Goodreau v Minister for Immigration - [2009] FMCA 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOODREAU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 35

MIGRATION – Judicial review of Migration Review Tribunal decision affirming decision not to grant the applicant a visa – application to adduce fresh evidence refused – presumption as to death not applicable – application refused.

Migration Act 1958 (Cth), ss.474 & 476
Migration Regulations 1994 (Cth), reg.1.15

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Kim v Minister for Immigration & Anor [2007] FMCA 798

Axon v Axon (1937) 59 CLR 395

NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24
SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761

Applicant:

MARYANN LOUISE GOODREAU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 95 of 2008

Judgment of:

Lindsay FM

Hearing date:

11 November 2008

Date of Last Submission:

11 November 2008

Delivered at:

Adelaide

Delivered on:

28 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr Colton

Solicitors for the Applicant:

Coltons Barristers & Solicitors

Counsel for the Respondents:

Mr D’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application for Judicial Review filed on 19 June 2008 be refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

PEG 95 of 2008

MARYANN LOUISE GOODREAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking the issue of prerogative writs relating to a decision of the Migration Review Tribunal (“the Tribunal”) of 22 May 2008.
The decision of the Tribunal is a privative clause decision according to s.474 of the Act and is final and conclusive unless it can be demonstrated that it has been vitiated by jurisdictional error. Jurisdictional error is a concept best explained by the High Court decision of Craig v The State of South Australia [1995] HCA 58. In the context of applications under the Act it is best explained by the High Court decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The Tribunal’s decision affirmed the decision of the delegate of the Minister of 28 March 2007 not to grant the applicant a sub-class 835 Other Family (Remaining Relative) visa.
The applicant is an American citizen. Her mother is usually resident in Australia. She is the sponsor of the applicant for the grant of the visa.
Regulation 1.15 of the Migration Regulations 1994 (Cth) (“the Regulations”) deals with the visa that is sought by the applicant. In summary, the applicant will be entitled to a visa that will enable her to live in Australia with her mother if she can satisfy the Minister that she has no near relatives other than near relatives who are usually resident in Australia. ‘Near relative’ is of course defined in the Regulations. The only relevant near relative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 35
Decision Date: 28 January 2009

CaseChat Overview and Summary

The case of Goodreau v Minister for Immigration involved the applicant, Goodreau, challenging a decision made by the Minister for Immigration under the Migration Act 1958 (Cth). The dispute centred around the refusal of a visa application and the subsequent decision to cancel the applicant's visa on the grounds that she had not satisfied the requirements of the Act. The matter was heard and determined by the Federal Court of Australia.

The central legal issues before the court were the validity of the administrative decision made by the Minister and the admissibility of new evidence that the applicant sought to introduce. Specifically, the court had to consider whether the decision made by the Minister was final and conclusive under the privative clause of the Act, and whether the court could entertain new evidence that could potentially alter the outcome of the case.

The court examined the provisions of the Act, particularly section 474, which outlines the conclusive nature of privative clause decisions. It noted that such decisions could not be challenged, appealed against, reviewed, or quashed in any court. However, the court also considered the circumstances under which an appellate court might receive further evidence, as established in previous cases such as NASB v Minister for Immigration and Multicultural and Indigenous Affairs. The court held that for new evidence to be considered, it must be shown that it could not have been adduced at the trial with reasonable diligence and that it would very probably have resulted in a different outcome.

In this case, the court determined that the new evidence sought by the applicant would not meet the stringent criteria for admissibility. The applicant's purpose in introducing the new evidence was to challenge the factual finding of the Tribunal that her father was resident in Sanford, Maine, in May 2003, which was pivotal in applying the presumption of death. However, the court found that the evidence did not satisfy the conditions necessary for it to be considered. Consequently, the application for judicial review was dismissed.

ORDERS:
The application for judicial review filed on 19 June 2008 was refused.

Orders

Orders of the court

The Application for Judicial Review filed on 19 June 2008 be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I set out s.474 of the Act:(1) A privative clause decision:(a)is final and conclusive; and(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.(2) In this section:privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).(3)A reference in this section to a decision includes a reference to the following:(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;(d)imposing, or refusing to remove, a condition or restriction;(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;(f)retaining, or refusing to deliver up, an article;(g)doing or refusing to do any other act or thing;(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; and(j)a failure or refusal to make a decision.(4) …(5) …(6) …(7) … It is not unknown for courts exercising a jurisdiction pursuant to s.476 of the Act or of like provisions of the Act in a former state, to receive evidence that was not available to the Tribunal itself. Such circumstances are, however, rare and usually arise where the evidence is of assistance in understanding and evaluating a submission that is being made to the court exercising the jurisdiction relating to the prerogative relief. Here, the applicant through her counsel did not demur from the proposition that the purpose of receiving the evidence would be to show that the Tribunal had made a factual error in finding that the applicant’s father was resident in Sanford, Maine in May 2003 and that therefore no basis for the application of the presumption of death was made out. That would plainly be the purpose of receiving this evidence. As for the conditions that must be satisfied for an appellate court to receive further evidence (apart from the issues that arise on account of s.476 of the Act and the nature of the review this Court is conducting) they are set out conveniently by the Full Court of the Federal Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43]:In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, ... , an opposite result would have been reached by the primary judge’).

Ratio Decidendi

Legal Principle Established

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