Kim v MIAC
[2007] FMCA 798
•29 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 798 |
| MIGRATION – Remaining relative visa – whether jurisdictional error – regulation 1.15(1)(c)(i) and clause 115.211 of Migration Regulations 1994 – remaining relative – application allowed. |
| Migration Regulations 1994, reg.1.15(1)(c)(i), cl.115.211 Migration Act 1958, ss.357A, 359A |
| Minister for Immigration and Multicultural Affairs v Hughes (1999) 86 FCR 567 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 Axon v Axon (1937) 59 CLR 395 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Haoucher v Minister for Immigration & Ethnic Affairs (1990) 19 ALD 577 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | SAM NICK KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1051 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 3 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 29 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.M. Niall |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr C.J. Horan |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 July 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1051 of 2006
| SAM NICK KIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In these proceedings Sam Nick Kim ("the review Applicant") seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 12 July 2006.
The Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant a Class BO subclass 115 remaining relative visas ("the remaining relative visas") to Mr Oun Vong ("the visa Applicant") and members of his family unit.
The visa Applicant is a citizen of Cambodia. On 13 December 2004 he applied for a remaining relative visa. He was sponsored by his brother, the review Applicant. On 21 March 2005 a delegate of the First Respondent refused to grant remaining relative visas to the visa Applicant and his family members.
On 12 July 2006 the Tribunal affirmed the delegate's decision and found that the visa Applicant did not satisfy reg.1.15(1)(c)(i) of the Migration Regulations 1994 ("the Regulations") and was therefore not a "remaining relative" of the review Applicant and did not satisfy cl.115.211 of sch.2 of the Regulations.
Relevant Regulations
Regulation 115.211 provides:
“115.21 Criteria to be satisfied at time of application
115.211(1) The applicant is a remaining relative of an Australian relative of the applicant.”
Regulation 1.15 defines the term "remaining relative":
“Remaining relative
(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step‑parent, step‑brother or step‑sister of the applicant; and
(b)the other person is usually resident in Australia; and
(c)the applicant, and the applicant's spouse (if any), have no near relatives other than near relatives who are:
(i) usually resident in Australia; and
(ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens; and
(d) if the applicant is a child who:
(i) has not turned 18; and
(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:
at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2) In this regulation:
near relative, in relation to an applicant, means a person who is:
(a)a parent, brother, sister, step‑parent, step‑brother or step‑sister of the applicant or of the applicant's spouse (if any); or
(b)a child (including a step‑child) of the applicant or of the applicant's spouse (if any), being a child who:
(i) has turned 18 and is not a dependent child of the applicant or the applicant's spouse (if any); or
(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant's spouse (if any).”
The claim
At the time of application the visa Applicant resided in Cambodia. In the visa application the visa Applicant stated that both of his parents were dead and that he had six siblings. For reasons which will become apparent, it is useful to set out a list of the relevant family members, as follows:
·Vong OUN Visa Applicant
·Sam Nick KIM Brother - Review Applicant - Australia
A.K.A Vong Sa Em
·Vong SOPHINI Sister - Australia - visa applicant application (Court Book p.6); Tribunal decision Court Book p.120
·Vong ONN Brother - France (overseas near relative)
·Vong OEUN Brother - Dead/missing (Supplementary Court Book - Transcript p.18 visa Applicant evidence and p.7 review Applicant evidence; Tribunal decision, Court Book p.125, paragraph [39])
·Vong ANN Brother - Dead/missing (Supplementary Court Book p.8 review Applicant evidence and p.19 visa Applicant evidence; Tribunal decision, Court Book p.125, paragraph [39])
·Vong SOPHEA Sister - Dead/missing (Supplementary Court Book pp.19‑20 visa Applicant evidence and pp.9‑10 review Applicant evidence; Tribunal decision, Court Book p.126, paragraph [40]). Death certificate was produced (Court Book p.54) purportedly showing that Vong Sophea died on 4 July 1977, hence there was an inconsistency between the reliance upon the death certificate and the assertion in the application that Vong Sophea resided in Australia.
Initially the Applicant advised incorrectly that Vong Sophea was in Australia (Court Book p.6 and p.120). This was corrected at the hearing (Court Book p.124).
·Vong SOPHORN Sister – living in Australia – Court Book p.126.
In the visa application the visa Applicant claimed to have had six siblings, including his eldest brother Vong Onn, living in France, the review Applicant; and his sisters, Vong Sophea and Vong Sophini, who are living in Australia; and brothers, Vong Oeun and Vong Ann, who he stated were "dead" (Court Book p.6). As indicated in the list above the Applicant had incorrectly stated that Vong Sophea was living in Australia when in fact a death certificate was produced in relation to that sister. During evidence, he also mentioned another sister living in Australia apart from Vong Sophini and that sister’s name was “So Pen” (Supplementary Court Book p.19). I have assumed that the reference to “So Pen” in the Supplementary Court Book was meant to refer to “Vong Sophorn” who it is noted the Tribunal argues was not included by mistake in the visa application and that she lives in Australia. That means there are two sisters living in Australia namely, Vong Sophini and Vong Sophorn. If I am in error in relation to the names, then the error arises from what can only be described as a daunting task for the Tribunal in reconciling the names in the various documents together with the transcript given that evidence at least from the visa Applicant was received by audio link and that on occasions the names were “indistinct”. However, I am satisfied that if confusion remains then it does not affect the outcome of this decision though no doubt may need to be further clarified by another Tribunal. My list of siblings is different to the list of relevant family members relied upon by the Applicant as I have added Vong Sophini and Vong Sophorn to my list though that is explained simply by virtue of the fact that the siblings residing in Australia are not relevant for the purpose of the application.
During the course of evidence before the Tribunal the visa Applicant stated that Vong Oeun and Vong Ann were missing and that he presumed they were dead. It is relevant to set out the extract from the transcript before the Tribunal relating to Vong Oeun and Vong Ann as follows:
“INTERPRETER: After Vong Onn is Vong Oeun, and he - - -
MS WHITAKER: Where is - - -
INTERPRETER: Vong Oeun already dead.
MS WHITAKER: When did he die? When did Vong Oeun die?
INTERPRETER: He is missing since the Khmer Rouge regime, so I don’t know what year.
MS WHITAKER: So he’s missing or dead? You first said he was dead. Now you say he’s missing.
INTERPRETER: What is that?
MS WHITAKER: Is he dead or missing? Because you have said both things.
INTERPRETER: Because we couldn’t find him, so I presume he’s dead.
MS WHITAKER: Okay. When as the last time you saw him?
INTERPRETER: I do not remember the year but it was during the Khmer Rouge regime when I last saw him.
MS WHITAKER: What efforts have you made to find him?
INTERPRETER: I have tried my best to locate him but I have no success.
MS WHITAKER: So how did you try and locate him?
INTERPRETER: Could you repeat.
MS WHITAKER How exactly did you try and locate him.
INTERPRETER: I have tried to find through people that I know.
MS WHITAKER: And what about your brother in Australia? What efforts has he made?
INTERPRETER: You talk about my dead brother?
MS WHITAKER: What efforts has your Australian brother made to find Vong Oeun?
INTERPRETER: He has tried his best like what I did, by asking people that he knows to locate my brother, but he has no luck either.
MS WHITAKER: Okay. The next sibling – what
MR OUN:Vong Ann.
MS WHITAKER: And where is Vong Ann?
INTERPRETER: Dead.
MS WHITAKER: And when did Vong Ann die?
INTERPRETER: I do know what year, because we were separated and I presume he’s dead because we couldn’t locate him.
(Supplementary Court Book p.18 lines 10-42 and p.19 lines 1-26)
In evidence before the Tribunal the review Applicant gave sworn evidence that his parents "died during the Pol Pot regime" (Supplementary Court Book p.2). He specifically gave evidence in relation to his parents as follows:
“MS WHITAKER: So where were you exactly when – where were you and where were your parents when their death occurred? You were five, you said. So where were you and where were your parents?
INTERPRETER: During the Khmer Rouge regime we were separated. As a young child, I live among other children in a – like, in a centre.
MS WHITAKER: Okay, so you lost contact with your parents is what you’re saying?
INTERPRETER: Yes.
MS WHITAKER: So did you ever meet them again?
INTERPRETER: No.
MS WHITAKER: So how do you know that they are not alive, then?
INTERPRETER: Could you repeat your question.
MS WHITAKER: How do you know that your parents are not alive?
INTERPRETER: Because when they passed away a person from the village came to the centre to tell me.
MS WHITAKER: So who came to the village? Who came to tell you?
INTERPRETER: A neighbour.
MS WHITAKER: And what was his name?
INTERPRETER: It’s a long time now. I do not recall the name.
MS WHITAKER: So was Vong Oun with you at the centre?
INTERPRETER: No.
MS WHITAKER: Okay, so if somebody came to tell you that your parents had died you have no idea which year this was.
INTERPRETER: I did not know.
MS WHITAKER: How long were you at the centre for? From five years to how long?
INTERPRETER: Until I was 15 years old.
MS WHITAKER: So you have no recollection of when you were told this very important news?
(Supplementary Court Book p.3 lines 20-42 and p.4 lines 1-25)
It is perhaps hardly surprising that the witness was unable to give precise details concerning the death of the parents given that their deaths occurred when the witness was only five years old and in circumstances arising from the Khymer Rouge Regime activities in the region. Whilst no doubt the Tribunal was correct in referring to this as being “very important news” it is not clear as to why that should necessarily be visited in a perjorative way against the witness trying to recollect dates and details of events which occurred when the witness was five years of age. In any event, not a great deal turns upon the exchange for the purposes of this application.
It may be noted in passing that the death of the parents appears to be based upon information provided to the review Applicant by an unnamed neighbour at an unknown time.
The Tribunal decision
In its decision the Tribunal recited the background in the following terms:
“12.In the visa application, the primary visa applicant indicated that his parents were deceased. He indicated that he has two sisters (Vong Sophea and Vong Sophini) and a brother (the review applicant) residing in Australia. He indicated that he had a brother Vong Onn residing in France and that his brothers Vong Oeun and Vong Ann are deceased. He indicated that his spouse’s parents were deceased and that his spouse’s only sister is deceased.”
(Court Book p.120)
Reference was also made to documents submitted in support of the application, including a document described as, "A copy of a death certificate registered in June 2001 for a female, Vong Sophea, born on 20 April 1958." Reference was made to various certificates and correspondence, including the following:
“•A letter from the sponsor. He stated that during the war all his family members were forced to live separately and were not allowed to meet. In 1979, he was forced to move to the border and ended up in a camp on the Khymer-Thai border. He tried unsuccessfully to locate his family members. He received different information: that ‘all of his siblings and parents were all killed’, that they all died of starvation and illness, and that they were all sent back to their village and were safe. At the time of his resettlement in Australia he declared that they were all alive as ‘he did not have full information about their well-being’. In his application for migration, he declared that they were somewhere in Cambodia, ‘but this does not mean they were all alive’. He stated that most of the family members are living in Australia;”
(Court Book p.121)
The Tribunal noted that a hearing was held on 19 May 2006 where oral evidence was taken from the review Applicant and the visa Applicant. It then refers to the evidence in the following terms:
“16.The review applicant stated that his parents died during the Pol Pot regime when he was young. He could not remember when they died as he was aged around 5 or 6. He indicated that even now at almost 40 years of age he does not know when they died.
17.The review applicant stated that he was living in a centre during Khymer Rouge period, was separated from his parents and the he never met them again.
18.Regarding how he knew his parents were deceased, he indicated that a person came from the village to the centre to advise him that his parents had died. He indicated that he lived at the centre from the age of 5 until the age of 15. He could not recollect whether he was told this news when he was nearer the age of 5 or nearer the age of 15. He then stated that he knew that they died when he was about five years old.
19.He indicated that the visa applicant was not at the same centre. He was probably at another commune. To date he has not asked him where he was at the time.
20.The review applicant stated that his parents had 8 children: the oldest brother Vong Onn resides in France. The second brother Vong Oeun is missing. He stated that he had never met this sibling. On examination, he stated that he last saw him in 1975, when he was led away from Phnom Penh. Regarding his efforts to find him, he stated that he kept asking neighbours and friends. The visa applicant has no knowledge of where Vo Vong Oeun is. He has looked for him at centres and orphanages Even though Vong Oeun is an adult he looked everywhere including orphanages.
21.His sibling Vong Ann is missing. He last saw him in 1975. He made similar efforts to find him ie. Asking neighbours and friends. The visa applicant looked everywhere too.
22.The review applicant stated that Vong Sophea is missing. The Tribunal referred to the visa application which indicated she lived in Australia. He indicated that the missing sister had a similar name but he did not recall the name. Regarding the death certificate for Vong Sophea, he stated that she is in Australia so she has no death certificate. He indicated that he has 2 siblings in Australia, Vong Sophea and Vong Sophini.
23.Hi brother went to France in 1970. He has visited his siblings in Australia twice. The review applicant was unsure of the years and indicated it may have been in 2000/2001 and2003/2004. His brother in France has not visited Cambodia.
24.He has contact with his brother in France and with the visa applicant by telephone. The visa applicant and the brother in France do not talk to each other. There was a property dispute because the brother in France took all the sale proceeds when his father’s property was sole without distributing funds to his siblings. He did not know when this occurred.” (sic)
(Court Book p.122)
The Tribunal then referred to the visa Applicant's evidence and relevantly records:
“28.He first stated that his sibling Vong Oeun was dead and then said he was missing and presumed dead. He last saw him during the Khymer Regime. He tried to find him through ‘people he knows’. The review applicant also asked people.
29.He stated that Vong Ann is dead and then stated he presumed he was dead.”
(Court Book p.123)
The Tribunal notes that on 23 May 2006 it forwarded to the Applicant a letter, pursuant to s.359A of the Migration Act 1958 (the Migration Act) (Court Book p.106), which the Tribunal summarised in its decision in the following paragraph:
“33.On 23 May 2006, the Tribunal disclosed various inconsistencies pursuant to section 359A of the Act including the following:
The visa application indicated that the primary visa applicant’s parents had 7 children and that the primary visa applicant’s and review applicant’s siblings Vong Oeun and Vong Ann are deceased. In the review applican’ts and primary visa applicant’s oral evidence they stated that these siblings are missing and missing and presumed dead respectively;
The visa application indicated that the primary visa applicant’s and review applicant’s sibling Vong Sophea lives in Australia. A death certificate for Vong Sophea was submitted indicating that the primary visa applicant reported the death in 1977;
The visa application indicated that the primary visa applicant’s spouse’s sister Van Tho is deceased. The death certificate submitted for Van Tho indicates that Van Tho is a brother.
In the review applicant’s oral evidence he indicated that he did not know when his parents died and indicated that they dies when he was around the age of 5 or 6. This evidence indicates that they dies around 1970 or 1971, as the review applicant was born in December 1965. He indicated that a person came form the village to tell him that his parents were dead. According to the death certificates submitted the review applicant’s parents did not die at the same time and there was a gap of almost 2 years between their deaths. The review applicant’s written statement to the Department indicates that he moved to a camp on the border in 1979 and tried to obtain information about his parents and siblings. This is after the time the review applicant claimed in his oral evidence that he was advised of their deaths. Information on the review applicant’s family composition provided the Department in connection with his re-settlement in Australia, indicates that he declared his parents to be alive and in Cambodia and aged 57 and 53 respectively; and
In the primary visa applicant’s oral evidence he first stated that he did not know if his sibling Vong Onn had visited Australia. The delegate’s decision record indicated that a photograph was submitted in support of a prior visa application and that the primary visa applicant identified Vong Onn and advised the officer that the photograph was taken in Australia.” (sic)
(Court Book p.124)
It should also be noted that in its decision the Tribunal refers to a correction of some mistakes, including significantly the reference to Vong Sophea living in Australia, by way of response to the s.359A letter, which the Tribunal relevantly notes in the following terms:
“34.In response the Tribunal was advised in part that the primary visa applicant’s parents had 8 children, as disclosed in a prior application; that the agent made a mistake in omitting the sibling Vong Sophorn, declared as living in Australia in a prior application; and made a mistake in indicating that Vong Sophea was in Australia when she was deceased. The review applicant corrected the oral evidence given at the hearing regarding his parents stating that he was nervous.”
(Court Book p.124)
In its findings the Tribunal sets out the relevant regulations. It found that it is not in dispute that the visa Applicant meets regulation 1.15(1)(a) and (b). The Tribunal's key findings are very brief and appear to be set out in the following two paragraphs:
“39.The Tribunal considered if the primary visa applicant met Regulation 1.15(1)(c) at the time of the application. The Tribunal takes into account that information in the visa application indicated that the primary visa applicant’s and review applicant’s siblings Vong Oeun and Vong Ann are deceased. However in the review applicant’s and primary visa applicant’s oral evidence, they stated that these siblings are missing and missing and presumed dead respectively. There is no independent evidence of inquires made/assistance sought to find these siblings. The Tribunal is not satisfied on the evidence that the siblings Vong Oeun and Vong Ann are deceased. These siblings are overseas near relatives and pursuant to Regulation 1.15(3) are taken to reside in their last known country of residence, which is Cambodia. Accordingly, as the primary visa applicant’s country of residence is Cambodia at the time of application, he does not meet Regulation 1.15(1)(c)(i) and Regulation 115.211 at the time of application.
40.The Tribunal notes that a death certificate for the sibling Vong Sophea (date of death in 1977 and registered in 2001was submitted and that the visa application indicated that she resides in Australia. The review applicant gave oral evidence that Vong Sophea is missing. When the Tribunal referred to the visa application which indicated she lived in Australia, he indicated that the missing sister had a similar name but he did not recall the name. He indicated that he has 2 siblings in Australia, Vong Sophea and Vong Sophini. In the review applicant’s written response to the Tribunal’s section 359A letter, he indicated that his sibling Vong Sophorn was not included by mistake in the visa application and that Vong Sophea was mistakenly indicated as living in Australia, instead of the deceased. The Tribunal notes that accepting for present purposes that there was a mistake in the visa application, the review applicant’s oral evidence that his sibling Vong Sophea is missing is inconsistent with the subsequent advice to the Tribunal that she is deceased. The Tribunal is not satisfied on the evidence that the primary visa applicant’s sibling Vong Sophea is deceased. As discussed the review applicant’s evidence indicated that a sister was missing. She is an overseas near relatives and pursuant to Regulation 1.15(3) is taken to reside in her last known country of residence, which is Cambodia. Accordingly as the primary visa applicant’s country of residence is Cambodia at the time of applicant, he does not meet Regulation 1.15(1)(c)(i) and Regulation 115.211 at the time of application.”
(Court Book pp.125-126)
The Tribunal did not make findings in relation to the siblings of the visa Applicant's spouse, though noted inconsistencies in information, giving rise to concerns about the accuracy of a death certificate submitted in respect of a particular sibling.
The amended application
In the Amended Application filed 6 December 2006 seven particulars are relied upon in support of the claim that the Tribunal has exceeded its jurisdiction, committed jurisdictional error or failed to exercise jurisdiction. The seven paragraphs set out as particulars subjoined to the ground of the application have been referred to as "grounds of the application". For convenience, I will also refer to them as separate grounds, and note they are:
“1.The Tribunal failed to comply with section 359A of the Act in that it failed to provide written notice to the Applicant that part of the reason for the decision would be that there was ‘no particular evidence’ of inquiries having been made or assistance sought to locate Vong Oeun and Vong Ann (Decision Record, paragraph [39]).
2.In finding that there was an inconsistency between the claim that the review applicant’s siblings Vong Oeun and Vong Ann and Vong Sophea were ‘missing’ and the claim that they were deceased reveals a failure to address the claim that person missing in the Pol Pot regime were likely to have been killed and that if they had not been seen since that date would be presumed to be dead.
3.The Tribunal fundamentally misunderstood the claim that Vong Sophea was ‘missing’ and presumed to be ‘deceased’ to involve factual inconsistency in circumstances where the claim that the siblings were missing was not inconsistent with the claim that they were dead, paragraphs [39] and [40]).
4.The decision was based on a finding for which there was no evidence or material before the Tribunal namely the finding that the visa applicant ‘indicated that he has 2 siblings in Australia, Vong Sophea and Vong Sophini’ and this was a critical step in the Tribunal’s ultimate conclusion (Decision Record, paragraph [40]).
5.The Tribunal failed to have regard to relevant considerations namely the common law presumption of death and published Departmental policy guidance concerning the weight that decision-makers should accord this presumption.
6.The Tribunal failed to accord the Applicant procedural fairness by reason of failure to advise the Applicant that it intended to depart from published Departmental policy guidance regarding the common law presumption of death: Hauocher v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 577.
7.The Tribunal asked itself the wrong question by asking whether or not it was satisfied that Vong Oeun, Vong Ann and Vong Sophea were deceased.”
Both parties in their submissions focussed considerable attention upon ground 7. For convenience I shall deal with that ground though I note in passing that it seems to me that ground 7 by implication also relates to grounds 2 and 3, hence for convenience I will deal with grounds 2, 3 and 7 and then consider the other grounds.
Grounds 2, 3 and 7 – failure to address claim – factual inconsistency – wrong question
Applicant's submissions
It was submitted the Tribunal asked itself the wrong question, namely whether or not it was satisfied that three siblings, Vong Oeun, Vong Ann and Vong Sophea were deceased.
It was submitted that the “issue for the Tribunal was whether the visa Applicant had an overseas near relative in Cambodia”. If the Tribunal found that he did not have an overseas near relative in Cambodia then reg.1.15(1)(c) would have no application. It was noted in the Applicant’s claim that he did not have any overseas near relative in Cambodia. It was then submitted that he did not “have to establish as an affirmative fact that Vong Oeun, Vong Ann and Vong Sophea were deceased.”
It was submitted that “posing the relevant question as being whether the Tribunal was satisfied that the three persons were deceased altered in a significant way the question that arose for determination for the Tribunal.”
It was submitted that the “predicate on which reg 1.15(1)(c) operates is a finding that the applicant has an overseas near relative.” Before applying that regulation it was submitted the Tribunal had to satisfy itself “that there was an overseas near relative”. It failed to do this according to the Applicant’s submission and by seeking to invoke the operation of the regulation on the basis of the visa Applicant had not satisfied the Tribunal that the siblings were deceased involved jurisdictional error (see Minister for Immigration and Multicultural Affairs v Hughes (1999) 86 FCR 567at 575).
“34.In my view there are a number of difficulties confronting the Minister’s submission. First, it requires the Court to read into the criterion in reg 1.15(2)(a)(i) a negative that is not there. The ordinary natural meaning of the language used in regs 1.15(1) and (2) requires that two elements be established – qualification (reg 1.15(1)) and disqualification (reg 1.15(2)(a)). Once the qualifying elements are satisfied the criterion will be met ‘unless’ the disqualifying element is satisfied, that is, the applicant ‘usually resides in the same country, not being Australia, as an overseas near relative’. The disqualifying element requires a positive finding that the IRT is satisfied that the applicant usually resides in the same country, not being Australia, as the overseas near relative: see 65(1)(a)(ii) of the Act. I cannot discern any proper basis for reading the subregulation as requiring disqualification if the applicant has not established to the satisfaction of the Minister or the IRT that he or she does not usually reside in the same foreign country as an overseas near relative”
It was argued that the finding by the Tribunal that there was an inconsistency between a person missing and a person deceased fundamentally misunderstood the case sought to be advanced. Reference was made to paragraph 40 of the Tribunal’s reasons set out above. It was argued that paragraph gave rise to a number of jurisdictional errors. In particular, it revealed an error set out in particulars 2 and 3, namely a failure to deal with the claim that a person missing, namely Vong Sophea in the Pol Pot regime was likely to have been killed and that if they had not been seen since that date they were presumed to be dead. It was argued that by concluding that there was an inconsistency between a claim that a person was missing and a claim that a person was deceased, the Tribunal committed jurisdictional error. A finding by the Tribunal that there was an inconsistency between a person missing and person deceased it was argued fundamentally misunderstood the case sought to be advanced.
Essentially it was argued that the misunderstanding by the Tribunal arose as a direct result of the Tribunal misunderstanding the difference between a claim of someone missing presumed dead and a claim that the person was in fact dead.
First Respondent’s submissions
The First Respondent referred to reg.1.15(1)(c) and argued that in applying that regulation the Tribunal was required to make a finding on the question of whether the visa Applicant had any overseas near relatives. It was noted that the visa Applicant claimed to have a number of siblings, three of whom were claimed to be dead or missing presumed dead. It was submitted that to apply reg.1.15 the Tribunal was required to make a finding as to whether each “of those siblings were still alive.” It was argued that, “if any of them was alive, it is clear that he or she would be an ‘overseas near relative’ within the meaning of reg.1.15.” The Tribunal it was argued “was ultimately not satisfied on the evidence that the relevant siblings were deceased.” It was specifically submitted that, “in other words, on the balance of the evidence, it found that the siblings were still alive.”
It was argued that there was nothing in the material to suggest the Tribunal inappropriately imposed a burden of proof on the review Applicant or the visa Applicant but rather simply made a finding on a question of fact, made essential in order to properly apply the relevant regulation. This did not involve, it was submitted, asking the “wrong question”. It was submitted that “on the contrary, the terms of reg.1.15(1)(c) required the Tribunal to ask itself whether the visa applicant had any overseas near relatives, which in turn required the Tribunal to make a finding whether or not the visa applicant’s siblings were dead.” The Tribunal accepting the “predicate” on which the regulation operates, namely a finding that the Applicant has an overseas near relative, was satisfied by the Tribunal’s finding of that fact.
It was argued that “the effect of the applicant’s contentions is that the Tribunal was required to find that the siblings were dead (that is, to accept the claims made by the review applicant and the visa applicant) unless there was positive evidence to the contrary (i.e. that they were alive).” It was argued that this is “an unwarranted intrusion into, and fettering of, the fact-find function of the Tribunal.”
It was further submitted that although the failure to address the claim appears to be related to the findings made in relation to Vong Sophea, the Tribunal did not fail to address any essential integer of the visa Applicant’s claims. It was argued the visa Applicant did not make any discrete claim to the effect that “persons missing in the Pol Pot regime were likely to have been killed and if they had not been since that date would be presumed to be dead.” It was further submitted that it is doubtful “whether such an assertion of fact could properly be characterised as a claim (or an integer thereof), rather than an argument or as evidence in support of the claim that the missing siblings were dead.” It was submitted the Tribunal was aware of the context of the Applicant’s claims, including that the visa Applicant and review Applicant had been separated from their missing siblings during the Khmer Rouge regime. The Tribunal made findings of fact in that context and did not therefore fail to consider the claim.
It was argued that it was open to the Tribunal when dealing with the question of factual inconsistency to regard the claim that a sibling was dead as being inconsistent with a claim that a sibling was missing or missing presumed dead. It was submitted that there “is a material difference between each of those claims: in the first case, the natural understanding of the claim is that the person has positive knowledge of the sibling’s death (for example, as illustrated by the provision of death certificates attached to the visa application); in the latter case, the person has no such direct knowledge.” It was submitted that “irrespective of whether or not a different Tribunal might have placed less weight on the differences between these claims, it was clearly open to the Tribunal to have regard to such differences when making its findings of fact on whether or not the siblings were deceased.”
Reasoning
In my view, the attack made upon the Tribunal’s decision relying upon grounds 7, 2 and 3 demonstrates jurisdictional error.
In my view, the Tribunal has erred by asking itself the wrong question, namely whether or not it was satisfied that the relevant siblings were deceased. It has further erred by highlighting what it claims to be an inconsistency between the suggestion that the siblings were “missing” compared with the claim that they were “deceased”. I accept, as submitted by the Applicant, that the Tribunal has failed to address the claim, namely that persons missing in the Pol Pot regime were likely to have been killed and if they had not been seen since that date, which in this case was approximately 1975, that they would be presumed to be dead.
In my view, the Tribunal has failed to address the claim. I do not accept the submission of the First Respondent that a claim was not made to the effect that persons missing in the Pol Pot regime were likely to have been killed and if they had not been seen since that date would be presumed to be dead. That is not merely an assertion in support of an argument or as evidence of the claim that the siblings were dead but rather an essential integer of the claim in the circumstances. It is artificial and, in my view, unduly technocratic for the First Respondent to argue that relatives missing presumed dead in the circumstances of the present claim and in the context of the Pol Pot regime does not raise as a discrete claim that they were missing presumed to be dead. The Tribunal erred by drawing what could only be described as an incorrect distinction which it referred to an inconsistency between the claim of missing and the claim of missing presumed dead.
I otherwise accept that it is essential for the operation of reg.1.15(1)(c) for the Tribunal to make a finding of fact that the visa Applicant has an overseas near relative. In the present case it did not make that finding but rather incorrectly in my view simply reached a view that it was not satisfied that the siblings were dead. It did not, as submitted by the First Respondent, however proceed to make a finding and nor could it make the finding that the siblings were “still alive”.
By making a finding as to an alleged factual inconsistency the Tribunal introduced what I accept to be a false dichotomy, namely that there is a material difference between the claims, that is that a person is missing presumed dead and dead. A claim supported by a death certificate that a person is deceased may involve direct knowledge. The extent of that knowledge does not necessarily include knowing that a person has been missing for over twenty years and has been missing since the rule of the Pol Pot regime when families were separated. Whilst not leading to direct knowledge of death knowing someone is missing for a prolonged period of time does lead to direct knowledge that the person was actually missing with a presumption of death sufficient for the purpose of the regulation.
Ground 1 – Section 359A
Applicant’s submissions
The Applicant claims jurisdictional error on the grounds that the Tribunal failed to comply with s.359A of the Migration Act in that it “failed to provide written notice to the applicant that part of the reason for the decision would be that there would be ‘no independent evidence’ of inquiries having been made or assistance sought to locate Vong Oeun and Vong Ann”.
First Respondent’s submissions
The First Respondent submitted that the Tribunal made observations about the lack of independent evidence and those observations do not constitute “information” for the purpose of s.359A(1). It was argued that the term “information” in that section refers to “knowledge of relevant facts or circumstances communicated to or received by the Tribunal” (see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]). Information does not include the Tribunal’s appraisal, thought processes or determinations and does not extend to gaps, defects or lack of detail in the evidence or conclusions arrived at by the Tribunal in weighing up evidence by reference to those gaps. The Tribunal it was argued was not required to give particulars of its reasoning process or its evaluation of the evidence.
It was noted that evidence was given by both the visa Applicant and the review Applicant concerning efforts made to find the siblings and reference was made to asking neighbours and other acquaintances and otherwise searching through orphanage centres in Cambodia. Apart from those matters it was argued there was no specific evidence concerning the nature of outcomes of any inquiries or assistance made.
Significantly it was submitted by the First Respondent that “the Tribunal’s observation or conclusion about the lack of ‘independent evidence of inquiries made/assistance sought to find these siblings’ [CB125.8] was no more than an evaluation of the evidence, by reference to gaps, defects or a lack of detail or specificity perceived by the Tribunal”.
Accordingly, there is no error arising out of this ground.
Reasoning
In my view the First Respondent’s submissions in relation to the alleged breach of s.359A are correct. It is clear to me, on a proper reading of the Tribunal’s decision, that it has made a comment reasonably open to it concerning the evidence albeit confined to the reference to independent evidence when it stated:
“There is no independent evidence of inquiries made/assistance sought to find these siblings.”
That is a finding reasonably open on the evidence as the references to the inquiries made by both the review Applicant and the visa Applicant did not extend to corroboration of those inquiries by independent witnesses. Hence that conclusion forming part, as I accept, of the Tribunal’s reasoning process does not in my view constitute “information” for the purpose of s.359A of the Migration Act and accordingly this ground should fail.
Ground 4 – No evidence
Applicant’s submissions
The Applicant referred to paragraph 40 of the Tribunal’s decision set out above and it is noted that this ground claims the decision was based on a finding for which there was no evidence or material before the Tribunal namely the finding that the visa Applicant ‘indicated that he has 2 siblings in Australia, Vong Sophea and Vong Sophini’ and this was a critical step in the Tribunal’s ultimate conclusion.
It was argued that although the Tribunal records in paragraph 40 of its reasons that the Applicant claimed in oral evidence before it that he had two siblings in Australia that this was not the evidence. Reference was made to the transcript of the hearing as follows:
INTERPRETER: Because I have another two siblings living in Australia, Vong (indistinct) and Vong (indistinct)
MS WHITAKER: Yes, that’s here, but according to the visa application, Vong Sophea, Vong Sophini and Vong Sam Em are all in Australia.
INTERPRETER: Only my – only two of my sisters are living in Australia, not three.
MS WHITAKER: Well, according to the visa application you have two sisters and a brother in Australia. According to the visa application, Vong Sophea is a sister. She is 60 years old, she is married and in Australia. Vong – yes, sorry. And Vong Sophini is a female aged 62 who is married in Australia. And then Vong Sa Em – which is you. Sam Nick, which you’re – according to this – age – sorry, born – what I meant was born in the year – born in 65, and you are divorced.
INTERPRETER: Yes.
MS WHITAKER: Sorry, so just to go through because I made a mistake. According to the visa application there are three of you, who were born in 1960, 62 and 65, who are in Australia. Is that right or wrong?
INTERPRETER: That’s correct.
MS WHITAKER: So there are three of you in Australia?
INTERPRETER: Yes.
MS WHITAKER: So why did you tell me that Vong Sophea is missing if she is in Australia?
INTERPRETER: You talk about three sisters living in Australia, and that is not correct because I only had two sisters living in Australia and the third person is myself.
MS WHITAKER: Okay, so your sisters Vong Sophea and Vong Sophini live in Australia?
INTERPRETER: The two sisters that are living in Australia are Vong So Pen and Vong So Poan.
(Supplementary Court Book p.9 lines 18-45 and p.10 lines 1-14)
It was submitted that the Applicant did not tell the Tribunal that there were two sisters living in Australia, one of whom was Vong Sophea. It is noted in the transcript that the two sisters living in Australia are referred to as “Vong So Pen and Vong So Poan”. As stated earlier there are clear similarities in the names, for example Vong Sophea and Vong Sophini and also, although not directly relevant to this ground, Vong Oun, Vong Onn and Vong Oeun.
It was submitted that in any event the review Applicant did not tell the Tribunal that there were two sisters living in Australia, one of whom was Vong Sophea.
First Respondent’s submissions
It was submitted that even if the Tribunal misunderstood the evidence given by the review Applicant that would not be sufficient to constitute jurisdictional error on the basis that there was “no evidence”. Reference was made to the following extract from the transcript which appears in the Supplementary Court Book (part of which has been set out earlier in this judgment):
MS WHITAKER: Okay, so your sisters Vong Sophea and Vong Sophini live in Australia?
INTERPRETER: The two sisters that living in Australia are Vong So Pen and Vong So Poan.
MS WHITAKER: Well, I’m just going on the spelling you’ve given in the visa applicant, which is Vong Sophea, who was born in 1960, and Vong Sophini, who was born in 1962. Is that correct?
INTERPRETER: I do not remember the spelling of the word.
MS WHITAKER: That’s all right. So that’s it, isn’t it? There are no more siblings, is that correct?
INTERPRETER: That’s correct.
(Supplementary Court Book p.10 lines 10-25)
The First Respondent submitted that it was open to the Tribunal to conclude the review Applicant had agreed with the proposition put to him relevantly that he had two siblings in Australia, identified as Vong Sophea and Vong Sophini.
Reasoning
In my view the First Respondent’s submission that it was open to the Tribunal to make the finding it did cannot be sustained. At best the review Applicant, through the interpreter, simply stated that he did not “remember the spelling of the word”. It is clear there are similarities in the spelling and the matter was otherwise clarified at a later time. I am satisfied, as submitted by the Applicant, that in this instance the Tribunal did not have any evidence upon which it was able to conclude that the review Applicant had stated in his evidence that he had two siblings in Australia, namely Vong Sophea and Vong Sophini. At best there was a misunderstanding. It seems to me that the Tribunal however, regarded the review Applicant as having given positive evidence which, of course, would be inconsistent with the material provided in the application albeit explained in response to the s.359A letter and corrected by the Tribunal itself in paragraph 34 of its decision.
Nevertheless, I am satisfied that by reaching a conclusion based upon no evidence that this, as submitted by the Applicant, also constitutes jurisdictional error.
Ground 5 – Common law presumption of death
Applicant’s submissions
It was argued the Tribunal was obliged to take into account the operation of a presumption as to death. Specifically it was submitted as follows:
“15.That presumption operates in circumstances where there is no acceptable affirmative evidence that a person was alive at some time during a period of seven years or more and it can be proved that:
(i)there are persons who would be likely to have heard of him over that period;
(ii)those persons have not heard from him;
(iii)all due inquiries have been made as appropriate to the circumstances;
with the result then being that the presumption of law is that the person died within that period: see Chard v Chard [1995] 3 ALL ER 721728.
16. The Tribunal failed to have regard to this consideration.”
First Respondent’s submissions
The First Respondent submitted that a correct statement of the law in relation to the common law presumption of death is found in a decision of Dixon J in Axon v Axon (1937) 59 CLR 359 at [404] as follows:
“If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead.”
The First Respondent submitted that that presumption applies when the question arises in judicial proceedings but does not necessarily apply to administrative proceedings, including the proceedings before the Tribunal.
It was noted that s.353(2)(a) of the Migration Act provides the Tribunal “is not bound by technicalities, legal forms or rules of evidence”.
The First Respondent referred to a decision of Sackville J in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 789 (Narayan) at [32]-[34] where it was argued the Court, whilst expressing no view on whether or not the common law presumption was applicable to a Tribunal proceedings, concluded the Tribunal was not legally required to invoke or rely upon the presumption when it relevantly stated:
“It became clear from the applicants’ written and oral submissions that their real complaint was with the MRT’s finding of fact. In substance, Mr de Robillard contented that the MRT had paid insufficient attention to the evidence that the husband had not spoken to his parents or siblings for many years and that he had last heard about them from his grandparents who had died fifteen years earlier. According to Mr de Robillard, this should have led the MRT to conclude that, or at least to consider whether, the husband’s parents or siblings had died.
Even if Mr de Robillard’s criticism of the MRT’s finding was well-founded, it would amount merely to an error of fact and would not establish a ground of review. In any event, it is difficult to see why the MRT’s finding was not well open to it. The applicant herself, in her application, identified the husband’s parents and siblings as her ‘spouse’s family’ and identified their country of residence as Canada. (The MRT attributed the information in the application to the husband, but nothing turns on this.) The MRT accepted that the husband had not seen or heard about his four Canadian family members for at least fifteen years, but that of itself did not compel the conclusion, or event suggest, that at least on of them had died.
As the MRT pointed out, there was no positive evidence that any of the husband’s parents or siblings had died and indeed the applicant never suggested to the MRT that any had. Mr de Robillard did not explain why, on the facts found by the MRT, the presumption of death (a rebuttable presumption of law: Cross on Evidence (6th Aust ed), at [7275] would arise. It is difficult to see why it would, since it was hardly to be expected that the husband would hear from his Canadian relatives, bearing in mind that he had lost contact with them many years earlier. Thus even if the presumption of death applies to proceedings before the MRT, a matter on which I express no view (cf Migration Act, s 353(2)(a)), the MRT did not err in law in not invoking the presumption in the present case.”
In the alternative the First Respondent submitted that in any event it is not clear that the operation of the common law presumption would have been of any assistance to the visa Applicant. The presumption, it was submitted, only applies where it is shown that persons who might have been expected to hear of the continued existence of the person whose death is in question failed to hear of him (see Axon v Axon (1937) 59 CLR 395 (Axon) at [401]. It was argued that in the present application it was not necessarily likely that the visa Applicant or the review Applicant would have heard from or about the missing siblings, who may in turn have faced similar difficulties in locating the visa Applicant or review Applicant. It was further argued that in light of the Tribunal’s conclusion concerning independent evidence a doubt may be raised as to whether all reasonable inquiries have been made.
It was argued the presumption does not establish the fact of death at any particular time and this must be a matter of evidence (see Axon at [405]). In this application it was argued the presumption by the Tribunal would not necessarily establish that the missing siblings were dead at the relevant time.
It was argued therefore that accordingly, the Tribunal was not in error by failing to apply the common law presumption of death and that this is not a relevant consideration applying the principles of the decision in the Court in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40. It was further submitted that to be relevant the consideration must be identified by reference to the terms, scope and purpose of the Migration Act and Migration Regulations.
Reasoning
In my view, the failure to apply the common law presumption of death is a failure to have regard to a relevant consideration. It is clearly relevant in circumstances where the essence of the claim is that the siblings are missing and it is made relevant by the Migration Act and Regulations which require that a Tribunal in applying reg.115.211(1) is required to make a finding that the Applicant has an overseas near relative. It is readily apparent, having regard to the context of the present application and no doubt many other applications for this type of visa that determining whether an applicant does or does not have an overseas near relative will invariably be the subject of evidence concerning whether that relative has been missing for a considerable period of time. In the present case the period of time that the siblings were missing was over 20 years. The Tribunal in the circumstances, though not obliged to do so in every case in having regard to a relevant consideration would invoke and/or at least consider the common law presumption of death.
I see no inconsistency with the principles to be applied referred to by the First Respondent in Axon to this conclusion. Likewise, although not directly the subject of the decision by Sackville J in Narayan, it is clear that the present case, unlike the facts in Narayan, is not one where it could be claimed that there is no explanation as to why the presumption of death would arise. Clearly it is a rebuttable presumption of law but in the present circumstances that does not mean that it should not even be considered or contemplated by the Tribunal, which, as indicated earlier, seems to have been satisfied that it is inconsistent to claim that a relative who has been missing for a considerable time was presumed dead compared with a claim that the relative is dead.
It is also clear in the present case that unlike the facts and circumstances of Axon where it may be in the interests of the missing person to be presumed dead rather than face the consequences of orders for maintenance or other proceedings relevant to that case.
In the present case, unlike the circumstances in Narayan, the criticism is not made of the Tribunal for failing to consider the presumption of death but rather the weight it gave to the evidence which, the Court in considering that criticism of the finding, correctly referred to it as being an error of fact rather than establishing a ground for review. The Court then proceeded appropriately to consider whether or not the finding of fact was a finding open to the Tribunal. In the present case it is my concluded view that the Tribunal has not considered the presumption of death and it ought to as a relevant matter when considering whether the Applicant did or did not have at the relevant time an overseas near relative.
Accordingly, I am satisfied that further jurisdictional error has occurred arising out of this ground.
Ground 6 – Procedural fairness
Applicant’s submissions
The Applicant submitted that there has been a denial of procedural fairness as a result of the Tribunal’s failure to advise the Applicant that it intended to depart from published Departmental Policy Guidelines regarding common law presumption of death. Reference was made to the decision in Haoucher v Minister for Immigration & Ethnic Affairs (1990) 19 ALD 577.
In making the submission it was conceded that s.357A of the Migration Act excludes the common law natural justice hearing rule.
First Respondent’s submissions
It was argued by the First Respondent that the Tribunal did not depart from any applicable policy guideline and did not deny the Applicant procedural fairness by failing to advise that it intended to depart from the guideline.
It is perhaps relevant to set out the guideline as follows:
“21. If existence of an ONR is in dispute.
21.1 Background
…
Regulation 1.15(3) is intended to also cover situations where existing DIMIA records (or other information held) indicate the existence of an ONR than an applicant claims does not exist or has since died (or whose whereabouts are no longer known). In such cases, it is for the applicant to satisfy the decision-maker as to their claims that the relative is, for example, dead.
21.2 If the applicant claims an ONR is now dead.
Supporting evidence
The applicant may, to support their claims that a relative is dead, include evidence that a court has applied the common law ‘presumption of death’ i.e. a legal presumption that a person is dead although the death cannot be proven as a matter of fact.
Court presumption is not determinative
For regulation 1.15 purposes, it is open to officers to accept such evidence (i.e. the court declaration or other evidence that a court has applied a ‘presumption of death’) …
However, they are not compelled to do so because, not only does regulation 1.15(3) put the onus on proof on the applicant, but also, legally, it is not open to an officer to accept that the relative is dead simply because a court has presumed that relative to be dead. (The court’s presumption is merely one piece of evidence, but in the absence of any other evidence that the relative is alive, officers should give it significant weight.)”
It is noted in passing that the Tribunal, in fact, referred to the guideline, that is “PAM3” in its decision and relevantly stated:
“… Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.”
(Court Book p.119)
In any event, it was submitted by the First Respondent that s.357A of the Migration Act applies (see Minister for Immigration and Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [60]-[70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]).
Reasoning
In my view, s.357A of the Migration Act does apply and even if the Court was satisfied that the Applicant had been denied procedural fairness then it is difficult to find that having regard to the application of s.357A that this ground should succeed.
The PAM3 is a guide and although there may not be cogent reasons to depart from the guide, the Tribunal in effect by not having regard to the common law presumption of death cannot necessarily be taken to have disregarded a guide which simply states it is “not open to an officer to accept that the relative is dead simply because a court has presumed the relative to be dead”. The PAM3 appears to relate to the presumption of death applied by “a court” rather than having regard to the common law presumption of death which, of course, in any case is a rebuttable presumption. I have already found, however, that in the present case the Tribunal erred by not referring to the common law presumption of death as a relevant matter and has done so regardless of the contents of PAM3.
In any event, I am satisfied that this ground cannot succeed. I am not satisfied that in this respect, namely failure to refer to PAM3 there has been a denial of procedural fairness arising in circumstances where it is claimed the Tribunal should have advised the Applicant that it intended to depart from PAM3. PAM3 itself would not have assisted and in any event I am otherwise satisfied that in relation to this particular ground s.357A applies.
Conclusion
It follows for the reasons given that the decision of the Tribunal should be set aside and appropriate orders made.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 29 May 2007
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