Boakye-Danquah v MIMIA

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FEDERAL COURT OF AUSTRALIA

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438

MIGRATION – Application for spouse visa – Application supported by applicant’s Australian-citizen spouse – Breakdown of marriage with alleged domestic violence before determination of application – Application refused – Application to Migration Review Tribunal for review of refusal dismissed – Two errors by Tribunal in interpretation of relevant regulation – One error resulted in Tribunal asking itself the wrong question – Effect of privative clause provision enacted in 2001.

Migration Act 1958: ss 474, 475A, 476, 477, 483A, 484
Migration Regulations: cll 820.111, 820.211, 820.221

The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed
Craig v South Australia (1995) 184 CLR applied
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 applied
Walton v Ruddock [2001] FCA 1839 followed
NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 not followed
NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 not followed
Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 referred to

COMFORT BOAKYE-DANQUAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1489 of 2001

WILCOX J
11 APRIL 2002
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1489 OF 2001

BETWEEN:

COMFORT BOAKYE-DANQUAH
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

11 APRIL 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It be declared the decision of the Migration Review Tribunal dated 15 October 2001, affirming a decision of a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the applicant, Comfort Boakye-Danquah, either a General (Residence) (Class AS) visa or an Extended Eligibility (Temporary) (Class TK) visa was made in excess of jurisdiction and is null and void.

2.The respondent pay the costs incurred by the applicant in connection with the proceeding.

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

N1489 OF 2001

BETWEEN:

COMFORT BOAKYE-DANQUAH
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WILCOX J

DATE:

11 APRIL 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

  1. This is an application for judicial review of a decision of the Migration Review Tribunal given on 15 October 2001.  The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant to the applicant, Comfort Boakye-Danquah, either a General (Residence) (Class AS) visa or an Extended Eligibility (Temporary) (Class TK) visa.

    The facts

  2. The applicant was born in Ghana in 1960.  She entered Australia on 16 May 1995 on a Long Stay (Visitor) visa which expired on 16 May 1996.  At some stage – it is not clear to me whether in Ghana or in Australia – she met…

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Details
Case
[2002] FCA 438
Decision Date

CaseChat Overview and Summary

This case involves an application for judicial review of a decision by the Migration Review Tribunal (MRT) regarding the refusal of a visa application by Comfort Boakye-Danquah. The application, supported by her Australian-citizen spouse, was denied after the breakdown of their marriage, which included allegations of domestic violence. The MRT affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. The primary legal issue was whether the MRT correctly interpreted the relevant regulation when it denied the applicant's visa application. Specifically, the court needed to determine whether the MRT correctly applied the term "compelling reasons" and whether the privative clause provision enacted in 2001 affected the tribunal's jurisdiction.

The court found that the MRT made two errors in its interpretation of the regulation. The first error was that the MRT asked itself the wrong question by considering the application as if the spouse had not withdrawn the nomination. The second error was in determining whether the applicant satisfied the "basic prerequisite criteria" for the grant of the visa. The court concluded that these errors led the MRT to make a decision that was outside its jurisdiction, rendering the decision null and void. The court also noted that the privative clause provision did not affect the tribunal's jurisdiction in this case.

The final orders of the court were that the decision of the MRT was declared to be made in excess of jurisdiction and is null and void. Additionally, the respondent was ordered to pay the costs incurred by the applicant in connection with the proceeding.

Orders

Orders of the court

1. It be declared the decision of the Migration Review Tribunal dated 15 October 2001, affirming a decision of a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the applicant, Comfort Boakye-Danquah, either a General (Residence) (Class AS) visa or an Extended Eligibility (Temporary) (Class TK) visa was made in excess of jurisdiction and is null and void.

2. The respondent pay the costs incurred by the applicant in connection with the proceeding.

Background

Background to the litigation

This is an application for judicial review of a decision of the Migration Review Tribunal given on 15 October 2001. The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant to the applicant, Comfort Boakye-Danquah, either a General (Residence) (Class AS) visa or an Extended Eligibility (Temporary) (Class TK) visa.The facts The applicant was born in Ghana in 1960. She entered Australia on 16 May 1995 on a Long Stay (Visitor) visa which expired on 16 May 1996. At some stage – it is not clear to me whether in Ghana or in Australia – she met James Yiadom Boakye-Danquah, an Australian citizen who is apparently of Ghanian extraction. It seems the applicant lived with Mr Boakye-Danquah for some time – it is not clear how long – before their marriage in Sydney on 29 June 1996. On 31 July 1996 the applicant lodged with the Department of Immigration and Ethnic Affairs (as it was then called – “the Department”) a document called “Application to Remain Permanently in Australia”. The application was based on the applicant’s spousal relationship with Mr Boakye-Danquah. The application form included a section signed by Mr Boakye-Danquah in which he nominated the applicant for permanent residence in Australia. As the applicant’s substantive visa had expired in May 1996, the Department granted to her a Bridging visa, pending determination of her substantive visa application. For reasons not apparent to me, there was a lengthy delay in processing that application. It was not determined until 15 December 1999, three and a half years after lodgment. By that time the matrimonial relationship between the applicant and Mr Boakye-Danquah had broken down. On 1 November 1999 Mr Boakye-Danquah wrote to the Department stating “there has been a series of problems” in the marriage and withdrawing his “sponsorship” of his wife’s application. Shortly after that date, on 23 November 1999, a police officer applied to Kogarah Local Court for an apprehended domestic violence order against Mr Boakye-Danquah. The application was supported by a statement alleging that, during the marriage, the parties had “numerous arguments” and the defendant “has hit [Ms Boakye-Danquah] twice”. The statement went on:“Today on the 23rd of November, the victim and the defendant have had a verbal argument over a telephone call, which resulted in the defendant striking the victim with the telephone and kicking her in the stomach. This caused the victim to feel dizzy and fall against the couch. The defendant has stated to the victim that he wants to end the marriage and does not need her anymore and so wants to kick her out of their house at the above location.” On 29 November 1999 the Local Court made an interim order against Mr Boakye-Danquah. The Department advised Ms Boakye-Danquah of her husband’s withdrawal of nomination. She responded on 2 December 1999, reporting the domestic violence and that she was now in a women’s refuge. On 13 December 1999 a firm of immigration consultants wrote to the Department on her behalf.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WILCOX J
It is not contended that subcl (2) of cl 820.221 applies to this case. However, that subclause is relevant in considering the meaning of the term “nominating spouse”. The term is defined by cl 820.111, for the purposes of the relevant Part of Schedule 2, as meaning “the Australian citizen, Australian permanent resident or eligible New Zealand citizen who nominated the applicant as his or her spouse when the application for the visa was made”.The Tribunal’s decision On 12 January 2000 Ms Boakye-Danquah applied to the Tribunal for review of the delegate’s decision of 15 December 1999. Once again, there was a lengthy delay. Twenty-one months later, on 15 October 2001, the Tribunal published its decision affirming that decision. In its reasons for decision the Tribunal set out the history of the matter and referred to evidence tendered at the Tribunal hearing. Much of this evidence was directed to the genuineness of the relationship between the applicant and Mr Boakye-Danquah before their separation in November 1999. The Tribunal seems to have been satisfied about that matter. The application for review was rejected on other grounds. They were set out in paras 21 and 22 of the Tribunal’s reasons, as follows:“21. In order for this application to succeed the visa applicant must, among other things, satisfy regulation 820.21 at the time of application. Regulation 820.21 includes subclause 820.211 (2)(d)(ii). This means that Schedule 3 criteria 3001, 3003 and 3004 have to be satisfied unless the Minister is satisfied that there are compelling reasons for not applying those criteria.22. It is not in dispute that the visa applicant lodged her application for this visa on 31 July 1996. Nor is it in dispute that the visa applicant last held a substantive visa on 16 May 1996. The meaning of the word ‘compelling’ has been discussed in several decisions of the Federal Court including in Minister for Immigration and Multicultural Affairs v Dunne (1999 FCA 204). In Dunne Branson, J stated that ‘compelling reasons’ … must involve something in addition to ‘the basic prerequisite criteria for the grant of the visa’ (at 28). This means that the visa applicant has to satisfy, among other things, criterion 820.211(2)(c) and in addition there must be ‘compelling reasons’ as envisaged by the regulations and decided case law. At the date of decision the visa applicant was not able to satisfy criterion 820.221(2)(c) of the Migration Regulations. This is because on 1 November 1999 the nominator had withdrawn his nomination of the visa applicant. The Tribunal notes that the visa applicant attempted to avail herself of the special provisions relating to domestic violence. The evidence alleges one incident of domestic violence which is said to have occurred on 23 November 1999. The 23 November 1999 is after the nominator had withdrawn his nomination. Based on the just cited evidence the Tribunal cannot make a finding that the visa applicant satisfied ‘the basic prerequisite criteria for the grant of the visa’. The Tribunal is not satisfied that compelling reasons exist which would justify waiver of the Schedule 3 criteria. The visa applicant cannot establish compelling reasons for extending her stay in Australia. This is because her relationship with the original nominator has ceased. She does not appear to have any interests in Australia other than what she describes as ‘all her friends’. It was not beyond her control to lodge this application within time. The visa applicant has three children all of whom reside in Ghana and all of whom are being cared for by a relative of the visa applicant. Having considered all the relevant evidence the Tribunal is not satisfied as to the existence of compelling reasons such as would justify waiver of the Schedule 3 criteria.” (Emphasis added)

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

Full text does not contain this section.