Gitau v Minister for Immigration
[2006] FMCA 1243
•30 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GITAU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1243 |
| MIGRATION – Review of decision of Migration Review Tribunal – spousal visa – withdrawal of sponsoring spousal support – whether access to child – sections 359 and 359A of the Migration Act 1958 – application dismissed. |
| Births, Deaths and Marriages Registration Act 1997 (ACT) Migration Act 1958 (Cth) Family Law Act 1975 (Cth) Family Law Reform Act 1995 (Cth) |
| Fitch v Migration Review Tribunal (2004) FCA 1673 Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) FCA FC 201 Yazbeck v Minister for Immigration & Multicultural Affairs (2002) FCA 980 |
| Applicant: | MOSES ANTHONY NGUGI GITAU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 27 of 2006 |
| Judgment of: | Hartnett FM |
| Hearing date: | 17 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Manova |
| Solicitors for the Applicant: | Kabo Lawyers |
| Counsel for the 1st Respondent: | Mr R.C. Knowles |
| Solicitors for the 1st Respondent: | Australian Government Solicitor |
ORDER
Leave to amend the name of the first respondent to Minister for Immigration and Multicultural Affairs.
The application is dismissed.
The applicant pay the costs of the respondents as agreed and failing agreement, as determined by the court upon application made to it. Such application to commence by telephone mention.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 27 of 2006
| MOSES ANTHONY NGUGI GITAU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
History
On 10 January 2006 the applicant filed in this court an application for an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal ("the Tribunal") dated 2 September 2005. In support of that application the applicant filed his affidavit sworn on 10 January 2006. On 15 February 2006 O'Dwyer FM ordered that the applicant be granted leave to proceed out of time, and otherwise made other procedural orders in anticipation of the final hearing date of 17 May 2006.
The applicant is a Kenyan citizen. He arrived in Australia on 16 July 1999 as the holder of a student visa. On 31 July 2002 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs, as it then was, ("the department") an application to migrate to Australia on spouse grounds. The applicant was sponsored by his wife, Ms Kristy Rachael Gitau, whom he had married on 20 April 2002 in Albury. At all relevant times the sponsor was an Australian citizen.
On 22 August 2002 the applicant was granted a partner (temporary) (class UK) visa, subclass 820 (spouse).
On 20 August 2002 the sponsor gave birth to a child of the applicant and sponsor, that child being Warren Kci Gitau, a male child, born at the Canberra Hospital in the ACT. Registration of that birth pursuant to the Births, Deaths and Marriages Registration Act 1997 of the Australia Capital Territory was entered 26 August 2002.
Received by the department on 11 August 2004 was correspondence dated 9 August 2004 from the applicant indicating his residential address to be in Wagga Wagga, New South Wales. The applicant in that correspondence submitted documents which he described as proof of the continued genuine relationship/marriage of himself and the sponsor. Contained were cards and letters from his family in Kenya and America sent to he and Kristy and a car loan agreement to purchase a car. He also enclosed a copy of their former residence's lease agreement.
However, on 29 September 2004 the department received correspondence from the sponsor dated 27 September 2004 in which the sponsor stated that she had separated from the applicant and was living with her parents in Wodonga. The sponsor noted that she had signed permanent residence papers in July 2004 but, she stated, that the applicant had commenced another relationship in July 2004 and as a consequence the sponsor separated from the applicant at the end of August 2004. She claimed the relationship to have been in trouble since the commencement of the 2004 year.
On 8 November 2004 the applicant attended an interview with departmental officers. At that meeting verbal advice was provided to the applicant advising him that his application to reside permanently in Australia had been refused. Correspondence of that same date was then forwarded to the applicant at his address in Wagga Wagga. The decision record was provided to the applicant. A delegate found the applicant was not a spouse of the nominator as defined at Regulation 1.15A of the Migration Regulations 1994 (Cth) and therefore the applicant failed to satisfy the requirements of subclause 801.221(2) of the Migration Act 1958 (Cth), ("the Act").
On 26 November 2004 the applicant applied to the Migration Review Tribunal for review of the delegate's decision. Included in that correspondence was information provided by the applicant for the purposes of the review application, being a copy of the decision to refuse the visa dated 8 November 2004. Such correspondence was from Parish Patience Immigration Lawyers acting as migration lawyers and registered migration agents on behalf of the applicant. Ms Diana Tong of Parish Patience solicitors was the applicant's authorised recipient. Accordingly, the Tribunal sent all correspondence in the matter to the authorised recipient as requested by the applicant.
In correspondence addressed to the applicant's authorised recipient dated 26 August 2005 the Tribunal invited the applicant to comment on information adverse of his application and to provide further information in support of his application. Pursuant to section 359A of the Act, the Tribunal invited comment on the following information:
Your application for a permanent spouse (subclass 801) visa was refused as you did not meet clause 801.221(attached). There is evidence that you do not continue to be in a genuine spousal relationship with your nominator, Ms Kristy Gitau. There is insufficient evidence that you meet any of the remaining subclauses 801.221(3), (4), (5), (6) or (8).
This information is relevant to the review because you need to meet clause 801.221 in order to be granted a spouse visa.
Further, and in the same correspondence of 26 August 2005 and pursuant to section 359(2) of the Act, the Tribunal sought the applicant provide additional information relevant to the review of the decision, being as follows:
Evidence indicating you meet subclause 801.221(6) or any of the subclauses mentioned above.
The time within which the written comments and information was to be provided by the applicant was set out in the invitation to comment on information and provide information. That time period was up unto and included the 4 October 2005.
In a facsimile dated 27 September 2005 the applicant's authorised recipient notified the Tribunal that they no longer acted for the applicant.
A file note dated 30 September 2005 indicates that the Tribunal telephoned the authorised recipient of the applicant and was informed by them that they were unable to make contact with the applicant. The Tribunal was advised that the applicant's authorised recipient had forwarded the Tribunal's correspondence of the 26 August 2005 to the applicant but had received no response.
An officer of the Tribunal attempted to contact the applicant on his home telephone number in Wagga Wagga and mobile telephone number but both numbers were not connected. The Tribunal also unsuccessfully attempted to ascertain the applicant's whereabouts by reference to the department's ICSE records and Telstra's directory assistance records.
On 26 October 2005, the Tribunal wrote to the applicant at his last known address and informed him that it would hand down its decision on 14 November 2005. On 10 November 2005 the Tribunal received correspondence from the applicant of that date. That correspondence was as follows:
I am writing to kindly request for a hearing before the handing‑down of the decision on Monday, 14 November 2005.
I have been undergoing a great deal of depression due to the separation after the marriage break‑up and due to financial obligations I had to cater for after the marriage ended. I was unable to work properly and after trying several times to work out our differences and at the same time study and see our son (Warren Gitau) constantly; I was forced to move out of the town I was living in to Melbourne to be closer to our son as my wife was also planning to move to Melbourne. During that time, I informed Parish Patience Immigration Lawyers about my move and change of address. I did this twice but did not hear anything from them and neither did I get any of the mail informing of the hearing date, hence I did not attend as I was advised it may take a very long time before the hearing. I have only received today the mail informing me of the handing‑down decision on Monday.
I would kindly like to request for a second chance for a hearing before handing down the decision.
On 11 November 2005 a phone call was received by the Tribunal from the applicant. It was explained to the applicant that the Tribunal member would decide if the handing‑down would proceed on 14 November or not and the applicant would be advised whatever the outcome of his request. The applicant was asked if he had any further evidence or information he wished the member to see on Monday, 14 November and that he should fax such evidence or information that day and the Tribunal member would see it. The applicant was told if he had any court papers regarding his child or any other information he could fax that.
On 14 November 2005 the applicant again communicated with the Tribunal by facsimile, providing further information and saying as to his son the following:
I would like to tell you that my son, Warren Kci Gitau, is an Australian citizen and he is currently three‑and‑a‑half years old. I see him every second weekend at my wife's house in Wodonga or when they visit Melbourne. My wife agrees for me to see him regularly and she will consent to a court order to reflect our arrangements.
I would like to be given an opportunity to provide a court order as it will not be a problem. I have a very close bond with my son as I called him every day and if you decide against me, I will have no option but to leave Australia and this will impact on my relationship with my son as I would not be able to apply for any further visa to return to Australia. I ask that you consider my situation and provide me with more time to obtain the court order and present it to MRT. I believe that I can provide it about three months.
On 15 November 2005 the applicant appointed Mr Kabo as his authorised recipient and informed the Tribunal of this appointment. In correspondence to Mr Kabo dated 15 November 2005 the Tribunal informed the applicant that it would hand down its decision on 2 December 2005.
By correspondence dated 2 December 2005 Mr Kabo lodged with the Tribunal minutes of consent orders signed by the applicant and his wife concerning residence and contact arrangements for their son. Mr Kabo indicated that the consent orders were yet to be filed with the Family Court of Australia in Melbourne. Those proposed consent orders relevantly stated that:
1. That until further order the child, Warren Kci Gitau, born 20 August 2002 ("Warren") lived with the mother, Kristy Rachel Gitau and she have sole responsibility for making decisions regarding the day‑to‑day care, welfare and development of Warren.
2. That until further order the father, Moses Anthony Ngugi Gitau, shall have contact with Warren, as agreed between the parties.
On 2 December 2005 the Tribunal handed down its decision of that date in which it affirmed the delegate's decision to refuse to grant the applicant a permanent spouse visa.
Legislation
Part 801 of Schedule 2 to the Migration Regulations 1994 sets out the criteria for the grant of a permanent spouse visa. In general terms, an applicant cannot be granted a permanent spouse visa unless he or she has been previously granted a temporary spouse visa.
Subdivision 801.22 of Part 801 set out the criteria to be satisfied at the time of the decision made in respect of a permanent spouse visa application. In that subdivision subclause 801.221(1) required that an applicant meet the requirements of subclause 801.221(2), (3), (4), (5), (6) or (8). In the proceeding before me it is the requirements of subclause 801.221(6) which is determinative. Subclause 801.221(6) relevant stated that:
An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a subclause 820 visa; and
(b ) the applicant would meet the requirements of subclause 2 or 2A except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c) either or both of the following circumstances arise:
(i) ... ; [this subparagraph is relevant only where there is an allegation of domestic violence, which is not so in the present case]
(ii) the applicant:
(A has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least one child in respect of whom the sponsoring spouse:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Section 359 of the Act provides that the Tribunal may invite a person, including an applicant, to supply additional information to it. Section 359A provides that the Tribunal may invite the applicant to comment on information which the Tribunal considers would be the reason or a part of the reason for affirming the decision of the delegate. Subsections 359(3) and 359A(2) require that any request for information or comments under sections 359 or 359A be given to the applicant by one of the methods specified in section 379A of the Act.
In the Full Court of the Federal Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) FCA FC 201 Marshall, Mansfield and Siopis JJ said at 47 to 48:
Accordingly, the failure of the first respondent within the prescribed period to respond to the invitation under 359A conveyed by the July letter meant that section 359C(2) applied to the first respondent. That is not to say that the Tribunal was not empowered to give the first respondent the August letter, so as to give the first respondent further time in which to comment upon the July letter. Division 5 of Part 5 of the Act imposes certain procedural obligations upon the Tribunal, and correspondingly creates certain procedural rights upon the visa applicants to which it applies. But it does not disempower the Tribunal from conducting a review in a manner not inconsistent with those procedural obligations.
Section 353 of the Act exhorts the Tribunal to conduct its review in a way that is "fair, just, economical, informal and quick". There may be a variety of circumstances in which the Tribunal may decide to proceed to conduct its review not inconsistently with the procedural obligations imposed upon it, in a way which is not expressly the subject of those procedural obligations. The present matter provides an illustration. On a critical issue and notwithstanding that section 359C(2) applied to the first respondent, the Tribunal had regard to the information provided with the letter from the first respondent's migration agent of 21 August 2003 even though the prescribed time for a response had elapsed. There is no provision of the Act which inhibits the Tribunal from doing so. Secondly, the Tribunal indicated that it would defer its decision for a further period at least to 10 September 2003 so that the first respondent could submit further information to it. That was clearly a commonsense approach by the Tribunal. It is possible to conceive of many similar circumstances. To adopt that course did not remove from the first respondent the status of a person to whom section 359C(2) applied, if that status already existed in the circumstances, but it is consistent with the Tribunal's functions and within the processes permitted by the Act.
When a visa applicant is invited to provide comment, or additional information pursuant to section 359 of the Act, and fails to do so within the prescribed time the Tribunal can proceed to make a decision without taking any further action to obtain the additional information or the applicant’s views on the information (section 359C of the Act). Following the Tribunal's invitation dated 26 August 2005 no response was received from the visa applicant in the period between that date and 4 October 2005, which was the prescribed period. The Tribunal thus determined to proceed to consider the matter on the information placed before it without conducting an oral hearing. Where section 359C(2) applies the Tribunal is not under an obligation under section 360(1) to afford the applicant the opportunity to attend a hearing to give evidence and make submissions.
The reasons of the Tribunal
On the evidence before it the Tribunal was not satisfied that the visa applicant satisfied criterion 801.221(2). The Tribunal was not satisfied the visa applicant continued to be in a mutually‑exclusive spousal relationship with the sponsor. On the evidence the Tribunal was not satisfied that the visa applicant satisfied criterion 801.221(3), (4), (5) or (8).
The Tribunal noted that a child was born of the relationship in August 2002. The Tribunal noted that it had specifically requested information from the applicant going to subclause 801.221(6). The Tribunal noted that the authorised recipient was forwarded the request for information and the request to comment on information and that that authorised recipient had ceased to act when the applicant could not be contacted.
The Tribunal did not accept the claims made by the applicant about his lack of response within the prescribed period. The Tribunal noted that the authorised recipient had forwarded letters and tried to contact the applicant at his given address in Wagga Wagga. The Tribunal said the applicant claimed he had moved to Melbourne and redirected his mail for one month and then had a friend forward his mail.
The Tribunal said the applicant had claimed he did not receive any correspondence from his authorised recipient; he claimed to have informed the authorised recipient of his change of address on at least two occasions; he claimed to have received no information about his application until he received the letter notifying of the handing‑down of the decision. The Tribunal did not accept that the only correspondence received by the applicant was the handing‑down letter.
The Tribunal noted the applicant's claims of his intention to obtain formal residence and contact orders with his son. The Tribunal considered the claims made by the applicant in his correspondence of 14 November 2005 wherein he claimed to have regular access with his son, seeing him each second weekend. It referred to the applicant's claim to have moved to Melbourne to be closer to his son, noting however the contradictory claim that the applicant made to the effect that his son still resided in Albury.
The Tribunal did not consider the visa applicant to be a reliable witness. The Tribunal was not satisfied the claims of the applicant could be accepted without supporting evidence. The Tribunal noted there was nothing to support the claim that the sponsor and her son moved to Melbourne in 2005 nor anything to indicate that the sponsor had moved from the Albury/Wodonga area, as claimed by the visa applicant.
The Tribunal determined that the applicant had provided little evidence of access with his son and found insufficient evidence on which to find the sponsoring spouse had been granted joint custody or access by a court as no court orders had been provided to the Tribunal. Likewise, the Tribunal found there to be insufficient evidence on which to find the sponsoring spouse had a residence order or contact order under the Family Law 1975 as no court orders had been provided to the Tribunal.
The Tribunal found there to be insufficient evidence on which to find the sponsoring spouse had an obligation under a child maintenance order under the Family Law 1975 as no court orders had been provided to the Tribunal. The Tribunal noted that it was unclear on the evidence if the sponsoring spouse had any other formal maintenance obligation, noting the sponsoring spouse may have general law obligations to her child. The Tribunal found however that even were that so, on the evidence it was not satisfied that the applicant had custody or joint custody of or access to that child.
Further, the Tribunal found the evidence did not indicate the applicant had a current ongoing interest in or relationship with the child and the applicant's claimed interest was recent. The Tribunal found there was nothing to support the claims of the applicant that he saw his child every second weekend or that he rang his child each night, as claimed, and the Tribunal did not accept that claim.
As a result, the Tribunal was not satisfied the visa applicant satisfied subclause 801.221(6). The Tribunal affirmed the delegate's decision.
Consideration
The applicant submitted to the court that the Tribunal's correspondence of 26 August 2005 was defective. The applicant said the communication failed to comply with the requirements of section 359A (1)(b) of the Act because the Tribunal failed in the contents of that communication to explain to the applicant the relevance of adverse information.
The applicant submits that the Tribunal also failed to explain that, even though the applicant was no longer the spouse of the sponsor, he could satisfy the criteria for the grant of a permanent spouse visa on alternative grounds, and in particular grounds relating to his relationship with his child, which could be established by the provision of a court order pursuant to the Family Law Act 1975. Further, the applicant submitted that the Tribunal failed to comply with section 359A(1)(a) because it did not provide the applicant with a copy of the letter from the sponsor dated 27 September 2004 and its enclosures.
The Tribunal's correspondence of 26 August 2005 was sent to the applicant's authorised recipient, as is required pursuant to the legislation. The relevant legislative provision is section 379G of the Act. At the time of the forwarding of its correspondence the Tribunal had not received any notice of ceasing to act for the applicant by the authorised recipient. The Tribunal was required to do no more than it did in the forwarding of that correspondence.
Enclosed with that correspondence and forwarded by the Tribunal to the applicant and his authorised recipient was a copy of clause 801.221. The Tribunal informed the applicant and his authorised recipient that there was evidence that the applicant did not continue to be in a genuine spousal relationship with the nominator and that otherwise there was insufficient evidence that he satisfied any of the subclauses of 801.221(3), (4), (5), (6) or (8). The Tribunal's communication stated why the information was relevant and invited the applicant to provide information about his ability to "meet subclause 801.221(6) or any of the subclauses mentioned above".
The Tribunal was communicating with registered migration agents who were the authorised recipient of the applicant. The Tribunal alerted the applicant and his authorised recipient to alternative means by which he might satisfy the requirements for the grant of a permanent spouse visa, and in particular grounds as set out in subclause 801.221(6). The Tribunal expressly referred to that provision and enclosed with its correspondence a copy of it as set out in clause 801.221.
The Tribunal was not obliged under section 359A of the Act to provide the applicant with a copy of the letter from the sponsor and its enclosures. The Tribunal was to provide to the applicant particulars of the information it had to the applicant in order for the applicant to comment on such information which the Tribunal considered might be the reason or a part of the reason for it to affirm the delegate's decision
Further, the letter of 26 August 2005 complied with the requirements of section 359 of the Act. Pursuant to subsection 379G(2) the providing of the letter dated 26 August 2005 to the applicant's authorised recipient resulted in the Tribunal being deemed to have provided such correspondence to the applicant.
In response to the request for additional information and the request to comment on information, the Tribunal did not receive anything by way of reply from the applicant within the prescribed period. By virtue of section 379C of the Act the applicant was deemed to have received the Tribunal's correspondence seven working days after the date of that correspondence.
The applicant was required to provide a response to the Tribunal's correspondence within 28 days of his deemed receipt of the correspondence. The first material received from the applicant that addressed any issue raised in the Tribunal's correspondence, and falling not inside the prescribed period, was the applicant's correspondence to the Tribunal dated 10 November 2004.
In the absence of any response to the Tribunal's correspondence within the prescribed period the Tribunal was authorised, pursuant to section 359C of the Act to make its decision without taking any further action to obtain any additional information and / or comment from the applicant - that is, the Tribunal was not obliged to conduct a hearing to obtain additional information. However, the Tribunal did take into account the contents of the applicant's correspondence dated both 10 November 2004 and 14 November 2004 and that of Mr Kabo, his migration agent, of 2 December 2005.
The taking into account of such information did not constitute any waiver of the prescribed period by the Tribunal wherein the Tribunal then became obliged to invite the applicant to appear before it.
At paragraph 28 of its decision the Tribunal stated that:
“ The department's decision indicates that the applicant lied to the delegate about being in a continuing relationship and lied about having regular access with the child.”
The applicant submits that the findings of the delegate were findings to which the Tribunal had regard. Further, that those findings had a significant impact on the Tribunal's decision that the applicant was not a reliable witness. The delegate's decision was placed before the Tribunal by the applicant. It cannot be said, on a fair reading of the Tribunal's decision as a whole, that any finding of the delegate formed the reason or a part of the reason for the Tribunal's decision. The Tribunal made adverse credibility findings against the applicant. Such adverse credibility findings were open to the Tribunal on the evidence before it, which included inconsistent evidence.
Paragraph 359A(4)(b) of the Act provides that the Tribunal was not obliged to invite the applicant's comment on information which the applicant had supplied in the course of the review into which category the delegate's decision fell. But in any event I find that the delegate's findings formed no part of the reason for the Tribunal's adverse credibility findings or any other findings made by the Tribunal.
The applicant submits that the Tribunal erred in its construction of subparagraph 801.221(6)(c)(ii) of Schedule 2 of the Migration Regulations 1994. The applicant alleges that the Tribunal "assumed that formal court orders had to be provided evidencing the access arrangements and was not prepared to accept that an informal arrangement could satisfy the criteria". The applicant relied upon the decision in Fitch v Migration Review Tribunal (2004) FCA 1673 (21 December 2004) in this regard.
I accept the submissions of Counsel for the 1st respondent which were as follows:-
a) the Tribunal did not impose any standard that required the applicant to provide evidence of a formal order concerning custody and access arrangements. Rather, on the evidence before it, the Tribunal was not satisfied that the applicant had custody, joint custody or access to his son. Such findings were open to the Tribunal on the evidence before it;
b) the reasoning process of the Tribunal did not indicate that it required a formal court order about custody or access arrangements before it would find that such arrangements existed. Rather, the Tribunal was simply not satisfied that the applicant had any day‑to‑day involvement in his son's life or that he had any other contact with his son. It was for those reasons the Tribunal was not satisfied the applicant satisfied the requirements of subclause 801.221(6); and
c) the Tribunal also assessed the sponsor's circumstances, concluding that on the evidence before it it could not find that she had satisfied the requirements of subparagraphs 801.221(6)(c) (ii)(C), (D) and (E). No misconstruction of subclause 801.221(6) is apparent in the Tribunal's reasons.
The Tribunal's reasons indicated that it considered an informal arrangement for access could satisfy the criteria without the need for court order, whether that reasoning was correct or not.
Clause 100.221(4)(c)(ii)(B) of Schedule 2 to the Migration Regulations 1994 (Cth) refers to court orders whereas clause 100.221(4)(c)(ii)(A) does not. That may be simply a case of bad drafting, as was said by Sundberg J in Yazbeck v Minister for Immigration & Multicultural Affairs (2002) FCA 980 at paragraph 9. However, the Tribunal took into account that there were no court orders in existence between the parties but that a consideration of whether or not the applicant had access to his son was warranted; such that, even if a person could for the purposes of satisfying clause 100.221(4)(c)(ii)(A) have access to a child in the absence of any court orders, the evidence did not establish that the applicant in this case had access with his child, Warren.
It is not established by the applicant that the decision of the Tribunal is affected by jurisdictional error. Accordingly, the application must be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate (Acting): Andrea O’Halloran
Date: 30 August 2006
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