KATISAT v Minister for Immigration - [2005] FMCA 652

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KATISAT v MINISTER FOR IMMIGRATION & ORS

[2005] FMCA 652

MIGRATION – VISA – Migration Review Tribunal – application for a partner (Temporary) (class UK) visa – Partner (residence) (Class BS) visa – procedural fairness – natural justice.

Judiciary Act 1903 (Cth),s.39B
Migration Act 1958 (Cth),ss.353, 357A. 359A, 361, 363

Wu v MIMIA [2003] FCA 1249 – not followed.
WAJR v MIMIA [2004] FCA 106 – followed.
Moradian v MIMIA [2004] FCA 1590 – followed.
SZBFD v MIMIA [2005] FMCA 139 – followed.
Narang v MIMIA [2000] FCA 1515 – distinguished.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

RAED KATISAT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

Third Respondent:

SANDRA KERR

File No:

SYG 3447 of 2004

Delivered on:

10 May 2005

Delivered at:

Sydney

Hearing date:

10 May 2005

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Jones

Solicitors for the Applicant:

Michael Jones

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That an order in the nature of a writ of certiorari issue removing into this Court to be quashed the decision made by the Migration Review Tribunal on 20 October 2004.
That an order in the nature of a writ of mandamus issue requiring the Migration Review Tribunal differently constituted to redetermine the Applicant’s application according to law.
That the First Respondent is to pay the Applicant’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3447 of 2004

RAED KATISAT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

And

SANDRA KERR

Third Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Migration Review Tribunal which was handed down on 20 October 2004. The tribunal affirmed a decision of a delegate of the Respondent to refuse to grant to the Applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
The Applicant is a citizen of Jordan. He applied to remain in Australia as the spouse of an Australian citizen. At the time when he lodged that application on 11 October 2001 his application was supported by his spouse, Ms Nektaria Dimas. He provided evidence to the Department in support of that application. However, at some time prior to 7 August 2002 Ms Dimas withdrew her support for the application. On 29 August that year the Applicant provided evidence to the Department the relationship had broken down due to what he described as domestic violence and provided further evidence in support of his claim that the relationship with Ms Dimas had been genuine before the breakdown of that relationship.
He was interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs in which he was asked a number of questions about that situation. At page 92 of the Court Book in the record of the interview between the Applicant and the delegate the notes show at about point 8 the Applicant said that they were content, enjoyed weekends together, and had no problems until the Nominator took exception to the overseas calls that the Applicant made to his children, complaining about the cost. Then in March 2002 the Nominator objected to his travelling overseas to see his children, parents and "to close his business".
The Applicant said before their marriage the Nominator had agreed to bring his children to Australia, however, now she objected. The Applicant said that he thought the Nominator thought that he wanted to "get back with his former spouse". The Applicant said that he had nothing to do with his former spouse. He had divorced her in August 2001. The Applicant said that he had asked the Sponsor, i.e. the Nominator, to go overseas with him in June 2002 but she had said that she could not leave work at that time. He said that the Nominator had also said that she was afraid that she would not be able to leave Jordan once she was there. She started to get "very cranky" and "violent", she started to drink and to get home late. When the Applicant asked her what was happening the Nominator said that it was about his going overseas.
The delegate of the Minister refused the application on 3 September 2003. On 4 September 2003 the Applicant lodged his application for review with the Migration Review Tribunal. He was initially asked to a hearing by means of a letter on 6 April 2004. That hearing took place on 3 May 2004, and I have been provided with a copy of the transcript of that hearing. There was a further hearing scheduled and on 9 June 2004 the Applicant's solicitor at the time indicated in a letter:
If our client is invited to a further hearing we intend on requesting the tribunal to subpoena his former nominator spouse.
On 30 June 2004 the Tribunal sent a letter to the Applicant's solicitor inviting the Applicant to a further hearing which was scheduled for 22 July 2004. In the letter the Applicant was informed that he was invited to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to this application for review. He was also told:
You may also request that the Tribunal obtain oral or written evidence from other persons or obtain other written material.
As it turned out, that hearing on 22 July was rescheduled to 16 August 2004 and on 22 July a similar letter of invitation was forwarded to the Applicant care of his solicitor.
The Applicant forwarded a request for hearing to the Migration Review Tribunal. In that he confirmed that he would appear before the Tribunal at the scheduled time. He requested that the Tribunal take oral evidence from his estranged wife Nektaria Dimas and he gave her address. In reply to the question, do you want the Tribunal to issue a formal summons for this person to attend, he ticked the box "yes".
The second hearing took place and I have been provided with a copy of the transcript of that hearing. The Applicant attended and he was accompanied by his then solicitor, Mr Issa. At the hearing the Applicant and the Tribunal member discussed the Applicant's application that his wife Nektaria be summonsed to attend the hearing. The Tribunal member told the Applicant that neither he nor his lawyer would be able to cross‑examine the lady if she were summonsed to attend and the Tribunal told the Applicant that there was no compulsion on the Tribunal to summons the lady as long as the Tribunal had regard to his request and the Tribunal told the Applicant that a summons to the lady to attend was not going to be issued. There was further discussion about that later during the hearing.
On 20 October 2004 the Tribunal handed down its decision. The Tribunal affirmed the decision under review and found that the visa Applicant was not entitled to the grant of a Partner (Temporary) (Class UK) visa, nor a Partner (Residence) (Class BS) visa.
The Applicant has filed an application to this court and an amended application. In the amended application the Applicant sets out two grounds. The first ground is that the Tribunal's decision was affected by jurisdictional error. Particulars of that ground are that the Applicant sent a fax to the Tribunal requesting the Tribunal to take oral evidence from the Applicant's former spouse, Nektaria Dimas. The solicitors subsequently made it clear to the Tribunal that Ms Dimas would be likely to appear only if compelled by summons. The Tribunal refused the request and subsequent requests to call Ms Dimas to give evidence.
The Tribunal's decision was based on a finding that the relationship between the Applicant and Ms Dimas was not a genuine marital relationship at the time of the application for the visas. The Applicant wished the Tribunal to question Ms Dimas about the genuineness of the relationship at that time.
The Applicant submitted that the refusal by the Tribunal to call Ms Dimas to give evidence was an error of law going to the jurisdiction of the tribunal in that it was:
a)so unreasonable that no reasonable person could have so refused;
b)a denial of natural justice within the scope of Division 5 of Part 5 of the Migration Act; and
c)failure to take into account a relevant consideration.
The second ground relied upon was that the Tribunal's decision was affected by further jurisdictional error. The particulars of this ground was that the Tribunal was required by section 359A of the act to give particulars of any information that it considered would be the reason or part of the reason for affirming the decision under review, but that does not include information that the Applicant gave for the purpose of the application.
The Applicant submits as one of his grounds:
The Tribunal was not satisfied the Applicant was in a mutually exclusive relationship and the reason or part of the reason was that his divorce and continuing trips to Jordan raised concerns of the relationship with his first wife was ongoing. The information that the Applicant made continuing trips to Jordan was not given by the Applicant but was presumably obtained by the Tribunal from other sources. The Tribunal failed to comply with the requirements of section 359A in relation to this information.
I have had the opportunity of reading the Applicant's outline of submissions and the outline of submissions on behalf of the Respondent. I have also had the opportunity of hearing the oral submissions today from Mr Jones, the solicitor for the Applicant, and from Mr Smith of counsel, the Respondent.
In his written submissions Mr Jones for the Applicant refers the court to the requirement of section 360A of the Act which requires the tribunal in inviting an applicant to appear before it to give the Applicant notice of that invitation. He referred me particularly to section 361 of the act, subsection (1) of which stipulates that a notice is to include, amongst other things, a notice that the Applicant may within seven days after being notified give the Tribunal written notice that the Applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. He pointed out that subsection (3) of section 361 requires the Tribunal to have regard to an Applicant's notice, but states the Tribunal is not required to comply with it.
The Tribunal has power to summons a person to give evidence before it. He submitted that these issues which were determinative of the case were clearly matters on which the views of the nominating spouse Ms Dimas would have been relevant. By denying the Applicant the opportunity to have Ms Dimas' evidence heard the Tribunal denied him natural justice. He referred me to the decisions of Hely J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1249 where his Honour considered the obiter comments of Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 71 and concluded that the common law rules of natural justice were effectively excluded from all procedures covered by a provision such as section 357A (1), or in that case section 57.
Mr Jones also referred the court to the decision of French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 106 where his Honour took a very different view. In that case the court applied the principle of interpretation applied by the High Court in Annetts v McCann (1990) 170 CLR 596 at page 598 that:
When a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
Accordingly, his Honour held that the common law rules of natural justice applied to circumstances that were not expressly covered by the limiting provision equivalent to section 357A(1), in that case it was section 422B.
A similar approach was taken by Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1590. Importantly, Mr Jones submitted that in SZBFD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 139 Driver FM held that the decision in WAJR was binding on the Federal Magistrates Court because it was a decision on appeal from the Federal Magistrates Court. Mr Jones also submitted that subsection 361(4) does not prevent an applicant from asking the Tribunal outside the seven-day period to call a certain person as a witness. He submitted that if the court is bound by SZBFD it would follow that a request made outside the seven-day period would not come within the coverage of section 357A (1) and therefore the common law rules of natural justice would apply.
I should say at this stage that the court is bound by WAJR v Minister for Immigration and Multicultural and Indigenous Affairs. The court is not bound by the decision of Driver FM in SZBFD, although, with respect, I regard his Honour's decision as persuasive.
He went on to submit at paragraph 32 of his submissions that the Tribunal's reasons for not calling Ms Dimas was an assumption that she would be hostile to the Applicant, so her evidence would not advance the Applicant's case. The Tribunal pointed out that the Applicant would not be permitted to cross‑examine Ms Dimas. The Applicant, however, made it clear that he believed the witness would tell the truth under oath, with the implication that the truth would favour his case.
The other matter upon which the solicitor made for the Applicant made submissions were on the finding of the Tribunal at paragraph 69 of the decision, which appears at page 256 of the Court Book, that the Tribunal was not satisfied that the relationship between the Applicant and Ms Dimas was mutually exclusive on the part of the Applicant. The Tribunal went on to say:
His divorce in Jordan and his continuing trips to Jordan raise concerns that the relationship with his first wife was ongoing. Although he may have been simply remaining in contact with his children, the Tribunal is not satisfied that this is the case due to the proximity in obtaining his divorce and remarrying in Australia. There is also no evidence supporting his claim that he and his first wife had been separated at the time that he claims.
The submission here is that under subsection 359A (1) the Tribunal is required to give the Applicant particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review, and (b) ensure, as far as is reasonably practicable, that the Applicant understands why it relevant to the review, and (c) invite the Applicant to comment on it.
Mr Jones quite properly pointed out that the duty of disclosure does not apply to information that comes within subsection 359A(4):
(a) it is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) it is non-disclosable information.
Mr Jones submitted that the reference to the Applicant's divorce and his continuing trips to Jordan raised concerns that the relationship with the Applicant's first wife was ongoing shows that the Applicant did not give the tribunal any finding about trips to Jordan other than what was contained in his passport which showed only two trips during the relevant period. So any other information the Tribunal may have had about continuing trips must have come from another source and therefore should have been made available to the Applicant for comment. The submission is that failure to comply with the provisions of Division 4 constitutes jurisdictional error on the part of the Tribunal.
Mr Jones, as I said, made oral submissions in support of those written submissions and pointed out in particular that, in his view, the Tribunal's reaction to the request to issue a summons to Ms Dimas to attend was quite unreasonable and was unreasonable in terms of the Wednesbury principles. He also submitted that this was quite clearly, in his view, a denial of natural justice. He referred also to the statement about the Applicant's continuing trips to Jordan which was never raised with the Applicant and reiterated that the information about the continuing trips must have come from somewhere else other than the Applicant.
Mr Smith of counsel who appeared for the Respondent submitted a detailed outline of submissions in which he met the grounds raised by the Applicant. First of all, he referred to the failure to call Ms Dimas to give evidence and he dealt with the Applicant's grounds there in reverse order. He referred the court to Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24. He pointed out that it was difficult to see how failure by the Tribunal to exercise the power to call a witness can possibly be a failure to take into account a relevant consideration. He submitted, quite accurately, the Tribunal has power under subsection 363(3)(a) of the Migration Act to summon a person to appear before the Tribunal to give evidence, but that section does not prescribe a duty to be complied with by the Tribunal.
Mr Smith referred me to the decision of Tamberlin J in Narang v Minister for Immigration and Multicultural Affairs (2000) FCA 15. He submitted that his Honour's decision was similar to the conclusion reached by the majority of the High Court in respect of section 427(1)(d) of the act giving power to but not imposing a duty upon the Refugee Review Tribunal in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43]. He submitted that while the Applicant may notify the Tribunal that he or she wants it to obtain oral evidence from a person, the tribunal must have regard to that notice but is not required to comply with it. There is no question, he submitted, in this case that the Tribunal had regard to the notice.
Mr Smith submitted that the second ground, i.e. the middle ground, was unclear. He refers again that there was no obligation to call a witness and the Applicant had every opportunity to present whatever evidence he wanted. The only question was whether the Tribunal was obliged in order to afford natural justice to summons a person to give evidence. That is entirely distinct from giving the Applicant the right to be heard. He submitted there was nothing in the context, scope or purpose of the act to support the suggestion that the Tribunal must accede to requests to have a person give evidence.
The Tribunal had a reason for not calling the wife. It was not obliged to call her. There was no evidence or even suggestion of what the wife would or could have said. He submitted that in the circumstances it cannot be said that the failure to exercise the power of the Tribunal under section 363 was outside the realm of anything that any reasonable person could do.
Dealing with the failure to comply with section 359A (1) of the Act, Mr Smith submitted that the Applicant's visits to Jordan had in fact been canvassed with the Applicant during the two hearings. He referred me to a number of pages of the transcript of the first hearing which took place on 3 May 2004 and page 26 of the second hearing which took place on 16 August 2004. In the circumstances, he submitted, that as the information about the Applicant's visits to Jordan had come from the Applicant, then there was no obligation to raise that issue with him.
I will begin with that point first. Section 359A certainly sets out the Tribunal's obligations. Indeed the provisions of section 359A have been previously referred to. In short, there is an obligation to give to the Applicant particulars of any information that the Tribunal considers would be reason or part of the reason for affirming a decision, ensure that the Applicant understands why it is relevant and invite the Applicant to comment on it. The exceptions being relied upon here is in subsection (4), the relevant parts of which say:
This section does not apply to information that the Applicant gave for the purpose of the application.

The evidence, to my mind, is clear that the Applicant gave to the Tribunal details of the fact that he had travelled to Jordan on two occasions. They are contained in the copies of his passport; there was no secret about that. The Tribunal clearly referred in the proceedings to those matters. The Applicant in fact at page 26 of the transcript of the second hearing said at about point 3:
About so many things, contact, you know, I keep in touch with my kids. That was an issue. Going overseas because I went overseas to see my kids, that was an issue for her. Then she used to get angry very quick. When she drinks she's very aggressive. She abused me on so many different occasions and it just with the time, like after a time it just started to get worse and worse. So it ended because I had no other option left back then.
The Tribunal then asked:
Okay, and who ended it?
The Applicant said:
It just ended, no-one ended it; it just ended.
That is the only reference that I can see and which I was referred in the proceedings of 16 August. It was certainly the situation that there were references to the Applicant's trips overseas to Jordan in the earlier hearing.
At page 8 there is a discussion about the divorce proceedings with his first wife were actually in the process before he had even come to stay in Australia for the first visit. At about point 6 on the page the Tribunal asks:
Okay, July 2001, before you came to Australia as a visitor, had you lived separately to your first wife?
There was then discussion about being separated. At page 12 of the transcript there is reference to bringing money back into Australia. On that occasion the Applicant said that he brought money in as cash and declared that at the airport. There was another occasion when he wired money from overseas. Then on the third time he brought cash with him when he came back in June 2002.
Similarly, at page 16 at point 2 the Applicant said that he met the Nominator while he was overseas and that when he came back he was sure that they wanted to be together. Question:
So you decided when you returned to Australia. You were discussing it before you returned, but did you actually decide on the date when you returned to Australia?
Answer:
An exact date I decided. I proposed to her actually in September.
Then the rest of the page goes on to a discussion of the marriage.
Page 18 refers to the second time that the Applicant went to Australia. That is about point 6. The Tribunal asked was that when the Applicant met the Nominator's family. He replied that it was. At page 20 there is a reference by the Applicant at the bottom of the page:
Okay, and then the rest of the photos - I have photos that was taken behind the time I was overseas.
Again at page 26 of the transcript of the earlier hearing there is a reference at about point 5, the Tribunal asks:
Okay, well, were you actually outside of Australia from December 2001 until June 2002?
Answer, "No." Question, "Weren't you?" Answer, "No.
Okay. So can you just tell me when you were outside of Australia then? It did seem like a long time, I must admit.
Answer:
I was away for a very short time to go and do the liquidation in June. The second time was 2002. That was June 2002; June 2002.
Question:
I see there's one year. So you came back in January of 2002.
Answer:
Yes, I believe. I think it's the 2nd, 2 January, something like that.
Question:
3 January?
Answer:
Early, early January.
Question:
Shortly after that you got your job at the florist.
So they are the discussions between the Applicant and the Tribunal about the Applicant being outside Australia. The part of the judgment to which Mr Jones refers the court is that set out at paragraph 69 on page 256 of the court book:
The Tribunal is also not satisfied the relationship was mutually exclusive on the part of the Applicant. His divorce in Jordan and his continuing trips to Jordan raise concerns that the relationship with his first wife was ongoing. Although he may have been simply remaining in contact with his children, the Tribunal is not satisfied that is the case due to the proximity in obtaining his divorce and remarrying in Australia.
The evidence clearly shows that there was a discussion of two occasions when the Applicant was outside Australia in Jordan. Mr Jones submits there is no evidence of continuing trips to Jordan and no evidence that continuing trips to Jordan were ever discussed, however, mentioned by the Applicant to the Tribunal or discussed by the Tribunal with the Applicant.
On the face of it a reference to the Applicant's divorce in Jordan could hardly raise concerns that the relationship with his first wife was ongoing. It is trite to say that when one person gets divorced from another person that tends to be evidence of an intention not to have an ongoing relationship. The Applicant, as was conceded by the Tribunal, said he wished to remain in contact with his children, although he also said that he had business to wind up, and he certainly gave evidence about bringing money into Australia.
What then is the evidence of continuing trips to Jordan to raise concerns that the relationship with the first wife was ongoing? To my mind, two trips cannot be characterised as continuing trips. So if it is evidence of this upon which the tribunal relied, then the Tribunal must have got it from someone other than the Applicant. At the same time, the issue of the relationship with the Applicant's first wife as being an ongoing one is, to my mind, a direct challenge to the Applicant's credibility. This case is about the fact that the Applicant's marriage to the second wife was not regarded as a genuine relationship.
The Tribunal did not at any time on the evidence before me put to the Applicant at either hearing a concern that there were continuing trips to Jordan and that those continuing trips were for the purpose of continuing a relationship with the Applicant's first wife. The discussions related to winding up the business, the transferring of money to Australia and, as the Applicant gave evidence, continuing his relationship with his children.
To my mind, this constitutes a failure to abide by the provisions of section 359A of the act and constitutes jurisdictional error.
I will turn now to the natural justice procedural fairness point. The law relating to natural justice in these proceedings was amply spelled out before me. I was referred to the decision of the Honourable French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs and its adoption by Driver FM in SZBFD v Minister for Immigration and Multicultural and Indigenous Affairs. With respect, my learned colleague has set out in some very useful detail the position as far as the Federal Magistrates Court is concerned. At paragraph 5 of SZBFD his Honour says:
Mr Ginges submits that I should follow the decision of Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1590. That was a decision in relation to section 51A of the Migration Act rather than section 422B. The decision is one of a single judge of the Federal Court not on appeal from this court and I do not consider that I am bound by it. However, I do consider myself bound by the decision of French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 106. That was a decision on appeal from this court. His Honour provided what is for the moment in this court an authority for the interpretation of section 422B at paragraphs 50 to 59.
With respect, I consider that the statement made by Driver FM in SZBFD that he was bound by the decision in WAJR is a correct statement of the law and I too am of the view that WAJR v Minister for Immigration and Multicultural and Indigenous Affairs binds the Federal Magistrates Court as it is indeed a decision on appeal from this court.
The decision in WAJR is set out in some detail in Driver FM's decision in SZBFD. At paragraph 57 of WAJR his Honour says:
The question that follows is whether section 422B precludes the application of procedural fairness in this context. Section 422B provides that Division 4 of Part 7 is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". The natural justice hearing rule is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said for present purposes to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant's claim to the tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness in relation to the matters it deals with. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the tribunal. The matters Division 4 deals with are therefore to be identified by reference to its particular provisions, not by reference to its general subject matter, i.e. the conduct of reviews by the tribunal. Section 424A, the closest relevant provision, which relates to the opportunity to comment on adverse information, does not deal with the matter raised in this case, not does any other provision with the possible exception of section 425.
Of course it is clear that section 422B of the act equates to section 357A which is the section that applies to proceedings before the Migration Review Tribunal.
This is a case where the Applicant says he was divorced from his first wife in Jordan, came to Australia, he formed a relationship with a Ms Dimas, they were married and the marriage was a short one and the relationship floundered. The Applicant says it was because of domestic violence and Mr Jones for the Applicant points out that neither the delegate nor the Tribunal raised any question about the domestic violence aspect. What the concern of the Tribunal was relates to the genuineness of the marriage.
It is important, in my view, to look at the reasons given by the Tribunal for not exercising the power of the Tribunal to summons Ms Dimas to attend. In the decision of the Tribunal the Tribunal refers to this on a couple of occasions. In paragraph 17 the Tribunal at page 247 of the court book says:
Around the same date the representative contacted the senior member of the Tribunal requesting that the matter be reconstituted, that another hearing be held and that a "subpoena" be issued for the nominator to attend. The letter appears to indicate a lack of understanding by the representative as to the procedures of the Tribunal.
In paragraph 18, there is again a reference to the issue of a "subpoena. The reference to the use the term "subpoena" rather than "summons" in the comment of a lack of understanding of the procedures of the Tribunal contains a somewhat carping note. In the circumstances it is perhaps a reasonable mistake to assume that the Tribunal has a power to issue a subpoena rather than a summons, even though this court, for instance, has the power to issue both.
In any event, the Tribunal refers at paragraph 20 to a decision of the Full Federal Court in a matter known as VEAL on 9 July 2004. That again is referred to at paragraph 40 where the Tribunal says:
A second hearing was held in August 2004. The Applicant and his representative attended. The Applicant had requested that the Tribunal issue a summons for the Nominator to attend the hearing. The Tribunal had regard to this request and decided not to summons the Nominator. The Tribunal stated that the section 359A letter sent in May had been sent to comply with the Federal Court decision in VEAL. Since that time the Full Federal Court had reversed that decision. The Tribunal did not intend to rely on any information put to the applicant in the section 359A letter. The Tribunal considered those allegations to be unreliable, untested and not credible.
I note in passing that the Tribunal at paragraph 65 refers to a number of statutory declarations submitted by the Applicant and says at paragraph 66:
The Tribunal gives little weight to these statutory declarations as they are untested and give little detail of the relationship.
The Tribunal went on to note that declarants who gave oral evidence were unreliable and the Tribunal noted that the Nominator no longer stood by her declaration.
In the hearing on 16 August the Applicant asks for a summons. The Tribunal says at page 5 at point 9:
Okay, well, I'll back track a little bit. Part of the reason we're having a hearing today is basically because Mr Issa asked for a second hearing and because they put the 359A letter to you. All right?
Answer, "Yes, ma'am." On page 6:
Now, at the time the 359A letter was written the case law in Australia required me to put information to you even if I didn't intend to rely on it. If it was on the file I still would have to put it to you, okay. Case law since then has changed and if today I was having the first hearing I would not have to write to you to put stuff to you that's on the file but on which I don't intend to rely.
Answer, "Okay." The tribunal goes on to say:
I'll say that to you again. I'll say that to you again. All right, which is that I when the wrote 359A letter
Applicant:
Excuse me, ma'am. What is the 359 letter?
Answer:
That's the letter that has in it information that could be adverse to your application.
Answer:
Yes, member.
All right. Mr Issa wrote back to me saying, please, you know, give us some more information and I said I can't because it's got certificates on it which means I'm not even allowed to have said - I shouldn't have said probably that much, the bit that I did say. However, the thing is that at the time in May the case law in Australia required that any adverse information on the file had to be put to you.
Answer, "Okay."
Question:
Even if I didn't intend to rely on it.
Answer:
Okay, I understand.
Question:
Okay. Now, the information that is on the department's file that could have been considered to be adverse which is in that letter I don't intend to rely on it, all right. I don't. I don't intend to rely on it so therefore section 359A is not really adverse to your situation because I don't rely on it.
Answer, "Okay."
It appears to me, with respect, that the Tribunal explained in exhausting detail it was not intended to rely on that letter referred to by Mr Smith of counsel by the vernacular term of "a dob-in letter".
Now, that is the reason given in the reasons for not calling the Applicant's wife. But what the Applicant says in the Tribunal is that he wants her to be called. This is set out at page 9. The Tribunal says:
All right, anyway, you've asked that Nektaria be summonsed to the hearing today.
Answer:
Yes, member.
The Tribunal:
All right, now. When I'm asked to summons a person to a hearing I have to have regard to your request but I don't - I'm not required to ask her to come to the hearing, okay.
Answer, "Okay." Question:
Now, do you understand what would happen if she did come to the hearing?
Answer, "Yes."
So I just want to see - I want to take like - because as far as, like, my understanding immigration has relied on verbal evidence was given by Nektaria and the Tribunal - because I was asked to provide credible evidence to prove my case and I just - just to tell - like to only tell the truth. That's the bottom line. I want the truth to be brought in front of the hearing, you know, the Tribunal.
The Tribunal at page 9 goes on to inform the Applicant that he would not be able to question her if she was brought before the Tribunal, that his lawyer could not cross‑examine her. She goes on to say:
The Tribunal would be the only person to ask her or anybody else who came here questions and the questions would be entirely up to the Tribunal.
The Tribunal explains:
So part of the difficulty in actually having an ex-spouse come to a matter is that you would never know what she could come out with and that could actually be counteractive to your claim, but you don't get to ask her questions.
The Applicant said that he understood this, but he reiterated his demand on page 10 that he believed that the Tribunal member would be fair and would be asking questions to find the truth about his case and what is the truth. He goes on to say:
I just want the truth to be brought in front of the MRT. That's the reason why I prefer, you know, my former wife to be subpoenaed and questioned in front of the MRT. That's the reason.
The Tribunal then says:
Okay, well, I've had regard to your request and I'm not required to obtain evidence as per the request and I've decided not to summons Nektaria.
There is a further reference at page 25 where the Applicant refers at point 1 to his wife taking revenge on her and it seems like she is winning and she is really taking revenge, the Tribunal saying:
But do you understand that because of what you just said that was why I wasn't intending to summons her?
Nevertheless, the Applicant asked the Tribunal to call the witness. He goes on to say at about point 4:
Yeah, but the Tribunal would be able to find out by questioning, cross‑examining someone some time, you know, you can know exactly what has happened.
Later on he says:
I do not ask my former wife to be summons to be in my favour, to be summons for the truth.
In my view, one of the issues for determination before the Tribunal, a central issue in the Tribunal's mind, was whether this was a real marriage or a sham marriage. The applicant says it was a real marriage, that it did not last very long because of domestic violence. The Applicant asked that his ex-wife, the other party to the marriage should be called. The Tribunal would not summons her, would not exercise the power to bring that party to the court to be asked questions. The Applicant was told that neither he nor his lawyer could cross‑examine and that only the Tribunal could ask questions. But he reiterated in his request that the Tribunal exercise the power that the Tribunal has to summons the lady to give evidence.
He was warned on several occasions that there was no telling what the lady might say, but he reiterated his request that she be asked to give evidence to tell the truth. The Tribunal warned the Applicant on more than one occasion that the wife may come out with evidence that would be harmful to the Applicant's case. He accepted that warning, he was legally represented and nevertheless he asked that his former wife be called before the tribunal to tell the truth. He knew what the risks were, he was told what the risks were and he was told that there could be a very real down side. The Tribunal would not exercise the power and the Tribunal did so in the knowledge that the ex-wife was not present at the Tribunal and would be unlikely to attend the Tribunal voluntarily.
It may well be that the ex-wife had given negative information about the Applicant to the Department. That does not allow for a presumption that the person would reiterate that negative information in giving evidence on oath. It cannot be a viable proposition, or a valid proposition more correctly, that a witness should not be called because of an expectation that a witness would lie on oath. It is one thing to make a statement in writing or a statement orally to a Departmental member. It is another thing to lie on oath. It is well-known that witnesses who make statements on paper do not necessarily live up to those statements when required to give oral evidence. Any lawyer would know of cases of witnesses who do not live up to their proofs of evidence.
There is no telling what evidence this lady would have given. The Applicant was of the belief that if she was summons to attend the Tribunal, if she was required to give evidence on oath, she would do what any witness is required to do in the circumstances and tell the truth. He was warned of the risks and he accepted them, but he was not given that opportunity to bring relevant evidence before the Tribunal.

I have considered the decision of the Honourable Tamberlin J in Narang v Minister for Immigration and Multicultural and Indigenous Affairs (supra). In my view, it can be distinguished on the basis that the Act has been amended in relevant detail since this decision was made, the law has changed and indeed at paragraph 15 his Honour said:
A third difficulty is that a breach of natural justice is not a ground of review.
In my view, the situation of the law since his Honour handed down his decision in Narang means that that decision is no longer authority and it can no longer be relied on and, with respect, I distinguish it. One thing, however, that his Honour did refer to and one section of the act that has not been amended is section 353, which refers to the Tribunal's way of operating. That section says:
(1) The Tribunal shall in carrying out its functions under this act pursue the objective of providing a mechanisms of review that is fair, just, economical, informal and quick.
(2) The Tribunal in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice in the merits of the case.
In my view, there is a clear breach of section 353 of the Act. The Applicant was denied natural justice in not being permitted to call a witness. The reasons given, to my mind, are inadequate. In my view, this Tribunal hearing breached section 353 and that the way it was carried out was neither fair nor just.
As I have there is a jurisdictional error, it follows that the application must succeed. I propose therefore to make an order in the form of a writ of certiorari removing it to this court to be quashed the decision of the Migration Review Tribunal made at Sydney on 20 October 2004.

I also make an order in the form of mandamus requiring the Migration Review Tribunal differently constituted to redetermine the Applicant's application according to law.
This is a matter where, in my view, it is quite clear that an order for costs should be made. I have taken time to consider the decision of the Tribunal which, to my mind, could never have been allowed to stand. If ever there was a decision that I have seen of the Migration Review Tribunal which should be set aside, this is clearly the decision that I have seen this year that most calls for being set aside. I am of a view that this a very obvious matter for costs to follow the event. In my view, the sum of $4500 is well within the scale provided by the Federal Magistrates Court Rules 2001. I order that the Respondent is to pay the Applicant's costs fixed in the sum of $4500. I will otherwise remove the application from the list of cases awaiting finalisation.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 17 May 2005