Konteh v Minister for Immigration and Multicultural Affairs

[2006] FCA 508

FEDERAL COURT OF AUSTRALIA

Konteh v Minister for Immigration & Multicultural Affairs

[2006] FCA 508

MIGRATION – no general principle arising

Migration Act 1958 (Cth) s 47
Migration Regulations subclass 820.111(1) and (2), 820.221(2) and (3)

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

KONTEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 2015 OF 2005

CONTI J
5 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2015 OF 2005

BETWEEN:	ISHMAEL SHERIFF KONTEH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	5 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the respondent be changed to the Minister for Immigration and Multicultural Affairs.

2.The application be dismissed.

3.The applicant pay the Minister’s costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2015 OF 2005

BETWEEN:	ISHMAEL SHERIFF KONTEH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	5 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to review a decision of the respondent Minister made on 7 October 2004 refusing the applicant a General (residence) class visa based on his marriage to an Australian citizen, Barbara Tenney, who was his nominating spouse for the purposes of the application.

2. The applicant applied for a General (residence) visa on 23 June 1998. On 8 February 2000, the application was refused on character grounds pursuant to s 501 of the Migration Act 1958 (‘the Act’). The applicant sought review of the decision in the Administrative Appeals Tribunal (‘AAT’), however this application was refused on 14 April 2000 by Deputy President McMahon. An appeal to the Federal Court was upheld by Moore J and the application for review was referred back to a differently constituted Tribunal. Upon rehearing the matter on 18 April 2002, the AAT remitted the matter back to the respondent for further consideration. 

3. A further notice of intention to refuse the application on character grounds was issued to the applicant on 24 June 2003 and the applicant was invited to provide further information in response for the Minister’s consideration. The applicant’s migration agent provided various documents on his behalf, including documents which confirmed that the applicant was currently in a relationship with Constantine Nikolopoulous, an Australian citizen and had ceased his relationship with Barbara Tenney. The applicant was notified of the Minister’s decision to refuse the application on 7 October 2004. The application was refused on the basis that the applicant failed to satisfy the criteria contained in subclass 820 as he had not lived in a marital relationship with the nominating spouse since April 2002, nor had any contact with the nominator since that time. The applicant was arrested and subsequently detained in immigration detention on 14 December 2004.

4. The applicant commenced proceedings in the High Court of Australia on 21 March 2005 by filing a so-called application for an order to show cause, the purported grounds for relief being as follows:

   ‘1. The Defendant failed to accord the Plaintiff procedural fairness by its failure to have regard to relevant documents and its failure to provide reasonable opportunity to respond to adverse material.

   2. The Plaintiff is and was at all times entitled to a spouse visa in Australia having fulfilled the criteria contained in the Migration Act since he was married to an Australian citizen and had a child who was born in Australia and is also an Australian citizen. The marital relationship was genuine and continuing to the exclusion of others at the relevant time.

   3. The marital relationship subsequently broke down and in February 2003 the Plaintiff entered into a de facto relationship with an Australian citizen and that relationship is still genuine and continuing to the exclusion of others.

   4. The Plaintiff is currently held in detention and unable to pursue his rights to access and custody of his only child Joshua Dean Tenney, an Australian citizen.’

   In relation to the fourth ground, it should be mentioned that the applicant is no longer currently in detention. The proceedings were remitted by McHugh J to the Federal Court on 19 August 2005 by consent.

5. As I earlier foreshadowed, the Minister refused the application on the basis that the applicant failed to satisfy the requirements of subclass 820 of the Migration Regulations. At the applicable time, the relevant regulations included the following:

   ‘SUBCLASS 820-SPOUSE
   820.1 INTERPRETATION
   820.111 In this Part:
   …
   “nominating spouse”, means:
   …
   (b) in relation to any other applicant – the Australian citizen, Australian permanent resident or eligible New Zealand citizen who nominated the applicant as his or her spouse when the application for the visa was made
   …
   820.21 Criteria to be satisfied at time of application
   820.211 (1) The applicant:
   (a) is not the holder of a Subclass 771 (Transit) visa; and
   (b) meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
   (2) An applicant meets the requirements of this subclause if:
   (a) the applicant is the spouse of a person who:

   (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   …
   (c) the applicant is nominated by that Australian citizen, Australian permanent resident or eligible New Zealand citizen…
   …
   820.22 Criteria to be satisfied at time of decision
   820.221 (1) In the case of an applicant referred to in subclause 820.211 (2), (3), (4), (5), (6), (7), (8), or (9), the applicant …:

   (a) continues to meet the requirements of the applicable subclause; …’

6. As counsel for the Minister submitted with justification, the scheme for granting visas under the spouse subclass evinces the legislative intention that the applicant must be nominated by the same person both at the time of the application and at the time of the decision. The only exceptions to this are set out in criterion 820.221(2) and (3) and relate to situations where the nominating spouse has died or where there has been a breakdown in the relationship due to domestic violence when the nominating spouse is the aggressor. Both these situations clearly have no application in the present case.

7. The applicant asserted in his written submissions that the Minister made her decision on the basis of two statutory declarations that the applicant had provided in order to advise the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) of his change in circumstances. From those two declarations, it was apparent that the applicant and Ms Tenney were no longer in a relationship. The applicant’s statutory declaration dated 6 August 2003 included the following statement: ‘I am separated from my wife Barbara Teeney (sic) whom I married on 30.5.1998’. Furthermore, the statutory declaration of Ms Nikolopoulous dated 6 August 2003 included the following statement: ‘I have been in a romantic relationship with Ishmael since February 2003’. The applicant contended that he ‘made the admissions both voluntarily and of his own free will’. The applicant asserted moreover that ‘he cannot find anywhere either within the Migration Act and or the relevant Regulations of any relevant procedure to advise of a change of circumstance such as a change in nominator as is the case in this case’ and further asserted that in providing the two statutory declarations, ‘the Applicants (sic) then Attorneys were under an assumption that they were following correct procedure’ to notify the Minister of the applicant’s changed circumstances. The applicant yet further asserted that ‘the purpose in submitting this statutory declaration amongst other things was that he was intending to continue with his spouse visa application albeit with a new nominator’

8. The applicant next contended that the Minister had several options open for adoption upon receiving the two statutory declarations, the first being that the Minister could have substituted the nominator for his visa, namely Barbara Tenney, with the person with whom he is now in a relationship, namely Constantine Nikolopoulous. However, as the Minister’s counsel correctly submitted, the suggestion that the Department could merely substitute one nominating spouse for another is one which is untenable when viewed in the context of the legislative framework. As stated above, the nominating spouse at the time of the application must be the same person at the time of the decision-making.

9. The applicant alternatively submitted that he could have been allowed to withdraw his original application and lodge an amended application taking into account the new circumstances that were provided within the statutory declarations. The Minister accepted that this course was in fact open to the applicant; however if the applicant had wished to apply for a visa having Ms Nikolopoulous as a nominating spouse, he should have withdrawn his application prior to any decision being made. Moreover the Minister pointed out that the applicant was represented at the material times by experienced migration advisors, who at no time suggested that the applicant was seeking or proposing to withdraw his application. The respondent additionally submitted that the suggestion by the applicant that the Department was ‘duty bound to inform the Applicant of the correct method he should abide by’, and further that the Department should have invited him to withdraw the application, was not supported by legal principle and was inconsistent with the Minister’s duty expressed in s.47 of the Act ‘to consider a valid application for a visa’. There is clear substance in that submission.

10. Moreover there is no merit in the applicant’s further contention that ‘there is absolutely no evidence that the Department gave any consideration to the applicants change of circumstance and this was despite that the (sic) Applicants new nominator offered herself to the Department for any interview’. Likewise, the applicant gains no present assistance from the references made to case law concerning jurisdictional error.

11. The applicant further submitted that ‘there is no reference either within the Migration Act and or the regulations where it submits that the Applicant would need to demonstrate a commencement of some form of proceeding in the Family Law Court which anyway was going to be impossible to commence having regard (sic) that the Applicant had no knowledge of where his son was’. He contended that ‘the delegate to the Minister… [acted] outside of jurisdiction, and failed to properly consider the material before her’. However, the references to the dependent child of the applicant and the nominator within the decision record of the Department were made in regard to the requirements of subclause 820.221(3) of the regulations. The relevant regulation is as follows:

    820.211
    …
    (3) An applicant meets the requirements of this subclause if:
    (a) the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5), or (6) except that the relationship between the applicant and the nominating spouse has ceased; and
    (b) either or both of the following circumstances applies:
    …
    (ii) the applicant:

    (A)  has custody or joint custody of, or access to; or

    (B) has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the nominating spouse:

    (C)  has been granted joint custody or access by a court; or

    (D) has a residence order or contact order made under the Family Law Act 1975; or

    (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation

    It is evident from the material placed before the Court that the Minister gave proper consideration to whether the applicant had been granted custody or joint custody or access to his son under the Family Law Act1975 and came to the correct conclusion that the applicant failed to meet the requirements of subclause 820.211(3) of the Migration Regulations. 

12. The applicant additionally seeks to rely on the International Convention on the Rights of the Child. However as Mason CJ and Deane J stated in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, since the Convention has not been incorporated into Australian municipal law, it cannot operate as a direct source of individual rights and obligations. Nonetheless, where the provisions of the Convention are relevant to the exercise of a statutory discretion, a legitimate expectation exists that the decision-maker will act in accordance with the Convention in exercising that discretion. However as discussed above, the decision in the present case was ultimately based upon the issue as to whether the applicant satisfied certain statutory criteria as opposed to discretionary considerations, and as such the applicant could not seek to rely upon the Convention.

13. The appeal has no viable foundation must be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             5 May 2006

The Applicant was self-represented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 March 2006
Date of Judgment:	5 May 2006