Collins v Minister for Immigration
[2003] FMCA 571
•8 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS v MINISTER FOR IMMIGRATION | [2003] FMCA 571 |
| MIGRATION – Review of Migration Review Tribunal decision – Partner (temporary) class UK visa – decision quashed – failure to allow cross-examination of key witness – denial of procedural fairness. |
Migration Act 1958, ss.116(1)(a), 353, 483A
Judiciary Act 1903, s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Preston v Carmody (1993) 44 FCR 1 at 14-17
Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
| Applicant: | TATIANA KONSTANTINOVNA COLLINS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | HZ 22 of 2003 |
| Delivered on: | 8 December 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 17 November 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicants: | Mr E Alexander |
| Solicitor for the Applicants: | Eugene Alexander & Associates |
| Counsel for the Respondent: | Mr S McLeish |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Migration Review Tribunal dated 25 June 2003 be quashed.
The Application be remitted to the Migration Review Tribunal to be further determined according to law.
The Respondent pay the Applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules with the costs to be in accordance with Schedule 1 of the Federal Magistrates Court Rules
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HZ 22 of 2003
| TATIANA KONSTANTINOVNA COLLINS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondents
REASONS FOR JUDGMENT
In this application Tatiana Kostantinovna Collins (the Applicant) seeks review of a decision of the Migration Review Tribunal (the MRT) dated 25 June 2003.
The MRT had affirmed a decision under review that the visa applicants did not meet the criteria for the grant of a sub class 820 visa, that is a partner (temporary) class UK visa. The application had been made on behalf of the Applicant who is the primary visa applicant and her daughter. The Application filed on 21 July 2003 is supported by an affidavit sworn 17 July 2003. In the supporting affidavit the Applicant claims to be aggrieved by the MRT decision because:-
a)A breach of the rules of natural justice occurred in connection with the making of the decision;
b)The procedures that were required by law to be observed in connection with the making of the decision were not observed;
c)The decision involved an error of law whether or not the error appears on the records of the decision;
d)There was no evidence or other material to justify the making of the decision and/or
e)The decision was otherwise contrary to law.
Pursuant to orders made by this Court on 7 August 2003 both parties have filed and served contentions of fact and law and otherwise made submissions before the Court.
The background to the application has been set out in the MRT decision in paragraphs 9 to 13 (inclusive) as follows:-
“9. The review applicants entered Australia on 12 May 2001 on a subclass 300 (Prospective Spouse) visa (T1, f.40-41). On
9 June 2001 the primary review applicant and the sponsor were married and on 13 July 2001 application was made for the subclass 820/801 visa. On 13 July 2001 the review applicants were granted bridging visas on the basis of the applications for a visa, the subject of this review.
10. The review applicant was nominated in connection with the visa application by Mr **** (the nominator), an Australian citizen, who was born in Australia on 27 October 1941 (D1, f.27-35, question 65).
11.The review applicant claims to have met the nominator in Russia via an introduction agency on 28 November 2000 (D1, f.37-39). The applicant says the nominator proposed to her on 12 December 2000 and she eagerly accepted. The nominator spent time with the review applicant's family in Russia before he returned to Australia on 5 January 2001 (D1, f.37-39). The applicant claims that following the nominator's departure, the parties corresponded via email until the visa applicant and her daughter travelled to Australia on 12 May 2001. The parties were married on
9 June 2001.
12. The delegate stated that the visa was not granted because the review applicant was not in a genuine relationship with the nominator and therefore did not meet the definition of a spouse contained in regulation 1.15A of the Regulations (D1, f.202-210). The delegate considered a number of issues. The delegate notes that at the time of application, the visa applicant acted in a demeaning manner towards the nominator, whilst he seemed loving and genuinely affectionate. The delegate also said that evidence provided by `A' (a Russian acquaintance and friend of the parties, from the College attended by the applicant's daughter at the time of application) as to the dishonest intentions of the review applicant appeared truthful and genuine. The delegate noted that the review applicant and her daughter appeared untrustworthy and uncooperative when questioned (D1, f.202-210).
13. The delegate considered that the review applicant had contrived the relationship to obtain permanent Australian residence. The delegate found this to be the case based on e-mails allegedly sent by the visa applicant to friends in Russia, which he found to be genuine, and evidence provided by `A' and the claims made by the nominator. The delegate declined to examine claims by the visa applicant of domestic violence because of his finding that there was no genuine relationship (D1, f.202-210).”
At the hearing the Applicant was granted leave to amend the Application by specifically referring to the power of the Court to grant a Writ of certiorari quashing the decision and remitting the matter back to be determined according to law by the MRT. That power arises as conceded by the Respondent by virtue of s.483A of the Migration Act 1958 (Cth) (the Act) read in conjunction with s.39B of the Judiciary Act 1903. The Application to amend was not opposed.
It should also be noted that although in its Statement of Facts and Contentions the Respondent had initially taken issue with what was claimed to be an absence of the forms of proof of domestic violence required under the regulations, it was conceded at the hearing that in fact the appropriate statutory declaration and forms were in fact before the delegate and referred to at page 10 of the Court Book and again referred to by the MRT in its decision at page 155 of the Court Book where the MRT states:-
“Documents and relevant statutory declarations lodged in respect of a domestic violence claim on behalf of the review applicant for the purposes of clause 820.211(8) of schedule 1 of the regulation” form part of the evidence on file up to and including the delegate’s decision. Accordingly I received as an exhibit the appropriate statutory declaration under the domestic violence provision of the regulations which had attached a declaration from a social worker reciting the alleged domestic violence. Though the domestic violence described in the document was not conceded to be necessarily violence by the Respondent I am satisfied for the present purposes that it does constitute domestic violence given that examples are referred to of allegations of psychological abuse, verbal abuse, aggressive angry behaviour and threats, financial abuse, intimidations and attempts to control and isolate (the Applicant) from the broader community.”
Those allegations may easily constitute domestic violence for the present purposes.
It is against the background information and those preliminary issues that the parties then made submissions in relation to the substantive issues before this Court.
Applicant’s submissions
It was submitted that there had been a denial of procedural fairness in the present application by the MRT. In particular reliance was placed upon what is described to be a breach of natural justice as a consequence of the MRT basing its decision on evidence presented to the delegate. That evidence presented to the delegate was tainted in relation to the following matters:-
·An interpreter was not provided to the Applicant on three critical interview occasions;
·The Applicant was never presented with copies of e-mails which she was purported to have written;
·Exerpts only from the e-mails were read out to her in English;
·No time was given to the Applicant to consider her response to the allegations;
·No attempt was made to identify the evidentiary trail of the retrieval of the e-mails to translation and tendering of the e-mails.
During the course of oral submissions it was submitted that upon a proper reading of the MRT decision it became evident that the MRT had relied significantly on the evidence of a party it referred to as “A”. For the purpose of this hearing neither party advanced any reason why the identity of party “A” should not be revealed in this decision. It is clear from the material before the delegate that the party was identified by the name Tatiana Stefanidi. Mrs Stefanidi was interviewed by the delegate and made significant allegations against the Applicant. Apart from referring to what could be described as the Applicant making critical remarks of the nominator, it is noteworthy that the delegate recorded that Mrs Stefanidi believed that the nominator had been treated very poorly. Further, the delegate notes that Mrs Stefanidi alleges the Applicant’s daughter is not an honest person and possibly makes up stories to suit herself. She otherwise refers to the Applicant setting out to use the nominator as a means to obtain permanent residence in Australia and never intended a genuine or ongoing relationship. The delegate in considering Mrs Stefanidi’s material stated that she appeared to be
“truthful and genuine in what she said and although it did seem difficult at times for her to make such statements she had maintained a strong composure throughout the interview. Mrs Stefanidi has had a number of dealings with this Department (DIMA) assisting students to Australia and with visa extensions. This officer has found her to be a genuine and reliable person.”
It is noted that the delegate interviewed the nominator.
The submission made against the backdrop of the material to which I have briefly referred is that the Applicant did not have an opportunity to cross-examine Mrs Stefanidi or the nominator. It was submitted that in the circumstances where the MRT relied upon that evidence in part that as a matter of procedural fairness the Applicant should have had the opportunity, once having the benefit of an interpreter which was not provided before the delegate, to at least ask questions or for the MRT to make enquiries direct of Mrs Stefanidi and the nominator. This is preferable, it was submitted to the MRT simply relying upon what had been said or provided to the delegate and otherwise set out in documentary material relied upon and before the MRT. The MRT should have the advantage where a significant issue of credit was involved of at least asking questions of both Mrs Stefanidi and the nominator.
It is useful to set out the references in the MRT decision to the evidence of Mrs Stefanidi who as I have indicated was referred to throughout as ‘A’. The following passages are particularly relevant:-
“41. The Tribunal does note, however, that it is clear from the evidence of both the review applicant and the nominator, given prior to the production of the e-mails to the Department, that the nominator did check the e-mails of the review applicant and her daughter. Thus it is clear that he had seen at least some of the review applicant's e-mails before the cessation of the relationship. In the detailed e-mail by the nominator to the delegate on the day he advised of the breakdown, that is, before he had the e-mails retrieved that had been deleted from his system, he stated that the review applicant had been complaining about him and running him down in her e-mails to her friends. Moreover, the evidence given by `A' of the review applicant's comments about the nominator is consistent with that. Further, the affidavits from two of the recipients of e-mails from the review applicant do not attach any copies of the alleged original and unreconstructed e-mails. However, the Tribunal notes that even if it received such evidence, in the light of the evidence given on behalf of the review applicant about the ability to alter e-mail, there would be no guarantee that they had also not been reconstructed.
42.On the other hand, while not rejecting the e-mails as being fraudulent or reconstructed, the Tribunal has given them limited weight in reaching its conclusions in this case, It is conscious of and has had regard to the evidence on behalf of the review applicant in respect of the caution to be exercised regarding e-mail evidence and notes that they have had no impact on the conclusions reached by the Tribunal in respect of the other material before it, which sustains those conclusions in its own right.
43.In that regard, the Tribunal has reached the conclusions it has in this case on the basis of the material on file and supplied to the delegate at or near the time the nominator advised the delegate that the relationship had ceased, together with the statements of `A' and the comprehensive interview reports of the interviews that took place prior to the submission of the e-mails to the Department, and the review applicant's submissions and evidence in respect of such matters, both in writing and at the hearing. The Tribunal's assessment of that evidence and submissions and of the witnesses is as set out above. The Tribunal finds that based solely on that evidence it is unable to be satisfied that regulation 1.15A and clause 820.211 is satisfied.
44.The Tribunal notes in particular that it has investigated the submission that the evidence of `A' lacks credibility and is biased because it is in response to an internal investigation against `A' by the College for unprofessional conduct in respect of her dealings with and conduct towards the visa applicant's daughter.
45.As noted earlier in these reasons, `A' was asked to provide a report in respect of the visa applicant's performance, by reference to alleged events involving the nominator, of which `A' had no knowledge and that was contrary to A's own observations and other knowledge.
46.The Tribunal notes that the statements made by `A' relied upon by the delegate in his decision, and which the Tribunal has also relied upon, occurred well before the date in late September or soon after that the issue was raised with `A' by the then acting Deputy Principal of the College ( the AP). The Tribunal also notes that there are no statements from `A' on the Departmental files or in evidence before the Tribunal after that date. The Tribunal therefore rejects the suggestion that the statements of `A' were coloured against the review applicant and her daughter by the action taken by the College in response to her failure to provide a report in the terms requested by the review applicant and her daughter, as set out in the more detailed statement of evidence earlier in these reasons.
47.The Tribunal notes that while it would be expected that `A' would write a report on a student's progress when requested, the information before the Tribunal indicates that the request in this case was to make specific statements that `A' had no knowledge of, and more significantly, the knowledge that she did have, in her view, was to the contrary. Indeed the Tribunal notes that the comment in the AP's e-mail about the `glowing report about educational progress' conflicts with the report that `A' stated she had been asked to write by the review applicant and her daughter. In the circumstances, based on the evidence before the Tribunal, the Tribunal understands why `A' declined to write a report in terms requested by the review applicant and her daughter. Indeed, it believes that any other action would have been improper in her situation.
48.Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review that the visa applicants do not meet the criteria for the grant of a subclass 820 visa. The result is that the criteria for the grant of a subclass 801 visa is also not met.”
It was submitted that on a proper reading of the passages to which
I have referred there was an inherent contradiction whereby the MRT having dealt with the issue of email stated that, “While not rejecting the e-mails as being fraudulent or reconstructed, the Tribunal has given them limited weight in reaching its conclusions in this case”. The Tribunal then goes on to say, “It is conscious of and has regard to the evidence on behalf of the review applicant in respect of the caution to be exercised regarding email evidence and notes that they have had no impact on the conclusions reached by the Tribunal in respect of the other material before it which sustains those conclusions in its own right”. It was submitted by the Applicant that there was an inherent contradiction in the reasoning of the tribunal and the court should infer that the MRT did give weight to the material and in the circumstances without testing properly the material before it should have given no weight to that material and its failure to reject the material was itself an example of denial of procedural fairness.
There are other references to the evidence of Mrs Stefanidi and in particular the following paragraphs from the Tribunal’s reasoning is relevant:-
“32.However, the Tribunal also finds that it is sufficiently in doubt about the review applicant's intentions and commitment to the extent that it is unable to be satisfied on the balance of probabilities that her intentions and commitment were of such a degree to satisfy the requirements of a genuine spousal relationship under the regulations at the time of application. This is notwithstanding that she was prepared to continue with the relationship at that time. The Tribunal finds this to be the case having regard to all the evidence in the case (leaving aside the e-mails submitted to the Department), in particular the evidence of the nominator regarding the visa applicant's attitude and commitment to the nominator, since the marriage and at the time of application, combined with that of `A' as to the comments the review applicant made to ‘A’ from the time of their meeting prior to the marriage and subsequently.
33.Accordingly, the Tribunal finds that, notwithstanding the marriage, no "spouse" relationship, within the meaning of regulation 1.15A, has existed at any time in this case.”
It was submitted again that the use of the material from Mrs Stefanidi without her being available for questioning or cross-examination by the Applicant was a denial of procedural fairness.
Specific reference was made to a recent decision of Finkelstein J in the matter of Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44 as follows:
“9There is a duty upon bodies such as this tribunal to act fairly so that a person like Ms Tran can have a "fair crack of the whip", to use the words of Lord Russell in Fairmont Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1225, 1266. That is, the tribunal is under an obligation to observe the rules of natural justice. These "rules", however, have no fixed content. In Wiseman
v Borneman [1971] AC 297, 308-309 Lord Morris said:We often speak of the rules for natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only `fair play in action'. Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J called `the justice of the common law' (Cooper v Wandsworth Board of Works (1863)
14 CBNS 180, 194)."
It was conceded by Counsel for the Applicant that there is no statutory duty imposed upon the MRT to call witnesses and it was further noted that in the Request for Hearing Form (Court Book p.122) the Applicant did not request the MRT to take oral evidence from either the nominator or Mrs Stefanidi. Reliance was placed however upon the decision of Finkelstein J in Tran where His Honour referred to there being “no fixed rules” in relation to issues concerning procedural fairness. Apart from the matters raised by Mrs Stefanidi against the Applicant and her daughter, it was also noted that the Tribunal itself had relied upon evidence from Mrs Stefanidi as a form of corroboration of the material in the e-mails sent by the nominator to the delegate (see paragraph 41 of the MRT decision).
In relation to the issue of domestic violence Counsel for the Applicant submitted that the reasoning process of the MRT was flawed given the manner in which the MRT had dealt with the domestic violence issue. It is relevant to set out the paragraphs of the Tribunal’s findings on the domestic violence issue as follows:
“35.The only other provision of clause 820.211 in respect of which evidence has been submitted is clause 820.211(8), which deals with domestic violence.
36.An essential prerequisite for satisfaction of sub-clause 820.211(8) is that, at the time of application, as the holder of a subclass 300 visa, the relationship must have "ceased" at the time of application.
37.The Tribunal finds in this case that at the time of application the relationship had not ceased. Albeit that, as found above, it was not a "spouse" relationship within the meaning of the regulations, the visa applicant and the nominator were in a relationship at the time of application. As found above, there was tension in the relationship at the time of application, but it had not reached the stage that it had ceased. The couple attended the interview with the delegate, submitting that the relationship was genuine. Further, in the visa applicant's application form, the `no' box had been answered in response to the question on the Form whether the relationship had broken down and domestic violence occurred. However, the Tribunal finds that the relationship ceased on or about 18 July 2001, after the time of application, with the permanent separation of the parties.
38.The Tribunal also finds that if clause 820.211(8) is referring to the cessation of a "spouse" relationship, then because as found earlier in these reasons, such a relationship, within the meaning of the regulations, has never existed in this case, the clause is not applicable or not satisfied in this case.”
Counsel for the Applicant submitted that on a proper reading of Regulation 820.211(8) the MRT was obliged to accept that the Applicant was the holder of a prospective marriage visa, had married the nominating spouse under a marriage recognised as valid for the purpose of the Migration Act and that the relationship between the Applicant and the nominating spouse had ceased. It should have found that the Applicant had also under that regulation suffered domestic violence committed by the nominating spouse.
It is useful to set out the sub regulation which provides:-
“(8)An applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b)the applicant has married the nominating spouse under a marriage that is recognised as valid for the purposes of the Act; and
(c)the relationship between the applicant and the nominating spouse has ceased; and
(d)any 1 or more of the following;
(i)the applicant;
(ii)a member of the family unit of the applicant who has made a combined application(7) with the applicant;
(iii)an dependent child of the nominating spouse or of the applicant or both of them;
has suffered domestic violence committed by the nominating spouse.”
It was submitted that when the Tribunal reasoning was analysed it would reveal a fault in the sense that the Tribunal had not proceeded to consider the domestic violence issue having found that there was no spousal relationship. It was not necessary for ‘spouse’ to be imported into the ‘relationship’ in the sub-paragraph. Sub-clause 8 it was submitted requires that at the time of application the Applicant is a holder of a sub-class 300 visa, that she has married her nominating spouse under a marriage that is recognised as valid for the purpose of the Migration Act 1958 and that the relationship between the Applicant and nominating spouse had ceased if she had suffered domestic violence committed by the nominating spouse. The Court was reminded the purpose of this sub-clause was to make provision for persons entering Australia as a prospective spouse to be protected in the event that domestic violence ensued leading to the relationship ceasing and otherwise exposing the visa holder to a risk of no longer being permitted to remain in Australia. It was submitted that if the evidence was sufficient for the MRT to make a finding that no spousal relationship had existed at any time in this matter then that would be sufficient for the MRT to query whether there may have been circumstances justifying cancellation of the visa under s.116(1)(a) and it would be clear that the relationship had definitely ceased at the time of application despite the fact that the Applicant in her application form had ticked ‘no’ in the box questioning whether the relationship had broken down due to domestic violence.
It was claimed that s.353 of the Migration Act requires the Tribunal to act on substantial justice and merits of the case and in relation to the domestic violence issue it has not done so. I took the submission in writing to some extent to be overtaken by the amendment to the application.
Respondent’s submissions
It was submitted by the Respondent that there is no error of a kind which would attract judicial intervention on review in this application.
It was submitted that the tribunal properly applied the relevant sections of the Act and in particular the regulations which define ‘spouse’ (see regulation 1.15A) and had otherwise cited the correct provisions for the MRT to determine whether or not two persons are in a married relationship. It was submitted that the MRT had found that the Applicant and her husband were not genuine spouses within the meaning of regulation 1.15A at any relevant time (Court Book 163 paragraph 33). In particular the MRT had not been satisfied that the Applicant’s husband by the time the Application was sufficiently committed to the Applicant to establish a genuine spousal relationship (Court Book 161 paragraph 31). This was so no matter how genuine the Applicant may have been and it is noted that in paragraph 31 of its decision the MRT stated that, “The commitment to a shared life as husband and wife must be mutual”.
It was submitted that in its findings the Tribunal also decided that it was not satisfied that the Applicant was committed to a genuine spousal relationship (Court Book 161 paragraph 32). It had reached this view without regard to email evidence (Court Book 161 paragraph 32).
In relation to the domestic violence issue it was submitted that if there was a finding that there is no genuine relationship then it would follow that there could not be a finding that there been a cessation of that relationship. A spousal relationship should be inferred from the language of the regulation. As I understood the submissions it was ultimately submitted that although there may have been evidence of domestic violence the MRT correctly analysed the regulation and was entitled to infer that ‘spousal’ could be imported into the ‘relationship’ referred to in the regulation. It is unnecessary for the MRT, according to the Respondent’s submissions, to consider whether the Applicant had suffered domestic violence once it had decided that there had not been a spousal relationship which clearly had not ceased. If there was any other relationship at the time that was relevant then again there was no evidence that it had ceased and likewise there would be no need to consider the domestic violence issue.
In any event even if there was an error of law established the Respondent submitted that it would not be of a kind that would have affected the decision and on that basis no relief should be granted (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-384).
The Respondent submitted that even if there had been denial of natural justice established in relation to the way the delegate heard the matter that this would not mean that the decision of the MRT involved departure from standards of procedural fairness. During the course of discussion about this issue it seemed clear to the Court that the Applicant would concede as much and noted that the MRT had conducted a review of the decision on its own account. The Respondent submitted that the review conducted by the MRT was a “full merits review of the decision of the delegate” and that by doing so the MRT had “thereby cured any procedural defect which may have been made in relation to the delegate’s decision” (see Preston v Carmody (1993) 44 FCR 1 at 14-17).
Reasoning
In considering the issue of jurisdictional error in my view the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
In my view there is no doubt that upon review it would normally be of concern to the Court that the delegate has breached procedural fairness and/or natural justice where it could be established that a subsequent MRT hearing has been conducted properly. Any claimed defects in the proceedings before the delegate including, for example a lack of interpreter for most of the enquiries would obviously be remedied to a large extent if an interpreter was then available for the MRT hearing and that hearing was conducted fairly and in accordance with the rules of natural justice. In the present case the submissions made for and on behalf of the Applicant rely upon criticisms of the delegate to the extent that it can be seen that the MRT has subsequently relied upon findings by the delegate and/or material then before the delegate without itself testing that material by requiring the attendance of relevant witnesses or undertaking an analysis of the e-mail documents which have clearly been relied upon by both the delegate and the MRT.
In that context it is relevant in my view to consider the key findings made by the MRT referred to earlier in this decision insofar as they relate to the evidence of Mrs Stefanidi and the e-mails provided initially to the delegate made available to the MRT. It is noted the e-mails, at least in part, had been retrieved by an IT person having been allegedly deleted. There is no evidence about the authenticity of the e-mails or indeed any evidence as to the retrieval process. The e-mails were apparently provided on a disk with what is described by the delegate as “selected elements having been translated by accredited interpreters”. The disks were also apparently assessed “by an in-office experienced IT officer”. It is claimed by the delegate that the disks contained a “detailed history of e-mail communication between the Applicant and sponsor from when they first began communicating to the end of their relationship”. It is noted that the delegate states the following:
“All up there is almost ten megabytes of text. It is clear to see that the text in these documents are very structured and contain all the normal information associated with e-mails. Therefore I am satisfied that these are genuine e-mails and not fabricated documents”.
Likewise the MRT addressed the issue of whether the e-mails were fabrications or re-constructions and as noted in the earlier extract from the MRT’s decision stated that it was not prepared to “reject the e-mails as fabrications or re-constructions on the evidence before it”. It then went on to say that it was not able to conclude one way or another whether the review Applicant’s submissions “are correct”. It indicates it is prepared to give them “limited weight in reaching its conclusions …”. It is somewhat odd that the tribunal then having expressed a caution to be exercised regarding e-mail evidence states that they have had “no impact on the conclusions reached by the tribunal in respect of the other material before it which sustains conclusions in its own right”.
As I have indicated it is clear that the MRT has to some extent relied upon the evidence of Mrs Stefanidi and the e-mails and otherwise appears to at least be influenced by the findings in relation to those matters by the delegate. It is useful to set out some the key findings of the delegate in relation to the evidence of Mrs Stefanidi which include the following, referred to in page 11 of the Court Book:
“… Mrs Stefanidi believes that Tatiana Collins set out from the beginning to use Dennis Collins as a means to obtain permanent residence in Australia and never intended a genuine or ongoing relationship.
Mrs Stefanidi also alleges (the Applicant’s daughter) is not a very honest person and possibly makes up stories to suit herself …
· Mrs Stefanidi appeared to be truthful and genuine in what she said and although it did seem difficult at times for her to make such statements she had maintained a strong composure throughout the interview. Mrs Stefanidi has had a number of dealings with this department (DIMA) assisting students to Australia and with visa extensions. The office has found her to a genuine and reliable person.”
In dealing with the allegations by Mrs Stefanidi when ultimately put to the Applicant in a subsequent interview without the assistance of an interpreter the Acting Residence Officer who was the delegate makes the following further findings which appear at page 12 of the Court Book:
· “I asked the first question which was, did she ever say to Tatiana Stefanidi how long would I have to stay with Dennis Collins before I can get permanent residence? Tatiana Collins responded, never and at that point began mumbling Tatiana Stefanidi under her breath. Tatiana Collins was very agitated by this question but managed to remain remarkably calm and controlled although it was plain to see from Tatiana’s expression on her face, that she was furious with Tatiana Stefanidi. I continued the interview and raised a number of allegations which Tatiana Collins continued to deny. Although Tatiana Collins denied all the allegations I was not convinced that she was telling the truth.
· At the end of this interview it seemed convenient that Tatiana Collins went to the toilet and her daughter just happened to be there also. I asked a female employee of the Migrant Resource Centre could she check the toilet. Tatiana Collins and (her daughter) spent some 5 minutes talking before both came from the toilet. I had been at the door way waiting and it was clear that they were having a long conversation in Russian. When they came out of the toilet they both pleaded that it was not planned. This was about the only time either showed any real emotion except for when I raised the first allegation with Tatiana Collins. It would appear that Tatiana Collins had brief (her daughter) about what she was to expect.”
In my view where the MRT relies upon either the evidence and/or findings of a delegate as would appear to be the case in the present application extreme care should be taken to ensure that the allegations made of a serious nature against an Applicant are properly tested or at least the subject of questions of the individuals making the allegations before the MRT. Whilst this is not a statutory duty it seems clear having regard to the nature of the findings made by the delegate and subsequently to a large extent held and relied upon by the MRT that in a matter of this kind the procedural fairness would demand that a key witness involved in serious allegations should be the subject of further testing and not just simply accepted as being a witness upon whom either the delegate or the MRT could rely due to past experience or past dealings with the department.
I note with some concern that the Acting Resident Officer who was the delegate has made findings as to the state of mind of the Applicant by the “expression on her face”. Further findings by way of innuendo in relation to the attendance by the Applicant at the toilet where she had a conversation with her daughter also seemed to go somewhat beyond a fact finding mission and result in findings based on amateurish detective work then used as the basis for making significant findings as to credit.
It is clear from both the delegate’s reasoning and the MRT findings based, as I have indicated, to some extent upon the e-mail information, the evidence of Mrs Stefanidi and otherwise findings of the delegate that the MRT itself has regarded the issue of the Applicant’s credit as significant. In applying the decision of Finkelstein J in the decision in the matter of Tran and the authorities to which I have previously referred in considering jurisdictional error, it is my view that this is a case where the failure of the MRT to arrange for the attendance of the witness Mrs Stefanidi and the nominator and to fully test the authenticity of the e-mails relied upon in the presence of the Applicant and an interpreter constitutes a denial of procedural fairness and otherwise breaches the rules of natural justice in a manner sufficient to attract judicial intervention.
It is not necessary for me to then further consider the matter of domestic violence as that no doubt may be the subject of further consideration by the MRT when the matter is remitted for further consideration. The determination of whether there is a genuine spousal relationship however in my view as a matter of law is properly to be considered by the MRT as a primary issue. So that there is no misunderstanding I did not otherwise accept the submissions by the Applicant but having made an adverse finding in relation to that matter it is still necessary for the MRT to consider the evidence of alleged domestic violence for the purposes of the regulations. My reading of sub-regulation 8 is that the clear inference and basis upon which that regulation is to be applied is that applies to the relationship which at least at one point could be regarded as a genuine spousal relationship. Otherwise the purpose and intent of the regulation and its meaning on a proper reading would make little sense particularly in circumstances where there may be a finding that there has never been a genuine spousal relationship and a tribunal or delegate then be required, in applying the regulations, to consider amongst other things the issue of domestic violence which would only be a saving grace in circumstances where the genuine spousal relationship had already been established.
For those reasons it is clear that the appropriate orders are as follows:
(1)The decision of the Migration Review Tribunal dated 25 June 2003 be quashed.
(2)The Application be remitted to the Migration Review Tribunal to be further determined according to law.
(3)The Respondent pay the Applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules with the costs to be in accordance with Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 December 2003
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