Dhaliwal v Minister for Immigration
[2019] FCCA 1429
•31 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHALIWAL v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1429 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant partner visa – whether Tribunal came under a duty to consider whether it should adjourn review to provide sponsor opportunity to give evidence – whether Tribunal otherwise came under an obligation to consider to seek further information from the sponsor or to consider directing the Secretary to carry out investigations – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.33 Migration Act 1958 (Cth), ss.347, 348, 352, 360, 361, 362B, 363, 414 Migration Regulations 1994 (Cth), regs. Schedule 2, cl.820.211(2)(d)(ii) |
| Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| Applicant: | GURMIT SINGH DHALIWAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3152 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair, by direct access |
| Solicitors for the Respondents: | Ms B Rayment of Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3152 of 2016
| GURMIT SINGH DHALIWAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application for judicial review the applicant, a citizen of India, claims that the second respondent (Tribunal) acted unreasonably and otherwise denied the applicant procedural fairness in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa).
To be in a position to assess the applicant’s claims, it will be necessary to set out in some detail the course of the applicant’s application for a Partner visa, and the course of proceeding before the Tribunal.
Background
On 9 December 2013 the applicant applied for a Partner visa. To have been entitled to the Partner visa the applicant had to comply with criteria that included those stated in Subclass 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to this proceeding is cl.820.211(2)(d)(ii) of Schedule 2 which applied to persons who did not hold a substantive visa at the time they applied for a Partner visa. That subparagraph required that the person who did not hold a substantive visa at the time he or she applied for a Partner visa must satisfy “Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria”. There is no dispute that at the time the applicant applied for the Partner visa he did not hold a substantive visa, and he did not comply with any of the Schedule 3 criteria.
Application for Partner visa
In his application for a Partner visa the applicant claimed he met the sponsor in December 2012, that on 15 September 2013 he and the sponsor committed to a shared life to the exclusion of all others, and that on 1 November 2013 the applicant and sponsor married. The applicant also claimed there were compelling reasons for the Minister not to apply the Schedule 3 criteria. The applicant claimed that in March 2008 he married a Ms K; in August 2012 he and Ms K divorced; Ms K’s parents threatened the applicant over the telephone a number of times because, according to Ms K’s parents, the applicant “brought bad name to their family by divorcing their daughter”, stating that the applicant “must repay this debt with my blood”; if the applicant goes back to India the applicant’s life “will be at risk”; and the applicant’s parents disapprove of the applicant’s marriage to the sponsor.[1]
[1] CB38
The delegate, by a decision made on 9 January 2015, refused to grant the applicant a Partner visa because the applicant failed to meet the Schedule 3 criteria, and the delegate was not satisfied there are compelling reasons for not applying those criteria.
Application and information provided to Tribunal
On 19 January 2015 the applicant applied to the Tribunal for review of the delegate’s decision. In support of that application, the applicant provided a statement dated 23 February 2016 in which he claimed the sponsor is suffering from severe rheumatoid arthritis; that she requires a lot of care because she is not in a position to look after herself; and the sponsor’s parents or brothers are not in a position to care for her. On the basis on these matters the applicant requested that he be “given relief under [820.211](2)(d)(ii) due to the compelling reasons for not applying those criteria”.[2] That statement was supported by medical evidence that shows the sponsor suffers from rheumatoid arthritis.[3]
[2] CB101
[3] CB90
The applicant appeared before a differently constituted Tribunal (First Tribunal) on 24 February 2016. After the hearing the applicant’s representative provided to the First Tribunal further submissions in support of his claim that the application of the Schedule 3 criteria should be waived.[4] The representative submitted:
It is clear that separation from the applicant will result in very significant hardship for his wife. She is seriously ill. She needs the ongoing support of her husband. She is in no position to travel to and remain in India while the application for the visa is being decided. It will be reasonable, fair and just to allow him to remain while the application is being determined.
[4] CB114-115. A “Corrected version” is at CB116-117.
On 1 March 2016 the First Tribunal affirmed the delegate’s decision, but the decision was later quashed by order of this Court.
By letter dated 16 May 2016 the Tribunal informed the applicant that his application for review had been remitted to it for reconsideration, and requested that the applicant provide any further information he wanted the Tribunal to consider.[5] By letter dated 26 August 2016 the Tribunal invited the applicant to appear before it on 5 October 2016 to give evidence and present arguments.[6] The Tribunal stated:
One of the issues we will be considering at the hearing is whether you have complied with the timeframe requirements in Schedule 3 at the time you lodged your visa application and, if not, whether there are any compelling reasons for not applying these requirements. We request that if you have any additional relevant material you wish to rely upon at the hearing you should provide it later than 28 September 2016. . . .
[5] CB134-135
[6] CB140-141
The Tribunal also said that it may wish to take evidence from the sponsor; and it requested the applicant arrange for his wife to attend the hearing. The letter enclosed a document titled “Response to hearing invitation – MR Division” (RHI Form), and requested that the applicant return the completed form within 7 days after receiving the letter. The RHI Form contained the words “We may wish to take evidence from [the sponsor]” under which there appeared the question: “Will [the sponsor] be attending in person?” Under the question there were two boxes, one under “Yes”, and one under “No”.
On 19 September 2016 the applicant’s representative sent an email to the Tribunal attaching a completed RHI Form, and a “medical record of” the sponsor “showing sponsoring applicant is suffering from significant deterioration in memory”. The email requests that the sponsor “be excused from giving evidence”.[7] Attached to the email was a letter dated 31 August 2015 from “Alpha Medical centre” to a Dr George Howe.[8] The letter referred to Dr Howe having seen the sponsor “for an opinion and management of her rheumatoid arthritis”. After referring to other matters, the letter stated the sponsor “also has had a significant deterioration in memory over the past 1-2 weeks”, and the letter asked whether “there could be a possible cerebral vasculitis component”.
[7] CB142
[8] CB147. This is the same letter the applicant sent to the First Tribunal on 26 February 2016 - CB89-90.
There is in evidence a “case note” prepared by an officer of the Tribunal that records the substance of a conversation with the applicant’s representative.[9] The note records that the case officer contacted the applicant’s representative in response to the representative’s email of 19 September 2016. The officer informed the applicant’s representative that it was “the applicant and sponsor’s decision as to whether the sponsor attends the hearing”. The representative referred to the sponsor’s medical conditions, including memory issues. The officer said “they can provide any submissions they wish the Member to consider”.
[9] CB149
The applicant’s representative provided further documents to the Tribunal. One was a letter dated 22 September 2016 from a Dr Kunasingham, stating that the sponsor “underwent major surgery (liver tumour’s resection with cholecystectomy) in July this year”, and that the sponsor was “also diagnosed with Rheumatoid arthritis last year which gets flares up on and off”, when the sponsor “get flares up, she suffers from joints pain and swelling”, and that the “treatment is ongoing with regular medications with frequent specialist visits”.[10] Another document was an email the representative sent by email on 27 September 2016 attaching a revised “Response to hearing invitation – MR Division”, and a statement from the sponsor’s mother.[11] In her statement the sponsor’s mother states the sponsor is “having multiple health issues” and needs a lot of care, the applicant mainly supports the sponsor, and although the sponsor’s mother helps as and when required “I cannot care for my daughter on full time basis due to my age and my work commitments”.
[10] CB151
[11] CB155-159
On 26 September 2016 the applicant’s representative sent another email to the Tribunal attaching photographs of the sponsor’s recent operation and a further statement by the applicant.[12] The applicant states the sponsor is having multiple health issues; the applicant is the one who mainly assists the sponsor, even though he gets some help from the sponsor’s mother; the sponsor underwent an operation on 21 July 2016; the sponsor started to work in September 2016, but she was not able to work and had one or more days off work; the sponsor intends to stop working after the applicant is granted work rights because the sponsor is not in a position to work; after the operation the sponsor is having memory loss; and the applicant cannot trust the sponsor “to have her medicine by herself”. The applicant also stated:
Due to her memory loss, she is not in a position to come and give evidence in AAT and I would request the member not to contact my wife due to her medical condition, however if member is not willing to consider my request, member may call her at her mobile phone no. . . . .
[12] CB152. The statement was omitted from the Court Book, but is annexed to the affidavit of M K F Perotti.
On 28 September 2016 an officer of the Tribunal had a telephone conversation with the applicant’s representative. The case note of the conversation the Tribunal officer prepared included the following:[13]
The rep said that the sponsor will attend the hearing by telephone. The RTHI form only indicated attendance in person, which is why he ticked no, but in his statement to the AAT he had provided the sponsor’s phone number if the AAT wishes to speak to her.
[13] CB160
Tribunal hearing on 5 October 2016
At the hearing before the Tribunal on 5 October 2016 the applicant said the sponsor works as a social worker providing care for disabled people in group homes; she worked full time until her health problems got worse about a year before the hearing; she then worked a reduced number of shifts; and after her liver surgery in July 2016 the sponsor resumed full time work.[14]
[14] CB177, [19]
In response to the Tribunal’s question about what are the compelling reasons for not applying the Schedule 3 criteria, the applicant said the main reason was the sponsor’s health problems, and the care and support the sponsor received from the applicant. The applicant said the sponsor had difficulty remembering what medication she needs to take, and when she needs to take it, noting that the sponsor takes between 10 and 15 pills each day.[15] The applicant also said the sponsor suffers from joint pain, which affects her intermittently; that on some days she had difficulty getting out of bed, and requires assistance with daily activities, such as showering; the applicant drives the sponsor to doctor appointments; the applicant and the sponsor’s mother accompany the sponsor to her medical consultations, it being the applicant’s role to understand what medication the sponsor needs to take, and when she needs to take it. The applicant also referred to two other matters in support of his claim there were compelling reasons for not applying the Schedule 3 criteria, these being what the applicant claimed were threats from his family, and threats from his former wife’s family.[16]
[15] CB177, [20]
[16] CB178, [26]-[32]
The Sponsor’s mother also gave evidence before the Tribunal. She did so by telephone.[17] She said the sponsor has a serious sickness; that looking after the sponsor takes a lot from her, but the applicant is a very significant help; on some days the sponsor can do things, but on other days she cannot; on some days the sponsor could not even think for herself, and her medication needs to be given to her in a dosette box; and on some days the sponsor requires help with showering and other daily activities.[18]
[17] CB175
[18] CB179, [33]
The sponsor did not attend the hearing. The Tribunal, however, did attempt to contact the Sponsor:[19]
The Tribunal was unsuccessful in three attempts to contact the sponsor by telephone, with a call to the mobile telephone number the Tribunal was provided with going thorough to her voicemail and two attempts to contact her by a landline being disconnected.
[19] CB175, [8]
At the end of the hearing the Tribunal gave the applicant until 19 October 2016 to provide any further arguments, submissions, or documentary evidence he wished the Tribunal to consider before it made its decision.[20]
[20] CB175, [10]
Events after Tribunal hearing
On 17 October 2016 the applicant’s representative sent an email to the Tribunal attaching a statement from the sponsor, evidence that the sponsor was unwell during the morning of the hearing and went to the doctor, and evidence that the sponsor “tried to revert [sic] call of AAT but could not get through”.[21] In her statement the sponsor said she went overseas two times recently; the applicant was not aware of her visit to New Zealand; in May 2016 the applicant went to Perth for two weeks, leaving the sponsor in the care of the sponsor’s mother and the sponsors friend, and the sponsor returned before the applicant returned from Perth; on the day of the hearing the sponsor was not well, and she was left in the company of her friend; and the sponsor’s health deteriorated requiring her to go to the doctor immediately. The sponsor completed her statement by stating that if the Tribunal needed more information, it should feel free “to email my agent”. [22]
[21] CB166
[22] CB167
The representative attached to the email what appears to be a copy of a screenshot of the sponsor making a booking at 8:20 am on 5 October 2016 to see a doctor at 11:10 am. The representative also attached a copy of a screenshot of a call history from a telephone showing that at 11:18 on a date not recorded on the copy the number “02 9276 5000” was called four times. That number appears to be the general number for the Tribunal.
Tribunal’s reasons
After setting out the evidence that was before it, the Tribunal made observations on or considered a number of matters. First, the Tribunal noted it did not make “any critical assessment of the relationship between the applicant and the sponsor”, but accepted at face value the claims that the applicant and the sponsor are in a genuine and continuing spousal relationship.[23]
[23] CB179, [38]
Second, the Tribunal referred to the sponsor’s not having participated in the hearing. The Tribunal noted that the applicant’s representative had informed the Tribunal before the hearing that the sponsor may be too unwell to attend the hearing in person; the sponsor’s mother told the Tribunal that the sponsor seemed OK in the morning of the hearing but because she was at work the sponsor’s mother was unsure if the sponsor had become unwell, or had gone out, or was possibly asleep; it was unfortunate the Tribunal did not have the opportunity to take evidence from the sponsor about her current medical treatment, her functional restrictions, and care needs she has as a consequence of her medical conditions; at the end of the hearing the Tribunal told the applicant that the sponsor could make a written submission after the hearing; and that after the hearing the applicant provided a written statement from the sponsor. After noting these matters the Tribunal concluded it was “satisfied the sponsor has had the opportunity to put any evidence or arguments before the Tribunal for its consideration in this matter”.[24]
[24] CB180, [39]
Third, the Tribunal considered the applicant’s credibility. It found the applicant gave evidence which at times was inconsistent with information he had previously provided to what is now called the Department of Home Affairs, and also in relation to oral evidence he gave at the hearing. Because of these inconsistencies the Tribunal was not satisfied it could rely on the applicant’s evidence where it was not corroborated by other documentary evidence.[25]
[25] CB180, [40]
Fourth, the Tribunal considered whether the Schedule 3 criteria should be waived. Here the Tribunal referred to the following matters:
a)The applicant’s immigration history, the reasons for which the applicant did not hold a substantive visa, and the period for which he was an unlawful non-citizen. The Tribunal concluded these matters did not provide a compelling reason for not applying the Schedule 3 criteria.[26]
b)The length of the applicant’s relationship with the sponsor. The Tribunal concluded this “does not in and of itself constitute a compelling reason to not apply the Schedule 3 criteria”.[27]
c)The sponsor’s health problems and care needs. The Tribunal set out at length the evidence given by the applicant and the sponsor’s mother about the sponsor’s health and care needs, as well as medical records relating to the sponsor. The Tribunal was not satisfied, however, that the sponsor’s health conditions and any care needs accruing from her health conditions provide a compelling reason not to apply the Schedule 3 criteria. The Tribunal relied on a number of matters: there was no medical evidence that provided an assessment of functional limitations on the sponsor’s activities of daily living, or any difficulties she may experience in her vocational role as a residential care worker; there was no assessment by a medical specialist, or relevant health or rehabilitation professional identifying the sponsor’s specific care and support needs; there was no reference to the sponsor suffering from or requiring treatment for anxiety or any related mental health condition; the sponsor travelled overseas twice in 2016, one of which was a trip to New Zealand about which she did not tell the applicant; and the sponsor utilised a dosette box for the sponsor’s medication, when required. The Tribunal also relied on the sponsor’s having resumed full time work in a residential care role finding that, while it was apparent the sponsor’s ability to work can be intermittently impacted by her rheumatoid arthritis, her cognitive functioning is not impaired.[28]
d)The applicant’s family’s attitude to his current marriage, and attitude of the applicant’s former wife’s family to the applicant. The Tribunal was not satisfied the applicant had given any plausible explanation why his former wife’s family would threaten him, given it was the applicant’s former wife who had initiated divorce proceedings against the applicant; nor was it satisfied that his former wife’s family had made any threats to the applicant. Further, the Tribunal was not satisfied the applicant established he could not live away from his and his former wife’s families if he returns to India. The Tribunal, therefore, was not satisfied the attitude of his and his former wife’s families towards the applicant are compelling reasons for not applying the Schedule 3 criteria.[29]
e)The separation of the parties and the impact on the sponsor if she were to accompany the applicant to India. The Tribunal noted there was no evidence from the sponsor whether she would be accompanying the applicant to India if he were to return there to apply for a Partner visa; but whether she did so was a discretionary choice for her; and the Tribunal was not satisfied that the exercise by the sponsor of a discretionary choice that would result in the disruption of her medical treatment would provide a compelling reason not to apply the Schedule 3 criteria.[30] The Tribunal accepted that the applicant and sponsor might find difficult the separation that would result from the applicant applying offshore for a Partner visa. The Tribunal, however, noted that an offshore application for a Partner visa takes only a limited time, and all applicants who apply offshore must wait and tolerate some level of physical separation. The Tribunal, therefore, did not consider these matters were compelling reasons for not applying the Schedule 3 criteria.[31]
[26] CB181, [49]
[27] CB181, [50]
[28] CB183, [62]
[29] CB184, [65]
[30] CB184, [66]
[31] CB184-185, [67]
Grounds of application
The only ground of application is that stated in the amended application filed on 21 March 2018, and is as follows (errors in original):
The Tribunal purported decision is vitiated by legal unreasonableness. The applicant denied the applicant procedural fairness.
Particulars
i)It is clear that the applicant’s wife (who was his sponsor) (“the sponsor”) wanted to give oral evidence to the Tribunal.
ii)It is evident from the Tribunal’s reasons that there were matters that the Tribunal would have raised with the sponsor if the Tribunal had taken oral evidence from the sponsor. In its reasons, the Tribunal allowed for the possibility that such evidence from the sponsor may have satisfied the Tribunal that “the sponsor’s health conditions and any needs accruing from these health conditions provide a compelling reason not to apply the Schedule 3 criteria”. (See Tribunal’s Decision Record at [39] to [40], [59], [61], [63].)
iii)It is also evident from the Tribunal’s reasons that there were medical and other health and rehabilitation assessments that would have been relevant to the Tribunal’s task. (see Tribunal’s Decision Record at [59] to [63].)
iv)The Tribunal’s function is inquisitorial. Its statutory task is to arrive at the correct or preferable decision in the case before it based on the evidence and arguments placed before the Tribunal and any other relevant information which the Tribunal itself obtains.
v)The Tribunal is vested with discretionary jurisdiction including:
a)to adjourn the hearing to obtain further evidence from the sponsor (s.363(1)(b); s.361 of the Migration Act)
b)to require the Secretary to arrange for the making of any investigation, or any medical examination that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination (s.363(1)(d) of the Migration Act).
vi)In the outcome, the Tribunal’s failure to exercise its discretion to adjourn to obtain oral evidence from the sponsor was legally unreasonable.
vii)In the outcome, the Tribunal’s failure to exercise its discretion to require the Secretary to arrange for the making of any investigation, or any medical examination that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation was legally unreasonable.
viii)In all the circumstances, the Tribunal’s purported invitation to the applicant under s.360 off the Migration Act did not, iin fact, provide the applicant with a proper, genuine and realistic opportunity to present the applicant’s case. The Tribunal denied the applicant procedural fairness.
Parties’ submissions
In his written submissions counsel for the applicant submitted the Tribunal has discretionary powers vested in it; and, in addition to the provisions identified in the amended application, counsel referred to s.361(2) of the Act (which provides that an applicant may give to the Tribunal written notice the applicant wants the Tribunal to obtain oral evidence from the person or persons named in the notice), and also to s.33 of the Acts Interpretation Act 1901 (Cth) (which provides that where “an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires”).
Counsel for the applicant submitted that three occasions arose when the Tribunal was required to consider whether it should exercise its discretion to adjourn the hearing to obtain oral evidence from the sponsor. These were: (a) at the Tribunal hearing when the Tribunal attempted but was unable to contact the sponsor by telephone; (b) when the sponsor provided her statement on 17 October 2016; and (c) when the Tribunal allowed for the possibility that the “sponsor’s health conditions and any care needs accruing from these health conditions provide a compelling reason to not apply the Schedule 3 criteria”.[32] Counsel, relying on the judgment of Pagone J in Malecaj v Minister for Immigration and Border Protection,[33] further submitted that the occasion for the Tribunal to consider whether it should exercise its discretion is not limited to when an applicant specifically requests an adjournment.[34] Counsel for the applicant also submitted that the Tribunal did not consider whether it should exercise the power under s.363(1)(d) of the Act to require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal might consider to be necessary for the purposes of the review.[35] Finally, counsel submitted that, in circumstances where the Tribunal was aware the applicant intended to have the sponsor give oral evidence and the Tribunal unsuccessfully attempted to contact the sponsor, the Tribunal denied the applicant an opportunity to present his case by failing to adjourn the hearing to take oral evidence from the sponsor.[36]
[32] Applicant’s Submissions, [17]. The quote is from the Tribunal’s reasons for decision, CB183-184, [63]
[33] [2016] FCA 1508, at [14]
[34] Applicant’s Submissions, [18]
[35] Applicant’s Submissions, [25]
[36] Applicant’s Submissions, [26]
The Minister, on the other hand, made three broad submissions. First the Tribunal was not obliged to adjourn the hearing, or prompt the applicant to seek an adjournment in circumstances where (a) neither the applicant nor his representative requested an adjournment; (b) the applicant was given a further opportunity to put on further evidence and submissions; (c) the applicant was not prevented from putting on written evidence from the sponsor; and (d) the applicant had availed himself of such right and provided to the Tribunal a statement from the sponsor.[37] The Minister submitted that the facts before me are distinguishable from those considered in Malecaj.[38] Second, relying on Minister for Immigration and Citizenship v SZIAI,[39] the Minister submitted the Tribunal did not come under an obligation to investigate the sponsor’s medical condition.[40] Third, the applicant was not denied procedural fairness because he was given adequate opportunity to present his evidence and arguments.
[37] First Respondent’s Written Submissions, [24]
[38] First Respondent’s Written Submissions, [25]
[39] [2009] HCA 39
[40] First Respondent’s Written Submissions, [26]
What is the question?
Although the ground on which the applicant relies claims the Tribunal acted unreasonably, his actual claim is that the Tribunal failed to consider whether to exercise powers it had to obtain further information in circumstances where the occasions for the Tribunal considering whether to exercise those powers had arisen. The powers which the applicant claims the Tribunal came under a duty to consider exercising are those conferred by s.361(2), s.363(1)(b), and s.363(1)(d) of the Act; and the occasions which the applicant claims gave rise to an obligation by the Tribunal to consider whether to exercise its powers are the Tribunal’s unsuccessful attempts to contact the sponsor on the day of the hearing, the applicant’s representative providing to the Tribunal the sponsor’s statement on 17 October 2016, and when the Tribunal allowed for the possibility that the sponsor’s medical conditions and her needs having regard to those conditions may constitute compelling reasons for not applying the Schedule 3 criteria.
The implicit premise on which the applicant appears to rely for claiming the Tribunal came under an obligation to consider exercising its powers to obtain further information is that the Tribunal comes under such obligation whenever the Tribunal is not satisfied an asserted fact on which an applicant relies exists, and it becomes aware that a person or persons who is or who are not before the Tribunal may be in a position to provide information that is relevant to that asserted fact. That this is the premise on which the applicant relies is apparent from the following paragraph of the applicant’s counsel’s written submissions:[41]
It is evident from the Tribunal’s reasons that there were matters that the Tribunal would have raised with the sponsor if the Tribunal had taken oral evidence from the sponsor. In its reasons, the Tribunal allowed for the possibility that such evidence from the sponsor may have satisfied the Tribunal the “the sponsor’s health conditions and any needs accruing from these health conditions provide a compelling reason not to apply the Schedule 3 criteria” . . . Obtaining such evidence would have been “for the purpose of the review”. It would have enabled the Tribunal to comply with its obligation to make a correct or preferable decision. It would have allowed the Tribunal to meet its obligation to give the applicant a real chance to present the applicant’s case.
[41] Applicant’s Submissions, [16]
The relevant question, therefore, is whether, on any of the occasions on which the applicant relies, the Tribunal came under an obligation to consider whether it should adjourn the hearing or obtain further information, either from the sponsor, or from some other person, or to cause the Secretary to obtain such information. Before I address that question, it will be necessary to refer to some principles relating to the nature of the Tribunal’s jurisdiction.
Principles
The starting point is s.348 of the Act which provides that where an application is properly made under s.347 for review of a “Part 5-reviewable decision” the Tribunal must “review” the decision. Section 348 is in substance the same as s.414 of the Act which relates to “Part 7-reviewable decisions”; and what has been said about the nature of the Tribunal’s functions when reviewing a “Part 7-reviewable decision” under s.414 of the Act applies to the nature of the Tribunal’s functions when reviewing a “Part 5-reviewable decision” under s.348 of the Act.
The obligation to “review” a decision requires the Tribunal to inquire into the existence or non-existence of facts relevant to the Tribunal determining whether to affirm or set aside the decision under review. As noted by the plurality in Minister for Immigration and Citizenship v SZIAI in relation to s.414 of the Act, however, the extent of the Tribunal’s duty to inquire into the existence of facts is qualified:[42]
[P]roceedings before the tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act.
[42] [2009] HCA 39 at [18]. The plurality were speaking of the Refugee Review Tribunal.
The nature and extent of the qualification of the duty to inquire has been stated in a number of ways. It has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[43] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[44] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[45] and the Refugee Review Tribunal “is required to deal with the case raised by the material or evidence before it”.[46]
[43] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[44] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[45] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[46] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]; (Black CJ, French and Selway JJ)
These principles imply the near absence of any duty by the Tribunal to consider whether it should seek information additional to that which is provided to it by the Secretary under s.352 of the Act or by the applicant that is relevant to the review.[47] I say “near absence” because in SZIAI the plurality said that it “may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”.[48] There are many cases in which it has been claimed that the Tribunal made a jurisdictional error because it failed to make an inquiry about the existence of an asserted fact. These claims have often been determined simply by considering whether the asserted fact of whose existence it is claimed the Tribunal ought to have inquired was a “critical fact”, and whether the existence of the asserted fact could have been “easily ascertained” by the making of “an obvious inquiry”. It should not be overlooked, however, that the plurality in SZAIA said that it is only in “some circumstances” that the Tribunal’s failure to make an obvious inquiry about a critical fact, the existence of which could easily be ascertained, could result in the Tribunal’s making a jurisdictional error.[49] In other words, that there may be an asserted fact critical to an applicant’s case whose existence can easily be ascertained by the making of an obvious inquiry does not by itself give rise to any duty by the Tribunal to make the obvious enquiry to ascertain the existence of the asserted fact. That may well be the case where the critical fact could as easily be ascertained by an applicant making an obvious inquiry and the applicant providing to the Tribunal the results of such inquiry.
[47] The obligation imposed on the Tribunal by s.360 of the Act to invite an applicant to appear before it to give evidence may properly be characterised as the seeking of information. The power, however, is not discretionary. The Tribunal must give the invitation provided for by s.360 if it is not in a position to make a decision favourable to an applicant.
[48] [2009] HCA 39 at [25]
[49] [2009] HCA 39 at [25]
Did the obligation to consider exercise of power arise?
The first occasion on which the applicant claims the Tribunal came under an obligation to consider obtaining information is at the Tribunal hearing after unsuccessful attempts were made to contact the sponsor. The applicant claims the Tribunal ought to have considered whether to adjourn the hearing for the purpose of enabling the sponsor to give oral evidence at a later time. In my opinion, the Tribunal came under no such obligation.
a)The applicant did not request the Tribunal for any adjournment.
b)The Tribunal gave the applicant time to provide a statement from the sponsor. The applicant took that opportunity and on 17 October 2016 provided a statement from the sponsor.
c)There is nothing in the material before me that suggests that the sponsor, had she been contacted at a later time, would have been in a position to give evidence about a critical fact. The applicant has not identified about what critical fact or facts the sponsor would have been in a position to give evidence has the Tribunal contacted the sponsor.
d)The Tribunal’s seeking further information from the sponsor cannot be characterised as an “obvious inquiry”.
i)In the statement provided to the Tribunal on 26 September 2016 the applicant said that due to the sponsor’s memory loss, she was not in a position to come and give evidence, and the applicant requested the Tribunal not to contact the sponsor but, if the Tribunal was not willing to consider the applicant’s request, the Tribunal could contact the sponsor on her mobile telephone number. If, as the applicant stated, the sponsor suffered from memory loss, obtaining information from the sponsor would not have been an obvious inquiry.
ii)In the statement that was provided to the Tribunal on 17 October 2016 the sponsor said that if the Tribunal needed more information it should email the sponsor’s migration agent. The sponsor, however, did not invite the Tribunal to contact her directly. An invitation to contact the sponsor through her agent to obtain information from the sponsor cannot be characterised as the making of an obvious inquiry of the sponsor.
iii)On the day of the hearing the Tribunal attempted to contact the applicant four times, but the evidence explaining the sponsor’s unavailability to take the call is unsatisfactory. In her statement submitted to the Tribunal on 17 October 2016 the sponsor said that on the day of the hearing she was not well and she was left in the company of her friend. That suggests that it was those caring for her or living with her who had left the sponsor in the company of a friend. There is no suggestion that the applicant or the sponsor’s mother told the Tribunal on the day of the hearing that the sponsor was left in the company of a friend. The sponsor did not reveal in her statement that was provided to the Tribunal on 17 October 2016 the nature of the illness that prevented her from answering the calls the Tribunal made to her mobile telephone. There is an assertion in the email from the applicant’s migration agent that the sponsor attempted to “revert” to the Tribunal, and an undated call record was provided in support of that assertion. The sponsor, however, does not say in her statement that was provided to the Tribunal on 17 October 2017 that she attempted to contact the Tribunal. This indicates that it was not obvious that the Tribunal would be able to contact the sponsor to obtain information from her and, for that reason, the sponsor was not a person from whom the Tribunal could have made any obvious inquiry.
As I have already noted, the applicant relies on the judgment of Pagone J in Malecaj. In that case, by letter dated 24 September 2014 the Tribunal invited the appellant under s.360(1) of the Act to appear before it on 31 October 2014 to give evidence and present arguments. At the time the Tribunal sent the invitation the appellant was overseas, and the Tribunal did not receive any response from the appellant. On 6 October 2014 a member of the Tribunal’s staff accessed the appellant’s movement records and discovered the appellant had been granted a travel facility that entitled him to leave and re-enter Australia lawfully on a bridging visa pending the determination of his application for review. The travel facility permitted the appellant to return at any time before 1 December 2014. On 31 October 2014, after the Tribunal had sent an SMS reminding the appellant of the hearing, the Tribunal exercised the power under s.362B(2) of the Act to make a decision on the review without taking further action to allow or enable the appellant to appear. Pagone J said:[50]
The Tribunal knew, in other words, that the appellant’s reason for not being able to attend on 31 October 2014 was that he had left Australia and that his absence was lawful, temporary and shortterm. The Tribunal’s decision to exercise its discretion under s 362B(2) by not rescheduling the hearing in those circumstances was unreasonable because it prevented the Tribunal from discharging its duty of providing the appellant with a meaningful invitation, in the sense of providing him with a real chance to present his case, once the Tribunal knew that the appellant was lawfully, temporarily and for a short term absent from Australia pursuant to a bridging visa during the period from the time when the Tribunal sent its letter of invitation on 24 September 2014 to the date of the hearing fixed for 31 October 2014.
[50] [2016] FCA 1508, at [14]
Pagone J also considered whether the Tribunal acted unreasonably by not exercising the power under s.363(1)(b) of the Act to adjourn the review, and his Honour held the Tribunal did act unreasonably. His Honour said:[51]
The Tribunal knew that the appellant was unable to attend the hearing on the date selected by the Tribunal because the Tribunal knew that he was lawfully absent temporarily from Australia for a short term pursuant to a bridging visa contemplating such absence from Australia. That outcome on the material before the Tribunal is capable of explanation only on the ground of a failure to consider whether the Tribunal’s invitation dated 24 September 2014, on the facts known to the Tribunal on 31 October 2014 (and without the Tribunal needing to have made any further inquiries), had been meaningful in the sense of having provided to the appellant a real chance to present his case.
[51] [2016] FCA 1508, at [14]
The facts in Malecaj are far removed from the facts of the case before me. Unlike the appellant in Malecaj, the applicant in the case before me was aware of and attended the hearing; according to the sponsor’s statement that was provided to the Tribunal on 17 October 2016 she was aware that a hearing had been fixed before the Tribunal on 5 October 2016; and the applicant and sponsor were given an opportunity to provide further material to the Tribunal, which they did on 17 October 2016. In any event, the reasoning of Pagone J in Malecaj may be doubtful in the light of the judgments in Minister for Immigration and Border Protection v SZVFW.[52]
[52] [2018] HCA 30
The second occasion on which the applicant submits the Tribunal came under an obligation to consider whether to seek further information is when the applicant provided to the Tribunal on 17 October 2016 a statement from the sponsor. I do not accept the Tribunal came under any such obligation. There is nothing apparent from the statement that the sponsor intended to give any information to the Tribunal other than that which is contained in her statement. Further, as I have already noted, the applicant has not identified the critical facts about which the sponsor was in a position to give evidence had any enquiry been made of her, and, in any event, I am not satisfied that any inquiry of the sponsor could be characterised as an obvious inquiry given, as I have already noted, the applicant provided a statement to the Tribunal in which he requested the Tribunal not contact the sponsor, the Tribunal had unsuccessfully attempted to contact the sponsor on the day of the hearing, and the evidence explaining her unavailability to be contacted on that day is unsatisfactory.
The third occasion on which the applicant submits the Tribunal came under an obligation to consider whether to seek further information is when the Tribunal allowed for the possibility that the “sponsor’s health conditions and any needs accruing from these health conditions provide a compelling reason not to apply the Schedule 3 criteria”. I do not accept the Tribunal came under any such obligation. It was for the applicant to establish the grounds on which he relied for claiming there were compelling reasons for the Minister not to apply the Schedule 3 criteria; and to the extent those grounds relied on the sponsor’s medical conditions and the needs arising from such conditions, it was for the applicant to provide material in support of those matters. Further, seeking information by requesting the Secretary to arrange for a medical examination is incapable of being characterised as information that can be obtained by making an obvious inquiry.
Procedural unfairness?
The applicant submits the Tribunal denied him procedural fairness because it failed to adjourn the hearing to take oral evidence from the sponsor. I do not accept this submission. The applicant did not ask for an adjournment. Further, the Tribunal provided the applicant with an opportunity to provide further material, and the applicant took advantage of that opportunity by submitting to the Tribunal a statement from the donor and other material.
Conclusion and disposition
The Tribunal did not come under a duty to consider whether to adjourn the hearing of 5 October 2016 for the purpose of providing the applicant an opportunity to make the sponsor available to give oral evidence, or to consider whether it should obtain further oral evidence from the donor after, on 17 October 2016, the applicant provided to the Tribunal the sponsor’s statement, or to consider requesting the Secretary to investigate matters the Tribunal might consider to be necessary for the purposes of the review. The ground on which the applicant relies, therefore, fails.
I propose to order that the application be dismissed. I will consider the question of costs at the time I pronounce my order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 31 May 2019
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