Federal Court of Australia

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 435

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court of Australia made on 8 July 2020 in proceeding SYG1233/2017 be set aside and in lieu thereof, order that:

(a)    the decision of the second respondent dated 23 March 2017 be set aside;

(b)    the first respondent pay the appellant’s costs of proceeding SYG1233/2017; and

(c)    the matter be remitted to the second respondent for determination according to law.

4.    The first respondent pay the appellant’s costs of this appeal.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    Introduction

1    The appellant is a citizen of the Republic of India. In February 2016, she applied under the Migration Act 1958 (Cth) for an Other Family (Residence) (Class BU), Aged Dependent Relative (Subclass 838) visa (Subclass 838 visa). Her sponsor for the purpose of that application was her biological niece, Ms Sukhvinder Kaur, an Australian citizen whom the appellant raised (together with Sukhvinder’s twin sister, Ms Virinder Kaur) as her own child. For convenience, and without intending any disrespect, I will refer to Sukhvinder and Virinder by their first names.

2    Relevantly for the purposes of this appeal, the appellant had to persuade the first respondent Minister that cll 838.212 and 838.221 of Sch 2 to the Migration Regulations 1994 (Cth) were satisfied. Those clauses required that the appellant be an “aged dependent relative” of Sukhvinder at the time of her application and at the time of the Minister’s decision. The expression “aged dependent relative” was defined in reg 1.03 as in a manner which required the appellant to satisfy the Minister that she “had been dependent on [Sukhvinder] for a reasonable period, and remains so dependent”.

3    The question of dependency was informed by reg 1.05A which provided:

(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 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.

(emphasis in original)

4    In May 2016 the Minister, by a delegate, refused to grant the application.

5    The appellant sought review of that decision by the second respondent Tribunal. On 23 March 2017, following a hearing on 7 February 2017, the Tribunal affirmed the Minister’s decision and published its reasons for that decision (T). For reasons which are considered further below, the Tribunal was not satisfied that the appellant was dependent on Sukhvinder. The appellant’s application to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision was also unsuccessful: Kaur v Minister for Immigration & Anor [2020] FCCA 1835.

6    The appellant then appealed to this Court. On 5 April 2023, following a hearing on 17 March 2023, I made a referral for pro bono assistance for the appellant. Mr Forgács of counsel accepted that referral. The appellant subsequently filed, without objection, an amended notice of appeal, which raised grounds of review not raised before the primary judge, and the hearing continued by reference to those new grounds.

7    For the reasons developed below, the Tribunal erred in failing to consider material evidence provided to it concerning the question of the appellant’s dependency on Sukhvinder. In these circumstances the orders of the court below and the Tribunal’s decision should be set aside; and the matter should be remitted to the Tribunal for reconsideration.

B.    The Tribunal’s decision

B.1    The material before the Tribunal

8    The appellant’s application to the Tribunal was supported by various statements and documents. Relevantly for present purposes those statements and documents provided evidence in support of the following propositions:

(1)    the appellant arrived in Australia on 18 September 2015 on a Visitor (Class FA) visa;

(2)    since her arrival in Australia the appellant had:

(a)    lived with Sukhvinder at Prospect, New South Wales;

(b)    been financially dependent upon Sukhvinder;

(3)    at the time of her application for the Subclass 838 visa on 21 February 2016 the appellant was in Australia;

(4)    in mid-March 2016, the appellant learnt of a burglary at her property in India;

(5)    on 27 March 2016, the appellant, as the holder of a bridging visa, returned to India with Sukhvinder and Virinder to attend to matters arising out of the burglary; and

(6)    on 29 April 2016, the appellant returned to Australia.

9    I will refer to the evidence mentioned in [8(2)(b)] – that the appellant had been financially dependent upon Sukhvinder since her arrival in Australia in September 2015 – as the subject evidence.

B.2    The Tribunal’s reasons

10    There is no issue as to the manner in which the Tribunal identified the issues it was required to resolve. The crux of the appeal concerns the Tribunal’s findings as to whether the appellant was an “aged dependent relative” of Sukhvinder and in particular whether the Tribunal made a jurisdictional error by failing, when addressing that question, to consider the subject evidence.

11    The Tribunal was satisfied that the appellant was a credible witness who gave clear, consistent and unembellished evidence, who had a good recollection of events in her life and was able clearly to recount those events (T[12]). The Tribunal recorded that the appellant: was an 86 year old Indian citizen; (2) was a retired school teacher; and (3) arrived in Australia on 20 April 2016 (T[11]). The last of these findings is simply wrong, as the appellant’s arrival in Australia prior to the making of her application was in September 2015.

12    Immediately under the heading “Is the applicant dependent on the Australian relative?”, the Tribunal set out the following statements of principle (T[25] and [26]):

25.    The definition of ‘dependent’ as it applies to this application is set out in r.1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: r.1.05A(1).

26.    For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43].

13    The Tribunal then recorded the following evidence:

27.     The sponsor told the Tribunal that as she had worked for 28 years as a teacher she receives a government pension. She has continued to live in the family home which she now owns. She said that the government pension, which is Rs.14,000 per month was sufficient to support herself on although her daughters had supplemented this at times when she needed medical treatment or dental treatment. She told the Tribunal that her adopted daughters did not transfer money into a bank account for her but would send her Rs.5000 or sometimes Rs.7000. She would spend this money rather than banking it. The money was sent either through family or friends travelling to India or was given to her when her daughters visited India.

28.    The sponsor gave evidence that she or her sister would take the money to the applicant or sometimes her son would take the money. They would also sometimes purchase goods on her behalf. She said that in the previous 3 years she had travelled to India on one occasion. The sponsor and her sister submitted travel details which were consistent with Departmental records showing that in the last 3 years prior to the date of application, the sponsor had travelled to India on one occasion. In this period her twin sister travelled to India on one occasion and she claims her husband’s brother travelled in 2012. There is no evidence before the Tribunal of the amounts of money provided to the applicant or of goods purchased for her.

29.    The applicant has given evidence that she owns her own home in India and that her government pension is sufficient to support herself albeit that the sponsor and her sister pay for some additional costs such as medical costs.

14    As counsel for the Minister fairly acknowledged, it is clear from those paragraphs that the Tribunal’s focus was upon the appellant’s circumstances in India.

15    The Tribunal then reasoned as follows:

30.    On the basis of the evidence provided, the Tribunal is not satisfied that the applicant is, and has been for a reasonable period immediately prior to the application wholly or substantially reliant for financial support to meet her basic needs for food, clothing and shelter. The Tribunal is further not satisfied that the applicant’s reliance on the sponsor is greater than any reliance on any other person or source of support, for financial support to meet her basic needs for food, clothing and shelter.

31.    The Tribunal notes that the applicant receives a government pension due to her previous employment as a teacher and that she has given evidence that this is sufficient to support herself although her daughter supplements this. She is 86 years old and is no longer able to work. Accordingly, the Tribunal is not satisfied that the applicant is wholly or substantially reliant on her daughter for financial support because she is incapacitated for work due to the total or partial loss of her bodily or mental functions (r.1.05A(1)(b)).

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

33.    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.

34.    For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa. …

C.    The proceeding before the primary judge

16    As the appeal was conducted on the basis of the amended notice of appeal, which raises matters not raised before the primary judge, it is unnecessary to consider the primary judge’s reasons.

D.    The appeal

17    The appellant’s primary ground of appeal is that:

The Federal Circuit Court erred in failing to find that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error by failing to consider critical evidence before it as to the appellant’s dependency on her sponsor.

Particulars

The Tribunal erroneously found (at [12]) that the appellant had arrived in Australia on 20 April 2016. Having done so, the Tribunal failed to consider evidence that the appellant was wholly or substantially reliant on her sponsor to meet her basic needs for food, clothing and shelter between the date of her arrival in Australia on 18 September 2015 and the date of her visa application.

(emphasis in original)

18    The “critical evidence” referred to in this ground is the subject evidence. The existence of the subject evidence is common ground.

19    Ignoring relevant material in a way that affects the exercise of a power may constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 to 352 ([82] to [84]) (McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 175 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at 79 to 80 ([54] to [58]) (Katzmann, Griffiths and Wigney JJ).

20    The central question on this appeal is whether the Tribunal ignored the subject evidence in a way that affected the exercise of its power.

21    The nature of the obligation upon the Tribunal to consider representations made to it was explained by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at 598 to 600 ([24] to [27]):

24.    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25.    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26.    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27.    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(citations omitted)

22    The subject evidence was not referred to in the Tribunal’s reasons. However, the absence of a reference to the subject evidence in the Tribunal’s reasons is of itself insufficient to establish that the Tribunal failed to consider that evidence: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003 at 1006 [13] (Bell, Keane and Gordon JJ).

23    In determining whether, as a matter of inference, the Tribunal failed to consider the subject evidence, it is necessary to consider the Tribunal’s reasons, in order to understand why the Tribunal exercised its power in the way that it did: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 446 [47] (Allsop CJ, Robertson J and Mortimer J (as her Honour then was)). The Tribunal’s reasons are to be read as a whole and fairly, and not with an eye keenly attuned to the perception of error, and the Court should not be concerned with looseness in language or unhappy phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at 45 [38] (Kiefel CJ, Bell J, Gageler J (as his Honour then was), Keane, Nettle and Gordon JJ); Plaintiff M1/2021 at 604 [38].

24    The caution to be observed before drawing an inference that a Tribunal has failed to address a particular matter was explained by a Full Court of this Court (French J (as his Honour then was), Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 to 605 ([46] to [47]):

46.    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

25    Having read the Tribunal’s reasons with those cautions in mind, I am satisfied that the Tribunal failed to consider the subject evidence, for the following reasons.

26    The task that the Tribunal was required to undertake relevantly included a determination as to whether the appellant had been financially dependent upon Sukhvinder for a reasonable period as at the date of her application for the Subclass 838 visa (and that she remained so at the time of the decision on that application).

27    The evidence before the Tribunal relevant to that task was capable of demonstrating that: (1) while in India the appellant was not financially dependent upon Sukhvinder; and (2) while in Australia since September 2015 the appellant was financially dependent upon Sukhvinder (i.e. the subject evidence).

28    Although the explanation as to why the appellant was financially dependent upon Sukhvinder in Australia but not in India does not ultimately matter, it may be noted that it appears to have been due to: (1) the appellant having access to her pension in India but not in Australia, a matter which the appellant explained to the Tribunal in her oral evidence; (2) the quantum of the pension, being Rs.14,000 per month (or approximately $250 to $260 per month); and (3) the differences in the cost of living between India and Australia.

29    It follows from the nature of the evidence before the Tribunal – that the appellant was financially dependent upon Sukhvinder in Australia but not in India – that the Tribunal could be expected to have considered both the evidence as to dependency in India and the evidence as to dependency in Australia and to determine whether the appellant had been financially dependent upon Sukhvinder for a reasonable period as at the date of her application for the Subclass 838 visa, unless the evidence in one of those categories was immaterial to the question to be determined.

30    Neither category of evidence was immaterial. Relevantly, the subject evidence – which was capable of establishing that the appellant satisfied the statutory criterion of dependence for the period from September 2015 to February 2016 – was clearly material to the question of whether the appellant had been dependent on Sukhvinder for a “reasonable period”.

31    The Tribunal’s reasons did not address the question of the appellant’s dependency during the period from September 2015 to February 2016 at all. In this regard, the Tribunal at T [11] stated – wrongly and in the absence of any evidence – that the appellant arrived in Australia on 20 April 2016. This finding suggests that the Tribunal considered that the appellant had arrived in Australia on that date, rather than 18 September 2015. It follows that an inference is readily available that the Tribunal was operating under the misapprehension that the appellant had been in India until 20 April 2016. This provides a cogent explanation as to why the Tribunal’s reasons deal only with evidence of the appellant’s dependency during the appellant’s time in India and fail to deal with the subject evidence.

32    It may be that the Tribunal’s error was due to the appellant having re-entered Australia in April 2016 (see [8(4) to (6)] above), but the explanation for the error, as opposed to its existence, is of no moment.

33    In summary, the subject evidence – had it been considered – may have been dispositive of the claim. In these circumstances, and the failure of the Tribunal to deal with it in its reasons raises a strong inference that it has been overlooked (see WAEE at 604 [47]; ETA067 at 1006 [14]). It is also evidence in my view that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if the Tribunal had actually considered it: cf SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at 38 [19] (Perram J).

34    It follows that I reject the Minister’s submission that the Tribunal’s failure to refer to the subject evidence was not because that evidence was not considered, but because the Tribunal, having considered it, thought it to be immaterial in circumstances where any “reasonable period” for the purposes of reg 1.03 must (the Minister contended) have included some of the appellant’s pre-September 2015 time in India.

35    In particular, I do not accept the premise of the Minister’s submission, namely that a “reasonable period” for the purposes of reg 1.03 could not be found to have existed solely within the period from the appellant’s time in Australia from September 2015 until the making of her application in February 2016. I also do not accept the Minister’s submission that such a premise follows necessarily from the fact that the appellant arrived in September 2015 on a visitor’s visa and thus, it should be inferred, that she did not intend to stay permanently. The Minister’s attempt in this regard to reason by analogy from the facts of Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265; (2015) 238 FCR 251 (Robertson J) is inapt. Each case must turn on its own facts. Whilst arrival on such a visa may give rise to an inference as to the appellant’s level of dependency as at the date of her arrival, it is the whole of the period from then until February 2016 that must be considered and, as noted above, the subject evidence is capable of establishing the requisite dependency during that period.

36    I also do not accept the Minister’s submission that the reference by the Tribunal at T[19] to Sukhvinder and Virinder having encouraged the appellant to come to Sydney because of their concerns about the appellant’s ability to care for herself demonstrates that the Tribunal took into account the subject evidence. It self-evidently does not do so, when the subject evidence concerns the appellant’s circumstances following the appellant’s arrival in Australia, about which T[19] is silent. Further, the Tribunal was operating under the misapprehension that the appellant arrived in Australia on 20 April 2016.

37    I turn now to consider whether the Tribunal’s error in failing to consider the subject evidence was material.

38    When regard is had to the Tribunal’s reasons as a whole, the Tribunal’s error is clearly material in the manner explained by the High Court of Australia in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. There appears to be a realistic possibility that the outcome could have been different if the subject evidence had been considered; and I am far from satisfied that the outcome would have inevitably been the same: see LPDT at [16]. Indeed, as noted at [33] above, the subject evidence was potentially dispositive of the application.

39    Thus, the Tribunal fell into jurisdictional error. It is unnecessary to consider the secondary grounds of appeal.

E.    Conclusion

40    For the above reasons, the appeal should be allowed; the orders of the court below and the Tribunal’s decision should be set aside; and the matter should be remitted to the Tribunal for reconsideration. The Minister should pay the appellant’s costs in this Court and in the court below. I will make orders accordingly.

Associate:    

Dated:    1 May 2024