KOLA v Minister for Immigration - [2005] FMCA 1086

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOLA v MINISTER FOR IMMIGRATION

[2005] FMCA 1086

MIGRATION – Application for review of decision by Migration Review Tribunal – spousal visa – applicant and nominator separated – applicant did not attend hearing or provide further information to the Tribunal – genuineness of the marriage – alleged bias of the Tribunal – provision of information to the applicant – no jurisdictional error disclosed – application dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 11(3)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359, 359A, 424A, 474, 477
Migration Regulations 1994 (Cth), r.801.221(2), 801.22(6)

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

MARIN KOLA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 702 of 2005

Judgment of:

Connolly FM

Hearing date:

1 August 2005

Date of Last Submission:

1 August 2005

Delivered at:

Melbourne

Delivered on:

30 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr A. Krohn

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the Respondent:

Mr R. Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 702 of 2005

MARIN KOLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from an application filed by the applicant on

27 April 2005 seeking judicial review of the decision of the Migration Review Tribunal on 28 June 2001 to affirm the decision of the delegate of the Minister for Immigration & Multicultural Affairs to refuse to grant a General (Residence) (Class AS) (subclass 801) visa.

The history

The applicant is a citizen of Albania. He came to Australia on a visitor’s visa on 8 August 1996.
On 22 October 1996 he applied to the Department of Immigration & Multicultural Affairs (“the Department”) pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) for a permanent spousal visa. The applicant sought permanent residence based on his marriage in 1996 to an Australian citizen (“the nominator”). On 10 December 1996 a delegate of the Department refused to grant an Extended Eligibility (Class TK) (Temporary) (subclass 820) visa. The applicant lodged an application for review with the Migration Internal Review Office (“MIRO”), and on 16 June 1997 the MIRO affirmed the delegate’s decision. The applicant lodged an application for review of that decision to the Immigration Review Tribunal (“IRT”), which set aside the MIRO decision in a decision dated 27 February 1998. On 17 July 1998 a delegate of the Department granted an Extended Eligibility (Class TK) (Temporary) (subclass 820) visa to the applicant.
On 8 January 1999, a delegate of the Minister for Immigration & Multicultural Affairs refused to grant the applicant a General (Residence) (Class AS) (subclass 801) visa. The applicant applied for internal review of that decision on 29 January 1999, which became an application for review by the Migration Review Tribunal (“the Tribunal”) on 1 June 1999.
The delegate of the Minister for Immigration & Multicultural Affairs refused to grant a subclass 801 visa (the subject of these proceedings) because he was not satisfied as to the claimed relationship between the applicant and the nominator for the purposes of the eligibility criteria for a subclass 801 visa. The applicant submitted that the couple had meagre financial resources, and as a consequence lived with the nominator’s brother and had few joint assets, liabilities or a social life. The applicant claimed that his relationship with the nominator was genuine and continuing, until their separation in 2000.
By letter dated 14 October 2000 from the applicant’s migration agent, the Tribunal was informed that a child of the relationship was born in mid-2000, shortly prior to the marriage separation, and that proceedings were underway in the Family Court of Australia with respect to the applicant’s contact to the child. The Tribunal wrote two letters to the applicant’s migration agent on 6 April 2001 – one pursuant to s.359 of the Migration Act and the other with respect to s.359A of the Migration Act. The Tribunal had not received any response or further correspondence/material from the applicant at the time of making its decision on 28 June 2001.
In the decision made by the Tribunal on 28 June 2001, the Tribunal affirmed the decision of the delegate not to grant the General (Residence) (Class AS) (subclass 801) visa. The Tribunal found that the applicant did not satisfy the criteria of the visa sought. Specifically, the Tribunal found that:
a)the applicant did not satisfy subclause 801.221(2) of the Migration Regulations 1994 (Cth) as the Tribunal was not satisfied that the relationship between the applicant and the nominator was genuine and continuing or that the parties had a mutual commitment to a shared life together as husband and wife; and
b)there was no evidence to suggest that the applicant may meet key criteria for any of the other general residence visa subclasses.
On 27 April 2005, the applicant lodged an application in the Federal Court of Australia, being V381 of 2005, pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), for review of the Tribunal’s decision. The applicant claimed that the Tribunal’s decision was affected by jurisdictional error. On 9 May 2005 Registrar Wood of the Federal Court made procedural orders for the filing of documents and on 30 May 2005 Sundberg J ordered that the matter be transferred to the Federal Magistrates Court of Australia. The matter then became file number MLG 702 of 2005 in this Court.
The respondent filed a Notice of Objection to Competency on 6 June 2005, arguing that the Tribunal’s decision was a privative clause decision pursuant to s.474(2) of the Migration Act and that the Tribunal had not committed jurisdictional error. The respondent also argued that the applicant did not file his application for review of the Tribunal’s decision within 28 days of its delivery as required by s.477(1) of the Migration Act or s.11(3) of the ADJR Act.
On 16 June 2005 the applicant filed an amended application and on

24 June 2005 filed contentions of fact and law. Summarily, the applicant claimed that:
a)the Tribunal assessed the wrong question, and failed to assess the right question in respect to the refusal to grant a subclass 801 visa;
b)the Tribunal took into account irrelevant information by considering the opinion of members of the Department in respect to the genuineness of the marriage;
c)“the Tribunal acted in breach of the rules of natural justice in that there was a reasonable apprehension of bias by the Tribunal, because of the Tribunal having regard to the opinion of members of the Respondent’s Department that earlier decision of the Immigration Review Tribunal were poor and wrong”;
d)the Tribunal failed to comply with its obligations under s.359A of the Migration Act to give particulars of the information it was to rely upon to the applicant; and
e)the Tribunal denied the applicant procedural fairness because it did not invite his response to adverse information in respect to the parties’ knowledge of each other.
The respondent’s contentions of fact and law, which were filed on

29 July 2005, denied the Tribunal’s decision involved jurisdictional error and rebutted the applicant’s contentions, submitting that:
a)notwithstanding the statement on the front page of the Tribunal’s decision that the applicant was not entitled to an “Extended Eligibility (Temporary) (Class TK) visa” (instead of the type of visa under review, being a General (Residence) (Class AS) (subclass 801) visa), this mistake of itself did not mean the Tribunal asked itself the wrong question as it was only a typographical error;
b)in assessing the claimed spousal relationship, the Tribunal was entitled to consider the history of the relationship between the applicant and the nominator and therefore have regard to the views of the officers of the Department in respect to the genuineness of the marriage and the correctness of the IRT decision – the Tribunal therefore did not take into account irrelevant considerations;
c)the Tribunal took into account all the evidence before it, and its decision was not affected by apprehended bias;
d)Section 359A of the Migration Act did not apply to “the parties’ lack of knowledge about basic facts relating to each other at the first interview with the Department”, and even if it did, the Tribunal provided the applicant with particulars of this information by way of its s.359A correspondence dated 6 April 2001;
e)the substance of the adverse information had been relied upon in previous administrative decisions, including by the Department’s delegate, so the “applicant was or should have been aware of the substance of this information prior to the Tribunal making its decision”, and therefore there was no breach of natural justice; and
f)the application for judicial review was filed out of time, or the delay by the applicant in seeking judicial review was so extreme that the Court should exercise its discretion to refuse to grant the relief sought.

The Law

Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).

Conclusions and findings

With respect to the applicant’s first contention that the Tribunal asked itself the wrong question because it purported to find (on the first page of its decision) that the applicant was not entitled to the grant of an Extended Eligibility (Temporary) (Class TK) (subclass 820) visa (CB 200), the respondent argues that this was a mere typographical error.

It is in fact clear in my view from the reference under the heading Application for Review (CB 201) that it was the refusal of the delegate to grant a sub-class 801 visa on 8 January 1999 that was the decision under review. The Tribunal was also clearly aware (in the same paragraph) that the applicant clearly held a temporary visa (which was granted on the 17 July 1998).
Further, all of the Tribunal’s findings and reasons were directed to the applicant’s ability to meet the criteria in Part 801 and his eligibility for the grant of a permanent spouse visa. At CB 205, the Tribunal found at paragraph 26 of its decision:
On the evidence before it, the Tribunal finds the visa applicant does not satisfy the requirements of subclause (2), (3), (4), (5), (6) or (8) and he therefore does not satisfy subclause 801.221(1) and clause 801.221.
Further at paragraph 27, the Tribunal held:
The Visa Applicant is entitled to be considered for the grant of a visa under other subclasses within General (Residence)(Class AS). There is no evidence, nor does he claim, that he can meet the criteria for subclasses 804 (Aged Parent), 805 (Skilled), 806 (Family), 814 (Interdependency) or 832 (Close Ties).
And at paragraph 29, the Tribunal found:
The Tribunal affirms the decision under review to refuse the grant of a General (Residence) (Class AS) visa, subclass 801 to the Visa Applicant.
I am satisfied that the error on the first page was nothing more than typographical and does not give rise to any error of law, let alone jurisdictional error.
The applicant’s second contention was that the Tribunal took into account irrelevant information in that it considered the opinion of members of the Department with respect to the genuineness of the marriage. At CB 204, paragraph 15, the Tribunal stated:
The Tribunal’s letter under section 359A invited the visa applicant to comment on 2 DIMA documents that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
And further at CB 204, paragraph 20, the Tribunal said:
The Tribunal takes into account the lack of response to its letters sent to the visa applicant under sections 359 and 359A of the Act earlier this year.
In Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at [73]-[74], McHugh, Gummow and Hayne JJ said:
[73] The considerations that are, or are not, relevant to the tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin:
The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: “It is, emphatically, the province and duty of the judicial department to say what the law is.” The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
The requirements of sub-clause 801.221(2) ultimately meant that it was necessary for the Tribunal to consider whether or not the relationship between the applicant and his spouse was genuine. In determining that issue, the Tribunal was entitled to have regard to the views expressed by members of the Department about the genuineness of the marriage and the correctness of the IRT decision. I am satisfied that the Tribunal did not take into account irrelevant information in that regard and there was no jurisdictional error disclosed.
The third argument advanced by the applicant was that the Tribunal breached the rules of natural justice in that there was a reasonable apprehension of bias by the Tribunal that it had regard to the opinion of members of the respondent’s Department that the earlier decision of the IRT was poor and wrong.
For the applicant to prove that the decision was affected by apprehended bias he must establish that a fair minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision. The applicant must establish the apprehension of a possibility of pre-disposition, that is, the pre-disposition of the Tribunal towards a result (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328).
In my view, on the fair reading of the Tribunal’s reasons, they are not indicative of any closed mind on the Tribunal’s part. The Tribunal at CB 204, paragraph 20, stated:
The Tribunal takes into account the parties’ lack of knowledge about basic facts relating to each other at the first interview with the Department and the subsequent breakdown of the relationship. The Tribunal also notes the reasons and circumstances surrounding the marriage. These factors cast doubt on the genuineness of the relationship. The Tribunal notes there is some evidence of mutuality in the earlier days of the marriage provided in Statutory Declarations from third parties. The Tribunal takes into account the lack of response to its letters send to the visa applicant under sections 359 and 359A of the Act earlier this year. Taking into account all the evidence before the Tribunal and in particular the advice from the migration agent that the relationship has broken down and the parties are no longer together, the Tribunal is not satisfied that the marriage is genuine and continuing or that the parties have a mutual commitment to a shared life together as husband and wife. Accordingly, the Tribunal finds that the visa applicant does not satisfy subclause 801.221(2).
Further the Tribunal set out the contents of the other evidence it had regard to at CB 202, paragraph 10:
The Departmental file contains evidence provided in support of the application for a subclass 801 visa including:
·Statutory declarations from the visa applicant, the nominator and the visa applicant’s brother and his partner;
·Statutory declarations from a doctor and lawyer;
·Evidence that the marriage has been declared to Centrelink;
·Motor Vehicle registration in the joint names of the parties dated August 1998; and
·One letter addressed to the parties at their registered address.
And further at CB 203, the Tribunal referred at some length to the submissions that were made by the applicant’s migration agent about the genuineness of the relationship between them. In all of the circumstances, I am not satisfied that there has been any apprehension of bias established on the Tribunal’s part.
The fourth aspect to the applicant’s claim is that the Tribunal failed to comply with its obligations under section 359A of the Migration Act to provide particulars of the information it was to rely upon to the applicant. Section 359A provides:
359A Applicant must be given certain information
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.

The applicant claims that when the Tribunal stated at CB 204, paragraph 20, that it had taken into account the parties’ lack of knowledge about the basic facts relating to each other at the first interview with the Department and the subsequent breakdown of the relationship that was information that it should have provided to the applicant pursuant to section 359A.
In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 the Full Court of the Federal Court, per Finn and Stone JJ, said the following about section 424A, which is the equivalent to section 359A but for the Refugee Review Tribunal:
As to the first of these, there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:
(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 429–30 [104] ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 74; BC200301782;
(ii) the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 218 [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217–18 [19]–[22]; and
(iii) the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203379; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].
I accept the submissions of the respondent that the lack of knowledge that the applicant and his spouse had about each other was precisely what the Full Court of the Federal Court was referring to at [24] when it talked of “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”. In my view the information was not information within the meaning of section 359A(1), but even if it was, it seems to me the Tribunal did effectively provide the applicant with the relevant particulars in its section 359A correspondence dated

6 April 2001 (CB 194 - 195).
The applicant further complains that he was denied natural justice because the Tribunal did not invite his responses to adverse information, namely the parties’ lack of knowledge about basic facts relating to each other at the first interview with the Department.
It is clear that the Tribunal is required to bring an applicant’s attention to critical issues or factors upon which its decision is likely to turn but there is no obligation on the Tribunal to inform the applicant that it intends to act on information which the applicant should have been aware. There is ample material of which the applicant must have been aware that the genuineness of the relationship was still a major issue despite the IRT decision. Reference has already been made to the section 359A correspondence but in addition, there was a following letter (CB 196-197) dated 6 April 2001, which, inter alia, seeks further evidence and/or written arguments with respect to meeting regulation 801.22(6). There was no breach of natural justice and no jurisdictional error disclosed.
In all the circumstances of this matter, I am satisfied that the decision of the Tribunal discloses no jurisdictional error and the application should accordingly be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate: N. Lane

Date: 30 September 2005