Gjecaj v Minister for Immigration
[2016] FCCA 2812
•9 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GJECAJ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2812 |
| Catchwords: MIGRATION – Application for judicial review – whether the Tribunal erred in its process in not referencing and dealing with evidence – statutory obligations of the Tribunal as to notification – whether Tribunal acted “reasonably” in proceeding to hearing in the absence of the applicant – finding that Tribunal erred in not considering two witness statements – matter remitted to AAT. |
| Legislation: Migration Act 1958 (Cth), ss.350A, 360, 362B(1A), 379A, 494C Migration Regulations 1994 (Cth), Sch4 |
| Cases cited: Minister for Immigration and Border Protection v MZYTS [2013] FCA FC 114 MZZDJ v The Minister for Immigration & Border Protection [2013] FCA FC 156 Kaur v The Minister for Immigration and Border Protection [2014] FCA 915 Minister for Immigration v Li (2013) 249 CLR 332 |
| Applicant: | ANTON GJECAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | (P)MLG 45 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 22 June 2016 & 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert with Ms Grinberg |
| Solicitors for the Applicant: | Aila Rose Melasecca |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
That the decision of the Migration Review Tribunal made on
18 December 2014 be quashed.
That the application be remitted to the Administrative Appeals Tribunal for re-hearing.
That the First Respondent pay the Applicant’s costs to be agreed and taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
(P)MLG 45 of 2015
| ANTON GJECAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 18 December, 2014 affirming a determination of the Minister’s delegate refusing the grant of a Partner (Temporary) (Class UK) Visa. Both the delegate and the Tribunal were not satisfied that the criterion in clause 820.226 of schedule 2 of the Migration Regulations 1994 imposing public interest criterion (PIC)4020 was satisfied in that there was evidence that the applicant had given an officer a “bogus document”.
The applicant in his amended application filed 24 June 2015 raises three separate and discrete grounds of appeal, two of which can be categorised as procedural and the other arguing that the Tribunal failed to consider two documents relevant to its consideration of waving the PIC4020 bar by reason of compassionate and compelling circumstances.
The Background
The chronology and form of documentation and disclosure of information by the applicant is crucial to the two procedural grounds of appeal.
The applicant is a citizen of Albania. On 14 October, 2013 he applied for a Partner Visa. His sponsor was his wife, Diana Bojanic. They had married on 24 December 2012 having met in Melbourne on 5 February, 2011.
The applicant lodged an application for a Temporary Partner Visa on 15 October 2013. The delegate refused the application on
19 December 2013. The applicant applied to the Tribunal for a Review on 7 January 2014.
The application to the Tribunal was prepared by the applicant himself, although he had previously enlisted the assistance of a migration agent.
The application at [5] discloses two contact references being (i) a residential/postal address of 3/3 Jells Road, Wheelers Hill in Victoria; and (ii) a mobile telephone contact number. Specifically, the box in that paragraph from male contact was left blank.
The applicant annexed a copy of the delegate’s decision to his formal application to the Tribunal and also a copy of the original Visa application of 15 October, 2013. The Visa application notably contained the same residential address and mobile contact number but relevantly for the argument now before me, it also included an email – address being obviously that of the applicant's wife and sponsor. The email address is not included in the formal contact details of the application, but only on the annexure via the Visa application of 15 October 2013.
On 11 January 2014 the Tribunal mailed an acknowledgement of receipt of the application to the applicant’s disclosed address. That letter was “returned to sender”. A subsequent case note was made
22 January 2014 noting its return and questioning whether “the Tribunal has the correct contact details” for the applicant.
On 28 October 2014 the Tribunal mailed at an invitation to appear to the applicant at the disclosed address. It was also “returned to sender”. A further case note of 4 December 2014 notes the return of the invitation and that the officer had tried to telephone the applicant on his disclosed telephone number to advise of the hearing and to check his residential/postal details but without success. The file note continues that the officer had conducted a movement check indicating that the applicant to be still in Australia. The file note further notes the “returned to sender” of the letter of 28 October 2014.
The application proceeded to hearing absent the applicant pursuant to s362B of the Migration Act 1958 (“the Act”) on 18 December, 2014.
A third file note of 5 January, 2015 and made prior to the sending of the Tribunal's decision to the applicant notes:
This case was completed on 18 December 2014, however, the applicant's address and phone number were incorrect.
The applicant's migration agent was end dated on 6 February, 2014. All past correspondence has been returned to the Tribunal, due to this. This case has not been finalised until today. (sic) Mr Gjecaj’s Wife Diana was contacted today by her phone number located through ICSE. She advised that the address is 3/323 Jells Road, Wheelers Hill, which had always been the case, despite the application from (sic) having a different address, and that the RAS phone number had changed. I have updated this information. She advised that there was an appointed migration agent (Arthur) and that the information should have been correct. I advised that the also did not have a migration agent on file for this case. She (sic) that she would follow this up with the RA and the migration agent (sic). I will finalise this case and forward the information to the correct address.
It followed that a copy of the Tribunal's decision was then sent to the applicant to the amended address advised by the applicant's wife.
Application to this Court
The application rests on three grounds being:
(i) The Tribunal erred in its statutory task in that it did not “deal with” two sworn, non “self-reported” statements concerning the mental state of Mr Gjecaj's wife, namely the statutory declaration of Jia-Lu Huang and Svetlana Liemareff, in respect of the waiver that in Migration Regulations 1994 (Cth) Schedule 4 public interest criterion 4020 (4) (b).
(ii) The Tribunal erred by acting in breach of s360A of the Migration Act 1958 in that it did not “give” an invitation to appear to Mr Gjecaj by a method approved under s379A.
(iii) The Tribunal erred by exercising its power under ss360 and/or 362B (1A) of the Migration Act 1958 in a way that was legally unreasonable.
The Tribunal’s Decision
The Tribunal's reasons note the invitation to appear was returned to sender and the attempt at telephone follow-up. The Tribunal notes its discretion to conduct the hearing in the applicant's absence.
The Tribunal concluded that the applicant did not satisfy the requirements of PIC4020(1) in respect of the bogus document provision.
The Tribunal then proceeded to consider whether the requirements of PIC4020 should be waived under the compelling and compassionate circumstances ground affecting the interests of an Australian citizen. In this respect the Tribunal had before it a relevant submission from the applicant's previous adviser, together with a report from a psychologist. These materials were considered by the Tribunal, but rejected as being “self – reporting”. No quarrel is taken in this review in this respect. Specifically however, the Tribunal's reasons at [19] state:
The Tribunal notes that no further information was provided apart from the submission from the applicant's adviser and the report of the psychologist, which was largely based on the self – reporting of the parties. The department did not receive a response to the letter dated 22 October 2013, which invited the applicant to provide information if he believed there are any compelling circumstances affecting the interests of Australia or compassionate and compelling circumstances affecting the interests of an Australian citizen, and (sic) Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC4020 and the grant of the Visa. Nor did the applicant attend the Tribunal hearing or provide any further evidence on this matter to the Tribunal.
Ground 1
The applicant argues here that the Tribunal fell into error in its statement at [19] that it had “no further information” when it did have before it two sworn statements from friends of the applicant and his wife and referring to the psychological/emotional stressors and effect on the applicant and his wife of their separation.
The applicant says that neither statement was mentioned or dealt with by the Tribunal and hence it fell into jurisdictional error consistent with the statements of the Full Court in Minister for Immigration and Border Protection v MZYTS:[1]
…the absence of any… evaluation [of a submission] in that context of the Tribunal's statutory task, can only signify a constructive failure to exercise jurisdiction and the absence from the recitation of… the material referred to… is indicative of the omission and ignoring,, not weighing preference.
[1] [2013] FCA FC 114
The first statement is dated 10 September, 2013 from Jia-Lu Huang. It states fully at [4] – [5]:
Diana and I met back at work in 2006. We became good friends and see each other on a regular basis.
I've seen Anton previously on my outings with Diana, but only briefly as we were not properly introduced until late last year.
We occasionally meet up for dinner and movie.
I fully and strongly affirm that Diana Bojanic and Anton Gjecaj are committed in a loving and dedicated marriage.
Due to the long period of time that I have known Diana I could see the stress and difficulties that she was facing during their time apart. However, I believe that they are now a stronger couple due to their time apart.
I believe their love to each other is genuine and continuing.
It is clearly evident that Diana and Anton are committed in their relationship and have a bright and long lasting future together as a married couple.
The second statement is also dated 10 September, 2013 from Svetlana Liemareff. It states fully:
Diana and I met at university in 2011 at the beginning of our course together we attended classes and regularly caught up outside our studies.
We have spent great amounts of time together and she is not just a classmate but also a good friend, of three years now.
Diana introduced me to Anton in January 2013 where I regularly would visit Anton and Diana for dinner and coffee at their place.
I do believe that Anton and Donna are in a committed loving relationship as I saw first-hand the stress that Diana went through being apart from Anton.
In the time spent with Diana and Anton I can see that they are in a committed marriage and work together as a team sharing household responsibilities. I do believe that they are in a dedicated and continuing marriage. I do believe that their marriage is genuine and loving.
Counsel for the first respondent argues there to be no jurisdictional error on the part of the Tribunal. He says that the two statements were irrelevant to the issue of compelling and compassionate circumstances in that they were prepared supportive of the issue of a legitimate relationship and the considerations in PIC4020 had not, in fact, been raised at the time of the submissions being prepared.
Secondly, Counsel for the first respondent argues that, in any event, the information in the statements was brief, outdated and therefore consistent with the Tribunal’s Reasons at [22]:
Without further information as to the sponsor’s current mental health, the nature of the support the applicant provides her and also information regarding the status of the parties relationship, the Tribunal is unable to be satisfied that there are compelling circumstances… (my emphasis)
On consideration, I am persuaded by the applicant’s argument in respect of this ground and reject the arguments of the first respondents.
I accept the applicant’s argument that the timing of the filing of the witness statements is essentially irrelevant. To the contrary,
it constitutes material before the Tribunal and that PIC4020 is prima face relevant in each such case. That is, relevance is not constituted simply by chronology to the raising of the issue before the Tribunal. It is incumbent upon the Tribunal to consider all of the material before it in the context of further relevance to issue. Further, the two statements contained references which bore directly on the question determinative of the Tribunal's decision and consequently needed to be “dealt with”.
Secondly, I reject the first respondent's argument that relevance is negated by the failure of the applicant to allude to the material in his own written submissions. I prefer that the material is independently before the Tribunal regardless of whether the applicant references it or not.
Similarly, I reject the first respondent's argument as to the timing of the filing and the alleged intent of the author. It is material relevant to the Tribunal’s determination. The importance, in my view, is the fact of the material. It then falls upon the Tribunal to consider the material and attribute weight. Similarly, submissions as to the brevity of the material equally go to matters of weight and merit properly the function of the Tribunal and certainly not of this Court.
I am satisfied that the Tribunal had before it two statutory declarations relevant directly to the issue of compassionate or compelling circumstances. I consider that the Tribunal fell into error in its own statement at [19] that it had “no further information”. Consequently, I find merit in ground 1 of the application for judicial review and find it that the Tribunal fell into jurisdictional error in not dealing with and considering relevant material.
Ground 2
Although the applicant succeeds in his application on Ground 1, I think it proper that I consider the two procedural arguments in grounds two and three of the application and which in some senses overlap.
The applicant at ground two argues that the Tribunal erred in breach of s360A of the Act in that it did not “give” an invitation to the applicant to appear before the hearing by a method approved under s379A.
The thrust of the argument is that the term “give” must be considered broadly in a way that advances rather than frustrates a practical and meaningful operation of the section by providing “effective” notification rather than any narrow or little construction.
Section 360 of the Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and to present arguments.
Prima face that obligation is discharged by the letter of invitation.
Section 360A(2) of the Act provides that the invitation must be given to the applicant by one of the methods specified in s379A.
Such methods include the last provided postal address or email address.The applicant argues the construction of the section to mean that the Tribunal is not limited to only one method of delivery. He says that the Act does not prioritise method. Specifically, whilst acknowledging that [5] of the application as to contact details, he says that this form does not achieve some statutory presumption as to conclusive contact methods.
In this matter the applicant's formal application at [5] discloses only a postal address and a mobile telephone number. Two separate attempts at using the postal address resulted in “is return to sender”. The email box is silent, but the annexure to the application discloses an email as a “contact” on the original Visa application filed some 14 months previously.
The applicant argues that the Tribunal's own file note discloses that by the time the s360A invitation was sent, the Tribunal itself had evidence and doubts as to the correctness of the address such that it knew, or should have known, that the second posting of the invitation would not to result in effective notice being given to the applicant. Essentially, the applicant says that the broader obligation of notification required the Tribunal to review the entirety of the application and not just [5] which would easily have disclosed the email address which would have provided effective service as indicated in the Tribunal achieving service of its own subsequent decision using that email address.
The argument therefore rests directly on a broader interpretation of the obligations of the Tribunal in giving notice.
The applicant relies on a decision of the full Court in MZZDJ v The Minister for Immigration and Border Protection[2] where the Court deals with an analogous s494C and considers when a person is deemed to have received a document given in accordance with the provisions of the Act where at [21] the Court says:
…the detailed provisions concerning both the obligation to notify applicants of decisions under the Act, and to give them documents, in accordance with the Act, upon which reliance may be placed during a decision – making process, combined with the detailed provisions about how and when notification is to occur, suggest this is a legislative scheme concerned to ensure notifications are effective. That is the operating assumption underlying the detail of the notification provisions. If all participants (not simply those acting on behalf of the Minister) and here to the scheme established by the notification provisions, then timely notice of decisions or matters being raised during the decision-making, and timely responses, can be expected. In that sense, the notification provisions are intended to be effective for this purpose.
[2] [2013] FCA FC 156 [33,34]
The Court in MZZDJ continues at [29], [33] and [34] as follows:
In s494B, a number of are adjectives used with the noun “address”; “residential”, “business”, “electronic” and “e-mail”. The word “e-mail” is also used as a noun in s494B; CS494B(5)(v). However, it is used as an adjective, together with the other adjectival terms used, makes it clear that the noun “address” is not to be read as limited to a postal or street address. That is to be expected in the statute dealing with notification of critical decisions where electronic communication is now an established and regular part of personal and business communications. Indeed, the authorisation of communication by electronic means was introduced in 2001…
…These legislative provisions should be construed in a way which advances rather than frustrates a practical and meaningful operation in the circumstances of those to whom the provisions are directed.
The variation can be oral. There are textual and contextual reasons for this construction. Textually, the legislative insistence on writing is, as the appellant submitted, absent from subs (3). The omission should be taken to be conscious. Contextually, the provision should be given a practical operation so that they can achieve their purpose of ensuring there is effective notification to Visa applicants.
The applicant's arguments can be summarised, therefore, as the Tribunal failing to discharge its obligation to give effective notice to the applicant by means as specified in s379A and, in so doing, contravening s360A and hence constituting a jurisdictional error.
He argues that the obligation re-arose on the basis of having received the “return to sender” of the first letter and that there was material available to satisfy the obligations under s379A and to make effective notification.
I am not persuaded by the applicant’s argument. To my mind, the applicant's own disclosure in his application to the Tribunal is critical to the Tribunal's obligations. [5] of the application specifically requires the applicant to set out his contact details. He has options as to postal, telephone or email contact. The Tribunal utilised both postal and mobile phone contacts. The applicant was silent as to an e-mail address. The same application at [25] specifically states that the applicant wants communications sent “to me” again specifying (for the second time) only a postal address and again leaving the e-mail box blank. Then at [27] of that application the applicant declares the information to be “complete and correct in every detail” and specifically:
“I understand that if I change my contact details and do not inform the Tribunal of my new address, the Tribunal may proceed to make a decision in my case even if it cannot contact me.”
The application annexes a letter from the department which itself annexes the delegates decision. Notably the letter and decision were sent via the applicant’s then migration agent but also notably clearly reference the applicant’s declared postal address (subsequently shown to be incorrect) as he had advised the Tribunal. The annexure at its last page also includes the original Visa application of 15 October, 2013 which discloses, contrary to the formal application, the wife's e-mail address. In this context I accept the submission of Counsel for the first respondent that the annexures appear with the application to the Tribunal only by reason of the checklist at [28] requesting the delegates decision.
The processes before the department and the Tribunal are clearly quite distinct. They involve separate and different application forms and necessarily occurred at different points in time. Put simply, this applicant provides an email contact to the department in October 2013, but did not repeat that contact option in his application to the Tribunal the following year.
I am of the view that within the context of the Tribunal's obligation, it is the application itself which is determinative, rather than peripheral and chronologically different information regardless of when and how provided. This applicant gave two forms of contact details. He declared those details to be complete and correct. The fact that he annexed a document giving a further contact but authored substantially earlier in time does not, in my view, create an obligation on the Tribunal to trawl through all files, departmental or Tribunal, to seek out alternative service options.
Practical as well as statutory considerations are relevant. Contact details can change. The applicant says, for whatever reason, that he does not want his wife's e-mail as a point of contact. File notes show attempts to contact the applicant at his second disclosed option being his mobile telephone. This was also unsuccessful. In this sense the Tribunal used both of the options disclosed by the applicant. Frankly, the use of an alternative contact option being contrary to those offered by the applicant may well have obvious and dangerous ramifications for the Tribunal. For example, this applicant, for whatever reason, may not have wanted his wife to be privy to the fact or contents of his application.
The provisions of s379C(4) are, in my view, satisfied in that if the Tribunal gives the document to a person by the method in s379A (4), the person is taken to have received the document on a certain date. The application before me now is effectively one of statutory interpretation and as to the discrete notion of “give”. The section therefore offers a deeming provision consistent with compliance with the obligations in s360A. As such, I am satisfied that the Tribunal “gave” the invitation to the applicant in accordance with its statutory obligations and did not fall into jurisdictional error. That is, the statute itself offers the mode of “effective” service supported by being a deeming provision. It is not a statutory obligation of the Tribunal to conduct independent investigations and it is entitled to rely upon the deeming provision.
I find no merit to ground 2 of the application.
Ground 3
The applicant here argues that the way in which the Tribunal discharged its obligation to give notice to the applicant was “unreasonable”. The considerations here are blurred with those of statutory construction in ground 2 but must be considered independently.
This argument is a more pragmatic one than that of ground 2 and rests in the main on a decision of Mortimer J in Kaur v The Minister for Immigration and Border Protection[3]. In that matter Her Honour was confronted with a factual platform where the Tribunal proceeded to hearing in the absence of the applicant but where her Honour was of the view that the Tribunal was or should have been reasonably alerted to something being amiss in the nonappearance of the applicant and primarily by reason of his previous consistent and frequent participation in the process. Despite some suggestions to the contrary, I am satisfied that Her Honour's decision is binding on me and, as far as I understand, has not been disturbed by subsequent authorities. Nevertheless, I am no also satisfied that her Honour considers such an issue to be on a “case-by-case” basis dependent upon the particular factual platform.
[3] [2014] FCA 915
Counsel for the applicant here argues that the Tribunal recognised that this applicant may have been able to provide further relevant information at the hearing and in particular to the waiver of PIC4020.
The applicant says that the discretion of the Tribunal to proceed in his absence must be exercised reasonably and not capriciously and always in a manner which is fair and just.[4]
[4] Minister for Immigration v Li (2013) 249 CLR 332
The applicant says simply that the factual situation before this Tribunal should have activated a situation analogous to that in Kaur where to proceed in the absence of the applicant without more enquiry was unreasonable and causes it to fall into jurisdictional error. He argues that the Tribunal was or should have been alerted that something was amiss in the service process by reason of the “return to sender”, and that “reasonableness” dictated that it should proceed further than the limits of its statutory obligations in order to provide “effective” service. The Tribunal had knowledge of the two “return to sender” letters.
It had knowledge that the applicant was still onshore. It had an available e-mail alternative option which it in fact used ultimately to send its decision to the applicant.
I am not persuaded by this argument on the facts of this case. I accept the submission of Counsel for the Minister that an obligation as to reasonableness does not extend to the Tribunal conducting a '”roving enquiry”.[5] This was not a situation where the Tribunal had a history of active, regular or frequent engagement with this applicant. He had disclosed two contact options. He had twice on his application failed to disclose an e-mail option. He had declared as to the accuracy of the information. His disclosed address had, in fact, also appeared (albeit incorrectly) on correspondence sent via his migration agent. The Court file disclosed no amended contact options.
[5] Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439
The notion of '”reasonableness” must also be seen from the position of the Tribunal as much as from that of the applicant. The statute provides for service and goes so far as to offer deeming provisions.
The application in at least two sections seeks the applicant's preferences in the plural as to serve options. Common sense suggests that an applicant's preferences as to service options may be motivated by a plethora of reasons. The simple fact of the non-attendance of an applicant at a hearing before the Tribunal would not, in my view, be such as to necessarily alert the Tribunal as to something amiss with service. “Reasonableness” must be such as to create a more onerous duty on the Tribunal. Prima face, it is entitled to accept the declared information of the applicant. It is only in situations such as that in Kaur that a Tribunal should be reasonably alerted that “reasonableness” dictates further enquiry. In all the circumstances, I am not satisfied that the circumstances and history in this matter were such that an obligation fell on this particular Tribunal. As such, I am not satisfied that the Tribunal fell into error in not pursuing a search for alternative contact options. I find no merit in ground 3.
Conclusion
Having been satisfied that the Tribunal fell into error in the argument offered under ground 1 of the application, the application will be remitted to the Tribunal for re-hearing.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 9 November 2016
1
3
3