Kanagul v Minister for Immigration - [2014] FCCA 1219

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANAGUL v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1219

Catchwords:
MIGRATION – Application to review decision of the Migration Review Tribunal – whether Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – whether Applicant “gave” information consisting of evidence of witnesses at the Tribunal hearing to the Tribunal for the purpose of the application for review.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 359A, 424A
Migration Regulations 1994 (Cth), reg.1.15A

Applicant:

NEDIM KANAGUL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1585 of 2013

Judgment of:

Judge Barnes

Hearing date:

29 November 2013

Delivered at:

Sydney

Delivered on:

16 June 2014

REPRESENTATION

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr Godwin

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 7 June 2013 in Tribunal case number 1101617.
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 24 January 2011.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1585 of 2013

NEDIM KANAGUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal dated 7 June 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant, Mr Kanagul, a Partner (Migrant) visa.
Mr Kanagul is a citizen of Turkey. He married the visa sponsor in Turkey on 22 June 2007. He applied for a Spouse visa (later known as a Partner visa) on 10 February 2009. He was granted a Spouse (Provisional) (Subclass 309) visa on 14 August 2009 and entered Australia on 13 October 2009.
A Class UF visa is a temporary…

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: [2014] FCCA 1219
Decision Date: 16 June 2014

CaseChat Overview and Summary

This case concerned an appeal by Kanagul against a decision of the Minister for Immigration. The dispute centred on whether certain information provided by Kanagul was "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" under section 359A(1) of the *Migration Act 1958* (Cth). The matter came before Judge Barnes.

The legal issue before the court was to determine the proper interpretation and application of section 359A(1) of the *Migration Act 1958* (Cth) in the context of a visa application. Specifically, the court had to consider what constituted "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" and how this criterion related to the substantive requirements for the grant of a visa.

Judge Barnes applied the principles established in *SZBYR v Minister for Immigration and Citizenship* concerning the equivalent provision, section 424A(1). The court reasoned that the "reason, or a part of the reason, for affirming the decision" is determined by the statutory criteria for the visa itself, not by the Tribunal's internal reasoning process or published reasons. In this case, the relevant criterion was whether the applicant was the "spouse" of the sponsoring partner, as defined by regulation 1.15A of the *Migration Regulations 1994* (Cth). This definition requires satisfaction of mutual commitment, genuineness, continuation, and cohabitation, having regard to social, financial, household, and commitment aspects of the relationship. The court found it difficult to see how passages in the applicant's statutory declaration, if believed, would constitute a reason for affirming a decision to refuse the visa, as they did not reject or undermine the applicant's claims.

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

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I have borne in mind what was said by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 in relation to s.424A(1) (the equivalent of s.359A(1)) and the relevance of the Tribunal’s reasons for decision. After making the point that s.424A did not require notice to be given “of every matter the Tribunal might think relevant to the decision under review” (at [15]) their Honours continued at [17]:… the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal,” or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. (Emphasis added). While these remarks were made in relation to s.424A and concerned an application for a protection visa, the language of s.359A(1) mirrors that of s.424A(1). Relevantly, the criteria for the visa in question in this case included a criterion that the Applicant was the “spouse” of the sponsoring partner. The concept of “spouse” is defined in reg.1.15A of the Migration Regulations. In relation to persons in a married relationship (as the Applicant and his sponsor were) it was necessary for the Tribunal to be satisfied that there was a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing and that the couple lived together or did not live separately and apart on a permanent basis (reg.1.15A(1A)(b) and reg.1.15A(2)(c)). Regulation 1.15A requires the Tribunal to have regard to all the circumstances of the relationship in forming an opinion as to whether two persons are in a married relationship, including in particular the factors in reg.1.15A(3) which refers to the social and financial aspects of the relationship, the nature of the household, and the nature of the persons’ commitment to each other.