Federal Circuit Court and this Court on appeal, the fact remains that:

    any argument as to a possible mis-construction of the two phrases in regs 1.03 and 1.05A(1)(a)(i) was not an argument relied upon before the Federal Circuit Court or raised in any of the Grounds of Appeal as filed in this Court; and

    the finding of the Tribunal that the six-month period was not a “substantial period or reasonable period” is not a finding which, on its face, is so self-evidently wrong that it calls for greater scrutiny of the basis upon which that finding was reached.

39    Counsel for the Minister quite properly accepted that the Minister would suffer no prejudice should the argument as to a possible mis-construction of the Regulations be raised for resolution for the first time before this Court — the argument, it was correctly accepted, would largely turn on legal argument.

40    Notwithstanding considerable hesitation, it is nevertheless not considered appropriate to do more than raise these questions as questions in need of resolution. Especially is this the case where the question as to what constitutes a “substantial period or reasonable period” is largely a question of fact which was not put in dispute before the Federal Circuit Court. Should the questions again arise for consideration, the Court may consider it appropriate to appoint pro bono counsel to assist an otherwise unrepresented party such that the questions can be fully argued and resolved.

41    To now seek to resolve these questions without the benefit of argument, especially in circumstances where the questions emerged for the first time during an exchange between the Court and Counsel, would not be appropriate.

The faded two pages & financial support

42    The second Ground of Appeal has two aspects to it, namely an alleged failure on the part of the Tribunal and the primary Judge that each had “overlooked”:

    “two faded pages”; and

    “evidence of financial support”.

43    As to the former, the reference to the “two faded pages” is a reference to the letter dated 21 April 2015. There was no question that the Tribunal had available to it a legible copy. So, too, did the Federal Circuit Court. Nothing thus turns on this first aspect of the second Ground of Appeal.

44    As to the latter alleged error, there is no identification in the Grounds of Appeal of the “evidence of financial support” which it is claimed was overlooked. None is apparent from the reasons for decision of the Tribunal. Nor was any such error relied upon before the primary Judge. To the extent that the second Ground of Appeal seeks to contend that there has been a failure to take into account “evidence of financial support”, it overlaps with the first Ground of Appeal and adds nothing to that Ground. To the extent that the alleged error relates to a failure to consider the 21 April 2015 letter, it similarly adds nothing to the first Ground of Appeal.

45    The second aspect to this Ground of Appeal is rejected.

46    The second Ground of Appeal is rejected.

The receipt of the full judgment & further evidence

47    The final Ground of Appeal refers to the prospect of further evidence being provided. No further evidence was referred to, other than the evidence that was before the Tribunal.

48    The third Ground of Appeal is rejected.

CONCLUSIONS

49    None of the three Grounds of Appeal have been made out.

50    The appeal should be dismissed.

51    There is no reason why the Appellant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    29 November 2016