Kim v Minister for Immigration - [2005] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION

[2005] FMCA 85

MIGRATION – Review of decision of delegate to refuse a family resident (special need relative) visa – whether reasons of officer in decision record sufficient reasons for decision of delegate – whether breach of s.66(2)(c) of the Migration Act.

Migration Act 1958, ss.66(2)(c), 66(4), 483A, 496

Judiciary Act 1903, s.39B
Administrative Decisions (Judicial Review) Act 1977, s.5

VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255

Applicant:

SANG KIL KIM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1392 of 2003

Delivered on:

4 February 2005

Delivered at:

Melbourne

Hearing Date:

13 January 2005

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A Krohn

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondent:

Ms L de Ferrari

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1392 of 2003

SANG KIL KIM

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this application the applicant has relied upon an amended application dated 11 August 2003 which by leave of the court at the hearing of the matter was further amended by permitting the applicant to add certain words to particulars to the grounds for application, which I shall refer to presently in this judgment.
The applicant supported the application by submissions in writing and the respondent, likewise, filed contentions of fact and law. One issue which had been raised initially by the applicant in the amended application related to the lack of appropriate delegation of the person responsible for the decision and/or recommendation that an application for a special need relative be refused. That delegation point, which relied upon s.496 of the Migration Act 1958 (the Act) was abandoned upon receipt by the applicant of appropriate delegation material by way of annexure to the respondent's contentions of fact and law.
The decision in this matter which is sought to be reviewed is a decision of a delegate of the Minister refusing the applicant's application made on 8 May 1996 for a class AO family residence subclass 806 (special need relative) visa.
The application for review is made pursuant to s.39B of the Judiciary Act 1903 (as to which, see also s.483A of the Act and s.5 of the Administrative Decisions (Judicial Review) Act 1977). The decision under review made on 15 May 2001 is deemed to be notified to the applicant on 12 June 2001 pursuant to s.494C of the Act. On 8 November 2001 the applicant sought to apply to the Migration Review Tribunal (the MRT) but that application was not accepted because it was out of time (Court book 104-5).
It is perhaps appropriate, given the issues raised in this application to briefly set out the background facts of the application and to further set out the particulars subjoined to the grounds of application for review found in the amended application. The grounds provide as follows:-
“The decision ~~of the tribunal~~
1.was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS
1.1.AThe person who made the decision was not a delegate of the respondent pursuant to section 496 of the Migration Act 1958.
1.1.BFurther or in the alternative the person who made the decision acted in breach of the requirements of section 66(2) of the Migration Act 1958 in failing to give reasons for the decision.
1.1.CFurther or in the alternative the person who made the decision acted in breach of the requirements of procedural fairness or natural justice in failing to give reasons for the decision.
1.1.DFurther, or in the alternative, the person who made the decision acted in breach of the statutory duty under section 66 of the Migration Act 1958 by reason of failing to give reasons for the decision or by failing to give notification of the decision.
1.1Further or in the alternative In making the decision the delegate adopted a view of the expression "other serious circumstances" found in regulation 1.03 of Migration Regulations 1994 as to exclude incipient mental illness which would be likely to be brought on in the mother should her eldest son and her grandchildren not be allowed to remain and care for her and would only consider the condition if "severe depression and anxiety" already existed. Such a narrow interpretation of the definition of "special need relative" in Regulation 1.03 was unwarranted and led to a failure to exercise jurisdiction by the delegate.
1.2Further or in the alternative In making the decision, the delegate treated the expert psychological report of Mr Ronald Conway as not constituting "independent" expert evidence without any logical explanation as to why this should be so and further, acted in breach of the rules of natural justice in not informing the applicant of the consequences of such a view of Mr Conway's report to allow him to make further representations or glean further evidence that might so satisfy the delegate;
1.3Further or in the alternative, the person who made the decision erred in interpreting the requirements of Regulation 1.03 of the Migration Regulations 1994 by not considering whether the emotional or psychological support provided by the applicant could amount to "substantial and continuing assistance" for his mother.
2.is affected by an error of law which error affected the exercise of its power.
PARTICULARS
2.1The applicant refers to and repeats the particulars contained in 1 above.
2.2~~Further particulars will be provided~~.
3.was made without authority.
PARTICULARS
3.1The applicant refers to and repeats the particulars contained in 1.1 above.
3.2~~Further particulars will be provided~~.
4.was an improper exercise of power conferred by the Migration Act 1958 (Cth).
PARTICULARS
4.1The applicant refers to and repeats particulars contained in 1.1 above.
4.2~~Further particulars will be provided~~.”
By way of relief the applicant seeks a declaration that the decision of the respondent by the delegate or officer on 15 May 2001 to refuse to grant the relevant visa was invalid and contrary to law. In the alternative a declaration that there has been no valid notification of the decision. Further or in the alternative a writ of certiorari to call up and quash the decision or an order that the said decision the delegate made on 15 February 2001 be quashed or set aside. Further relief is sought by way of prohibition, injunction and a writ of mandamus, which are not necessary for me to consider further in this decision.
It should be noted at the outset that a great deal of attention was given to the issue of whether or not notification was given of the decision and specifically submissions were made challenging the decision of the delegate, though not, as indicated in the introduction to this judgment, challenging the fact of delegation and hence particular 1.1.A was not pursued and consequently neither was particular 3 pursued before the court.
To understand the fundamental attack made upon the decision it is necessary to have regard to the material before the court where the decision is set out. The decision is set out in a document entitled "Decision Record" (court book page 71). That Decision Record provides an analysis of the claim by the applicant and the material provided in support of that claim and sets out a chronology of events. An assessment is then made of the claim having regard to the relevant definition of "special need relative". It is not necessary for me to recite in detail the grounds upon which a person can be found to be a special need relative, save and except that it would appear to me that the document accurately sets out those grounds and the definition required in regulation 1.03 as it existed when the application was made.
The document entitled Decision Record appears to be dated 15 May 2001. Under the heading ‘Decision’ the following appears:-
“I find that the applicants in this case cannot meet the prescribed criteria for any subclass of visa within visa class AO.

I recommend that the grant of a Permanent Visa Class AO Family (Residence) to Mr Sang Kil Kim, Ms Young Sook Lee, Ms Hye In Kim, Ms An Sook Kim and Master Yeoung Jin Kim be refused.”
Under that decision a signature appears of Heather Ennis and then under that signature appears the following:-
“DELEGATE'S DECISION
The recommendation is AGREED/~~NOT AGREED~~
I refuse the grant of a Permanent Visa Class AO Family (Residence) to Mr Sang Kil Kim, Ms Young Sook Lee, Ms Hye In Kim, Ms An Sook Kim and Master Yeoung Jin Kim.”
Under the delegate's decision there is a signature of "Bon-wai Chou", who, it is now conceded, had at all material times the appropriate delegation. The Decision Record was forwarded by a letter dated 15 May 2001 by Heather Ennis to the applicant and the letter in part provides the following:-
“The application has been refused. The reasons for the decision are explained in the attached decision record. …”
It was argued on behalf of the applicant that the Decision Record relied upon is no more than a Decision Record of the officer who made a recommendation that the visa be refused. It was argued that by simply indicating that the recommendation is "agreed", rather than "not agreed" the delegate has not effectively adopted the reasons for decision and that accordingly the covering letter referring to the Decision Record as being reasons of decision of a delegate is not accurate. The court was invited to draw inferences that in the circumstances the delegate may or may not have adopted all of the reasoning process of the Decision Record prepared by Ms Ennis and that in the event that the delegate did adopt all of the reasoning then the delegate should have stated that the reasoning had been adopted, which in turn may have then led to the conclusion that the Decision Record was indeed a decision of the delegate sufficient to comply with the requirements of the Act.
Otherwise it was submitted that in the circumstances the delegate has failed to provide notification of a decision in that the delegate has failed to provide the reasons for the delegate's decision but has simply permitted the Decision Record to be forwarded as standing as the delegate's reasons for decision when in fact the Decision Record as indicated, according to the applicant's submissions, is a Decision Record of the officer making the recommendation to the delegate.
A fundamental criticism of the process made during the course of submissions for and on behalf of the applicant is that the record of the decision is not clearly stated to be a decision made by the delegate. Although signed by the delegate with the appropriate reference number to the delegate's position it was submitted that the decision itself was invalid as there is no evidence that the decision was made by the delegate of the respondent. The failure to give reasons for the decision was claimed to be a breach of s.66(2)(c) of the Act, which provides as follows:-
“Notification of a decision to refuse an application for a visa must:
(a)…
(b)…
(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
…”
It was claimed that s.66(4), which provides as follows does not apply:-
“(4)Failure to give notification of a decision does not affect the validity of the decision.”
That section does not save, it was submitted, the decision from jurisdictional error and validity in this case. The complaint of the applicant, according to the submissions, is against the breach of the substantive obligation to have and to give reasons for decision, rather than a procedural failure to notify him of the decision. It is noted in passing that there is some dispute as to whether or not the applicant actually received the decision and it is not necessary for me to resolve that issue as it is conceded by the applicant that that is not a fundamental issue in the circumstances, having regard to the deeming effect of the relevant provision to which I have referred to earlier in this decision.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
In my view whilst there may be some degree of concern expressed by an applicant upon receipt of a decision record of this kind it would be artificial and indeed inappropriate to consider the Decision Record as being of no value at all in determining the reasons for decision of the delegate. Where the delegate has agreed with a recommendation it is implicit, in my view, unless otherwise stated to the contrary, that the delegate has agreed with the recommendation for the reasons set out in the Decision Record. The Decision Record itself discloses no error of a kind which would attract judicial intervention on the basis of there being jurisdictional error.
The fact‑finding process set out in the Decision Record appears to me to be a fact‑finding process reasonably open to the decision‑maker and I cannot see any error in that process. Specifically it is not a matter for the decision‑maker to speculate as to what might be a potential condition to be suffered by the nominator in circumstances where the visa is not granted. It is inappropriate, in my view, for speculation of that kind to occur as suggested by counsel for the applicant. I reject the submissions by the applicant that the decision‑maker ought to have considered further the issue of what might have occurred to the nominator in circumstances where the applicant for the visa is refused the application. I note that in the Decision Record the author accurately sets out concerns of the relevant specialist witness as to the possibility of a deterioration in the psychological outlook of the nominator. However, it is also noteworthy that the nominator had not been diagnosed as suffering from clinical depression or any other psychiatric condition at the time. Hence I cannot see how the author of the Decision Record could be criticised for failing to speculate as to what might occur in terms of the psychological health of the nominator should the application for a visa be refused. That, in my view, goes beyond what is required of a decision‑maker in this context and indeed in the context of other applications of similar kind. Hence in relation to that issue and other issues briefly agitated for and on behalf of the applicant I do not see any jurisdictional error.
The substantive issue of some concern is whether or not the Decision Record can properly stand as reasons for decision of the delegate. Whilst it may be preferable for the delegate to specifically indicate when signing the Decision Record that he or she adopts and applies all of the reasons set out in the Decision Record it is not, in my view, essential to do so. It is sufficient, in my view, that the delegate has countersigned the recommendation and agreed to the recommendation at the end of the Decision Record, which would clearly indicate to the recipient of the Decision Record that the record itself constitutes reasons for decision of the delegate, which in this case happened to be all of the reasons prepared by the author of that document, who is Ms Ennis, the person who made the recommendation to the delegate.
If any further clarity is required as to the reasons for decision of a delegate being set out in the Decision Record then that, in my view, has been clarified in the covering letter to which reference has been made. That letter, as I indicated earlier, specifically states, "The application has been refused. The reasons for the decision are explained in the attached Decision Record." That, in my view, gives the recipient of the Decision Record clear notification of the reasons for decision of the delegate and the opportunity to pursue, if the applicant wishes, other avenues of redress, including an application to the MRT. Although that occurred out of time and the application was refused that does not of course preclude the applicant then from further pursuing rights which may arise from the refusal of the MRT to entertain the application. It is noted that the applicant has not pursued those rights, though I draw no adverse inference against the applicant in relation to that matter or indeed the chronology of events which have arisen in this application.
It is not necessary for me to set out in detail all of the facts and circumstances which were relied upon by the applicant in support of the visa application. In considering the material and the amended application it is sufficient, however, for the purpose of this application, having decided that the Decision Record constitutes the reasons for decision of the delegate and that notification of that decision is deemed to have occurred within the appropriate time that, in my view, there is no basis upon which this court can interfere with the decision and grant the relief sought in this application.
I am further satisfied that the Decision Record, forming as it does the grounds of decision of the delegate, does not in any event contain any material which I would regard as material which would justify a finding that there has been jurisdictional error. The decision‑making process followed in this instance appears in my view to be a process reasonably open to the decision‑maker based upon the claim then before it and I cannot see any basis upon which it could be suggested that there has been jurisdictional error. It follows for those reasons that the application should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 4 February 2005