FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISANAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1397 |
| Catchwords: EVIDENCE – Whether evidence of time of death – evidentiary requirements where obligation to act informally and on substantial merits without regard to legal technicalities – whether evidence probative. WORDS AND PHRASES – “probative evidence”. |
| Legislation: Births, Deaths and Marriages Registration Act 1998 (WA), ss.42, 44(1) Evidence Act 1995 (Cth), s.190(3) Migration Act 1958 (Cth), ss.5F(2)(a), 65(1), 104, 353, 420(2)(a) Migration Regulations 1994 (Cth), Sch.2, cl.100.221(3)(b) |
| Applicant: | ELLEN ISANAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 156 of 2014 |
| Judgment of: | Judge Antoni… |
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- Case
- [2015] FCCA 1397
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether Ms Isanan was in the migration zone at the time of Mr Treeby's death, and whether the Migration Review Tribunal (MRT) had made a jurisdictional error. Central to these issues was the question of whether the evidence before the MRT regarding the time of Mr Treeby's death was sufficiently probative, particularly given the MRT's obligation to act informally and on substantial merits without regard to legal technicalities.
His Honour considered the evidence presented, including a "Notification of Changes" form signed by Ms Isanan on 25 January 2013, which stated Mr Treeby passed away at 7:40 pm on 19 January 2013 and that Ms Isanan arrived in Australia at 11:30 pm on the same day. However, at the MRT hearing, Ms Isanan testified that she obtained this information from Mr Treeby's sister and did not know the exact time of her arrival in Perth or when she arrived at her deceased partner's sister's house. She recalled being told Mr Treeby died at night, possibly around 7:00 pm or 7:30 pm, but did not know if his sister found him deceased. The court noted that the MRT's task was to determine if Ms Isanan entered Australia as a holder of a Provisional Partner Visa after Mr Treeby died, and that an exception existed for granting a Permanent Partner Visa if the sponsoring partner died after the applicant entered Australia on such a visa.
The court found that the evidence before the MRT was not sufficiently probative to establish the precise time of Mr Treeby's death in relation to Ms Isanan's arrival in Australia. Consequently, the MRT had erred in its determination of this crucial factual issue, leading to a jurisdictional error. The court therefore set aside the decision of the MRT.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
On 25 January 2013 Ms Isanan signed a Form 1022 “Notification of Changes in Circumstances” for the purposes of s.104 of the Migration Act (“Notification of Changes”): Annexure EI-2 to Ms Isanan’s October 2014 Affidavit. The “Details of Changes” which appear in the Notification of Changes are as follows:a)under the heading “Information which is no longer current” the following:Scott Treeby passed away 7.40pm on 19 January 2013b)under the heading “New correct details” the following:Ellen arrived in Australia on 19 January 2013 at 11.30pmc)under the heading “Declaration” the following appears:WARNING: Giving false or misleading information is a serious offence.17. I declare that information provided on or with this form is true and correct in every detail.Under this warning and declaration Ms Isanan’s signature and the date 25 January 2013 appears. The Notification of Changes form was stamped by the then Department of Immigration and Citizenship on 29 January 2013. Mr Treeby was buried on 31 January 2013: see Death Certificate. On 21 March 2013 a delegate of the then Minister for Immigration & Citizenship refused Ms Isanan’s application for a Permanent Partner Visa: CB 113-116 (“Delegate’s Decision”). On 10 April 2013 Ms Isanan made an application to the Tribunal for review of the Delegate’s Decision: CB 125-136. On 4 February 2014 Ms Isanan was invited to a hearing before the Tribunal on 17 March 2014: CB 160-162. A postponement was requested, and granted: CB 168-171, and the Tribunal hearing proceeded on 22 April 2014: CB 263-265. The Tribunal Transcript indicates that at the Tribunal hearing:a)the Tribunal correctly identified:i)its task as reviewing the Delegate’s Decision to refuse Ms Isanan a Permanent Partner Visa because Mr Treeby had died before Ms Isanan entered Australia whilst holding a Provisional Partner Visa: Tribunal Transcript, page 2;ii)the requirement for the grant of a Permanent Partner Visa being that at the time of the Tribunal making a decision that Ms Isanan be the spouse or defacto partner of her sponsoring partner, Mr Treeby: Tribunal Transcript, page 2;iii)the exception in Sch.2, cl.100.221(3)(b) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) allowing a Permanent Partner Visa to be granted where an applicant has first entered Australia as the holder of a Provisional Partner Visa and the sponsoring partner (in this case Mr Treeby) has since died: Tribunal Transcript, pages 2-3; andiv)that the issue for the Tribunal was a very narrow one, that is whether Ms Isanan first entered Australia as the holder of a Provisional Partner Visa after Mr Treeby died: Tribunal Transcript, page 3; andb)Ms Isanan said that:i)she signed the Notification of Changes, and that the information she provided concerning the date and time of Mr Treeby’s death and her arrival in Australia was obtained from Mr Treeby’s sister: Tribunal Transcript, page 3;ii)she was picked up from the airport by the boyfriend of Mr Treeby’s daughter: Tribunal Transcript, page 4, and that she was a little surprised by that because she was expecting Mr Treeby’s daughter to pick her up: Tribunal Transcript, page 5;iii)she did not talk to Mr Treeby’s daughter’s boyfriend other than to say “hello”, and he drove her to Mr Treeby’s sister’s house: Tribunal Transcript, page 6;iv)she does not know what time she arrived at Mr Treeby’s sister’s house or what time her flight arrived in Perth: Tribunal Transcript, page 6;v)Mr Treeby’s daughter and sister greeted her and told her of Mr Treeby’s death, and that having had an operation and been sick Mr Treeby had died in his sister’s house: Tribunal Transcript, pages 7-8;vi)she did not know if Mr Treeby’s sister found Mr Treeby dead: Tribunal Transcript, pages 8-9;vii)she thought that Mr Treeby died at night time: Tribunal Transcript, page 9;viii)she does not remember any further information being given to her by Mr Treeby’s sister thereafter as she was upset and arrangements were being made for the funeral of Mr Treeby: Tribunal Transcript, page 10; andix)it was Mr Treeby’s sister who said that Mr Treeby died, Ms Isanan thought at around 7.00pm or maybe 7.30pm: Tribunal Transcript, pages 11-12.