Badu v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1060

FEDERAL COURT OF AUSTRALIA

Badu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1060

PATRICIA BADU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 386 OF 2005

MADGWICK J
27 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 386 OF 2005

ON APPEAL FROM THE FEDERAL  MAGISTRATES COURT

BETWEEN:	PATRICIA BADU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	27 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 386 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	PATRICIA BADU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	27 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. The appellant is an Australian citizen who, at the time she sponsored her husband in an application for a spouse visa, was a permanent resident and citizen of Australia.  The husband is Ghanaian.  At the time of the visa application lodged by the husband on 28 October 2002, the appellant was 20 years of age and her husband was 36 years of age. 

2. The appellant went to Ghana on 3 June 2001.  She met her husband on 30 June 2001 at a Church, commenced a relationship with him on 5 July 2001, married him on 18 July 2001 and returned to Australia on 3 August 2001.  Nearly 15 months later, on 28 October 2002, the husband lodged an application for a Permanent Partner (Provisional) (Class UF) visa.   Although he put his claim more widely, it is a subclass 309 (Spouse or Partner) visa which is the relevant subclass of visa.  At the same time he lodged an application for a temporary visa based on the same criteria.  Sponsorship applications by the appellant in relation to the visa applications were also lodged in Nairobi on her behalf.

3. It seems that the husband was interviewed by a delegate of the respondent in Nairobi on 26 November 2002 and, on 4 December 2002, the delegate refused to grant any of the visas sought. 

4. At an unknown time, the file kept by or on behalf of the respondent’s Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) concerning the application was destroyed.  

5. Following the adverse decision of the delegate, the appellant sought review of that decision by the Migration Review Tribunal (‘the Tribunal’) on 3 February 2003.  An officer of the Tribunal, acknowledging receipt of the appellant’s application, informed her by letter dated 4 February 2003:

   ‘I have requested the Department … for a copy of all documents that relate to your application.  You should provide any documents or written arguments you wish the Tribunal to consider and which you have not already provided to the Tribunal or the Department.’  (Emphasis added.)

6. At that point, the appellant was apparently represented by persons styling themselves ‘Immigration Consultants’.  After they had ceased to act for the appellant, on 24 November 2003 an officer of the Tribunal wrote to the appellant at her then known address telling her that, if the Tribunal was still unable to make a decision in her favour, it would provide her with an opportunity to appear before the Tribunal.  The letter included the following:

   ‘In reviewing your case, the Tribunal must assess whether you and your partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and whether the relationship between you and your partner is genuine and continuing.  The Tribunal invites you to provide further information that is relevant to these issues.  Please see the attached sheet for examples of the type of evidence you could provide.

   You do not need to provide information which you have already given to the Tribunal or to the Department … .’

7. It would appear that the two letters just referred to are form letters that did not take into account that the Tribunal did not have the documents which were before the delegate.  At no stage was the appellant advised of this.  She was notified of an intended hearing date and then a rescheduled hearing date, the latter for 17 May 2004, but she did not appear at the hearing.  On 17 May 2004, she was further invited to be present at the formal handing down of the Tribunal’s decision on 4 June 2003.   She did attend on that occasion.

8. The Tribunal in its decision affirmed the decisions under review.    In its recitation of the evidence before it, the Tribunal said:

   ‘8.The Tribunal has before it the Tribunal’s case file N03/00882.  Departmental case file F2002/106739 was destroyed. …

   …

   11.As the Department’s file has been destroyed, there is no information relating to how the visa applicant and the review applicant met or how the claimed relationship developed, aside from the comments contained in the delegate’s decision.  The delegate has stated that the couple met on 30 June 2001 and that their relationship started on 05 July 2001.  The delegate also states that the couple married on 18 July 2001.

   …

   13.The application was refused on 4 December 2002, as the delegate was not satisfied that the relationship was genuine and continuing.  The delegate was particularly concerned with the following aspects of the application:

   ·The lack of supporting evidence provided.

   ·The visa applicant’s lack of knowledge regarding the sponsor’s circumstances.

   ·The visa applicant’s claim that he had the sponsor’s address, but could not read it as it was written in English, and the subsequent evidence provided by the visa applicant of letters and cards reportedly to the sponsor from the visa applicant, which are written in English.

   ·Inconsistencies in responses from the visa applicant and the sponsor.

   ·The short time in which it is claimed the relationship developed.

   ·The amount of time actually spent cohabiting.’

9. The Tribunal member also recounted that the notice of hearing to be held on 17 May 2004 had been returned to the sender but there was no notification of change of address from the appellant.  An attempt to contact her by telephone was unsuccessful – the Tribunal staff were told that ‘the review applicant had moved’ and the person answering the telephone number which had been provided by the appellant as a contact point ‘had no details of a forwarding address’.  The Tribunal member commented:

   ‘The onus is on the review applicant to advise the Tribunal of any change in their contact details.  No changed details have been forthcoming.’

10. Regulation 1.15A(1A)(a) of the Migration Regulations 1994 (Cth) indicates that people are, for visa purposes, regarded as being in a married relationship if they are apparently married to each other and –

    ‘(b)     the Minister is satisfied that:

    (i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (ii)the relationship between them is genuine and continuing; and

    (iii)      they:

    (A)      live together; or

    (B)do not live separately and apart on a permanent basis.’

11. It is common ground that the visa criteria including those just mentioned are to be satisfied both at the time of application and at the time of decision (see Schedule 2 subclass 309.21 and 309.22 of the Migration Regulations 1994 (Cth)).

12. Regulation 1.15A(3) obliges the Minister to have regard to ‘all the circumstances of the relationship’, including some aspects in particular, in forming an opinion as to whether two people are in a married relationship for the purposes of the visa of the kind in question.  The particular aspects are, first, the financial aspects of the relationship including matters indicating joint ownership or shared arrangements in relation to property, liabilities, legal obligations, resources and household expenses; the nature of the household; social aspects of the relationship including whether the people concerned present themselves to other people as being married, and whether they undertake joint social activities; and, finally, the nature of the persons’ commitment to each other including some factors relevant to that matter.

13. It is fair to say that the circumstances of the marriage referred to above might be likely to fasten the attention of a decision-maker, in particular, on the requirement that the marriage relationship be genuine and continuing.

14. The Tribunal member referred to the evidence and issues under a number of headings.  These were: the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; the nature of the persons’ commitment to each other; whether there was a mutual commitment to a shared life as husband and wife to the exclusion of all others; whether the relationship was genuine and continuing; and whether the persons lived together, or did not live separately and apart on a permanent basis.

15. The Tribunal, based on the limited evidence before it, was unable to find that the relationship between the review applicant and the visa applicant was at the time of application and continued to be at the time of the decision a genuine and continuing one.  The Tribunal, therefore, said that it had no alternative but to affirm the decisions under review.

16. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court but the application was rejected by Federal Magistrate Scarlett on 18 February 2005.

17. Although the appellant was unrepresented, her solicitor had apparently prepared submissions for her on a pro bono basis.  The appellant complained that the destruction of the Department file meant that the Tribunal could not make a decision in her favour and she was therefore denied fairness.

18. The submission also, according to the learned Magistrate, complained that:

    ‘… the Tribunal misconstrued its role in causing it to decide a decision against the [appellant]. … The thrust of the submission … is that the [T]ribunal did not review her application even though it was validly made.’

19. In the course of oral submissions, according to the learned Magistrate, the following occurred:

    ‘The [appellant] told the Court that she had written to the [D]epartment advising of her change of address.  She did not have a copy of that letter that she could produce.  Because of the importance of this claim I offered the [appellant] the opportunity to give evidence in the witness box.  I explained to the [appellant] the significance of giving evidence or affirmation before a Court and the fact that she could expect to be cross-examined.  The [appellant] elected not to give evidence.’

20. The appellant’s solicitor sought, in the hearing before me, to read an affidavit of the appellant dealing with that matter and also furnishing some of the material which had been before the delegate together with other material which might have been put before the Tribunal and which might possibly have caused a reassessment of the genuineness of the relationship. 

21. The learned Magistrate appears to have decided the matter against the appellant on a number of bases.  The first was that:

    ‘The fact that the [appellant] and [her husband] do not live together and have not done so for several years is of itself a fatal flaw in her application.  

    …

    It can be seen that living together and not living separately and apart is a necessary requirement for obtaining a visa.  Whilst it is not a sole requirement it is a necessary requirement.  If a man and woman do not live together or they are living separately and apart a visa of this type cannot be granted.’

22. His Honour continued:

    ‘It appears clear that parties who have not cohabited since early August 2001 cannot be said to be living together.  Whilst this aspect seems to have been marginally overlooked in the [Tribunal] decision, as Mr Bromwich of counsel has pointed out to me, it is relevant to any exercise of the Court’s discretion to note that the circumstances in this case are such that a visa cannot be granted because of the fact that the parties do not live together.’

23. Thus, the learned Magistrate seems to have been saying that if the appellant were entitled to relief he would, in his discretion, have refused it as futile. 

24. His Honour continued to deal with the natural justice point in the following way:

    ‘Whilst it is regrettable that the departmental file was destroyed prior to the hearing the existence of the file would not have affected the outcome of proceedings.  The … Tribunal was not satisfied on the evidence before it that it could do anything else except affirm the decision to refuse the visa.’

25. His Honour recorded a further submission from counsel for the respondent that there was an –

    ‘…absence of any further evidence [as to a genuine continuing relationship] to cover the period from the time of the delegate’s decision of 4 December 2002 to the [T]ribunal hearing on 17 May 2004 or the handing down of the decision on 4 June of that year.’

26. His Honour said in this submission:

    ‘It appears clear that the application for review could not, in the circumstances, have succeeded.’

27. His Honour continued:

    ‘There is no evidence before me to show that the … Tribunal did anything other than what it was required to do in considering the application.  It did consider the application for review on the basis of the material before it.  It did write to the [appellant] asking her to provide further evidence.  There is no evidence that she provided any further evidence.

    The [T]ribunal did write to the [appellant] inviting her to attend the hearing.  She did not attend because she said she had moved.  The [T]ribunal appears to have attempted to contact the [appellant] at the only address that the [T]ribunal had.  There is no reviewable error.  The application must be dismissed.  I dismiss the application. …’

28. Thus, his Honour appears to have held that, even if there were a denial of natural justice, that could not possibly have affected the outcome of the proceedings and that the review, although relying on the delegate’s account of the material before him or her, was nevertheless a genuine exercise of the review function.

29. Similar arguments as were put to the Court below have been urged upon me by the appellant’s solicitor. 

30. In addition, he argues that the mere fact that the appellant and her husband have not lived together for a long time is not necessarily decisive because, theoretically, there might be some unusual set of circumstances such that, although they have lived separately and apart for a long time, they have not done so on a permanent basis. 

31. I am inclined to think, as was Wilcox J in  Ahadi v Minister for Immigration & Multicultural Affairs [1999] FCA 1418, that this is correct, but the matter need not be considered to finality because the decision in this case does not turn upon that.

32. As to the natural justice point, counsel for the respondent points to s 424A and to Division 4 of Part 7 of the Migration Act 1958 (Cth) (‘the Act’) generally.

33. Section 359A of Division 5 focuses on the Migration Review Tribunal rather than Refugee Review Tribunal.  Section 357A says that the Division is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Section 359A requires the Tribunal to give to the applicant:

    ‘(a)… 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

    (c)invite the applicant to comment on it.’

34. Subsection (4) provides that:

    ‘This section does not apply to information:

    …

    (b)that the applicant gave for the purpose of the application.’ 

35. Counsel says that there was no undisclosed adverse information upon which the Tribunal’s decision was based and, in any event, the fact of destruction of the Departmental file was not information that the Tribunal considered was a reason or a part of the reason for affirming the delegate’s decision:

    ‘Rather, the appellant’s application for review failed because of a manifest failure to provide anything like the sort of material that was necessary for a decision to be made in [the husband’s] favour.  This is an unusual case in which it is clear that even if all of the material provided to the delegate had been before the Tribunal it could not have made a jot of difference to the outcome.’

36. As a matter of common fairness, the appellant should certainly have been told that the file and the documents on which she and her husband had relied had been destroyed.  The Tribunal’s reason for rejecting the application seems to have been that the evidence before it was too limited to enable it to find that the relationship between the appellant and her husband was, at the time of application and continuing so to be at the time of decision, a genuine and continuing one.

37. In so determining, the Tribunal took the delegate’s account of the material before him as accurate without itself examining the material.  The only thing that renders such a process permissible, as in the event it was, was the fact that the original materials were no longer available.

38. In my opinion, the information that the material was no longer available was so central to the Tribunal member’s decision that it must be regarded for the purposes of the Act as being part of the reason for affirming the delegate’s decision and I would so regard it.

39. Turning to the question of whether there was a genuine review, as distinct from a sham, in the circumstances I reject the appellant’s submissions.  It is apparent that the Tribunal member did not simply follow without reflection the thought processes which had been engaged in by the delegate (according to his reasons for decision).  The Tribunal member seems to have put the best gloss in favour of the appellant and her husband on the materials provided, as the delegate summarised them, but nevertheless concluded that they were insufficient, as the legislation specifically requires proof of a genuine and continuing marriage relationship as at the date of the decision.  The implications for that issue of any circumstances existing as at the date of the application must be regarded as somewhat limited in scope. 

40. There is no indication that the Tribunal did not do its best with the material available and, having regard to the last mentioned matter, the decision indeed would seem to have been inevitable but for the denial of procedural fairness, to which I have referred.  Notwithstanding that denial of natural justice, which could only go to the state of affairs as at the date of the application for the visa, it seems to me that, even had the denial of natural justice not occurred, the appellant and her husband must have failed, by reason of her election not to give the Tribunal current material, to indicate a continuing genuine relationship a considerable time after the lodging of the application for the visa.

41. As for the second issue, the state of affairs as at the time of the decision, the Tribunal did all it needed to do, and more, to give the appellant the opportunity to put forward any evidence or arguments she wished.  In order to accord the appellant natural justice in relation to the lost material it would have sufficed if the Tribunal had invited the appellant to indicate, by forwarding copies of documents or otherwise, what the information was which she had placed before the delegate.  It would not have been necessary, independently of the letter of 24 November 2003, to again invite her to put forward any material she might wish to deal with the position as at the intended date of the Tribunal’s decision upon the review. 

1. As a matter of speculation, it is possible that, had the Tribunal proceeded in the way that I think it was obliged to, this might have prompted the appellant to bring forward any more current evidence that she could muster.  However, the fact that she did not do so is not logically or reasonably attributed to the denial of natural justice but rather to her apparent decision to disregard the letter of 24 November 2003. 

2. Thus, in my opinion, the denial of natural justice as to one issue before the Tribunal did not invalidate the Tribunal’s decision because there was another legally exceptionable basis (entirely not dependent on the other issue) for the Tribunal to have rejected her application to it.

3. For these reasons I consider that the decision appealed from was correct and the appeal will be dismissed with costs. 

4. I should not leave the matter, however, without saying that a sense of grievance, even if, objectively and, according to law, it is not justified, might nevertheless reasonably remain in the breast of the appellant and her husband, and that has arisen because of a fault for which the respondent’s Department must be held responsible. In these circumstances, it seems to me that it would be desirable if the Minister were to reconsider the matter entirely afresh under s 351 of the Act.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:              August 2005

Solicitor for the Appellant:	Legalmax Lawyers
Counsel for the Respondent:	Mr R J Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 July 2005
Date of Judgment:	27 July 2005