Kethel v Minister for Immigration
[2009] FMCA 850
•4 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KETHEL v MINISTER FOR IMMIGRATION | [2009] FMCA 850 |
| MIGRATION – Refusal of a Higher Education Sector (Class TU) (subclass 573) visa – application refused by a delegate of the Minister for Immigration – claim of failure to comply with s.66 of the Migration Act 1958 (Cth) in relation to a decision dated 15 October 2008 for no second statement of reasons – application dismissed. PRACTICE & PROCEDURE – Late service of Notice to Produce – defects in the Notice – application for an adjournment to allow amendments and time to comply with the Notice – whether adjournment should be granted – application dismissed. |
| Administrative Decisions (Judicial Review) Act1977 (Cth), s.13 Migration Act 1958 (Cth), ss.30, 31, 54, 55, 65, 66, 338, 417, 496 Migration Regulations 1994 (Cth), Schedule 1, clause 122(3)(b); Schedule 2, clause 573.326, 573.411 |
| Adams v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 280 Betros v Minister for Immigration & Multicultural Affairs [1999] FCA 1539 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 Preston v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 107 Project Bluesky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 SZCOQ v Minister for Immigration & Multicultural Affairs [2007] FCAFC 9 Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 |
| Applicant: | MR KETHEL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 3193 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. O’Donnell |
| Solicitors for the Applicant: | Goldsmiths Lawyers |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | DLA Phillips Fox Lawyers |
ORDERS
The application filed on 3 December 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “Kethel”. |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3193 of 2008
| MR KETHEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application under s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Minister for Immigration dated 15 October 2008 refusing Mr Kethel a Student (Temporary) (Class TU) (Subclass 573) visa.
The issue in this case is whether Mr Kethel was given proper notification in accordance with s.66 of the Act of the reasons refusing his application. Section 66(2)(c) of the Act requires the delegate to give reasons why the visa criteria were not satisfied, unless s.66(3) applies. It is the Minister’s view that the delegate’s decision of
15 October 2008 was one in which s.66(3) of the Act applied. This is disputed by Mr Kethel.
The following material was prepared and filed by respondent’s solicitors and is marked as follows:
a)Exhibit A1 – Court Book (“CB”) filed on 22 January 2009;
b)Exhibit A2 – Supplementary Court Book (“SCB”) filed on 6 February 2009;
c)Exhibit A3 – Further Supplementary Court Book (“FSCB”) filed on 12 February 2009; and
d)Exhibit A4 – Additional Further Supplementary Court Book (“AFSCB”) filed on 17 March 2009.
The following affidavits were read:
a)
Affidavit of Mr Kethel sworn on 9 April 2009 and filed on
15 April 2009 (admitted subject to objections to paras.3-5, with limited weight to be given to these paragraphs subject to submissions).
b)Affidavit of Barrie Goldsmith sworn on 14 April 2009 and filed on 15 April 2009.
Mr O’Donnell, counsel for Mr Kethel, submits that the material in the supplementary Court Books (Exhibits A2, A3 and A4) relate to previous visa applications made by Mr Kethel. He argues that while these provide interesting background, there is no evidence that any of the material in the supplementary Court Books were before the delegate who made the relevant decision. Given that the delegate was in India (CB 83, 92), Mr O’Donnell submits that it is likely that most or all of the Department files reproduced in the supplementary Court Books would have been in a different country from the delegate when he/she made his/her decision. Mr O’Donnell submits that the additional Court Books are not relevant to any issue in these proceedings unless it can be shown, on the balance of probabilities, that the documents within were before the delegate at the time of making the decision, or that they go to the existence of a jurisdictional fact.
Mr Johnson, counsel for the respondent, submits that the delegate who made the decision referred to Mr Kethel’s previous immigration history (CB 82.8) and the material was available to the decision-maker.
After lengthy submissions, I permitted the tender of the supplementary Court Books subject to relevance.
Background
In setting out the following background material I have quoted directly or paraphrased the written submissions of Mr O’Donnell. I have not made direct attributions as this would make the summary unwieldy. The information is provided to assist in understanding the nature of the application and not to establish any evidentiary point.
a)
The applicant, Mr Kethel, is a male citizen of India born in 1976 (CB 11). His brother is an Australian permanent resident (CB 17) and his wife is in Australia on a student visa (CB 41 [4]).
Mr Kethel first entered Australia on 15 March 1996 on a three month short stay visitor’s visa (Tourist (TR) (subclass 676) visa) which expired on 15 June 1996 (CB 90.9; FSCB 49.1).
b)On 26 July 1996, shortly after his visitor visa expired, Mr Kethel applied for a Protection (Class XA) visa based on his involvement in Sikh organisations in the Punjab and recent anti-Sikh violence in that state (CB 7, 91; FSCB 1-32). At the same time he applied for the appropriate bridging visa (FSCB 33-37) which was granted with work rights on 9 October 1996 (FSCB 40).
c)
On 7 February 1997, a delegate of the respondent refused
Mr Kethel’s Protection visa application (FSCB 41-47).
On 7 March 1997, Mr Kethel applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision (FSCB 49.2). On 23 March 1998, the Tribunal refused
Mr Kethel’s review application (FSCB 48-55; CB 7, 91).
d)
On 20 March 1997, Mr Kethel requested that the Minister intervene under s.417 of the Act (CB 7, 91; FSCB 56-57).
On 31 March 1998, he applied for a bridging visa while waiting for the Minister’s response to his intervention request (CB 58-61). The bridging visa was granted, as was a later bridging visa application lodged on 9 May 1998 (FSCB 63-66, 68-69).
On 29 September 1998, Mr Kethel’s bridging visa was extended to 13 October 1998 (FSCB 70-73, especially at 72.8).
e)
On 16 July 1998 the Minister’s Department informed Mr Kethel’s representative that the Minister had decided not to intervene under s.417 of the Act (CB 7, 91; FSCB 67). On 9 October 1998 wishing to present new material he considered relevant to his refugee claim, Mr Kethel requested the Minister to exercise his discretion under s.48B of the Act to allow him to re-apply for a Protection visa (CB 7, 91; FSCB 74-75). On the same day
Mr Kethel applied for a further bridging visa (FSCB 76-77).
On 2 December 1998, the Department wrote to Mr Kethel’s representative informing him that his bridging visa application had been refused (FSCB 79-80). Mr Kethel applied for internal review of this decision on 3 December 1998 (FSCB 81-85, 86-90). On 18 May 1998, the internal review office of the Minister’s department informed Mr Kethel that it had decided to affirm the decision to deny him a bridging visa (FSCB 96-103). Though not entirely clear from the Court Books, it appears that at some stage after 18 May 1999 Mr Kethel was granted a further Bridging visa E, which was in effect until his departure from Australia in July 1999 (AFSCB 79.9, compare with FSCB 79 and 96-103).
f)On 17 February 1999, the Minister declined Mr Kethel’s request to exercise his discretion under s.48B of the Act (CB 7, 91; FSCB 91). Further correspondence ensued, which ended on 31 March 1999 (FSCB 92-95). Mr Kethel departed Australia on 6 July 1999 (CB 7; AFSCB 49.9).
g)On 8 July 1999, Mr Kethel applied offshore for a Business (Long stay) (subclass 457) visa, sponsored by the [workplace omitted]. This application was refused in December 1999 (CB 7, 90, AFSCB 47.9).
h)
In July 2005, Mr Kethel applied for a Sponsored Family Visitor (sub-class 679) visa to visit his brother, an Australian permanent resident (AFSCB 1-38). This visa application was refused in September 2005 (CB 7, 90; AFSCB 46). In September 2005,
Mr Kethel was also refused a tourist visa to enter Australia (SCB 9.6).
i)In 2007, Mr Kethel married Ms K in India (CB 41, 73; SCB 3, 15). On 3 October 2007, Mr Kethel’s wife applied for a Student (sub-class 573) visa (CB 41 [3], SCB 1-11). Mr Kethel was included in that application as a dependant (CB 41 [5]; SCB 3, 50-55). Her application states that she and Mr Kethel would live with and be supported by Mr Kethel’s brother, who is an Australian permanent resident (SCB 11,13).
j)
The Minister granted Mr Kethel’s wife a visa in December 2007 (CB 41 [4]; SCB 60-64). However, Mr Kethel was refused a visa (CB 41 [5], SCB 56-8). The only reason given for this refusal was a simple statement that the delegate was “not satisfied that the spouse meets regulation 573.326(a) and therefore I am not satisfied that he is a genuine applicant for temporary entry to Australia” (SCB 57.8). Mr Kethel’s wife entered Australia on
15 January 2008 (CB 41 [4]). On 22 January 2008, shortly after arriving in Australia, she suffered a miscarriage (CB 41 [7]).
Current visa application
In setting out the following material I have again quoted directly from the written submissions of Mr O’Donnell. I have not made direct attribution for the same reasons as stated above at [8].
a)
On 9 May 2008, Mr Kethel re-applied for a Student (Higher Education) (subclass 573) visa (CB 1-68). The application was under cover of a letter from Mr Kethel’s solicitor/migration agent, Goldsmiths Lawyers, dated 9 May 2008 which also attached other supporting documents (CB 9-10). Among these was a letter from Goldsmiths Lawyers dated 21 April 2008 and setting out
Mr Kethel’s submission on why he should be granted a dependant student visa (“the Goldsmiths letter”) (CB 1-8). The Department received these documents on 14 May 2008 (CB 11).
b)
On 18 August 2008, the Department invited Mr Kethel to attend the interview at the Australian High Commission in New Delhi, India (CB 76-77). Mr Kethel attended the interview on
2 September 2008 (CB 78-80). On 15 October 2008 a delegate of the Minister wrote to Goldsmiths Lawyers informing it that
Mr Kethel’s application had been rejected and purported to give reasons for that rejection. The delegate’s “First Statement of Reasons” (CB 82-83) states:
I am not satisfied that you meet the requirements of Class 573.326 of Schedule 2 of the Migration Regulations 1994…
You have been interviewed in relation to this application and your relationship with your nominator. Based on the interview and your previous immigration history concerns were raised as to your genuine intention to comply with any condition subject to any visa granted would be subject.
Your obligation for a student dependent visa has been assessed against the requirements of all the sub-classes relating to student visa class TU and was found not to meet those requirements.
On 24 October 2008 Goldsmiths Lawyers wrote to the Principal Migration Officer at Australian High Commission in New Delhi complaining about the inadequacy of the reasons given on 15 October 2008 (CB 84-85).
On 7 November 2008, a delegate of the Minister based at the High Commission wrote to Goldsmiths Lawyers noting an unspecified “factual error” in the notification, which she claimed rendered it invalid and a new Notification and a Statement of Reasons (“Second Statement of Reasons”) (CB 87). The delegate expressed her reasoning thus:
Considering all of the factors above I am not satisfied that you are a genuine applicant for temporary stay in Australia and that you would comply with your visa conditions in Australia. Your immigration history says that you have breached visa conditions previously and your interview answers indicate that you may do so again. Your previous application indicates you have a strong intention to gain entry and remain in Australia. I note that you are currently separated from your wife, however, she is holding a temporary visa and as such she is not residing in Australia. Considering the overall evidence, there is sufficient reason to doubt that you would depart Australia at the expiry of your temporary visa and that you will comply with your visa conditions which in Australia. I am not satisfied that you meet reg.573.326. (CB 91.7)
Grounds of application
The amended application filed on 2 March 2009 contains the following grounds:
1. The respondent failed to take relevant considerations into account in coming to the decision.
Particulars
The respondent failed to give proper, genuine and realistic consideration to the submissions made on behalf of the applicant in the letter from his solicitor to the respondent’s delegate dated 21 April 2008.
2. The respondent took irrelevant considerations into account in coming to the decision.
Particulars
The respondent considered, as matters weighing against the applicant’s application:
a) that the applicant had previously applied for visas to enter and / or stay in Australia;
b) that the applicant had exercised his appeal and review rights with respect to some of these applications;
c) that the applicant was currently living separate from his wife, because she had been allowed to enter Australia and he had not; and
d) that the applicant had a “strong intention to gain entry and to remain in Australia”.
3. The respondent asked the wrong question, identified a wrong issue and / or applied the wrong test in coming to the decision.
Particulars
The relevant test was whether the applicant was a “genuine applicant for entry and stay as a member of the family unit” of his wife as required by clause 573.326(c) of Sch 2 of the Regulations.
4. There was no evidence to support the respondent’s decision that the applicant was not a “genuine applicant for entry and stay as a member of the family unit” of his wife was irrational, illogical and / or so unreasonable and that no reasonable decision-maker could make it.
5. The respondent’s decision that the applicant was not a “genuine applicant for entry and stay as a member of the famil unit” of his wife was irrational, illogical and/or so unreasonable that no reasonable decision-maker could make it.
Particulars
It did not follow from the applicant’s immigration history that he was not a genuine applicant for entry and stay as a member of the family unit”.
Relevant legislation
Section 31 of the Act provides that the Migration Regulations 1994 (Cth) (“the Regulations”) may prescribe criteria for visas. The criteria which the delegate claimed Mr Kethel did not satisfy was clause 573.326 of Schedule 2 of the Regulations which states:
573.326 The Minister is satisfied that:
a) the applicant is a genuine applicant for entry and stay as a member of the family unit of a primary person mentioned in clause 573.322; and
b) that primary person has adequate means to support himself or herself and the member of his or her family unit during the period of the applicant’s intended stay in Australia; and
c) on the basis of the applicant’s stated intention, the applicant intends to comply with any condition subject to which the visa is granted.
Section 65 of the Act provides that the Minister is to grant a visa if, inter alia, the Minister is satisfied that the criteria prescribed for it by the Act and the Regulations have been satisfied. Conversely, the Minister is to refuse to grant the visa if he or she is not so satisfied.
Section 66 of the Act states:
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Application for adjournment
On 16 April 2009 the solicitors for the applicant filed a Notice to Produce in the following terms.
Pursuant to rule 15.24 of the Federal Magistrates Court Rules 2001 (Cth) the Applicant requires the Respondent to produce at the hearing of the proceeding at 10.15am 20 April 2009, the following documents.
1. Any and all documents (including but not limited to file notes, memoranda, minutes and emails) recording communications between any of:
(1) Kris Cala, Principal Migration Officer, Australian High Commission;
(2) Joanne Moutafis, Senior Migration Officer (Position Number 22), Student Visa Team, Australian High Commission, New Delhi; or
(3) Hardeep Singh Sodhi, Senior Visa Officer (Position Number 9564), Australian High Commission, New Delhi;
(4) Vishal Singh Parmar, an officer of the Respondent’s Department who interviewed the Applicant on 2 September 2008;
relating to the visa decision challenged in these proceedings, including but not limited to documents relating to the preparation of:
· the letter from Hardeep Singh Sodhi to the Applicant’s solicitor dated 15 October 2008;
· the letter from Joanne Moutafis to the Applicant’s solicitor dated 15 October 2008.
2. Any and all instruments of delegation by which the Respondent (or any of his predecessors) delegated his powers to grant visas to:
(1) Kris Cala, Principal Migration Officer, Australian High Commission;
(2) Joanne Moutafis, Senior Migration Officer (Position Number 22), Student Visa Team, Australian High Commission, New Delhi; or
(3) Hardeep Singh Sodhi, Senior Visa Officer (Position Number 9564), Australian High Commission, New Delhi;
(4) Vishal Singh Parmar, an officer of the Respondent’s Department who interviewed the applicant on 2 September 2008.
3. Any documents revealing any policy or general practice within the Australian High Commission, New Delhi in effect between 21 April 2008 and 7 November 2008 as to the types of decisions that should and should not be made by officers of different ranks and levels, including:
(1) Principal Migration Officers;
(2) Senior Migration Officers; and
(3) Senior Visa Officers.
(If it is impractical to provide originals of the above documents at the hearing, the applicant will be satisfied with copies if the respondent is prepared to admit they are true copies).
At the hearing, Mr O’Donnell called on the Notice to Produce.
Mr O’Donnell submits that the Notice seeks all documents recording communications between Kris Cala (the Principal Migration Officer who received Mr Goldsmith’s request for reasons), Joanne Mautafis, (the Senior Migration Officer who provided reasons on 7 November 2008), Hardeep Singh Sodhi (the Senior Visa Officer who issued the Notice of the decision on 15 October 2008) and Vishal Singh Parmar (the Officer who interviewed Mr Kethel on 2 September 2008)
Mr O’Donnell indicated that this enquiry was to determine who made the relevant decision and what communication took place between these officers. The second group of documents includes all instruments of delegation from the Minister to these officers. The third group of documents relates to the terms of delegation and whether such delegation was limited to certain types of decisions.
Mr O’Donnell submits that until 15 April 2009, the applicant was unaware that the Minister was putting in issue in these proceedings that a document which, on its face, came from an officer of the Commonwealth and purported to be the reasons for a decision earlier made, was in fact a bona fide statement of reasons. The applicant filed a Notice of Motion the next day. If the Notice of Motion is not set aside, Mr Johnson indicated that he would not have sufficient time to comply and an adjournment would be required.
Mr O’Donnell informed the Court that he already had copies of the emails and did not require them to be produced. With respect to paragraph two, the assertion that Mr Sodhi was the decision-maker now puts that in issue in the proceedings. He submits that documents which reveal who the decision-maker actually was are relevant to the proceedings. Mr O’Donnell conceded that para.3 of the Notice is too broad and would amend it if given leave. Mr O’Donnell indicated that the applicant sought any policy document or practice manual relating to policies or general practice within the Australian High Commission in New Delhi which state that officers of certain rank should or should not make decisions on specific issues. He further submits that given the issue which arose since 15 April 2009 and the amendments and concessions that each side was willing to make, the Notice to Produce clearly serves a legitimate forensic purpose.
In opposing the Notice, Mr Johnson indicated that it was served on
16 April 2009, being less than two working days before the hearing. Despite the limited time, two documents had been found which satisfy ground one and those were tendered. In relation to paras.2 and 3,
Mr Johnson submits that the application is too wide and ought to be set aside. Paragraph 2 seeks instructions of delegation to four people between 21 April 2008 and 7 November 2008. The decision maker in this case, being the person who wrote the 15 October 2008 letter, was Hardeep Singh and the delegation applicable to him can be produced. However it is not conceded that anyone else’s delegation would assist because on the evidence before the Court it cannot be established that anyone else was the decision-maker. Two documents were produced in relation to instruments of delegation applicable at the time. One that relates to Mr Sodhi and the other to Ms Mostafas. Mr Johnson submits that there is nothing further to produce in relation to para.2.
Mr Johnson further submits that the respondent objects to para.3 of the Notice in its entirety. It is submitted that the request is not limited to any subject matter and there cannot be any legitimate forensic purpose for it. Mr Johnson submits that even if the enquiry were narrowed to documents which go to what decision should not be made by particular individuals, it would still not be relevant because these issues are not determined by policy or general practice. Either the decision maker was delegated or he was not. There would need to be substantial enquiries made in response to para.3.
Mr Johnson opposed the application for an adjournment as a Notice to Produce cannot be amended. It is submitted that a Notice to Produce can:
a)Not be called upon;
b)Be struck out;
c)Replaced by other Notices to Produce.
However, a Notice cannot be amended in the way sought by the applicant.
Mr Johnson submits that para.1 of the Notice makes it onerous for the respondent to make fresh enquiries. Mr Johnson indicated that his instructing solicitors could find nothing further to produce apart from a job-copy document and Mr O’Donnell did not press for this. Consequently, there is no point in adjourning the application to allow further time for searches in response to para.1.
This was in effect the kind of task undertaken in preparing Court Books. Mr Johnson submits that in relation to para.2 nothing has been put as to any further documents of delegation required. The Court has been provided with the documents formerly within para.2, being a document relating to Mr Sodhi’s and Ms Moutafis’ delegation. However, Mr Johnson submits that delegation documents will not indicate who actually made a decision.
Mr Johnson submits that in this case, Goldsmiths Lawyers made a mistake as to whether or not reasons were required. Officers at the High Commission acted on what Mr Goldsmith had said and
Ms Moutafis prepared the document dated 7 November 2008.
Mr O’Donnell put into issue whether this letter was a “bona fide statement of reasons”. Mr Johnson submits that despite the document prepared by Ms Moutafis, there is only one decision.
An examination of the language of the Department document of
7 November 2008 proceeds upon the basis that there had been a previous decision and a subsequent complaint. Ms Moutafis gives, in the second paragraph, what she considered her reasons would have been for refusing the visa. However, Mr Johnson submits that she is not the person who made that decision. The document of 7 November 2008 is not a Statement of Reasons for the decision made on
15 October 2008 because that would have to come from Mr Sodhi.
Although not conceded by the applicant that Mr Sodhi was the decision-maker, Mr Johnson submits that he did sign off as the delegate for the Minister, this being the only evidence before the Court as to who made the decision.
On the information before the Court, I agree with Mr Johnson that an adjournment to allow a further response to the Notice to Produce is unlikely to uncover material which will substantially assist in the determination of this matter. Initially this process should have been undertaken in preparation of the Court Books. A further review, although limited by time restraints, was in answer to the Notice to Produce. Orders were made on 21 December 2008 for the preparation of a bundle of relevant documents by 30 January 2009. This was complied with by 22 January 2009 but the Notice was not filed until
16 April 2009, two days before the final hearing. I am satisfied that the timetable sufficiently allowed for this process to be attended to in a reasonable time and there is no justification to further delay the final hearing to answer the Notice to Produce.
Consideration
It is not in dispute between the parties that this matter arose in the circumstances already outlined at [9]-[11] above.
Status of Second Statement of Reasons – Respondent’s submissions
Mr Johnson indicates that the respondent objects to what is described as the Second Statement of Reasons (CB 87-92) being received as evidence of the reasons of the person making the decision under review. He submits that the decision of 15 October 2008 is one to which s.66(3) of the Act applies. Thus, it is not necessary for the applicant to give reasons for there to be a proper notification under s.66 of the Act. The effect of s.66(2)(c) is that the delegate is to give reasons why the criteria were not satisfied unless s.66(3) applies.
In support of this argument, Mr Johnson referred to Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 at [8] per Gray J:
[8] Further, the decision-maker was obliged by s66(1) of the Migration Act to notify the applicant of the decision in the prescribed way. S66(2)(a) required that the notification specify the criterion that the applicant did not satisfy. The combination of s66(2)(c) and s66(3) in the particular case gave rise to the conclusion that the notification was not required to give written reasons why the criterion was not satisfied.
The arguments advanced by Mr Johnson as to why s.66(3) of the Act applies are:
a)Mr Kethel’s application could not be granted while he was in the migration zone (a circumstance satisfying s.66(3)(a)) as it was made while it was outside the migration zone and he was not in the migration zone at the time of the decision: clause 573.411 of Schedule 2 of the Regulations.If the application was made outside Australia, Mr Kethel must be outside Australia at the time it is granted. It does not matter that the application was made to the offshore student processing centre in Adelaide, because clause 122(3)(b) of Schedule 1 of the Regulations provides that for an application to be made in Australia, an applicant must be in Australia.
b)Secondly, the decision was not reviewable under Part 5 or Part 7 of the Act (circumstances satisfying s.66(3)(b)) because it was not a Protection visa application or an “MRT-reviewable decision” (s.338(2)(a) and s.338(2)(b)).
c)Thirdly, the decision would not have been invalid simply because the notification did not include reasons even if s.66(3) had not applied, see s.66(4) of the Act and Betros v Minister for Immigration & Multicultural Affairs [1999] FCA 1539 at [8] per Beaumont J:
[8] In any event, reliance is placed ( at 12) his Honour noted that by s66(4) of the Act it is provided that "failure to give notification of a decision does not affect the validity of the decision".
Mr Johnson submits that the delegate’s email and letter of 7 November 2008 (CB 87, 90-92) accordingly had no relevant effect. As there was no notification error in relation to the delegate’s decision of 15 October 2008 letter, the validity of that decision would not have been denied by any such failure. The decision referred to in the 15 October 2008 letter in effect discharges the delegate’s duty who then had no further delegated authority in the matter. Mr Johnson submits that jurisdictional error has not been established in the first decision.
Mr Johnson acknowledges that Mr Kethel and his representatives proceeded upon the basis that it is the decision of the first delegate, and not any decision made or purportedly made by the second delegate, that is being reviewed.
Mr Johnson advised the Court that the respondent does take issue with the applicant seeking to treat the 7 November 2008 correspondence signed by Ms Moutafis as evidence of the first delegate’s reasons.
He submits that Ms Moutafis was saying what she considered the reasons would be through the use of language such as “I find” and “I am not satisfied”. Mr Johnson argues that the document written by
Ms Moutafis does not reveal the first delegate’s thought processes or reasons.
Mr Johnson further submits that the decision of 15 October 2008 was based on non-satisfaction of criteria. The effect of s.65 of the Act was that the delegate was obliged to refuse the visa applied for unless satisfied that the criteria were met: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ; Betros v Minister for Immigration & Multicultural Affairs (supra) at [7]. Mr Johnson argues that given this and the absence of reasons it is not open to conclude that there was jurisdictional error.
Status of Second Statement of Reasons – Applicant’s submissions
Mr O’Donnell acknowledged that the issue to be resolved is the status of the document of 7 November 2008, being a statement of
Ms Moutafis had she been the decision-maker. Mr O’Donnell argues that it would be improper when asked for reasons for a decision that had already occurred, for an officer not to give a report but construct her own reasons and in effect remake the decision.
Mr O’Donnell submits that it is important to note the distinction between:
a)Decisions which are a mental process required by s.65 of the Act;
b)Notification of a decision which is a document required by s.66 of the Act; and
c)A Statement of Reasons for a decision which is required by legislation or given gratuitously.
Mr O’Donnell drew my attention to the introduction of s.13 of the Administrative Decisions (Judicial Review) Act1977 (Cth) and how it has become increasingly common for decision-makers to give reasons for decisions when asked. He also referred to s.66(4) of the Act which states:
(4) Failure to give notification of a decision does not affect the validity of the decision.
Project Bluesky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 does not invalidate the decision. Therefore, Mr O’Donnell submits that the only consequence of failing to give notification is that there is an ongoing obligation to do so and that certain time limits do not begin to run.
Mr O’Donnell acknowledges that there was never any doubt that a decision had occurred on or before 15 October 2008. He submits that the issue is whether Mr Moutafis, in writing to Goldsmith Lawyers on 7 November 2008, was making an attempt in good faith to give reasons for the decision of 15 October 2008 or she making up the reasons. Mr O’Donnell submits that it is far more likely that an officer of the Commonwealth was attempting to do the former. Further that regardless of the actual decision-maker, the overall inference is that the Statement of Reasons of 7 November 2008 is an attempt in good faith to explain to an applicant the reasons for a decision which has already occurred.
In support of this argument, Mr O’Donnell submits that it is not unheard of for a person different to the decision-maker to give a Statement of Reasons for a decision. This may occur:
a)When the original decision-maker is unavailable;
b)When the original decision-maker is too busy;
c)When a Minister makes a decision and an officer of the Minister’s Department gives the Statement of Reasons when requested.
In these circumstances it is not assumed that the officer is doing anything improper, but is in good faith and an attempt to explain the reasoning process of the other officer.
Mr O’Donnell also referred to Qu v Minister for Immigration & Multicultural Affairs (supra) at [9]:
[9] Despite the absence of an obligation to give reasons, it is clear that, where reasons are given, it is appropriate for the Court to look at them for the purpose of determining whether any of the grounds of review made available by s476 of the Migration Act has been made out. In doing so, it is necessary to bear in mind the following caution expressed by Kenny J in Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 15 at [27]:
"Finally, the nature of the notification is to be again considered. There was, as already noted, no requirement for written reasons. If (as the authorities establish) it would be wrong to scrutinise overzealously the language of a statement of reasons given by a decision-maker pursuant to some statutory provision like s420 of the Act, then it would also be wrong so to scrutinise a notification given under s66(2)(a) of the Act: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J."
Mr O’Donnell referred to Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 at [48]-[50] per Lee J, Preston v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 107 at [22] per French J and Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at [65] per Hely J as examples of where Statements of Reasons did not satisfy the Act because they had been prepared a long time the reasons were required to be given. However, in those cases the Statements were admitted as evidence of the decision-making process under the exception to the hearsay rule for business records. That is, anything in the Statement of Reasons which discloses a jurisdictional error is an omission against interest and is therefore admissible hearsay evidence of a mistake by a decision-maker. Mr O’Donnell submits that the best inference from the available material is that the Statement of Reasons dated 7 November 2008 is an attempt by Ms Moutafis to report to Goldsmith Lawyers the reasons for the decision that had occurred earlier by another officer. That officer may have been Mr Sodhi, Ms Moutafis or some other unidentified officer.
Consideration of Status of Second Statement of Reasons
On the material before the Court, I have formed the view that it is most likely that Hardeep Singh Sodhi, Senior Visa Officer at the Australian High Commission in New Delhi, made the decision which is recorded in the Department of Immigration letter of 15 October 2008 (CB 82-83). In that letter which carries his signature he identifies himself as “Delegate for the Minister for Immigration & Citizenship”. Both parties have acknowledged that a decision was made on or before
15 October 2008. The only evidence presented is that the decision contained in this letter was signed by Mr Sodhi and no contradictory evidence has been produced to indicate that he was not the decision-maker.
There is no evidence before the Court which infers that Mr Sodhi and his superior Ms Moutafis communicated about the rejection of
Mr Kethel’s application. There is also no evidence of Mr Sodhi telling or not telling Ms Moutafis what his reasons were. Similarly there is no evidence to suggest that Mr Sodhi acted under direction on 15 October 2008 and that it was Ms Moutafis who was the actual decision-maker.
Consequently, what is established is that a decision was made on or before 15 October 2008, most probably by Mr Sodhi and not Ms Moutafis. The decision was made sometime between the interview conducted by Vishal Singh Paramor on 9 September 2008 (CB 78-80) and the letter of Mr Sodhi of 15 October 2008 (CB 82-83).
I note that Mr Johnson informed the Court that the instrument of delegation relevant to Mr Sodhi and produced in response to the Notice to Produce indicates that he had the appropriate delegation to be the decision-maker. That instrument was not tendered or sought to be marked.
It is not in dispute that Ms Moutafis, Senior Migration Officer at the Australian High Commission in New Delhi, accepted Mr Goldsmith’s complaint that there was an obligation to state reasons and that the notification letter did not comply with that requirement. There is no indication of what analysis Ms Moutafis undertook, but it is clear through her use of the first person that she was describing what she is satisfied of on the material. The form and expressions used in the letter of 7 November 2008 strongly suggest that those were the views of Ms Moutafis and are unlikely to reflect the thought processes of Mr Sodhi or any other unidentified decision-maker.
In determining whether the letter of 15 October 2008 satisfies the requirements of the Act, I note the detailed argument advanced by
Mr Johnson in respect of the operation and effect of s.66(2)(c) and s.66(3). Section 66(3) states:
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa. (emphasis added)
Mr O’Donnell concedes that s.66(3)(b) applies to this case but submits that it is not clear whether s.66(3)(a) does.
In respect of s.66(3)(a), I note that the Sub-class 573 visa application was filed by Goldsmiths Lawyers at the Department’s Adelaide Offshore Student Processing Centre on behalf of Mr Kethel. However, the balance of the material in Exhibit “A1” indicates that Mr Kethel was in India at all relevant times. Part A of the application form gives his residential address as [omitted], Punjab (CB 12). Other correspondence was forwarded to the Department at the Australian High Commission, New Delhi and return correspondence from Goldsmiths Lawyers was also addressed to the Department in New Delhi. The interview with the applicant took place in New Delhi (CB 76-77) and the disputed notification letter of 15 October 2008 was similarly issued from the New Delhi office. In the absence of evidence to the contrary, I am willing to accept that the applicant was in India at the times relevant to this visa application and that s.66(3)(a) is satisfied. Consequently, s.66(3)(a) of the Act applies.
Although Mr O’Donnell questions the operation of s.66(3)(a), there does not appear to be a dispute between the parties that the decision is not subject to a review under Part 5 of the Act. This was originally brought to Mr Kethel and his adviser’s attention in the letter of
15 October 2008:
Please note that this decision is not subject to a merits review and there is no refund of the application charged. (CB 82)
The letter dated 7 November 2008 again clearly stated:
Please note that this decision is final and there is no right of review. (CB 91)
This appears to be accepted by Goldsmiths Lawyers who sought review of the Department decision by filing an application in the Federal Magistrates Court on 3 December 2008. No argument was advanced suggesting a contrary interpretation.
In circumstances where s.66(3) is activated, s.66(2)(b) becomes operative. Section 66(2)(c) states:
(2) Notification of a decision to refuse an application for a visa must:
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
The 15 October 2008 letter from the Department is clearly in the form of a notification:
The information provided with this application has been carefully considered, but I regret to inform you that you have not been granted a visa. The decision is based on applicable migration law and policy relating to the entry of students.
I am not satisfied that you meet the requirements of clause 573.326 of Schedule 2 of the Migration Regulations 1994…(CB 82)
I rely on Qu v Minister for Immigration & Multicultural Affairs (supra) at [8]. The interaction and operation of these two provisions was also considered in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 at [26] per Gray J:
…The combination of s.66(2)(c) and s.66(3) derived an applicant for a visa that cannot be granted while the applicant is in the migration zone of any right to written reasons for an adverse decision.
Also see Adams v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 280 per Drummond J:
It being common ground that s 66(3) applied to the applicant's visa application, it follows that the minister was absolved from the obligation imposed by s 66(2)(c) to give written reasons…
Section 65 of the Act requires the Minister to decide whether or not to grant an application for a visa. The Minister may delegate this power which has occurred in this matter and a number of officers in the Australian High Commission, New Delhi hold delegations to make these decisions. The delegation of this power is referred to above and is not in dispute. Where the Act declares an applicant eligible for a dependent visa, the difference between the statutory power expressed in objective language and the grant in subjective terms is ultimately one of degree. The Act states that the meeting of certain criteria to be eligible for a visa may be interpreted as conferring eligibility whenever that criteria has been met, or whenever the decision-maker believes, thinks or is satisfied that the criteria has been met. In this matter the decision-maker found that the criteria had not been met and the visa was refused.
The effect and reviewability of the decision-making power delegated by the Minister was addressed in Betros v Minister for Immigration & Multicultural Affairs (supra) at [18] per Beaumont J:
[18] The trend of recent authority in the High Court of Australia and, indeed, the provisions of the amendment of the migration legislation made by the Parliament make it clear, beyond question, that, in these matters, this Court's authority and jurisdiction are strictly confined to errors of law. That is to say, that binding authority and that legislation make it clear beyond any question that issues of fact of the kind considered by the delegate in the present matter are exclusively within the authority and jurisdiction of the executive, and thus not of the judicial branch, of government.
Similarly in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [16], Ryan, Jacobson and Lander JJ said:
16 It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty."Accordingly, the notification of the decision in the Department’s letter of 15 October 2008 indicates that the visa was rejected on the basis of non-satisfaction of visa criteria. Because of s.66(3) of the Act (which brings into operation of s.66(2)(c)), reasons for that decision are not required from the Minister or the delegated decision-maker. Given that the decision-making process has been carried out in accordance with the provisions of the Act and in the absence of reasons it is open to conclude that there is no jurisdictional error in the decision. Consequently the Minister, by the delegated representative, has complied with the Act and discharged that duty, becoming functus officio with no further authority in the matter.
The submissions of both parties indicate that the decision recorded on 15 October 2008 and signed by Mr Sodhi is the relevant decision and that the letter dated 7 November 2008 does not represent a new, revised or alternate decision. I have formed the view that the parties are correct in their submissions that the letter of 7 November 2008 signed by Ms Moutafis attempts to convey Mr Sodhi’s reasons for the decision of 15 October 2008. Yet there is no explanation in Ms Moutafis’ document to explain how she was provided with Mr Sodhi’s thought processes or reasons. I accept the submission that Ms Moutafis’ use of the first person in her document does not reflect that Mr Sodhi conveyed to her his reasoning processes leading to his decision, either in writing or orally.
I note Mr O’Donnell’s acknowledgement that Ms Moutafis did not take the position that the decision was not valid, simply that the notification in the 15 October 2008 letter was invalid and proceeded to give a new notification (CB 87.9).
I also note the argument presented by Mr O’Donnell in supplementary submissions that Ms Moutafis was Mr Sodhi’s superior and responsible for providing him with training and direction. Therefore, one possibility is that Mr Sodhi acted under her direction on 15 October 2008 and Ms Moutafis was the original decision-maker. As discussed above, there is no evidence that this process occurred.
In respect of the alternate submission that the letter of 17 November 2008 should be admitted as hearsay evidence (see [42] above), the authorities relied upon in that argument all relate to instances where the Minister was providing reasons for visas cancelled under s.501 of the Act and there had been considerable delays in preparing those reasons. Those cases address whether what the Minister had said in his Statement of Reasons (unverified by affidavit), should be admitted as evidence of the reasons. I am not satisfied that the authorities assist in this case as there is no evidence of Mr Sodhi telling Ms Moutafis what his reasons were. Nor is there evidence that the letter of 17 November 2008 was conveying what Mr Sodhi’s reasons were.
In effect, Ms Moutafis appears to have known that the decision had been made and was acting upon the mistaken belief that there was a difficulty in the notification of that decision. She appears to have accepted Mr Goldsmith’s complaint that there was an obligation to state reasons which were not complied with, but did not appreciate that there was no obligation to state reasons. On the material before the Court she appears to be saying what she thinks the reasons would be. This clearly does not convey Mr Sodhi’s thought processes.
I have formed the view that the contents of Ms Moutafis’ letter of
17 November 2008 are not the reasons for the original decision. Although they may be reasons, they do not represent the thought processes of the original decision-maker, most probably Mr Sodhi, and consequently do not give rise to a jurisdictional error in the original decision.
Submissions addressing Pleaded Grounds of Review
Mr O’Donnell argues that there are numerous ways of framing the error and that a particular error can fit into multiple categories. His written submissions filed on 9 April 2009 advance four arguments in support of the grounds contained in the amended application filed on
2 March 2009. The arguments are:
a)Failure to consider the Goldsmiths letter;
b)Mr Kethel’s separation from his wife and the genuine applicant criterion;
c)Mr Kethel’s immigration history and the genuine applicant criterion;
d)Alleged risk of breach of visa conditions.
Mr O’Donnell submits that if a decision-maker gives reasons which fail to grapple with the submission and goes to the heart of its reasoning process, then it can be inferred that the decision-maker did not consider the matter. He submits that the best way of categorising this kind of error is that it is not enough to conclude that someone is not a genuine visa applicant or that based on their stated intention, they will breach their visa conditions.
Mr O’Donnell submits that it is insufficient to enquire whether the applicant had previously applied for a Protection visa and had exercised all their rights to do so. This does not go to the genuineness of an application. Similarly, a brief period of overstay is not a breach of a Protection visa condition. Having regard to the Statement of Reasons of 7 November 2008, the applicant put forth arguments central to those issues, why they were relevant and should not be given consideration. Also that if they were to be given consideration they should be given very little weight. There is no evidence that the decision maker dealt with those issues. Mr Johnson responded to these four arguments in written submissions filed on 15 April 2009.
Failure to consider the Goldsmiths letter
Mr O’Donnell submits that the first respondent is obliged to consider submissions of a visa applicant as part of his application and at any time before the making a decision. He relies upon:
a)Sections 54 and 55 of the Act; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at [39]-[42] per Mason J.
b)Section 65 of the Act, which requires the first respondent to decide whether or not to grant an application for a visa. The Minister may delegate this power under s.496 of the Act. Section 66 requires the Minister to notify the applicant of its decision. Section 66(2)(c) requires that notification of the decision must give reasons of the decision unless s.66(3) applies. Section 66(3) applies where:
a) the visa is a visa which cannot be granted while the applicant is in the migration zone; and
b) this Act does not provide, under Part 5 or 7, for any application for review of a decision to refuse to grant the visa.
Mr O’Donnell submits that it is not clear whether one delegate may decide a visa application and another provide a notification.
The decision under challenge was to refuse an application for a sub-class 573 visa. Schedule 2 of the Regulations provides:
573.411 If the application is made outside Australia, the applicant must be outside Australia at the time of the grant.
573.412 If the application is made in Australia, the applicant must be in Australia at the time of the grant.
Mr O’Donnell argues that these clauses raise an ambiguity in s.66(3) as to whether the word “visa” refers to:
a)Kinds of visa (ie. Classes or sub-classes, see s.30 of the Act); or
b)The requirements applying in particular circumstances to each relevant applicant.
Mr O’Donnell submits that the significance of this ambiguity to these proceedings is:
a)If the word “visa” in s.66(3) refers to a kind of visa, then s.66(3) does not apply to this case. Mr Sodhi’s letter of 15 October 2008 was not a valid notification for the purposes of s.66 (regardless of whether he was the actual decision-maker) because it contains no reasons. The only document capable of being a valid s.66 notification is the letter of Ms Moutafis of 7 November 2008.
b)If the word “visa” in s.66(3) refers to a particular requirement of applying to a particular visa applicant, then s.66(3) does apply and Mr Sodhi’s letter would be a valid notification if he was a decision-maker and might be a valid notification even if he was not.
Where the Minister is obliged to consider a matter, he is obliged to give that matter “proper, genuine and realistic consideration”: Turner v Minister for Immigration & Ethnic Affairs (1981) 55 FLR 180 at [184] per Toohey J; Kalala v Minister for Immigation & Multicultural Affairs (2001) 114 FCR 212 at [23] per North and Madgwick JJ; NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [212] per Madgwick J; SZCOQ v Minister for Immigration & Multicultural Affairs [2007] FCAFC 9 at [26] per Besanko J.
Mr Kethel’s Student (Temporary) (Class TU) visa application filed on
9 May 2008 contained a copy of the Goldsmiths letter and details of
Mr Kethel’s immigration history (CB 1-8). The Goldsmiths letter argues that:
a)Mr Kethel’s history of using all legal avenues open to him does not mean that he is not a “genuine applicant” for a dependant spouse visa.
b)Mr Kethel’s previous periods of overstaying his visa were relatively brief. They were in the context of him waiting for decisions relating to his Protection visa application and based on his claim of fearing persecution if he returned India.
While waiting for a decision on his Protection visa application,
Mr Kethel applied for bridging visas in a relatively timely manner and left Australia voluntarily when his legal avenues were exhausted.
Mr O’Donnell submits that where the Minister is obliged to give written reasons under s.66(2)(c) of the Act and applicants for judicial review are entitled to assume that the statement reflects the Minister’s reasoning process. If a matter that the Minister is required to consider is not mentioned in the reasons, or is not given proper, genuine and realistic considerations, then the Court should infer that the Minister has fallen into jurisdictional error for failing to take into account a relevant consideration: WAEE v Minister for Immigration & Citizenship [2003] FCAFC 184 per French, Sackville and Hely JJ at [45]-[47]; SZCOQ v Minister for Immigration & Citizenship (supra) per Moore J at [14] and where Besanko J said at [26]:
In a case where a matter is mentioned by the decision-maker, the Court’s assessment of the nature and quality of the decision-maker’s reasons and of the importance of the particular consideration or matter in the context of the case may nevertheless lead the Court to conclude that the decision-maker has not given the matter genuine consideration and therefore has failed to have regard to it.
Mr O’Donnell submits that a delegate of the Minister admitted that the Statement of Reasons issued on 15 October 2008 was inadequate. However, the second Statement of Reasons issued on 7 November 2008 was perfunctory and superficial. While referring to the Goldsmiths letter a number of times (CB 91), it did not engage in any real sense with the following key issues:
a)Mr Kethel’s immigration history – the delegate simply asserted in the critical paragraph that, “your previous application indicated you have a strong intention to gain entry to and remain in Australia” (CB 91.7). It did not address or rebut the submission that Mr Kethel had simply been exercising his legal right to apply for a Protection visa.
b)Mr Kethel’s previous history of overstaying – the critical paragraph of the statement simply asserts that “there is sufficient reason to doubt that you would depart Australia at the expiry of your temporary visa” (CB 91.8). The statement did not address the submission that the previous occasions on which Mr Kethel overstayed his visa were relatively brief, in the context of a Protection visa application and that he had made prompt applications for bridging visas.
Mr O’Donnell submits that the delegate fell into jurisdictional error by failing to give proper, genuine and realistic consideration to the submissions made in Goldsmiths letter.
Mr Johnson submits that the applicant’s argument is based on the misconception that the Minister (or his delegate) was obliged to give reasons under s.66(2)(c). Just because another officer accepted
Mr Goldsmith’s claim that the prior notification was deficient for lack of reasons, does not override the application of the Act.
Mr Johnson submits that as there was no legal duty to state reasons, it is not for the applicant to infer that if an issue was not mentioned in the “Reasons” it was not considered. The document is independent of and in addition to what the second delegate thought did not amount to reasons for the first delegate’s decision.
Mr Johnson raises two additional matters in response to
Mr O’Donnell’s argument:
a)He refers to WAEE (supra) at [46]:
[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
Mr Johnson submits that it is not conceded that the decision-maker failed to consider submissions made by the applicant’s representatives, especially in the absence of a duty to state reasons.
b)The expression “proper, genuine and realistic consideration” may easily become an invitation to merits review and there is authority indicated that it is not a form of jurisdictional error: SZMPX v Minister for Immigration & Citizenship [2009] FCA 178 at [23], citing Minister for Immigration and Multicultural Affiars v Antonpillai (2001) 106 FCR 436 at [59] and [66].
In the alternative, Mr Johnson submits that if the second delegate’s correspondence were accepted as reasons for the decision made by a different delegate, it would be even more difficult to be satisfied that the submissions made by Goldsmiths Lawyers were not considered.
Mr Johnson submits that it was for the delegate to categorise and assess the significance of the applicant’s past failed applications and history. The applicant’s past (unmeritorious) applications and time in Australia as an “unlawful non-citizen” were matters which could contribute to the delegate’s non-satisfaction that the applicant would observe the temporary nature of his visa and not overstay.
Mr Kethel’s “separation” from his wife and the genuine applicant criterion
Mr O’Donnell submits that the critical paragraph in the 7 November 2008 letter states:
I note that you are currently separated from your wife, however she is holding a temporary visa and as such she is not residing in Australia. (CB 91.7)
Mr O’Donnell submits that taken on its face, the last clause of this sentence is a finding based on no evidence. Mr Kethel’s wife entered Australia on 15 January 2008 (CB 41 at [4]). However, Mr O’Donnell submits that it is clear that the delegate meant to write “India” instead of “Australia”. However, he states that even if corrected, this sentence reveals an error. It is submitted that the sentence appears in the middle of the only paragraph of the Statement which actually shows the delegate’s reasoning, rather than merely recounting Mr Kethel’s immigration history. It must be inferred that it was of some significance to the delegate’s decision. Yet, the only relevance it could have is that Mr Kethel did not genuinely wish to rejoin his wife.
Mr O’Donnell submits that the reason Mr Kethel and his wife were separated was that she had been granted a visa and he had not. Her statutory declaration of 17 April 2008 states:
6. I decided to come to Australia without [Mr Kethel] because I had set my heart and mind on studying in Australia. I had also made arrangements to go to Australia and I was hopefully that [Mr Kethel] would be able to sort out his visa issue so that he would be able to join me, I was reluctant to leave [Mr Kethel] but did so for those reasons and in the hope that he would join me. (CB 41 at [6])
Mr O’Donnell further submits that at no point in the delegate’s reasons did she cite any material which may raise questions as to the genuineness of their marriage, especially given the evidence of
Mrs Kethel’s miscarriage shortly after arriving in Australia (CB 41 at [7]). In this context, to use their forced separation as a reason to find that Mr Kethel was not a genuine applicant as her spouse was to fall into jurisdictional error by:
a)misunderstanding the nature of the “genuine applicant” criteria and thus asking the wrong question, applying the wrong test or identifying the wrong issue;
b)considering an irrelevant matter; and/or
c)engaging in reasoning so illogical and unreasonable that no reasonable delegate could have come to a decision on such a basis.
Mr Johnson submits that the second argument repeats the error of treating what the second delegate wrote as showing the reasoning of the first delegate who made the decision now under review. On that basis alone, the applicant’s argument must fail.
Mr Johnson argues that in any event, the single point being made in the letter was that the writer was not satisfied that the applicant would leave Australia when his temporary visa expired. The significance of him being prepared to endure separation from his wife was entirely a factual matter for the decision-maker. No incorrect test, taking into account an irrelevant (i.e. prohibited) consideration or other judicial error, is shown. He submits that the applicant is simply debating the merits of the reasons which, in any event, are not those of the decision-maker.
I am satisfied that the argument raised in this point repeats the error previously identified, in that the reasons of the second delegate are not those of the first delegate who made the decision. This argument cannot be sustained.
Mr Kethel’s migration history and the “genuine applicant” criterion
Item 573.326(a) of Schedule 2 of the Regulations states:
573.326 The Minister is satisfied that:
(a) the applicant is a genuine applicant for entry and stay as a member of the family unit of the primary person mentioned in clause 573.322; and
Mr O’Donnell submits that the delegate was required to ask himself whether Mr Kethel was a “genuine applicant to enter and stay as a member of the family unit” of the primary applicant. The fact that he had previously exercised his legal rights to arrive and remain in Australia does not go to that question. Similarly, the delegate’s conclusion that the applicant had a “strong intention to gain entry to Australia” would be true of almost any visa applicant. The delegate thus fell into jurisdictional error by:
a)Failing to ask the correct question or apply the correct test;
b)Identifying the wrong issue;
c)Considering irrelevant material;
d)Engaging in reasoning so illogical or unreasonable that no reasonable delegate could have come to a decision on such a basis.
Mr Johnson in his written submissions submits that this above argument is similarly misconceived. The applicant again refers to what the second delegate wrote as though it comprised the first delegate’s reasons.
Mr Johnson submits that just because the applicant had previously “exercised what legal rights he had to come and stay in Australia” does not mean that he did not make unmeritorious applications or overstayed his visas. Any such conclusion could lead to a delegate to not being satisfied that the applicant, if granted a temporary visa, would leave Australia when that expired. The delegate would not need a body of positive evidence to the contrary to be satisfied that a particular criterion was met. No jurisdictional error has been demonstrated.
Alleged risk of breach of visa conditions
Mr O’Donnell submits that the delegate based her decision, in part, on her conclusion that Mr Kethel did not meet item 573.326(c) of Schedule 2 of the Regulations which states:
The Minister is satisfied that:
(c) on the basis of the applicant's stated intention, the applicant intends to comply with any conditions subject to which the visa is granted.
This was in turn based on two further conclusions:
a)That Mr Kethel had breached visa conditions in the past; and
b)that his answers in his interview indicated that he may do so again.
It is submitted that the delegate’s reasoning for both conclusions was flawed for the reasons given above.
Mr O’Donnell submits that there is no evidence that Mr Kethel had previously breached visa conditions and the critical paragraph of the delegate’s reasons includes the assertion that:
Your immigration history shows that you have breached visa conditions previously…(CB 91.7)
He submits that there was no evidence for the delegate to make this statement.
Mr O’Donnell further submits that overstaying a visa is a breach of visa conditions 8512, 8522 and 8525 of Schedule 8 to the Regulations. None of these were conditions attached to Visitor (sub-class 676) visa which Mr Kethel held when he first came to Australia. The only Bridging visas which have these conditions are the Bridging (sub-class 050) visa and Bridging (sub-class 051) visa. In both cases, the relevant condition is condition 8512, which “may be imposed at the discretion of the Minister”. Condition 8512 states:
The holder must leave Australia by the date specified by the Minister for the purpose.
Mr O’Donnell submits that in the matter before this Court, there was no evidence before the delegate whether this condition applied to any of Mr Kethel’s bridging visas, or what date (if any) the Minister had specified. Mr O’Donnell submits that the delegate thus fell into jurisdictional error by making a finding based on no evidence. Moreover, that the delegate’s statement that Mr Kethel had “breached visa conditions previously” indicates that she conflated the overstaying of a visa with breaching a visa condition. He submits that she fell into further jurisdictional error by misunderstanding the question the Regulations required her to address.
Mr O’Donnell further submits in respect to Mr Kethel’s alleged ignorance of the relevant visa conditions that the delegate thought
Mr Kethel would breach his visa conditions based on her conclusion that his “interview answers indicated that [he] may do so again”. It is submitted that this appears to be based on the delegate’s earlier statement that:
You stated that you would work in Australia and did not indicate that you were aware of the work limitations when asked. (CB 91.5)
It is submitted that this in turn appears to be based on the following questions and answers in the recorded interview:
What will you do in Australia?
I will work in Australia.
What rights do you have to work as a dependent?
I will study for 1 or 2 years in [omitted]. (CB 80)
Mr Kethel disputes the account in the above interview record. On his account of the interview, there is no evidence for the finding that he was ignorant of the relevant visa conditions.
The relevant condition relating to work rights for a Higher Education (sub-class 573) visa is contained in Item 573.617 of Schedule 2 of the Regulations:
If the applicant satisfies the secondary criteria, condition 8104.
Condition 8104 of the Regulations states:
8104 …the holder must not engage in work for more than 20 hours a week while the holder is in Australia.
Mr O’Donnell submits that even if the official record of the interview is accepted, Mr Kethel only stated his intention to work in Australia and was non-responsive to a question probing his knowledge of work restrictions on the proposed visa. The test the delegate had to apply was whether:
On the basis of the applicant’s stated intention, the applicant intends to comply with any condition subject to which the visa is granted.
Mr O’Donnell submits that the interview reveals Mr Kethel’s stated intention to work and, at most, an ignorance of work restrictions. The recorded interview also included Mr Kethel’s statement that he would comply with whatever visa conditions were imposed. There was thus no evidence of a “stated intention” by Mr Kethel to breach his visa conditions. Mr O’Donnell submits that the delegate’s suspicions to that effect were irrelevant to the question of “stated intention” raised by Item 573.326(c) of Schedule 2 of the Regulations. To the extent that the delegate took these matters into account, she fell into jurisdictional error by:
a)Making a finding of fact in the absence of evidence to support it;
b)Considering irrelevant material; and/or
c)Misunderstanding the nature of the stated intention test in Item 573.326(c) of Schedule 2 of the Regulations.
Mr Johnson submits in reply that the applicant impermissibly seeks to draw conclusions from what the second delegate wrote, whereas it was the first delegate who was “not satisfied” that the applicant met “the requirements of clause 573.326”. The delegate added that the applicant had been interviewed in relation to this application on his relationship with his nominator and that based on the interview and the applicant’s previous immigration history, “concerns were raised as to (his) genuine intentions to comply with any conditions subject to which any visa granted would be subject” (CB 82).
Mr Johnson drew the Court’s attention to the fact that Mr O’Donnell also disputes the second delegate’s account of the interview (CB 78-80). If what the delegate had in mind was a visa condition to the effect that Mr Kethel would not engage in work for more than 20 hours per week, it was open to the decision-maker, based on what was said in the interview, not to be satisfied that item 573.326(c) of the Regulations was met. In particular, the applicant did not acknowledge the 20 hour work limitation (CB 80).
Mr Johnson submits that Mr O’Donnell’s submissions seem to assume that clause 573.326(c) requires an applicant to actually say that he will engage in conduct that will breach a visa condition, before a delegate can be satisfied that the condition is not met. However, Mr Johnson submits that the delegate is required to be satisfied “on the basis of the applicant’s stated intention” that “the applicant intends to comply with any condition subject to which the visa is granted”.
I have formed the view that even if one assumes that what the second delegate wrote is evidence of the first delegate’s reasons, being an acceptance that not overstaying is not a Schedule 8 condition but a requirement arising from the temporary nature of the visa, it does not follow that there was “no evidence” upon which the decision-maker could be unsatisfied that the criteria were met and that the wrong test had been applied. Consequently, this argument cannot be sustained and should be dismissed.
Conclusion
I am satisfied that the form and contents of the first notification letter signed by Hardeep Singh Sodhi satisfy the requirements of the Act and that the application should be dismissed with costs.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 4 September 2009
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