Cerenio v Minister for Immigration

[2013] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERENIO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 681

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where application for Partner Visa refused on basis that relationship was not genuine and continuing – where at time of decision of Tribunal on application for review applicant and partner had separated – where applicant indicated intention to make claim under family violence exception – where Tribunal not satisfied that genuine relationship existed at the time application was made – where Tribunal put adverse information to applicant both orally, at the hearing, and in writing, in a s.359A letter, following the hearing – where applicant not given an opportunity to answer questions finally at Tribunal hearing – where applicant responded to s.359A letter – whether Tribunal failed to inform applicant of opportunity to seek additional time to comment on information given orally in accordance with s.359AA of the Migration Act 1958 (Cth) – whether applicant provided with a real chance to present her case – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.5F, 357A, 359A, 359AA, 360(1)

Minister for Immigration & Anor v Li & Anor [2013] HCA 18

Applicant: JOMIE CERENIO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2009 of 2012

Judgment of: Judge Raphael

Hearing date: 18 June 2013

Date of Last Submission: 18 June 2013

Delivered at: Sydney

Delivered on: 18 June 2013

REPRESENTATION

Counsel for the Applicant: Mr R Lee

Solicitors for the First Respondent: DLA Piper

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2009 of 2012

JOMIE CERENIO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Migration Review Tribunal made on 17 August 2012 affirming a decision of a delegate not to grant the applicant a Partner (Temporary) (Class UK) Visa.  The applicant was born on 12 July 1986 in the Philippines and arrived in Australia on 30 July 2008 on a Subclass 573 Student Visa.  She was taking a course in computing science but found that too difficult.  She quit the course and, instead, took a certificate in aged care.  Since 2009 the applicant has been working in an aged care facility.  On 20 December 2008 she met a Mr “K” at a party in Granville.  In May 2009 she and Mr “K” decided to get married and on 23 July 2009 they were married.  The applicant then made an application for the spouse visa under subclass 820 of the visa class as the Tribunal said:

   “[8]In the present case only clause 820.211(2) is relevant to the applicant’s claimed circumstances.  Clause 820.211(2) requires inter alia that at the time of application the visa applicant be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not prohibited by clause 820.211(2B) from being a sponsoring partner. The visa applicant must be sponsored by the spouse or the de facto partner or, where the spouse has not turned 18, by a relevant parent or guardian. [CB 504]

2. At [10] [CB 505] the Tribunal sets out the definition of “spouse” in s.5F of the Migration Act 1958[1] and notes at [11]:

   “[11]In forming an opinion whether two persons are in a married or de facto relationship, in relation to an application for a Partner (Temporary) (Class UK) visa, the Tribunal must have regard to all the circumstances of the relationship, including in particular the considerations set out in r.1.15A(3) for spousal relationships and r.1.09A(3) for de facto relationships.  These considerations relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.”

   [1] “Act”

3. The criteria referred to above are what are known as time of application criteria.  In other words those criteria must be satisfied at the time the application is made and it is not sufficient for them to have been satisfied by the time the decision is made.  In this particular case it should be noted that by the time the decision came to be made by the Tribunal the parties had separated and Ms Cerenio had intimated that she wished to make a claim under the domestic violence provisions of clause 820 being clause 820.221(3)(a) and 820.221(3)(b)(i).  However, unless the Tribunal could be satisfied that the time of application criteria were satisfied there was no necessity for it to consider the time of decision criteria. 

4. In accordance with the usual practice of the department, after the application was made certain inquiries were carried out.  Those inquiries included a visit to the premises which the parties claimed was their matrimonial home.  When the visit occurred Ms Cerenio was not present and a number of questions were asked of Mr “K”.  His responses to those questions raised a concern in the mind of the delegate that the parties did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship was genuine and continuing, or that the couple lived together.  After further consideration of all the facts and circumstances, the delegate concluded:

   “Ms Cerenio and Mr “K” have not provided any documents to show commitments in their relationship.  They failed to provide any substantial documents to prove they maintain a marital relationship. 

   Based on all the information before me, I find the relationship between Ms Cerenio and Mr “K” is not genuine and continuing, and they do not live together on a permanent basis.”  [CB 162]

5. When the matter came before the Tribunal it raised with Ms Cerenio the concerns that had been raised by the delegate.  In the transcript annexed to an affidavit of Katherine Nicole Hooper, dated 7 January 2013 at [T7.40] the Tribunal notes:

   “Q:The department did a couple of things when they got your visa application, first of all they interviewed you and Andrew separately, and secondly they attended the house at Wattle Grove? 

   A:Yes. 

   Q:And the department noted various discrepancies in the interviews you both had but more significantly, when they visited the house there’s really no sign you lived there at all and this visit was done some six months after, starting December from memory, but it was done some months, six months or so after you were married?”

6. At [T8.40] after asking some questions about the visit, the Tribunal said to the applicant:

   “Q:I need to understand this clearly, if I don’t understand or want more information that’s important to me, I will give you further opportunity to respond.  You’ll have ample time to think this through but if I’m happy with your explanations now that might be the end of it.  So were his clothes in a suitcase as well?

7. The applicant was asked further questions concerning the visit and the situation at the alleged matrimonial home.  At the end of the hearing the Tribunal member turned to the applicant and said:

   “Q.Yes, I will think about what you’ve told me.  I’m fairly certain I think I’ll need to give you more chance to respond to the department’s concerns - the information the department obtained about the home visit and the two interviews, and the reason is why I’m sure about that is because I know you’re very nervous.  It’s hard for you today and nervous so I’m sure there are probably things that you have not been able to recall immediately that you might be able to respond when you have had time to think about it and write it out in writing.  It is a major problem whether or not at the beginning when you apply whether it was – and to use “fair dinkum,” use the Australian way of saying it - it’s the genuine relationship…. [T25.30]

8. Finally, the Tribunal said to the applicant:

   “QAs I said I think you’ll expect a letter from me within three or four days outlining or giving you an opportunity to comment on or respond to certain information.  That’s basically what we sort of talked about earlier.  If I get that back and I’m satisfied with your explanations to explain all that information, then I need to look at whether domestic violence did occur…Okay,  so if that – I may or may not need to speak to you again.  That might depend on what you write in your responses.  If your responses cause more questions than answers then I might call you back in as well, but hopefully your responses to my concerns will clarify it one way or the other for me?[T26.5]

9. On 3 July 2012 the Tribunal wrote to the applicant a letter in which it states:

   “I am writing about the application for review made by you in relation to a decision to refuse to grant a Partner (Temporary) (Class UK) visa. 

   In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review.

   Please note, however, that the Tribunal has not made up its mind about the information.”  [CB 482]

10. The Tribunal then set out particulars of information upon which it requested comments and explained why the information was relevant to the decision-making process.  The matters which were raised dealt with inconsistencies at the delegate’s interview on 9 December 2009 and concerns arising out of a home visit on 5 May 2010.  In regard to that latter information, the Tribunal said:

    “This information is relevant because when the contents of the report are looked at cumulatively it suggests there is no evidence that you were residing at 24 Corryton Court Wattle Grove.…

    This could lead the Tribunal to infer that other evidence concerning the relationship is not credible.  This in turn would be part of the reason for the Tribunal affirming the decision under review.”   [CB 484]

11. This letter appears to me to fulfil the requirements of s.359A of the Act, which is relevantly in the following form:

    “Information and invitation given in writing by Tribunal

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

    (a)  give to the 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.

    (2)  The information and invitation must be given to the applicant:

    (a)  except where paragraph (b) applies--by one of the methods specified in section 379A; or

    (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (3)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.”

12. The applicant responded to the letter by her own letter of 8 August 2012 and that letter was taken into consideration by the Tribunal in its decision record [93] [CB 519].  The Tribunal concluded:

    “[93]The Tribunal is mindful that Ms Cerenio has supplied a large amount of material purporting to demonstrate the existence of the relationship.  As discussed above the Tribunal finds that at the time of the visa application the parties did not cohabitate.  There are no significant joint financial arrangements and there was no real commitment to each other as spouses.  Certainly there have been social aspects to the relationship.  For example there is a photograph of Mr “K” with Ms Cerenio at a work function for Ms Cerenio.  They travelled together in April 2012.  There is no one factor that is determinative.  For example limited financial arrangements alone do not rule out the existence of a married relationship.  However when all the factors are looked at as a whole the Tribunal is not satisfied that the relationship between Ms Cerenio and Mr “K” was genuine.

    [94]As discussed above, on the basis of the evidence before it, the Tribunal is not satisfied that at the time of the visa application Ms Cerenio and Mr “K” had a mutual commitment to a shared life to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not meet the requirements of s.5F(2)(b) and (c) for a married relationship.

    [95]Additionally, the Tribunal is not satisfied that at the time of the visa application Ms Cerenio and Mr “K” live together or not separately and apart on a permanent basis. Accordingly, they do not meet the requirements of s.5F(2)(d) for a married relationship.”

13. On 17 September 2012 the applicant filed an application seeking review of the Tribunal’s decision.  An amended application was filed on 13 December 2012.  The grounds of the application are set out below:

    “1.An order in the nature of certiorari to quash the decision of the Migration Review Tribunal (“Tribunal” on the ground that it involved jurisdictional error being a failure to comply with the requirements of the rules of natural justice, and or alternatively, the requirements of the Migration Act 1958 (Cth) (“Act) being:

    (A) section 360(1) of the Act which provides that –

    “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”; and

    (B) section 359AA of the Act which provides that –

    “if an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a)     the Tribunal may orally give to the applicant 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)     if the Tribunal does so – the Tribunal must:

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

    (ii)orally invite the applicant to comment on or respond to the information; and

    (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

    Particulars

    (1)The Tribunal has a statutory obligation to put to the applicant information which the tribunal considers would be the reason or part of the reason for affirming the decision under review.

    (2)The information may be put to the applicant in writing in accordance with the requirements of section 359A of the Act or orally at a hearing in accordance with the requirements of section 359AA.

    (3)If the information is put orally to the applicant, the procedure in section 359AA must be complied with. If all of the requirements of section 359 AA is not complied with, then section 359A(3) is not engaged and the tribunal member is obliged to put the information to the applicant in writing in accordance with the requirements of section 359A(1).

    (4)If the information is put orally to the applicant, the tribunal member needs to give the applicant sufficient details of the information, explain the relevance of the information sufficiently well for the applicant to understand it and explain the consequences of the information for the applicant’s case.  The tribunal member must also orally invite the applicant to comment on or respond to the information and advise the applicant that he/she may seek additional time to comment or respond.

    (5)The tribunal member must adjourn the review if he/she considers that the applicant would reasonably need that additional time.

    (6)The tribunal conducted a hearing of the applicant’s application for review on 28 June 2012.  Prior to this date, the tribunal did not invite the applicant to comment on or respond to a particular information, in writing.

    (7)The tribunal member, at the hearing of the review on 28 June 2012, put to the applicant certain information, however, he failed to comply with all of the requirements of section 359AA particularly section 359AA(b)(iii) ie advise the applicant that she may seek additional time to comment on or respond to the information. This was a jurisdictional error.

    (8)As a consequence of the tribunal member’s failure to comply with section 359AA(b)(iii), the review must be adjourned as required by section 359AA (b)(iv).

    (9)The tribunal member, at the hearing on 28 June 2012, said words to the effect:

    “…I’m very certain, I think I need to give you a chance to respond to the department’s concern or the information department is telling me about the home visit and interviews.  After … as I said, I think you should, you expect the letter from me within 3 or 4 days ahmm outlining or giving you an opportunity to comment or respond to certain information and that’s basically our talk earlier.”

    (10)The action of the tribunal member at paragraph (9) above is an adjournment of the review under section 359AA (b)(iv) of the Act.

    (11)In a letter to the applicant dated 3 July 2012, the tribunal member invited the applicant to comment on or respond to certain information, in writing.

    (12)On 8 August 2012, the applicant provided, in writing, her comment on or respond [sic] to the information contained in the tribunal’s letter of 3 July 2012.

    (13)The applicant did not receive any communication from the tribunal regarding the continuation of the adjourned hearing of the review.

    (14)On 17 August 2012, the tribunal rendered its decision on the applicant’s application for review affirming the first respondent’s delegate’s decision of 25 June 2010.

    (15)The tribunal’s failure to continue the hearing of the review which was adjourned on 28 June 2012 was a jurisdictional error because it is a non-compliance with the requirements of the rules of natural justice.

    (16)The tribunal’s failure to continue the hearing of the adjourned review was a jurisdictional error because it is a non-compliance with the statutory obligation of the tribunal under section 360 of the Act which requires that the applicant must be given sufficient opportunity to give evidence and present arguments relating to all the relevant issues arising in the review.”

14. Although these grounds of application are lengthy the point that is made in them and was pressed at hearing is short. It is said that the procedure adopted by the Tribunal was a procedure under s.359AA of the Act and that the Tribunal should have adjourned the review for the applicant to respond and then continued the review and questioned her upon her responses. Section 359AA of the Act is in the following form:

    “Information and invitation given orally by Tribunal while applicant appearing

    If an applicant is appearing before the Tribunal because of an invitation under section 360:

    (a)  The Tribunal may orally give to the applicant 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)  If the Tribunal does so--the Tribunal must:

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

    (ii)  orally invite the applicant to comment on or respond to the information;

    (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and;

    (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

1. It is now well established that s.359AA is a subset of s.359A. It provides an alternative method of putting to an applicant certain information and receiving the applicant’s response at the hearing rather than by dealing with the matter in writing in accordance with the provisions of s.359A. Both subsections are part of the exhaustive statement of the natural justice hearing rule referred to in s.357A of the Act.

2. It is clear that if questions are asked in accordance with the provisions of s.359AA, and the procedure set down in that subsection is not complied with, a jurisdictional error will have occurred. But there is no requirement for that procedure to be imported into the request for information contained in s.359A of the Act. The letter sent by the Tribunal to the applicant was a s.359A letter, and although the Tribunal did question the applicant about many of the matters that were contained in that letter, it did not do so in accordance with s.359AA. In other words, it did not give the applicant an opportunity to answer the questions finally at the hearing.

3. It will be seen from the extracts from the Transcript contained in these reasons that the Tribunal had good reasons for not doing so. It felt that the applicant was nervous and may not be able to answer the questions properly, in accordance with s.359AA. The Tribunal acted more than fairly towards the applicant in these circumstances. It provided the applicant with a letter under s.359A and explained to the applicant that the Tribunal may not need to have further resort to an oral hearing, depending upon the responses. It proceeded on that basis. It considered the responses and for the reasons given came to the conclusion that the responses did not alleviate its concerns. It therefore made a finding affirming the decision originally made by the delegate.

4. Mr Lee, who appears on behalf of the applicant, has drawn my attention to what fell from Hayne, Kiefel and Bell JJ in Minister for Immigration & Anor v Li & Anor [2013] HCA 18[2] at [54 and 55].  That was a case which concerned the failure of the Tribunal to grant the applicant an adjourned hearing.  At [54] their Honours say:

   “[54]Section 357A has a different statutory context. It appears at the commencement of Div 5, which is headed "Conduct of review". The language of s 357A is general. The sections which follow it detail certain entitlements which an applicant for review is to have and certain steps which are to be taken by the Tribunal leading up to and during a hearing. By way of example, an applicant for review is entitled to provide the Tribunal with written statements as to facts and written legal arguments[111]. The Tribunal may seek additional information[112] and in some cases may be bound to do so. Where it does so by giving a written invitation to a person to give additional information, or where it invites an applicant's comment on or response to certain information, particular requirements attach to the giving of the invitation[113]. By s 360(1), the Tribunal is obliged to invite an applicant to appear before it "to give evidence and present arguments relating to the issues arising in relation to the decision under review". An applicant may request that the Tribunal call a witness or obtain written material[114] and is generally entitled to have access to written material that is before the Tribunal[115]. The Tribunal is given certain powers by s 363 for "the purpose of the review of a decision" including to require investigations or medical examinations to be conducted[116], to summon persons to appear before it[117] and, of course, by s 363(1)(b), to adjourn the review from time to time.

   And at [55] they make the point that:

   [55]The terms of s 357A(1) would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Div 5. What then is to be understood by the requirement in s 357A(3), expressed in obligatory terms, that in "applying this Division, the Tribunal must act in a way that is fair and just"? If s 357A(1) is to be taken as exhaustive of the requirements of procedural fairness which attach to a review, does s 357A(3) nevertheless say that the Tribunal, in fulfilling those requirements and in exercising its powers, is to do so in a way which is fair and just?”

   [2] “Li”

5. Their Honours then move on to a discussion of the requirement that in applying Division 5 the Tribunal must act in a way that it “fair and just”. The plurality discuss the requirement under s.360(1) to invite an applicant for review to appear before it and that that invitation must be meaningful:

   “[61]In the sense that it must provide the applicant for review with a real chance to present his or her case.”

6. The court then proceeds to confirm the views expressed by the Federal Magistrate, and then by the Federal Court, that in refusing to grant the adjournment the Tribunal did not act in a way that was fair and just in all the circumstances of that particular case.  The instant case is distinguishable from Li in that there can be no doubt, from a reading of the review decision and of the transcript that the applicant had a full opportunity to appear before the Tribunal under s.360. There is equally no doubt that when the Tribunal had concerns, it acted appropriately by sending a letter under s.359A to the applicant and that the applicant responded to it. There is nothing in Li which suggests that the Tribunal is under any obligation to reopen the hearing after receiving a response to a letter under s.359A and I have not been referred to any other authority which might have said that.

7. In my view there is no merit in the argument put forward by the applicant in this case and the application must be dismissed.  The applicant shall pay the first respondent’s costs assessed in the sum of $5,000.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Date:  28 June 2013