Katisat v MIMIA & Anor
[2006] HCATrans 422
[2006] HCATrans 422
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S41 of 2006
B e t w e e n -
RAED A. KATISAT
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal
GUMMOW J
KIRBY J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 11.24 AM
Copyright in the High Court of Australia
MR I.G.A. ARCHIBALD: If the Court pleases, I appear for the applicant. (instructed by Michael Jones)
MR J.D. SMITH: I appear for the first respondent, may it please the Court (instructed by Sparke Helmore)
GUMMOW J: There is a submitting appearance, I think, from the Tribunal.
MR SMITH: There is, your Honour.
GUMMOW J: Yes, Mr Archibald.
MR ARCHIBALD: Your Honours, this application concerns the true meaning of the phrase “must have regard to” where it is used in section 361(3) of the Migration Act. It is a phrase which frequently appears in legislation but it has had little judicial consideration, particularly in the context ‑ ‑ ‑
GUMMOW J: Where does the statutory text appear conveniently?
MR ARCHIBALD: In Division 5, Part 5 of the Migration Act.
KIRBY J: Is it in the application book? Is it referred to?
MR ARCHIBALD: It is not in the application book, your Honour, but the section is in the application book. It appears at page 57.
GUMMOW J: Thank you. What is the particular phrase?
MR ARCHIBALD: It is “must have regard to”. Section 361 provides a regime whereby after the applicant has been notified or invited to come to a hearing within seven days he can give a notice to the Tribunal in writing that he ‑ ‑ ‑
KIRBY J: Can I just understand your essential complaint. Your essential complaint is, yes, they do not have to comply with it, but where, as here, the applicant has asked, being alerted to the perils, for his ex‑wife or spouse to come, believing that she will give evidence, honest, truthfully, that it is on him to take that risk and it is not clear that the Tribunal gave the regard to it that the statute requires. They just assumed that she would be against him and, therefore, that it would not help him and, therefore, that not calling the ex‑wife would not do his case any harm. It then went on to decide the case adversely to him on the basis that their relationship had not been a genuine spousal relationship.
MR ARCHIBALD: That is correct, your Honour.
GUMMOW J: But do we know what the evidence is she would have given?
MR ARCHIBALD: We do not know, your Honour.
GUMMOW J: She had severed the relationship with the applicant, had she not?
MR ARCHIBALD: Yes, your Honour, she had severed the relationship and she had previously sworn a statutory declaration that there was a subsisting spousal relationship but then that evidence ‑ ‑ ‑
KIRBY J: There was a breakdown in their relationship and I think she obtained an AVO against ‑ ‑ ‑
MR ARCHIBALD: No, your Honour. The allegation was by the applicant that there had been domestic violence associated with the relationship. If the Tribunal had found that there had been a spousal relationship, then the applicant would have been able to ventilate that evidence as an exception to the requirement that the visa was not to be issued.
KIRBY J: Were they married?
MR ARCHIBALD: Yes, they were married.
KIRBY J: He was married originally in Jordan and he divorced his Jordanian wife and married the witness that he wanted. Was he ever divorced from his Australian wife?
MR ARCHIBALD: I think later on they were, your Honour. I am not sure that they were divorced at the time of the determination by the Tribunal but subsequently they were divorced.
GUMMOW J: What would be the purpose of calling the wife in terms of the regulation? To help show what?
MR ARCHIBALD: Firstly, your Honour, to help show that there was a genuine relationship.
GUMMOW J: What, still subsisting?
MR ARCHIBALD: At the time of the Tribunal’s decision, yes. If that evidence was given, then the wife was in a position ‑ ‑ ‑
GUMMOW J: It would be an odd sort of domestic relationship subsisting if the other party to it will not come along voluntarily.
MR ARCHIBALD: Yes, that is correct, your Honour.
GUMMOW J: Would that not be a fair view for the Tribunal to have in its mind when it said it was not required to comply with the request?
MR ARCHIBALD: Your Honour, I am instructed the important date was the date of the application and if the spousal relationship was subsisting at that date, then there was ‑ ‑ ‑
GUMMOW J: Is that right? Is not the Tribunal, in effect, re‑hearing it again?
MR ARCHIBALD: Your Honour, the relevant date is the date of the application for the visa. Then if the applicant is placed on probation for two years and then if the relationship breaks down in that intervening time for reason of domestic violence, then it is not necessarily the case that the application is lost if the applicant establishes that there had been domestic violence, so the applicant was ‑ ‑ ‑
GUMMOW J: Domestic violence against the applicant?
MR ARCHIBALD: Against the applicant, yes.
GUMMOW J: Your client claims domestic violence against him?
MR ARCHIBALD: Yes. There were doctors and psychologists who gave evidence of that.
KIRBY J: The Federal Magistrate was on your side, was he not?
MR ARCHIBALD: Yes.
KIRBY J: How did Justice Bennett regard him as having erred in law to warrant her substituting the Federal Court’s orders for his?
MR ARCHIBALD: Your Honour, the Federal Magistrate determined the matter on the basis that there had been a breach of section 353 of the Act which is the general requirement to act in accordance with substantial justice. He found that there had been a breach of ‑ ‑ ‑
GUMMOW J: There had to be jurisdictional error, did there not?
MR ARCHIBALD: Yes.
GUMMOW J: Because this is a 39B case, is it not?
MR ARCHIBALD: Yes, your Honour. He found that there had been a breach of natural justice in the failure of the Tribunal to accord substantial justice under 353. When it came to the Federal Court ‑ ‑ ‑
GUMMOW J: Where does the Magistrate’s reasoning appear most pithily?
MR ARCHIBALD: That appears at application book page 40, paragraph 99 of the Magistrate’s judgment.
GUMMOW J: But did the Magistrate construe this provision in 361(3) “not required to comply”?
MR ARCHIBALD: No, your Honour. He found that there was an obligation to comply but the way he looked at it, your Honour – if I could take you to page 37 of the application book, your Honour will see there that the Magistrate looked at the factors that the Tribunal said it would take into account in not seeking to call the witness and then the Magistrate found that the denial by the Tribunal of the opportunity to call the wife on the basis of those reasons was the breach.
GUMMOW J: The submission to the Magistrate is set out at page 23, paragraph 13. Where does the Magistrate then deal with those specific matters? Wednesbury unreasonableness – a fairly long bow – denial of natural justice and failure to take into account a relevant consideration.
MR ARCHIBALD: Your Honour, it commences at page 32 of the application book. The Magistrate commences with an analysis of the differing views in the Federal Court in relation to the provisions such as 357A which provides that the procedural fairness sections in Part 5 are the codification of natural justice. He then goes, at page 33, after having dealt with that, commencing at paragraph 63 and over to page 34 where he looks at the reasons given by the Tribunal for not exercising the power. Your Honour will see that the Tribunal at paragraph 66 on page 34, at about line 40, the reasoning of the Tribunal in its decision was at the fourth line of that paragraph in italics:
The Tribunal had regard to this request and decided not to summons the Nominator to attend the hearing.
No express reason there, but then the Tribunal goes on to refer to a 359A letter which it had sent to the applicant, that being an equivalent of a 424A letter where the Tribunal has information that it seeks to rely on. Then the Tribunal refers to the Federal Court decision in VEAL.
KIRBY J: Can I explain my problem in this case. I am concerned that an injustice may have been done to the applicant by the assumption that the Tribunal did not need to call the wife because it just assumed that as they had fallen out she would be against him, because that does not necessarily follow as a matter of logic or of experience. But both the Act and the general law reserve to the Tribunal very large powers over procedures. The section says it does not have to call a person. They made a decision. They gave a reason, and it may not be one I would have given, but it is, as it were, within their jurisdiction. So can it be said that the error is one within jurisdiction as distinct from an error of jurisdiction or an error that took the Tribunal outside its jurisdiction?
MR ARCHIBALD: Yes, your Honour. Your Honour, you start firstly with the mandatory requirement of “must have regard to” and that then brings in the line of territory of SAAP and there being a mandatory requirement which ‑ ‑ ‑
KIRBY J: Do not assume I know or remember all these Federal Court cases.
MR ARCHIBALD: Yes, your Honour. There is a High Court case, your Honour, of SAAP ‑ ‑ ‑
KIRBY J: I do not even know all of them either. I do not always sit in them. What is SAAP?
MR ARCHIBALD: It is concerned with the nature of the requirement under section 424A of the Migration Act which deals with refugees for a Tribunal member who has information that he intends to rely on to find against an applicant. It provides the requirement to provide that information in writing. SAAP concerned whether, if the information had been given at the review hearing verbally by the presiding member of the Tribunal, there was still the obligation on the presiding member to give the information in writing in accordance with the mandatory requirement of the Act. The High Court, your Honours, found that ‑ ‑ ‑
GUMMOW J: By majority.
MR ARCHIBALD: ‑ ‑ ‑ the obligation was still there to provide that information in writing. Your Honours, there is an analogy with this case in that, although we are in Part 5 of Division 5, we still have an obligation on now the Migration Review Tribunal to do something and that is imposed by the word “must”. The obligation is “to have regard” and then we look at what is the meaning of “to have regard”. Your Honours, in the Federal Court Justice Bennett ‑ ‑ ‑
GUMMOW J: Yes, Justice Kirby asked you what was the nub of her reasoning for reversing the Magistrate.
MR ARCHIBALD: The nub of her reasoning was that it was a matter of construction of sections 361 and 362 and that, essentially, the sections did not impose an obligation and that ‑ ‑ ‑
GUMMOW J: What is the relation between section 361 and general principles of procedural fairness? Does not the Act now purport to codify procedural fairness?
MR ARCHIBALD: Yes, it does, your Honour. The section that does that is section 357A. So you have the codification. The issue, perhaps, is whether where you have a codification and you have a mandatory requirement, the mandatory requirement being “to have regard” – and there is some authority that “to have regard” means to consider as a fundamental element the circumstance which is required – whether the factors and the elements which the Tribunal had regard to in this case were appropriate and valid in the circumstances of the case.
HEYDON J: What is wrong with the reasoning of Justice Bennett in paragraphs 64, 65, that part of her judgment?
MR ARCHIBALD: Your Honour, those matters are, firstly, not matters that were referred to by the Tribunal, however ‑ ‑ ‑
HEYDON J: Did the Tribunal actually give reasons for declining the request?
MR ARCHIBALD: The only reason it gave in its decision was that the 359A letter, which related to the confidential communication, was no longer required. When I say that was a reason, that is the sentence which immediately follows the decision to not have regard, but then in the transcript, which is in the Magistrate’s decision which I took your Honours to at page 37, those matters came out in the transcript but they were not referred to in the Tribunal decision.
So it is possible, your Honour, that you have a reason in the decision which relates to the 359A letter and then you have these items in the transcript, they being that, in paragraph 86 on page 37, the lawyer “could not cross‑examine her”, that “the questions would be entirely up to the Tribunal”. At paragraph 87, “that [it] could actually be counteractive to [the applicant’s] claim”. If I could take your Honours over the page to another reason, in paragraph 90 at the top of page 38, you will see there that the applicant refers to “his wife taking revenge on her” and the Tribunal says:
But do you understand that because of what you just said that was why I wasn’t intending to summons her?
KIRBY J: That really ties in with what Federal Magistrate Scarlett said in paragraph 96:
He was warned of the risks and he accepted them, but he was not given that opportunity to bring relevant evidence before the Tribunal.
The Federal Magistrate considered that fundamentally unfair and that if there is the requirement of justice, both in the Act and in the relevant procedures, that really the Tribunal should have allowed the applicant to call his wife, as she was at that time, because she was the one who could deal in the most relevant way with the genuineness or otherwise of their relationship.
MR ARCHIBALD: That is correct, your Honour.
GUMMOW J: No separate facilities for cross-examination, how would it proceed? She would be asked questions by the Tribunal, I suppose. Only by the Tribunal?
MR ARCHIBALD: Yes, your Honour. It is an inquisitorial role and so the applicant was casting himself on the ability of the Tribunal to ask the appropriate questions of his wife.
KIRBY J: So you really are supporting Federal Magistrate Scarlett’s approach?
MR ARCHIBALD: Yes, your Honour.
KIRBY J: You say it may be that in many cases a person will come along and with animus because of their breakdown and say nasty things, but so what? If so, that really sinks the applicant who just was never given the chance. He wanted to call his wife and though the relationship is now over that does not touch the question of whether at the relevant time it was a genuine spousal relationship, which is what the Tribunal found against.
HEYDON J: Your draft notice of appeal does not fasten on Federal Magistrate Scarlett though; it fastens on 361 as you indicated at the outset.
MR ARCHIBALD: Indeed, your Honour. I was going to draw your attention to a matter. That is that in the Federal Court, your Honour, my instructing solicitor who appeared moved away from analysis of the Federal Magistrate based on section 353 and preferred to present the appeal on the basis that as to the construction of the section and whether there had been, in fact, a failure to comply with the requirement to have regard. My friend, Mr Smith, has handed up to your Honours a small bundle – you have not – I am sorry, I understood that he had.
KIRBY J: Anyway, there is a decision of the Federal Court on the point, is there, on “have regard”? It is a very soft requirement because it then goes on to say “but is not required” to call the person as a witness. So it just has to go through their mind and they can do what they like so long as they genuinely have regard to it. But you say he lost on the basis of the genuineness of his spousal relationship and, therefore, this was central to his case.
MR ARCHIBALD: Yes, the Tribunal never decided that there was a genuine spousal relationship. The Magistrate found against that on section 353. Justice Bennett dealt with it on construction and found, in essence, that the appropriate regard was had. If leave is given , your Honours, there is, perhaps, an issue about whether the applicant should be permitted to adopt the Federal Magistrate’s reasoning in the context of the appeal as well as the attack on the construction argument or whether what took place in the Federal Court operates as a preclusion to the applicant to rely again on the 353 analysis of the Magistrate.
So, your Honours, in a sense the error that the applicant relies on now is, firstly, adopting the Magistrate’s reasoning; secondly, in relation to the phrase “have regard to” in the procedural fairness section, what does that mean in a situation where the critical witness is rejected by the Magistrate for reasons which I have taken you to and which, in our respectful submission, your Honour, are not appropriate reasons at law and, given the significance of the section, to the applicant.
KIRBY J: In a way, it is like a sort of reverse Jones v Dunkel. The person has lost on the basis of a witness which he wanted to call and which he was denied the opportunity to call and on assumptions of what that witness would have said but never did because not given the opportunity.
MR ARCHIBALD: Yes, your Honour, that is the substance.
KIRBY J: And the Tribunal did not have a statement from the wife or former wife concerning the genuineness of the relationship?
MR ARCHIBALD: Firstly, your Honour, the Tribunal had the statutory declaration from the wife; secondly, your Honour ‑ ‑ ‑
KIRBY J: And that was supportive of the applicant at that stage of their relationship.
MR ARCHIBALD: Yes, it was.
KIRBY J: Is that in the book?
MR ARCHIBALD: Yes, it is, your Honour.
KIRBY J: What page is that?
MR ARCHIBALD: It is at page ‑ ‑ ‑
KIRBY J: Or is it referred to by the Tribunal?
MR ARCHIBALD: It is in the application book, your Honour. There are two copies of it.
KIRBY J: It is not in the index, so it must be in the decision or reasons of the Tribunal.
MR ARCHIBALD: Do your Honours have the court book from the court below?
KIRBY J: It was in the court below, was it?
MR ARCHIBALD: In the court below, your Honour.
HEYDON J: We do not have the court book. All we have is Justice Bennett’s judgment from the court below.
MR ARCHIBALD: I see, your Honour. There were two copies of it in the court book – in the Federal Magistrate’s court book.
HEYDON J: All we have from him is his judgment.
MR ARCHIBALD: Yes, your Honour. I can locate a copy and hand it up to you. Yes, your Honour, I hand up a copy. It is page 166, your Honour.
GUMMOW J: Wait a minute. Do you have it, Mr Smith?
KIRBY J: I see the red light is on.
GUMMOW J: Can you just, before you sit down, tell us if I am right? At page 5 in paragraph 21 is that the only treatment by the Tribunal of the rejection of the request to issue the summons? Is there any other material bearing upon the Tribunal’s decision not to issue?
MR ARCHIBALD: Yes, your Honour. There is another reference on page 7 at line 50.
GUMMOW J: Yes, paragraph 40?
MR ARCHIBALD: Yes, your Honour. There were actually two hearings of the Tribunal. On each occasion within the seven day time period the applicant requested that the wife be called.
GUMMOW J: Thank you.
KIRBY J: So as the record will be clear, we are looking at a statutory declaration of the former wife of the applicant dated 25 October 2001 which was tendered in the Tribunal and has been received without objection.
GUMMOW J: Yes, Mr Smith.
MR SMITH: If it please the Court. There appear to be two issues which have become slightly confused in the application. The first is whether or not the Tribunal properly had regard to the applicant’s request that it summons his former wife ‑ or at that stage still wife ‑ to give evidence before it in support of or in his application for review of the delegate’s decision. The second is whether or not it was fair or unfair for the Tribunal in fact to fail to summons the wife to give evidence.
In respect of the first of those, there is no real issue of principle that arises on the case. First of all, the extent of the obligation to “have regard to” was not canvassed at all in argument or in the judgment below. That may be understood because they are simple English words of common meaning that must and were understood in their context. Secondly, the decision of Justice Bennett turned upon, as did the decision of Federal Magistrate Scarlett at first instance, an analysis of the facts as they appeared before the court. Really the only issue raised upon this application is whether or not those facts meant that the Tribunal had proper regard to.
It is the submission of the first respondent that given the circumstances set out in Justice Bennett’s decision at page 64, paragraph 64 ‑ ‑ ‑
KIRBY J: The question that is of concern is whether or not the Tribunal really made its decision on the basis of a stereotype, that spouses who have fallen out will always come along and hate each other and say nasty things, whereas the applicant was warned of that risk but he accepted it and, as the Federal Magistrate says, he was then denied the opportunity of, in circumstances where he could not cross‑examine his former spouse. He had no right to do that. She would come along and say what she wanted to say against a background of an affidavit which says that during their marriage they were inseparable. It seems a somewhat unfair thing then to decide the case against him on the basis that there had been at that time no genuine relationship.
MR SMITH: There are two answers, your Honour, to that. The first is that the Tribunal has not in its statement of reasons given its reasons for not acceding to the request to summons the wife.
KIRBY J: But you get the reasons from the transcript really.
MR SMITH: Yes, your Honour, and that is because the Tribunal is not required to set out its reasons for any what might be called interlocutory steps along the way to making the decision. The second, though, is that it is clear, both from the matters referred to in the transcript in Federal Magistrate Scarlett’s decision, but in addition to all of the other factual circumstances that were before the Tribunal as set out in paragraph 64 of Justice Bennett’s decision, that these were in the mind of the Tribunal, such as, including the matter referred to by your Honour Justice Kirby, the fact that this applicant had made serious allegations of domestic violence against the person who he now sought to summons.
Secondly, it was clear from the request by the solicitors for the applicant who acted for him at the review stage that she was unwilling to attend to give evidence at the hearing. Thirdly, there is no suggestion whatsoever that she was available or where she was other than perhaps a reasonable inference that she was somewhere in Sydney. She had moved out from what had been called their marital home. There was no telephone contact details or anything else to suggest to the Tribunal that this evidence would have been easily obtainable even if it had come to the view that the applicant, as he gave evidence of, was willing to take the risk.
KIRBY J: But it is not beyond belief that where a spousal relationship has broken down a person might not want to approach a former spouse, especially because of some sort of violence as between them, but would nonetheless believe that she would tell the truth that she had deposed to in an earlier statutory declaration, that at an earlier stage in the relationship they had been inseparable. This is not an uncommon thing in human affairs.
MR SMITH: No, your Honour, it is not impossible.
KIRBY J: Love withers.
MR SMITH: And hate does too, your Honour, but that scenario is not impossible.
KIRBY J: Why should the Tribunal, when he wanted her to come, though there were great risks in it, have assumed that she is not going to help him and therefore really did not have to bring her along? It just seems basically unfair to then determine that they did not have a genuine spousal relationship.
MR SMITH: Firstly, your Honour, the assumption was reasonable. There is no question that there was something that the Tribunal could have inferred from all the conduct in the material before it. Secondly, that is not to say that it did not have regard to that possibility because that is one of the things that the applicant had put before the Tribunal. That is where the potential confusion between the two issues might arise and must be separated because, according simply to the evidence that was before the Federal Magistrate, all of these matters were before the Tribunal, were raised in the second hearing with the applicant, including after his suggestion that she may be cross‑examined that he had no entitlement to cross‑examine her, including the fact that his evidence that perhaps she was taking revenge on him for some matter by indicating as she had to the Department that she was no longer supportive of the application. In that respect I pause to note that there were two stages at which the genuine and ongoing nature of the relationship were important, both at the time of the application, which was in October 2001, and at the time of the decision.
GUMMOW J: What was the date of the decision?
MR SMITH: The date of the decision was October 2004.
GUMMOW J: That is right. A lot had happened between those two dates.
MR SMITH: Yes, your Honour.
GUMMOW J: Am I right in thinking that the situation as to the regulation applying would have to be met at the time of the Tribunal’s decision as well as the initial application?
MR SMITH: Yes. There was both a requirement that at the time of the application there was a genuine spousal relationship and at the time of the decision.
GUMMOW J: If one looks at the narrative of events on pages 9 and 10, she had withdrawn her support via a solicitor, she had her name removed from a joint lease, et cetera. It is pretty hard to say that at the time of the Tribunal decision they were still in a married relationship that was genuine and looked continuing ‑ ‑ ‑
MR SMITH: The importance, though, of the first date, if I might explain, is that if it is accepted that at the time of the application – in other words, October 2001 – there were a genuine relationship ‑ ‑ ‑
GUMMOW J: That is it, unless one gets in this strange domestic violence situation.
MR SMITH: Yes, and then the Tribunal must consider that, but the Tribunal was not satisfied that there ever was a genuine domestic relationship. Amongst other things, it decided – and this is at page 13, paragraph 69 – that the applicant himself did not hold himself to be in a mutually exclusive relationship.
KIRBY J: Can I ask you, under the Act, if you have a case like this where there was a marriage – assume it to be a genuine and spousal relationship – and then at a later stage it breaks down and there is a divorce, does that authorise the Minister then to refuse the applicant the entitlement to stay? In other words, is this application arguably futile given that the relationship on which the application to remain in Australia was based has broken down, as everybody says?
MR SMITH: It would not be futile if you were able to establish that it broke down because of domestic violence in the manner required by the Regulations.
GUMMOW J: Domestic violence on the part of the other party?
MR SMITH: It would have to be of the other spouse, yes.
KIRBY J: Of the non‑Australian national?
MR SMITH: Not of the visa applicant.
GUMMOW J: Say that again?
MR SMITH: It would not be domestic violence at the hand of the visa applicant. He has to fear ‑ ‑ ‑
GUMMOW J: No. It would have to be domestic violence at the hands of the wife.
MR SMITH: Yes. So for that reason, no, I could not say that it would be futile in these circumstances because the next inquiry would be: was there in fact domestic violence, as required by the Regulations, established before the Tribunal? So in respect of the first of those issues, that is whether the Tribunal complied with the requirement to “have regard to” the request that it summons or obtain evidence from another person, then there is no real issue as to what “have regard to”…..; and secondly, it then results as a question of fact which was resolved against the applicant by Justice Bennett, and there was no error in her Honour’s reasoning in that respect, particularly in light of the factors set out, as noted before, in paragraph 64.
In respect of the second issue, if one can separate the two, that is whether there is a denial of natural justice in failing to summons, there are two matters. First of all, as adverted to by my friend, there is the question of the operation of section 357A of the Act which purports to codify the obligation to afford natural justice by the procedures in Division 5 of Part 5 in respect of the Migration Review Tribunal. That much was conceded on appeal before Justice Bennett, which concession is set out at page 58, paragraph 43, which means, your Honours, that all that one is left with is the bare power in section 363(3)(a) to summons a person other than a person who is outside Australia. The question of whether or not there is a duty must be determined by reference to the word “may” that leads that section. Then in a similar section, your Honours, that the High Court found in SGLB, a similar provision in respect of the Refugee Review Tribunal did not give rise to a duty but only a power and, thus, the failure to exercise a power was not jurisdictional error.
In any event, regardless of the operation of section 357A, it is the first respondent’s submission that the requirements of natural justice were not breached by a failure to summons the wife. That is essentially for the reasons also set out by Justice Bennett at paragraph 64, that is that in essence, as your Honour the Presiding Judge said, a lot had changed since the application. There had been a breakdown of the relationship, undoubtedly a separation in living arrangements, on anybody’s evidence, allegations of domestic violence immediately following the withdrawal of support of the application for a visa, an apparent refusal by the wife to attend to give evidence, which gave rise, therefore, to the request to summons her, impose on her, that is a third party, some obligation to appear at penalty of law.
The other factual circumstances are that the applicant had a great deal of opportunity to present his case and he did so at two hearings, through written statements by various witnesses and being represented throughout the proceedings before the Tribunal. So viewed on the whole,
even including the failure to summons the wife, the circumstances in which the Tribunal conducted its review could not be said to have been unfair to the applicant, and particularly also – I have omitted to mention this – there is no knowledge or inference whatsoever, apart from the breakdown of the relationship, of what the wife would have said.
For those reasons, your Honour, there is not sufficient prospects of success on appeal and also does not raise a question of principle sufficient to warrant a grant of special leave.
GUMMOW J: Thank you, Mr Smith. Yes, Mr Archibald.
MR ARCHIBALD: Your Honours, if the function of the inquisitorial tribunal is to obtain the truth as to what happened with the relationship, then the reasons relied by the Tribunal not to call the witness are the very considerations which would have enabled the Tribunal to approach the truth of the matter. In that situation, your Honour, my respectful submission is that the mandatory requirement to have regard simply was not fulfilled in the circumstances of the case. It is of sufficient importance, in my submission, your Honour, because this is a phrase which appears in a lot of legislation and it might be appropriate for this Court to consider it, if your Honours please.
GUMMOW J: The central question is whether the Refugee Review Tribunal erred in this case in a way that invited judicial review in the Federal Magistrates Court and then on an appeal in the Federal Court of Australia.
In the Federal Magistrates Court, Federal Magistrate Scarlett concluded that the applicant was entitled to writs of certiorari and mandamus with a new hearing before the Tribunal. However, in the Federal Court, on appeal by the Minister, Justice Bennett who was sitting alone, set aside the orders of the federal magistrate and she restored the Tribunal’s decision. That was adverse to the applicant.
We are not convinced that the applicant has shown, on this special leave application, the kind of error of law or jurisdiction that would warrant a grant of special leave, given the large jurisdiction and powers given to the Tribunal to decide procedural questions such as the summonsing of witnesses requested by the applicant: see the Migration Act 1958, section 361(3).
Special leave accordingly is refused and refused with costs.
AT 12.09 PM THE MATTER WAS CONCLUDED
0
0