Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989

ORDERS

THE COURT ORDERS THAT:

1.    The parties bring in a minute of order giving effect to these reasons within 7 days.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    This appeal raises four issues, concerns three people and involves one carer visa. The people are the Appellant, Mr Qazizada; his wife, Ms Nazifa; and the visa applicant, Ms Fazli. Mr Qazizada has significant care needs and is looked after by Ms Nazifa. Ms Nazifa needs help to do this. Ms Fazli is at least the half-sister of Ms Nazifa and before the Tribunal claimed to be her full sister. Ms Fazli applied for an Other Family (Migrant) (Class BO) Carer (Subclass 116) visa so that she could assist Ms Nazifa in looking after Mr Qazizada. One of the requirements for that visa is that the person seeking it should claim to be a carer of an Australian relative: cl 116.211 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 116.211(2) read with reg 1.03 of the Regulations defines ‘Australian relative’ in such a way that it includes a sister and a step-sister but does not appear to include a half-sister. The parties to the appeal proceeded on the basis that this was indeed so and no occasion therefore arises to consider whether a half-sister can be said to be a sister. There is, however, an interesting discussion about this imponderable question by Lloyd-Jones FM in Mercado v Minister for Immigration [2007] FMCA 1216 at [30]-[33]. There it was held that a brother included a half-brother for the purposes of the definition of an ‘overseas near relative’ in the Regulations. If that be correct, then much of the debate in this case appears to have been wide of the mark.

2    In any event, in this case the Tribunal considered that it could not confidently find that Ms Fazli and Ms Nazifa were sisters because of doubts it had about the truthfulness of their evidence concerning who their siblings and parents were. In arriving at this conclusion, the Tribunal used certain information which it garnered from a departmental file concerning a previous application Ms Fazli had made for a visa known as a Last Remaining Relative visa. Prior to making its decision, the Tribunal did not provide particulars of this information to Mr Qazizada, Ms Nazifa or Ms Fazli and they were not given the opportunity to comment upon it. In the Court below, and again in this Court, Mr Qazizada contended that s 359A(1) of the Migration Act 1958 (Cth) (‘the Act’) applied to the information so that the Tribunal’s decision was afflicted by jurisdictional error and should be set aside. Section 359A(1) provides:

Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the [review] applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

3    The four issues in the appeal are: first, whether the information was ‘information’ within the meaning of 359A(1) of the Act; secondly, if it was, whether the Tribunal ever formed the opinion that the information ‘would be the reason, or a part of the reason, for affirming the decision under review’ within the meaning of s 359A(1); thirdly, if it did form that opinion, whether the admitted failure of the Tribunal to give Mr Qazizada clear particulars of that information as required by s 359A, entails that the Tribunal’s decision is affected by jurisdictional error; and, fourthly, if it does, whether relief should be refused on discretionary grounds. The learned primary judge was not addressed on the first issue but evidently proceeded on the basis that the information was ‘information’. Her Honour determined the remaining questions favourably to Mr Qazizada and made orders quashing the Tribunal’s decision: Qazizada v Minister for Immigration Citizenship and Multicultural Affairs [2024] FedCFamC2G 250 (‘J’) at [42]-[68]. It is from those orders that the Minister now appeals.

First issue: was the information ‘information’ within the meaning of s 359A(1)?

4    The information relied upon in the Tribunal’s reasons was contained in the departmental file for Ms Fazli’s application for a Last Remaining Relative visa. The learned primary judge summarised Mr Qazizada’s case as to what comprised the information at J [38(a)-(d)]. On appeal the Minister accepted the correctness of this summary save to observe that J [38(a)] contained some subjective opinions formed by the Tribunal as to what Ms Fazli had intended or was aware of which was not information which could have been contained in the file. I accept that submission. Amended to take that matter into account, it is not therefore in dispute that the information was as follows:

a.    Hanifa Abdul Fazli (the visa applicant) either knowingly applied for a LRR visa using the name Samira Fazli Wardak or was aware that the a visa application had been made on her behalf in that name because and she identified herself using that name when an officer telephoned her about the application (with the assistance [of] a Dari interpreter).

b.    A Taskera (Afghan ID document) had been provided for the visa applicant in connection with the LRR visa application – presumably in the name of Samira Fazli Wardak.

c.    It was claimed in relation to the Last Remaining Relative visa application, that the visa applicant, Mr Wardak and Mr Qazizada’s wife had the same mother and that their mother’s name was Mastura and she was living in Australia.

d.    The visa applicant and Mr Wardak underwent DNA testing for the purpose of the LRR visa application and the DNA results indicated that it was likely that they were half-siblings.

5    As already noted, the Tribunal had to be satisfied that Ms Nazifa was an ‘Australian relative’ of Ms Fazli to grant the visa (cl 116.211 of Sch 2 to the Regulations) and this devolved to whether Ms Nazifa was the sister of Ms Fazli. The effect of the High Court’s decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ is that the information referred to in s 359A(1) must in its terms contain a rejection, denial or undermining of the applicant’s claim to be entitled to the grant of a visa. On the appeal, Mr Godwin of counsel appeared for Mr Qazizada and submitted that the present case was one involving the undermining of the claim that Ms Fazli and Ms Nazifa were sisters. Thus, rejection and denial may be put aside.

6    I accept Mr Godwin’s submission that the information set out above was apt to undermine the claim that the two women were sisters. When combined with other information which the Tribunal had it can be used, perhaps unconvincingly, to reach the conclusion that one might not be satisfied that they were sisters. Indeed, this is the use that the Tribunal put it to at [19]-[21] of its reasons. However, whilst the information can be said to undermine the claim in that sense, it does not do so ‘in terms’ as required by SZBYR. The information set out at J [38(a)-(b)] and [38(d)] does not say anything in terms to suggest that the two women were not sisters. And the information set out at J [38(c)] in terms shows that the two women shared a mother and so were at least half-sisters. Consequently, none of this information is ‘information’ to which s 359A applied.

7    The learned primary judge did not deal with this question. However, a review of the written submissions put before her Honour and the transcript of the oral argument which took place shows that the Minister did not submit at first instance that the information was not ‘information’ within the meaning of s 359A(1). The learned primary judge cannot be criticised for not dealing with an argument which was not put. The point was raised by Ground 1(b)(i) of the Minister’s notice of appeal. Leave is required to pursue an argument not put below. On the hearing of the appeal Mr Godwin did not object to Ground 1(b)(i) being advanced by the Minister and made written and oral submissions as to why the information was not ‘information’ for the purposes of s 359A(1). In that circumstance, it is appropriate to grant the Minister leave to rely upon the ground. The appeal must be allowed on this basis.

Second issue: did the Tribunal form the opinion in s 359A(1)?

8    This issue does not arise in light of the outcome on the first issue. It is convenient, however, to deal with it for the sake of completeness. It is necessary first to outline some facts. On 11 July 2022 the Tribunal wrote to Mr Qazizada and indicated that it was ‘not satisfied on the evidence currently before [the Tribunal] that Ms Abdul Fazli and Ms Nazifa are sisters’. It further indicated that it would ‘invite [Mr Qazizada] to provide further information and evidence on this issue shortly’. That invitation came on 8 August 2022 when the Tribunal again wrote to Mr Qazizada asking him to provide information in writing on 11 separate questions. These questions related to the issue of whether Ms Fazli and Ms Nazifa were sisters. For example, part of question 4 was: ‘Do Ms Abdul Fazli, Ms Nazifa and their three brothers have the same biological parents?’

9    On this issue, Mr Qazizada’s case is that the letter of 11 July 2022 is evidence from which an inference should be drawn that the Tribunal had formed the opinion on that date that its failure to be satisfied that Ms Fazli and Ms Nazifa were sisters would be a reason for affirming the delegate’s decision.

10    However, the letter of 11 July 2022 had expressly foreshadowed that a subsequent invitation to provide information would be sent (as was done on 8 August 2022). The statement in the first letter was thus only a statement by the Tribunal about what the universe of evidence as at 11 July 2022 showed, coupled with a foreshadowed request to expand that universe. This would tend to suggest that the Tribunal had not decided, as at 11 July 2022, that Ms Fazli and Ms Nazifa were not sisters for the purposes of the visa review application, but only that this was its tentative view.

11    Moreover, the Tribunal’s initial letter and subsequent invitation are not the only sources of evidence which bear on the issue. A third source of evidence is found in the reasons of the Tribunal. The Tribunal turned to the question of whether the Australian relative criterion was satisfied at [11]-[21]. In these paragraphs it dealt with the byzantine evidentiary picture which had by then emerged about the familial relationship between Ms Fazli and Ms Nazifa. The Tribunal’s reasons referred at [18] to the letter of 11 July 2022:

The review applicant was informed after the first hearing that the Tribunal had inferred that at the time of application the first named visa applicant had claimed to be a carer of his wife but that the Tribunal was not satisfied that the first named visa applicant and his wife were sisters.

12    The Tribunal went on in that paragraph to discuss its subsequent invitation for further information and the answers which Mr Qazizada had given in response.

13    The evidence therefore shows that the statement appearing in the letter of 11 July 2022 was not a determination of the question of whether Ms Fazli and Ms Nazifa were sisters. Rather, it was an expression of opinion as to what the evidence showed at that date and was expressly contingent upon the further information the Tribunal foreshadowed seeking and then actually sought. The Tribunal’s reasons at [18] show that this was not an empty exercise and that Mr Qazizada’s response to the invitation was considered, although rejected.

14    The correct inference to be drawn from these three sources of evidence – the letter of 11 July 2022, the invitation of 8 August 2022 and the Tribunal’s reasons – is that by the letter of 11 July 2022 the Tribunal had not determined that Ms Fazli and Ms Nazifa were not sisters. I would accept that the letter does indicate that at that date the fact that they were not sisters, if positively found by the Tribunal, might ultimately be the Tribunal’s reason for refusing the application. However, the fact that the Tribunal forms the opinion that information might be the reason for affirming the decision under review does not enliven s 359A(1): Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at 223 [9] per Gageler, Keane and Nettle JJ (Gordon J agreeing at 244 [78], Edelman J agreeing at 250 [100]). This follows from the provision’s use of the word ‘would’ rather than ‘might’.

15    Consequently, I do not accept Mr Godwin’s submission on appeal that the relevant opinion had been formed on 11 July 2022. This is not the end of the matter, however. The primary judge approached the issue on the basis that the opinion for the purposes of s 359A(1) had been formed at some point in time prior to the making of the decision. Her Honour recorded this as Mr Qazizada’s submission at J [39]: ‘The Applicant says the information at [38] ought to have been put for comment because, at some point, the Tribunal considered the information would be the reason, or a part of the reason, for affirming the decision under review’. This understanding is consistent with Mr Qazizada’s written submissions to the primary judge at [10] which also said that the inference should be drawn that the opinion had been formed ‘at some stage’. The transcript of the hearing shows that the letter of 11 July 2022 was not in fact mentioned so that Mr Godwin’s argument in this Court was not one advanced to the learned primary judge. However Mr Kaplan, who appeared with Mr Harvey for the Minister, did not raise any objection to the point now being pursued.

16    The relevant finding of the Tribunal is at [21] of its reasons:

On the evidence currently before it, the Tribunal cannot confidently find that the first named visa applicant and the review applicant’s wife are sisters. The Tribunal decided not to request that the first named visa applicant and the review applicant’s wife undergo DNA testing because it appears the first named visa applicant previously underwent DNA testing using a different name which produced results inconsistent with the claims and evidence presented in connection with the carer visa application and on review. The Tribunal is thus not satisfied that further DNA testing involving the first named visa applicant would produce reliable results and even if they are sisters and the first named visa applicant satisfied cl 116.211, the Tribunal has concluded that the first named visa applicant is not a carer at the time of decision.

17    It is not necessary to understand at this point what the carer requirement is. This is because no challenge is now made to the finding that the carer requirement was not satisfied or that this entailed that the visa could not be granted.

18    Although the word ‘confidently’ complicates the question, I do not read [21] as a finding that the two women were not sisters. Rather, it is a finding that the Tribunal was not satisfied that they were sisters. These are different things, one involving a finding as to sisterhood, the other not. The significance of its own state of non-satisfaction does not appear to have been apparent to the Tribunal (which is understandable given the complexity of the issues with which it was confronted). A necessary visa criterion was that the Tribunal should be satisfied that the two women were sisters. The Tribunal’s failure to be satisfied that they were sisters therefore entailed that the visa application had to be refused. However, [21] shows that the Tribunal did not appreciate this. It is apparent from that paragraph that the Tribunal thought that it was not deciding the issue because it had decided that ‘even if they were sisters’, the carer requirement was not met. Thus one has the perhaps unusual situation that the Tribunal did not form the opinion in s 359A(1) although it ought to have. The information had led it not to be satisfied that the Australian relative criterion was met and this in turn could only lead to the conclusion that the decision under review had to be affirmed.

19    Section 359A(1) is explicit in its requirement that the Tribunal should have a subjective state of mind about this matter. For the reasons set out above, I am not persuaded that it did have that state of mind. Consequently, I conclude that s 359A(1) was not enlivened. The short of the matter is that the Tribunal did not think that it was deciding this issue and did not think that it mattered because of its conclusions on the carer criterion.

20    Although there are traces of this point in the Minister’s submissions to the trial judge, these largely relate to the next issue which is whether there could be a jurisdictional error where there are two independent paths leading to the affirmation of the decision under review, one of which is affected by a breach of s 359A(1) and one of which is not affected by any kind of error. It is not clear to me that an argument that the opinion had not been formed was squarely put to the learned primary judge. Again, however, Mr Godwin did not object to the Minister raising the point and, to the extent necessary, I would grant the Minister leave to pursue Ground 1(a). Had it been necessary, I would have upheld the ground.

Third issue: whether there was a jurisdictional error?

21    Consistently with common sense, it has been held by this Court that where there are several independent paths to affirming a decision under review, no jurisdictional error is shown by impugning only one of those paths: see, for example, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (‘VBAP’) at [33] per North J, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 (‘VCAD’) at [22]-[23] per Gray J, [45] per Sundberg and North JJ; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (‘VUAX’) at 600-601 [55]-[57] per Kiefel, Weinberg and Stone JJ.

22    On the other hand, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 (‘SAAP’) the High Court held that a failure to comply with a cognate provision of the Act, s 424A, constituted a jurisdictional error. In that case, there was no issue raised about materiality. Subsequently, the High Court has held that in most cases an error is not jurisdictional unless it is material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134 [29] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 444 [44] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at 521-22 [31]-[33] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at 102 [30] per Kiefel CJ, Keane and Gleeson JJ, 132 [121] per Edelman J; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at 614 [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (Beech-Jones J agreeing at 619 [38]).

23    SAAP has not been overruled by the High Court. Since it pre-dates the discovery of materiality, it is not couched in terms which suggest that a breach of s 424A must be material. There is an interesting question as to whether this Court remains bound to conclude that a breach of s 424A (or s 359A) constitutes a jurisdictional error without any consideration of materiality. Wigney J reached the view that SAAP did have that effect in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; 298 FCR 400 (‘Antoon’) at 419 [92]-[96].

24    However, neither SAAP nor Antoon was a case where the Tribunal had at least two independent reasons for affirming a decision under review, only one of which was impugned. I do not read SAAP or Antoon as saying anything about that question. Consequently, the matter is governed by VBAP, VCAD and VUAX. In this case, the Tribunal was expressly authorised to exercise the powers that had been exercised by the delegate: s 349(1) of the Act. The power exercised by the delegate was the power in s 65. Section 65(1) required the delegate (and hence the Tribunal) to refuse the grant of the visa unless satisfied that the requirements for that visa (including both the Australian relative and carer criteria) were satisfied. Having concluded that the carer criterion was not satisfied, the Tribunal had no power under s 65(1) to grant the visa and was required by s 65(1)(b) to affirm the delegate’s decision to refuse to grant it. The fact that it breached s 359A(1) in arriving at the conclusion that the Australian relative criterion was not satisfied can have no impact on the validity of its decision to affirm the decision to refuse the visa. By virtue of its conclusion that the carer criterion was not satisfied the Tribunal was under a legal duty arising from s 65(2) to affirm the delegate’s decision. This analysis is concerned with power and is unrelated to materiality. There was no jurisdictional error. It is true that an alternate path to that conclusion might lie in the parallel reasoning disclosed in the High Court’s decision in Hossain. However, since that case is concerned with materiality in the context of jurisdictional error, I would prefer not to reason in that fashion because of the uncertainty identified by Wigney J in Antoon concerning the operation of SAAP.

25    I thus respectfully differ from the learned primary judge on this issue. Her Honour thought that this case was enmeshed in the debate about SAAP and materiality identified by Wigney J in Antoon. However, those cases were not apposite for the reasons I have given. Had it been necessary to do so, I would have upheld Ground 2 of the notice of appeal.

Fourth issue: discretionary withholding of relief

26    The learned primary judge would have declined in her Honour’s discretion to withhold relief had that issue arisen. Her Honour reasoned that the question was whether compliance with s 359A(1) could not have made any difference to the outcome: J [64]. There was a debate between the parties as to whether that question was to be addressed by looking backwards at what did happen (and constructing a past hypothetical in which the breach of s 359A did not occur) or by looking forward to a rehearing (and considering what would happen at that stage). I do not think that it is necessary to choose.

27    If a backward-looking approach is taken then it is clear that the carer criterion would remain unsatisfied. The issue with the carer criterion was whether the Tribunal was satisfied that that direct assistance of Mr Qazizada could not reasonably be obtained from welfare, hospital, or nursing or community services in Australia. This flows from the definition of ‘carer’ in reg 1.15AA(1)(e) which provides that a person is not a carer unless such third-party assistance cannot reasonably be obtained. No part of the Tribunal’s assessment of whether that third-party assistance was available had anything to do either with the credit of the two women or with the fact that they were sisters or half-sisters. I therefore respectfully part company from the learned primary judge’s conclusion to the contrary.

28    If the test is forward looking, then the matter rises no higher than that on a fresh hearing a differently constituted Tribunal might reach a different conclusion. Here the thinking is that one can never know what will happen in the future. I do not accept that this truism is capable of providing a sufficient basis for concluding that a different outcome might occur. If this was not so, relief could never be refused on a discretionary basis. For completeness, no effort was made on appeal to show that the third-party services were not reasonably available, i.e., to put some meat on the bare bones of the proposition that a different result might ensue. Had the issue arisen, I would have upheld Ground 3 of the notice of appeal.

Result

29    The appeal should be allowed with costs. The parties should bring in a minute of order giving effect to these reasons within 7 days.

Associate:

Dated:    29 August 2024