Kaur v Minister for Immigration
[2016] FCCA 512
•11 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 512 |
| Catchwords: MIGRATION – Application for review of a decision by the Administrative Appeals Tribunal – applicant contends the Administrative Appeals Tribunal fell into jurisdictional error by taking into account irrelevant considerations and denying the applicant procedural fairness – whether decision of the Administrative Appeals Tribunal limited to a consideration of credibility only – whether the Administrative Appeals Tribunal considered matters after the date of the visa application – consideration of relevant legislation and applicable authorities – jurisdictional error found – writs issued. |
| Legislation: Commonwealth of Australia Constitution Act, s.75 Migration Act 1958 (Cth), ss.359A(4)(a), 474, 476 Migration Regulations 1994 (Cth), cl.820.211 of Sch.2, 3 |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Plaintiff S157/2002 v Commonwealthof Australia (2003) 211 CLR 476 |
| Applicant: | SURINDER KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 767 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 11 November 2015 |
| Date of Last Submission: | 11 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Travers |
| Solicitors for the Applicant: | Chand Lawyers |
| Counsel for the Respondents: | Mr S. Richardson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue quashing the decision of the
Administrative Appeals Tribunal dated 31 July 2015.
A writ of mandamus issue requiring the Administrative Appeals Tribunal to hear and determine the matter according to law.
The first respondent pay the applicant’s costs of and incidental to this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 767 of 2015
| SURINDER KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 3 November 2015, Surinder Kaur (“the applicant”) sought an order calling upon the Minister for Immigration and Border Protection (“the first respondent”) to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”).
On 31 July 2015, the Administrative Appeals Tribunal (“the Tribunal”) decided to affirm the decision of the Minister’s delegate
(“the delegate”) made 15 November 2012.[1] The delegate decided to refuse to grant the applicant a Partner (Temporary) (Class UK) visa (“the visa”) for which the applicant applied on 24 February 2011.
[1] Bundle of relevant documents filed by the first respondent on 26 October 2015 at pp.10-34.
The applicant sought judicial review of the Tribunal’s decision.
She contended that the Tribunal fell into jurisdictional error by –
a)taking into account irrelevant considerations; and
b)denying the applicant procedural fairness.
Synopsis
For the reasons that follow, in my judgment the Tribunal did make jurisdictional error in respect of ground one. Accordingly,
this application for judicial review of the decision of the Tribunal made 31 July 2015 succeeds in respect of ground one. It fails on ground two.
Factual background
A large portion of the factual material in this case was not in dispute.
The applicant was born in India in 1979 and remains a citizen of the Republic of India.
Between 7 October 2007 and 20 October 2010, the applicant was previously married to an Indian citizen (“the applicant’s first husband”).
The applicant arrived in Australia on 4 February 2008 with the applicant’s first husband on a dependent student visa.
The applicant’s relationship with her first husband broke down soon after her arrival in Australia.
The applicant met the sponsor, William John Hindwood
(“the sponsor”), on or about 17 April 2010. In August 2010,
the applicant and the sponsor began a close relationship. At that date, the applicant was aged 31 or thereabouts and the sponsor was aged 47 or thereabouts.
In October 2010, the applicant and her first husband divorced.
In January 2011, the applicant and the sponsor decided to marry.
They married on 8 February 2011 at Box Hill, Victoria. At the time,
the applicant was on a bridging visa.
On 24 February 2011, the applicant applied for this visa.
The Department of Immigration and Border Protection
(“the Department”) acknowledged the visa application on
25 February 2011, allocating it number CLF2011/27699.
The applicant’s marriage with the sponsor gave rise to cultural issues for the applicant as well as social stigma on account of the fact that the applicant was divorced and in the Punjab region of India, honour killings were prevalent.
On 15 November 2012, the delegate decided to refuse the applicant’s visa application on the basis that cl.820.211 of Sch.2 to the
MigrationRegulations 1994 (Cth) (“the Regulations”) had not been satisfied.[2]
[2] Bundle of relevant documents filed by the first respondent on 26 October 2015 at pp.535-545.
On 30 November 2012, the applicant applied to the Tribunal for the review of the delegate’s decision.
On 29 July 2014, the Tribunal invited the applicant and the sponsor to give evidence and to present arguments and the Tribunal indicated that the applicant’s response had to be provided to the Tribunal by
21 August 2014.
Despite the applicant’s failure to comply with that stipulation to provide a response by 21 August 2014, on 29 May 2015 the Tribunal invited the applicant to attend an interview with the Tribunal which she did on 12 June 2015.
On 31 July 2015, the Tribunal handed down its decision. The Tribunal affirmed the delegate’s decision to refuse the grant of the visa application.
The Tribunal provided its decision to the applicant on 3 August 2015.
The applicant filed her application in this Court on 27 August 2015 and she filed an amended application on 3 November 2015.
It is necessary to go into some little detail in respect of the findings of the Tribunal so as to better understand the applicant’s two complaints about the way the Tribunal addressed her case.
The first basis of complaint was that the Tribunal considered irrelevant facts because the Tribunal had regard to circumstances occurring after the visa application date when determining whether there were compelling reasons for not applying the relevant criteria at Sch.3 of the Regulations pursuant to cl.820.211(2)(d) of Sch.2 of the Regulations.
The second basis of the applicant’s complaint was that the Tribunal impermissibly relied upon independent evidence and did not provide to the applicant that independent evidence to enable her to comment upon it.
As the applicant developed it more expansively, the applicant’s first complaint related to whether the applicant met the criteria prescribed in Sch.3 of the Regulations and if she failed to do so, whether compelling reasons existed from not applying the criteria provided in that schedule.
As the applicant developed it more expansively, the applicant’s second complaint related to the permissibility of the Tribunal relying on independent evidence, including a report of the Immigration and Refugee Board of Canada along with articles appearing in a print media publication known as Time and in the New York Times without giving the applicant the opportunity to address those documents and make submissions in respect of them.
The Tribunal’s approach to the case
The Tribunal identified the issue in the case to be whether the applicant met the criteria in Sch.3 of the Regulations and if not, whether compelling reasons existed for not applying that criteria. The Tribunal recorded that an applicant (who was not the holder of a substantive visa at the time of the application) was required to meet certain criteria in Sch.3 of the Regulations. The Tribunal observed that with limited exceptions not relevant to this particular case, an applicant was required to satisfy the Sch.3 criteria of 3001, 3003 and 3004 unless the Tribunal was satisfied that compelling reasons existed from not applying that criteria as prescribed by cl.820.211(2)(d) of Sch.2 of the Regulations. The Tribunal recorded that the applicant did not have a substantive visa at the time at which the visa application was made. The Tribunal recorded that pursuant to criterion 3001 of Sch.3 of the Regulations, the applicant for the visa was required to have lodged her visa application within 21 days of the ‘relevant day’, being the last day when the applicant held a substantive visa. The Tribunal determined that records indicated that the applicant’s last substantive visa was a subclass 573 visa which ceased on 20 September 2010. The Tribunal recorded that the applicant lodged her visa application on
24 February 2011, being more than 28 days after the subclass 573 visa ceased. Consequently, the Tribunal found that the applicant did not make her visa application within 21 days after the day when the applicant last held a substantive visa. That had the result of a finding by the Tribunal that the applicant did not satisfy criterion 3001 of Sch.3 of the Regulations. The Tribunal recorded that it was therefore necessary for the Tribunal to go on to consider whether compelling reasons existed from not applying the criteria.
The Tribunal stated that the relevant legal principles with respect to determining whether compelling reasons existed came from by the decision of the Federal Court of Australia in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs[3] (“Boakye-Danquah”). The Tribunal considered -
a)the applicant’s reference to having gone to an office of the Department;
b)the applicant’s submissions that she had already made an application for a subclass 572 visa on 16 June 2010;
c)the length of her relationship with the sponsor at the time of the visa application;
d)the reference to the sponsor’s health;
e)the fact that the applicant and the sponsor then had a child;
f)the applicant’s claim in relation to the attitude of her family and the applicant’s first husband’s family to matters concerning her divorce and subsequent marriage to her sponsor; as well as
g)independent information and whether those matters along with others would amount to compelling reasons for not applying the criteria in Sch.3 of the Regulations.
[3] (2002) 116 FCR 557 at [39].
The Tribunal was not satisfied that compelling reasons existed for not applying the Sch.3 criteria and it decided that the applicant did not meet cl.820.211(2)(d)(ii) of Sch.2 of the Regulations with the result that the applicant did not satisfy cl.820.211(2) of Sch.2 of the Regulations.
Tribunal affirmed the decision not to grant the applicant the visa.
Application for review
Ground 1 in the amended application was in the following terms –
The Tribunal committed jurisdictional error by taking into account irrelevant considerations.
Particulars
In assessing whether there were compelling reasons for the
non-compliance of the Schedule 3 criteria, the Tribunal considered the applicant’s family’s position with regard to the applicant’s divorce and remarriage at the time of the Tribunal hearing and not solely at the time of the application.[4]
[4] Amended Application filed 3 November 2015 at p.4.
Ground 2 in the amended application was in the following terms –
The Tribunal came into jurisdiction (sic) error by denying the application (sic) procedural fairness.
Particulars
The Tribunal relied on “independent information” in assessing whether there were compelling reasons for the applicant’s
non-compliance with the Schedule 3 criteria but did not provide the applicant with copies of the “independent information” or provide the applicant with an opportunity to make submissions on the “independent information”.[5]
Ground one – submissions of the parties
[5] Amended Application filed 3 November 2015 at p.5.
Submissions of the applicant
Mr P. Travers of Counsel appeared for the applicant in the proceeding before me. He relied on written submissions dated 3 November 2015[6] as well as submissions made verbally. Mr Travers submitted that the uncontroversial evidence before the Tribunal was that the applicant did not satisfy criteria 3003 or 3004 with the result that the Tribunal was required to consider whether compelling reasons existed as to why the applicant did not meet the relevant Sch.3 criteria. Mr Travers referred to the decision in MZYPZ v Minister for Immigration and Citizenship[7] (“MZYPZ”). He submitted that the Tribunal was required to consider all of the relevant circumstances and that a central submission of the applicant in contending that compelling circumstances existed were the cultural issues concerning the applicant’s divorce and subsequent remarriage to a non-Sikh man, along with her health and welfare if she returned to India at that time.
[6] Outline of Submissions filed 3 November 2015.
[7] [2012] FCA 478 at [10].
Mr Travers submitted that in assessing whether compelling circumstances existed, the Tribunal considered a variety of evidence including evidence from the applicant and statements from the applicant’s brother, father, mother and sister-in-law. Mr Travers submitted that the evidence included statements made several years after the date of the application indicating a softening in the family’s position on the applicant’s divorce and subsequent remarriage.
Mr Travers submitted that based on that information, the Tribunal did not accept the applicant’s claims about her family’s attitude towards her and her separation, divorce and remarriage or that she would not be accepted by her family if she returned to India at the time of the application. Mr Travers also submitted that the Tribunal found that no compelling circumstances existed for the non-compliance with the criteria in Sch.3 of the Regulations. He submitted that the Tribunal erred because it considered irrelevant facts. Mr Travers submitted that the Tribunal should have only considered the circumstances at the date of the application. Mr Travers submitted that instead, the Tribunal considered irrelevant material, that is to say, material existing after the date on which the visa application was made. Mr Travers submitted that the Tribunal made jurisdictional error as result of that.
Submissions of the respondent
Mr S. Richardson of Counsel appeared on behalf of the first respondent before me. He also filed written submissions dated 6 November 2015.[8] Mr Richardson submitted that the Tribunal only considered circumstances existing at the time of the visa application. He submitted that the Tribunal recited the correct legal principles and that the Tribunal’s statement of decision and reasons made it clear that the Tribunal was alive to the matters it could consider in determining whether compelling reasons existed. He submitted that the Tribunal had regard to evidence in matters after the time of the visa application only to support a credibility finding. Mr Richardson submitted that the credibility finding was made about the evidence of the applicant and the sponsor as to the attitude of the applicant’s family and the applicant’s first husband’s family towards the applicant, her separation and divorce from her first husband and the applicant’s marriage to the sponsor. He contended that the Tribunal made that clear in paragraph 82 of its decision. He submitted that the Tribunal had regard to the evidence of the applicant’s family’s position during the applicant’s pregnancy and after the birth of the applicant’s child only in the context of credibility. Mr Richardson submitted that the Tribunal permissibly had regard to evidence in respect of matters after the date of the
visa application “as an aid to determine the existence or non-existence of facts that were relevant to the issue”.[9]
[8] Outline of Submissions filed 6 November 2015.
[9] Bretag v Immigration Review Tribunal (1991) (unreported, Federal Court of Australia, O'Loughlin J,
29 November 1991) at [15].Mr Richardson said that the Tribunal made express reference to its consideration of matters at the time of the application. He contended that no jurisdictional error was identified in ground one.
Ground two – submissions of the parties
Submissions of the applicant
The applicant contended that in reaching the decision that no compelling circumstances existed, the Tribunal relied on ‘independent evidence’ including a purported report of the Immigration and Refugee Board of Canada and articles from Time and the New York Times.
Mr Travers submitted that that independent evidence was not provided to the applicant nor was the applicant asked to, or provided with,
the opportunity to address the evidence or make submissions in response. According to Mr Travers, the Tribunal denied the applicant procedural fairness and as a result fell into jurisdictional error.
Submissions of the respondent
On behalf of the Minister, Mr Richardson submitted that the Tribunal’s reasons set out in paragraph 83 of its decision recorded the information upon which the Tribunal relied. He submitted that the information upon which the Tribunal relied was information not specifically about the applicant and the Tribunal was not required to put that information to the applicant for comment by reason of s.359A(4)(a) of the Act.
Mr Richardson said no jurisdictional error was identified in ground two.
Legal principles
Under the Act, the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act and the Regulations made under it specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error.
In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).
Judicial review under s.474 of the Migration Act 1958
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474,
a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealthof Australia[10] (“Plaintiff S157/2002”).
[10] (2003) 211 CLR 476 at [72].
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded in law as being no decision at all.
So much was held by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[11]
[11] (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
The majority in Plaintiff S157/2002[12] made holdings to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
[12] (2003) 211 CLR 476 at [76].
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[13] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[14] In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[15]
[13] (1995) 184 CLR 163.
[14] (1995) 184 CLR 163 at 177.
[15] Craig v State of South Australia (1995) 184 CLR 163 at 177.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the Tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[16]
[16] Ibid.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[17]
[17] Ibid.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.[18]
The majority (McHugh Gummow and Hayne JJ) applied that test in the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[19] (“Yusuf”).
[18] Craig v State of South Australia (1995) 184 CLR 163.
[19] (2001) 206 CLR 323, 351 at [82].
These are illustrations only of the ambit of jurisdictional error[20] as the High Court in Kirk v Industrial Relations Commission (NSW)[21] held that it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig[22] does not provide a rigid taxonomy of jurisdictional error.
[20] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[21] (2010) 239 CLR 531 at [71] and [73].
[22] (1995) 184 CLR 163.
So far as the onus of proving jurisdictional error is concerned,
an applicant seeking judicial review must show that the approach by the Tribunal manifested a legally erroneous view as to what it was about which it needed to be satisfied. The High Court said as much in Minister for Immigration and Multicultural Affairs v Eshetu[23] (“Eshetu”).
[23] (1999) 197 CLR 611, 629 at [55].
It has been held that judicial review is concerned with whether the decision under review was authorised rather than it providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[24] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for
Aboriginal Affairs v Peko-Wallsend Ltd[25] (“Peko-Wallsend”) and Attorney-General (NSW) v Quin[26] (“Quin”).[24] [2015] HCA 50 at [23].
[25] (1986) 162 CLR 24 at 41-42.
[26] (1990) 170 CLR 1 at 45-46.
In the context of administrative decision making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be,
a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v
Wu Shan Liang[27] as well as Plaintiff M64/2015.[28][27] (1996) 185 CLR 259.
[28] [2015] HCA 50.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[29] that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
[29] (1993) 43 FCR 280 at 287.
Consideration of ground one
In my view, the applicant has made out ground one.
The applicant’s basis for asserting jurisdictional error under ground one shifted over the course of this proceeding. In the application filed to commence this proceeding,[30] the applicant asserted in ground one that the Tribunal committed jurisdictional error by failing to take into account a collection of (so she said were) relevant considerations, namely, evidence about her relationship with the sponsor prior to the visa application and evidence about the sponsor’s health.
The applicant contended that the sponsor’s health should have been a relevant consideration at the time of the visa application because,
so she originally asserted, it would have formed a compelling reason for not applying criterion 3001.
[30] Application filed 27 August 2015.
That contention was abandoned in the applicant’s amended application.[31] Ground one of the amended application contained an allegation that the Tribunal committed jurisdictional error by taking into account irrelevant considerations. In the amended ground one,
the applicant abandoned any reference to the sponsor’s health. Instead, the applicant contended that the jurisdictional error lay in the Tribunal taking into account the irrelevant consideration described thus –
[31] Amended Application filed 3 November 2015.
In assessing whether there were compelling reasons for the
non-compliance of the Schedule 3 criteria, the Tribunal considered the applicant’s family’s position with regard to the applicant’s divorce and remarriage at the time of the Tribunal hearing and not solely at the time of the application.[32]
[32] Amended Application filed 3 November 2015 at p.4.
That amendment introduced the contention that the Tribunal committed jurisdictional error in two respects. The first was in considering the applicant’s family position with regard to her divorce and re-marriage at the time of the Tribunal hearing. The second was in considering the applicant’s divorce and subsequent remarriage not solely at the time of the making of the visa application.
Then, in written submissions filed on behalf of the applicant,[33]
her contentions about jurisdictional error changed again. In
paragraph 24 of her written submissions, the applicant said the Tribunal considered irrelevant facts at the time of the application (that much was consistent) but the irrelevant facts allegedly erroneously taken into consideration (so the applicant said) were “[t]he evidence of the family’s position at during (sic ) the applicant’s pregnancy and after the birth”.[34] In other words, the so-called jurisdictional error, according to the applicant, fluctuated between the Tribunal failing to take into account the sponsor’s health (in the application originally filed) to the Tribunal wrongfully taking into account the applicant’s family’s position in relation to her divorce and remarriage (in the amended application) to the Tribunal wrongfully taking into account the applicants family position “at during (sic) the applicant’s pregnancy and after the birth”.[35]
[33] Outline of Submissions filed 3 November 2015.
[34] Outline of Submissions filed 3 November 2015 at para.24.
[35] Ibid.
During submissions before me on 11 November 2015 on the hearing of this application for jurisdictional review, Mr Travers made no submission in relation to the Tribunal’s treatment of evidence about the applicant’s family’s attitude after the birth of the applicant’s child with the sponsor or prior thereto. In opening his case, Mr Travers referred to two grounds in the application. Mr Travers said the following -
The first is that the Tribunal considered irrelevant considerations by considering material going to the applicant’s family’s position with regards to her divorce, subsequent remarriage to a non-Sikh man and the subsequent birth of her son, Alex. And the second ground, your Honour, goes to jurisdictional error by denying procedural fairness on the basis that it considered independent evidence and that term was adopted by the Tribunal. It was not given to the applicant or the applicant was not allowed to comment on it.[36]
[36] Transcript of Proceedings, 11 November 2015, p.3 at lines 7-14.
That was the totality of the references to the applicant’s pregnancy and subsequent birth of her son.
It became apparent during the hearing that the real gravamen of the applicant’s contention in relation to ground one did not relate to the birth of the applicant’s son. It related to the state of the evidence that was before the Tribunal when the visa application was made on
24 February 2011. The applicant contended that when the Tribunal decided this matter, the Tribunal relied on material that was filed between the date of the visa application (24 February 2011) and the date of the Tribunal’s decision (31 July 2015). The applicant contended that the Tribunal was limited to a consideration of the material such as it stood when the visa application was made. The applicant argued that the Tribunal wrongfully relied on statements filed after the date on which the visa application was made, namely statements from the applicant’s sister-in-law, brother, father and mother. Mr Travers submitted that each of those statements was filed at least three years after the date on which the visa application was made. Mr Travers submitted that each of those statements was irrelevant to the assessment of whether at the date of the visa application compelling reasons existed to not comply with the requirements of Sch.3 of the Regulations. Mr Travers submitted that the Tribunal fell into error in having regard to those statements of the applicant’s sister-in-law, brother, father and mother, because those statements were all made in 2014 and they purported to address a state of affairs in 2014 rather than the state of affairs in 2011, being the date of the making of the visa application.
Mr Travers accepted that the applicant’s visa was an onshore visa application and that the applicant was required to, but had failed to, satisfy criteria 3001, 3002 and 3003 of Sch.3 of the Regulations.
Mr Travers correctly submitted that in those circumstances the Tribunal was required to assess whether “compelling circumstances [existed] to waive the requirement to comply with the Schedule 3 criteria”.[37]
For the construction of the phrase ‘compelling reasons’, Mr Travers referred to the Tribunal’s adoption of the decision in MZYPZ[38] where the Federal Court of Australia held that compelling reasons should be “sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria”.[39]
[37] Transcript of Proceedings, 11 November 2015, p.7 at lines 1-2.
[38] [2012] FCA 478 at [10].
[39] [2012] FCA 478 at [10].
As to the date when the Tribunal was required to make an assessment of those compelling reasons, Mr Travers contended that the relevant date was the date of the making of the visa application, consistent with the holding of the Federal Court of Australia in Boakye-Danquah.[40]
[40] (2002) 116 FCR 557 at [39].
Applying what was said in MZYPZ,[41] the question for the Tribunal was whether reasons existed that were sufficiently convincing to move the Tribunal to exercise its discretion to waive the requisite criteria and whether the circumstances were sufficiently powerful to lead the Tribunal to make a positive finding in favour of waiving the required criteria.
[41] [2012] FCA 478 at [10].
In deciding not to waive the criteria of Sch.3 of the Regulations,
the applicant contended that the Tribunal relied on irrelevant material being the four statements referred to above. Put differently,
the applicant contended that the Tribunal should have excluded those four statements from its determination not to waive the Sch.3 criteria.
Without referring specifically to the four statements, the
first respondent recognised that the Tribunal did have regard to evidence and matters after the making of the visa application. However, the first respondent said any such reliance was only in support of findings of credibility. Citing Bretag v Immigration Review Tribunal,[42] Mr Richardson submitted that the Tribunal permissibly had regard to the evidence and matters after the time of the visa application as an aid to determining the existence of facts that were relevant to the issue, being circumstances existing at the time of the making of the visa application. Citing the observations of Deane J in Minister forImmigration and Ethnic Affairs v Pochi,[43] Mr Richardson submitted that a consideration of the evidence and matters after the making of the visa application was relevant as those matters tended logically to show “the existence or non-existence of facts that were relevant to the issue”.[44] Mr Richardson submitted that the Tribunal had regard to the evidence of the applicant’s family’s position during the applicant’s pregnancy and after the birth of the child of the applicant and the sponsor. He contended that in so doing, the Tribunal made a credibility finding about the evidence of the applicant and the sponsor concerning the applicant’s family’s attitude and the attitude of the applicant’s
first husband towards her separation, divorce and the sponsor.
He submitted that paragraph 82 of the Tribunal’s decision made that clear.
[42] (1991) (unreported, Federal Court of Australia, O'Loughlin J, 29 November 1991) at [15].
[43] (1980) 4 ALD 139 at 169.
[44] Bretag v Immigration Review Tribunal (unreported, Federal Court of Australia, O'Loughlin J,
29 November 1991) at [15].I accept that the Tribunal did have regard to evidence adduced after the date of the visa application. To that extent, prima facie, the Tribunal’s receipt of evidence of events after the date of the visa application contravened the observations of the Federal Court of Australia in Boakye-Danquah.[45] I do not accept that the receipt, and use, of such evidence was restricted in the manner contended for by the
first respondent, namely, as to credit only. While it is true that such evidence may have had a bearing on credit issues, I am not persuaded that such evidence was applied by the Tribunal solely on issues of credit in the manner contended for by Mr Richardson. I also accept that in the manner described in paragraph 44 of the first respondent’s written submissions,[46] the Tribunal did have regard to certain evidence as at the date of the making of the application. However, on the
first respondent’s own admission, the Tribunal considered evidence that was not confined in the way Boakye-Danquah[47] required it to be.
[45] (2002) 116 FCR 557 at [39].
[46] Outline of Submissions filed 6 November 2015.
[47] (2002) 116 FCR 557 at [39].
In determining whether or not compelling reasons existed to waive compliance with the criteria in Sch.3 of the Regulations, the Tribunal was required by MZYPZ[48] to be persuaded sufficiently powerfully to waive the required criteria. As with the exercise of any discretion conferred by statute, its exercise must be undertaken in conformity with the principles espoused by the High Court in House v R.[49] Discretion will be vitiated if, in its exercise, the body on which the discretion was conferred -
a)acted on a wrong principle;
b)took into account extraneous or irrelevant factors which influenced the party exercising the discretion; or
c)failed to take into account some material consideration or mistook the facts.[50]
[48] [2012] FCA 478 at [10].
[49] (1936) 55 CLR 499.
[50] See Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627 and In the Marriage of Mallet (1984) 156 CLR 605.
To my mind, when the Tribunal received the four statements that were made in 2014 and not in February 2011 (when the visa application was filed) there was a real risk that whatever factual matters those statements addressed would weigh upon the mind of the
decision-maker. I do not accept that the Tribunal used those statements solely for the purpose of assessing the credibility of the applicant. I am unable to accept the comments in the Tribunal’s reasons to the effect that the Tribunal used information adduced after the application date for the sole purpose of assessing credibility. As a matter of human experience, in my view, evidence adduced after the application date operated on the Tribunal’s mind for purposes beyond the assessment of credibility. In my view, it was not possible for the Tribunal to receive the evidence in those four statements, then forensically dissect it and clinically limit any use of that information solely to credit issues.
It beggars belief that the Tribunal could have received the information in those four statements without being influenced by it generally.
Put slightly differently, having received the information in those four statements, in my view the Tribunal’s mind was thereby influenced by it. The Tribunal was likely to apply the information in those four statements, either directly or indirectly, towards the formulation of the evaluative conclusions to which the Tribunal came in this case. Once the information in those four statements was received, I am unable to accept that the Tribunal was able to, nor did the Tribunal, limit the use of the information in those four statements purely to the assessment of credibility. I reject the first respondent’s submissions in that regard. Credibility determinations could have been made and should have been made by the Tribunal upon evidence before the Tribunal (properly received) that was temporally limited to the date of the making of the visa application.
In my view, the Tribunal fell into error by relying upon the information in the four statements. To specify one of the matters in Craig[51] and in Yusuf, [52] the Tribunal relied on evidence it should not have relied upon.
[51] (1995) 184 CLR 163.
[52] (2001) 206 CLR 323, 351.
In my judgment, ground one is made out.
Consideration of ground two
Having regard to the conclusions I have reached in relation to
ground one, strictly speaking, it is not necessary for me to consider ground two. That said, in view of time and effort taken by the parties in addressing that ground, it is appropriate that I record my views in respect of it
I reject ground two for the reasons that now follow.
The applicant contended that the Tribunal erred jurisdictionally in that it relied on what it described as ‘independent information’ but the Tribunal did not provide the applicant with a copy of that
independent information nor give her an opportunity to make submissions in respect of it. The applicant contended that the Tribunal fell into jurisdictional error by doing that with the consequence, so she submitted, that the Tribunal’s decision was vitiated. The
first respondent denied that the Tribunal engaged in any procedural unfairness.
The alleged ‘independent evidence’ was a report of the
Immigration and Refugee Board of Canada as well as articles in publications having widespread circulation, namely publications called Time and the New York Times.
Two sentences in paragraph 82 of the Tribunal’s decision are relevant to this ground. In the first, the Tribunal stated that independent information indicated that attitudes in India towards inter-religious marriage differed and could be influenced by factors such as class, region and whether the couple was in a rural area or an urban area.
The Tribunal then cited the report from the Immigration and Refugee Board of Canada as authority for the proposition in that sentence.
In the second, the Tribunal stated that independent information indicated that the divorce rate had risen in India and that divorce, then re-marriage, had slowly gained acceptability. The Tribunal cited an online article from a publication called Time as well as an article in the New York Times for the proposition in that sentence.
The applicant contended that the Tribunal failed to afford her procedural fairness because the Tribunal should have, but failed to, give the applicant an opportunity to examine the articles and then to make submissions in respect of them.
The first respondent submitted that the information in the articles cited by the Tribunal was not information specifically about the applicant and that, pursuant to s.359A(4)(a) of the Act, the Tribunal was not required to put that information to the applicant.
While I accept that s.359A(4)(a) of the Act operates in the way
Mr Richardson contended, the Minister’s submission did not respond to the point advanced by the applicant. She contended she was not provided with a copy of the relevant articles nor was she given an opportunity to make submissions in relation to them. The
first respondent’s response to the effect that the Tribunal was not required to put the relevant articles to the applicant for comment misses the point.
However, it was very much to the point that the material in the relevant articles was information not specifically about the applicant. It is also relevant to observe that the information in the first sentence of paragraph 83 of the Tribunal’s decision was, in part, information that underpinned the applicant’s overall case before the Tribunal. Among the large volume of material in the case before the Tribunal (accounting as it did for the Tribunal’s decision spanning 25 pages in 91 densely typed paragraphs) was the proposition that in India, attitudes towards inter-religious marriage differed. In many respects, that is to state the obvious in a country as highly populated as is India. As to the information in the second sentence about which the applicant complained, there is force on the Minister’s submission that the proposition about divorce and re-marriage in India slowly gaining acceptability was not about the applicant at all. The Tribunal did not state that the concept there stated was referrable to the applicant specifically.
Further, it is difficult to see how the case may have been conducted differently before the Tribunal had the applicant been given an opportunity to make submissions in respect of any of the
independent information. Assuming the independent information had in fact been copied and provided to the applicant for comment,
and assuming the applicant had made submissions in opposition to each proposition, the likelihood of the Tribunal reaching a different result based on any submissions the applicant might have made about the independent information is so low as to be negligible. Not every single item of information nor every single proposition of fact can properly be the subject of relevant submissions at the conclusion of a hearing, whether curial or administrative.
It follows that there was no denial of procedural fairness where the Tribunal did not give the applicant an opportunity to make a submission about electronic or print media articles addressing
two broad and generic propositions as was the situation in this case.
In my view, the Tribunal made no jurisdictional error by omitting to give the applicant copies of the articles referred to in paragraph 83 of the Tribunal’s decision. Nor did the Tribunal make a jurisdictional error in failing to give the applicant an opportunity to make submissions about the articles referred to in paragraph 83 of the Tribunal’s decision.
Conclusions
In my judgment, ground one of the amended application for review has succeeded. Ground two failed.
In paragraph 30 of his written submissions,[53] Mr Travers sought orders setting aside the decision of the Tribunal, remitting the visa application to the Tribunal and directing the Tribunal to decide the visa application according to law. I will make orders largely, although not precisely, in those terms.
[53] Outline of Submissions filed 3 November 2015.
I order that the decision of the Tribunal made 31 July 2015 in matter CLF2011/27699 is quashed.
I direct that the Tribunal, differently constituted, hear and determine the review of the decision of the delegate in relation to the applicant’s visa application dated 24 February 2011.
I order the Tribunal to hear and determine that review in accordance with these reasons and according to law.
I order the first respondent to pay the applicant’s costs of and incidental to this proceeding in this Court.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 11 March 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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