Chu v Minister for Immigration
[2004] FMCA 461
•23 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHU v MINISTER FOR IMMIGRATION | [2004] FMCA 461 |
| MIGRATION – Appeal from the Migration Review Tribunal – application for Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa – whether Tribunal failed to comply with section 359A of the Migration Act – no jurisdictional error. |
Federal Court of Australia Act 1976 (Cth), s.32AB
Federal Court Rules 1979 (Cth), Order 82
Migration Act 1958 (Cth), ss.359A, 360, 368, 425
Migration Legislation (Amendment) (Judicial Review) Act 2001 (Cth)
Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140
WAPG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 266
| Applicant: | PING PING CHU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 96 of 2003 |
| Delivered on: | 23 July 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 15 September 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Belbruno |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 96 of 2003
| PING PING CHU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
16 December 2002 seeking judicial review of the decision of the Migration Review Tribunal on 29 November 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a Partner (Temporary) visa (Class UK) and a Partner (Residence) (Class BS) visa.
The history
The applicant is a citizen of the People’s Republic of China. She first came to Australia on a Student (Class TU) visa (sub-class 560) in August 1998; she returned to China in December 1999. The applicant returned to Australia on 15 January 2000, left Australia in June 2001 and finally returned to Australia in July 2001. This visa was cancelled on 26 January 2002.
During March 2001, whilst in Australia, the applicant claims she commenced a relationship with the nominator, Mr Terry Pham Le; she married the nominator on 29 November 2001. On 13 December 2001, the applicant applied for a Partner (Temporary) visa (Class UK) and a Partner (Residence) (Class BS) visa (subclasses 820 and 801) on the basis that she was married to the nominator.
In February 2002, officers from the Department of Immigration and Multicultural Affairs (“the Department”) attended the residence of Mr Yan Xue Xie (an applicant in separate residency proceedings); the applicant was located at Mr Xie’s residence. Mr Xie stated, among other things, that the applicant was his girlfriend, the applicant and the nominator had a house under renovation and the nominator was residing with his parents at a location unknown to the applicant.
Following this incident, the applicant and the nominator were invited to attend an interview with a delegate of the Department. The interview, which was initially postponed, was held on 20 March 2002; the applicant and her migration agent did not attend. On 22 March 2002, the delegate refused to grant the visas due to insufficient information demonstrating that the applicant was the spouse of the nominator. The delegate also found that the applicant did not satisfy the criteria of any UK visa subclass or any BS visa subclass. The applicant sought review of the delegate’s decision by the Migration Review Tribunal (“the Tribunal”) on 16 April 2002.
In the decision made by the Tribunal on 29 November 2002, the Tribunal affirmed the decision of the delegate to refuse to grant the Partner (Temporary) (Class UK) visa (subclass 801). The Tribunal also found that the applicant did not satisfy the criteria for the grant of a Partner (Residence) (Class BS) visa, subclass 801 (a permanent visa) which had been incorporated into her application. The Tribunal stated, inter alia, that there was insufficient evidence to demonstrate that the applicant and nominator were in a genuine spousal relationship at the time of its decision.
On 16 December 2002, the applicant lodged an application in the Federal Court of Australia, being V858 of 2002, pursuant to the Migration Act 1958 (Cth) (“Migration Act”). The application stated that the Tribunal had:
(a) failed to observe the proper procedures; and
(b) erred in making a decision, which was made through an improper use of power.
By consent order of the Honourable Justice Gray on 31 January 2003, the matter was transferred to the Federal Magistrates Court pursuant to section 32AB of the Federal Court of Australia Act 1976 (Cth) and Order 82 of the Federal Court Rules 1979 (Cth). On 12 March 2003, by order of Registrar Efthim, the parties were ordered to file additional material; a court book was filed on 11 April 2003 in accordance with this order. The applicant’s contentions of fact and law were filed on 12 June 2003. According to the contentions, the applicant claimed that the Tribunal had:
a)(a) breached section 425 of the Migration Act by denying the applicant the opportunity to appear and provide further explanation regarding why the nominator’s parents were not informed prior to the wedding and to explain the written comments that had been requested by the Tribunal;
b)(b) failed to act in accordance with the procedures required under section 368 of the Migration Act, namely failing to prepare a statement of reasons and failing to act according to the substantial justice and merits of the case; and
c)(c) erred in applying and interpreting the relevant law by failing to consider that the applicant and the nominator had lived together for nearly one year at the date of the Tribunal hearing which evinced a genuine relationship.
By order of Registrar Wood on 18 June 2003, the respondents were ordered to file contentions of fact and law; the contentions were filed on 2 July 2003. According to the respondent’s contentions, the applicant’s assertion that there was a breach of section 425 of the Migration Act was incorrect as this provision relates to the Refugee Review Tribunal. The respondent therefore presumed that the provision the applicant was relying upon was section 360 of the Migration Act (Tribunal must invite applicant to appear); the respondent consequently argued that the Tribunal had not failed to comply with this provision as the applicant was invited to appear before the Tribunal and gave evidence. The respondent’s contentions also stated that the Tribunal was not required to invite the applicant to explain written information requested pursuant to section 359A of the Migration Act, even if inconsistencies arose between the evidence given at the hearing and the written comments. In relation to the applicant’s assertion that the Tribunal failed to comply with the procedural requirements of section 368 of the Migration Act, the respondent stated that this was not a ground of review and the applicant was acting in reliance on the old Part 8 judicial review scheme which was repealed by the Migration Legislation (Amendment) (Judicial Review) Act 2001 (Cth). The respondent stated that in any event the Tribunal did not fail to provide a written statement of reasons and had considered the merits of the case. Finally, in reference to the applicant’s claim that the Tribunal did not consider that one year had passed since the delegate’s initial decision, the respondent rebutted this, noting that the Tribunal had made an express finding on this point.
The law
Section 359A of the Migration Act provides:
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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.
(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.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Section 424 of the Migration Act is the counterpart of section 359A in relation to the Refugee Review Tribunal.
Conclusions and findings
At the commencement of proceedings, Counsel for the applicant stated that he wished to abandon all grounds in the application bar the ground “That the Tribunal denied the applicant an opportunity to explain written comments that the Tribunal itself had requested” pursuant to section 359A of the Migration Act (not section 425 of the Migration Act as referred to in the applicant’s contentions).
In summary, the applicant contends that the Tribunal erred in that it failed to comply with section 359A(1) of the Migration Act and that failure constituted a jurisdictional error which section 474 of the Migration Act did not operate to prevent the Court from giving declaratory relief in respect of the Tribunal’s decision.
It was submitted that the Tribunal had failed to comply with section 359A(1) of the Migration Act in that it relied on three different statements made by the applicant to reach its conclusions. There were the statements made to the Departmental Office on the occasion of the house visit on 21 February 2002, the statement made by the applicant at the hearing on 23 August 2002 and the third statement made by the applicant after the Tribunal hearing upon the request of the Tribunal; that statement was handed to the Tribunal on 28 October 2002 (Casebook (CB) 46-49).
Mr Belbruno for the applicant said that the Tribunal canvasses these statements at paragraphs 44 and 45 of the decision (CB 59-60). He further submitted that if the Tribunal’s determination and finding on the credibility of the applicant was made on the basis of contradictions between the statement made on 28 October 2002 and the statement made before the review on 21 February 2002, then the determination is affected by the what the Full Court of the Federal Court had to say in Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140 as follows:
(i) The failure to comply with s 359A was a denial of procedural fairness that amounted to a jurisdictional error (in the term of S157/2002 v Commonwealth (2003) 195 ALR 24; 77 ALJR 454; BC200300103; [2003] HCA 2). As a consequence, the MRT decision was not made “under this Act” (s 474(2)) and was not a protected “privative clause decision”.
A construction of the MA makes it clear that failure to comply with s 359A gives rise to jurisdictional error (Gray J). Section 359A imposes imperative duty upon the tribunal and an inviolable limitation upon its power of review. Failure to observe s 359A renders the decision invalid (Merkel J).
(ii)The application of criterion 560.224 required the MRT to balance a number of factors: financial ability, comprehension of English, intention to comply with conditions and other relevant factors. It did not make findings on these matters and failed to address the question raised by the criterion. Failure to ask the right question and identifying the wrong issue are jurisdictional errors not protected by the privative clause in s 474.
(iii)North J had a discretion to refuse the relief sort under s 39B of the Judiciary Act. This required a consideration as to whether the failures identified in (i) and (ii) above had a substantial affect in depriving the applicant of a fair hearing and therefore warranted the exercise of discretion. This North J did not do (Gray J). The failure identified as (i) would not on its own warrant the exercise of the discretion in this case (Gray J). This is contrasted with Marshall J — any breach of s 359A, technical or otherwise warrants relief as the MRT would not have complied with a “section of the Act which it was bound to comply with in the course of conducting a review”.
The real issue in this case is whether or not there has been a failure to comply with section 359A of the Migration Act. I am satisfied that the information given to the Tribunal by the applicant on 28 October 2002 was made by the applicant for “the purpose of the application” and therefore falls within the ambit of section 359A(4)(b). The information was forwarded to the Tribunal on 28 October 2002 by the applicant’s advisers after the Tribunal hearing at the request of the Tribunal and is included at CB 47 to 49. It was forwarded as the applicant’s response and clearly made for the “purpose of the application”.
Section 359A therefore has no application and did not require the Tribunal to give the applicant particulars of any inferences that it considered might be drawn from the information she had provided, or comment on that information. The Full Court of the Federal Court in WAPG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 266 (13 April 2002) held:
26 In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at [20] "information" is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information". Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.
27 At [22] in Win the Full Court considered that assertions which cast doubt on an applicant's version of events may constitute "information" for the purposes of s 424A. However, the assertions in Win were those of an informant. The Full Court did not intend to include in its definition of "information" conclusions arrived at by the RRT in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence.
It is clear in my view that the Tribunal had it allowed the applicant to comment further would have been initiating a never ending process of review which, as the Full Court indicated, would have been a result plainly not intended by the legislature.
In all the circumstances, I am satisfied that there is no jurisdictional error and I dismiss the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 24 July 2004
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