Kumar v Minister for Immigration
[2007] FMCA 399
•27 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 399 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether the decision of the Migration Review Tribunal is affected by jurisdictional error – whether the Migration Review Tribunal erred in failing to consider relevant evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116(1); 116(1)(a); 430; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 52 ALD 225 Craig v South Australia (1995) 184 CLR 163 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 |
| Applicant: | LAWRENCE DEEPAK KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG116 of 2005 |
| Judgment of: | Emmett FM |
| Hearing dates: | 28 August 2006 and 15 March 2007 |
| Date of last submission: | 15 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Dr J. Azzi |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG116 of 2005
| LAWRENCE DEEPAK KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 20 December 2004. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 21 June 2004 to cancel the applicant’s Prospective Marriage (Temporary) (Class TO) visa.
The applicant is a 31 year old male who is a citizen of Fiji (“the Applicant”).
On 23 February 2004, the Applicant was granted a subclass 300 (Prospective Marriage) visa, in view of his engagement to his sponsor, an Australian permanent resident. The Applicant arrived in Australia on 7 March 2004.
On 30 March 2004, the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) received a letter from the Applicant’s sponsor, indicating that she was withdrawing her sponsorship of the Applicant due to the breakdown of their relationship.
On 21 June 2004, the Delegate cancelled the applicant’s Prospective Marriage (Temporary) (Class TO) visa due to the relationship breakdown between the applicant and his fiancée.
On 1 July 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 20 December 2004, the Tribunal affirmed the decision of the Delegate to cancel the Applicant’s Prospective Marriage visa.
On 14 January 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal proceeding
The Applicant attended a hearing before the Tribunal on 29 November 2004 at which he gave oral evidence. The Applicant confirmed that his relationship with the sponsor had broken down and that he had “tried his best to maintain a relationship and had suffered emotionally because of the sponsor’s decision.”
The Applicant stated that his visa should not be cancelled because he lost his job in Fiji and would find it difficult to find employment if he had to return. He also stated that he had spent a great deal of money coming to Australia and thought he had been “unfairly treated”. The Applicant stated he had lent money to his sponsor which had not been repaid and that he has been living with his aunt in Australia who has been providing him with financial support.
The Tribunal found that there were no prescribed circumstances in the Applicant’s case that made the cancellation of his visa mandatory.
Section 116(1)(a) of the Act provides that the Minister may cancel a visa if he or she is satisfied that any circumstances which permitted the grant of the visa no longer existed.
The Tribunal noted that, once the grounds of s.116(1) are made out, it has a discretion as to whether or not to cancel the visa. The Tribunal noted that, in exercising its discretion, it is to consider all relevant circumstances before reaching a decision as to whether cancelling the visa is the correct or preferable decision. The Tribunal also had regard to policy guidelines, there being no further regulatory provisions relating to the exercise of the discretion. The Tribunal then proceeded to consider whether to exercise its discretion to cancel the Applicant’s visa in accordance with the policy guidelines contained in the Migration Series Instructions (“the MSI Guidelines”).
The Tribunal found that the relationship between the Applicant and his sponsor had ceased and that the circumstances which permitted the grant of the visa no longer existed.
Relevantly, the Tribunal had regard to the purpose of the Applicant’s travel to, and stay in, Australia. That purpose was to marry the sponsor, who is an Australian permanent resident. The Tribunal had regard to the extent of non-compliance with any conditions and noted that the Applicant had not married the sponsor.
The Tribunal noted the degree of hardship which may be caused to the visa holder and any family members and noted that the Applicant had lost a lot of money on his engagement in Fiji, during his passage to Australia and from resigning from his job in Fiji.
The Tribunal also had regard to the Applicant’s claim that his return to Fiji would be embarrassing for himself and his family.
The Tribunal also had regard to the circumstances in which the grounds for cancellation arose and noted that cancellation occurred after the Department received advice that the relationship between the sponsor and the Applicant had broken down. The Tribunal noted that the Applicant did not dispute that the relationship had ceased but stated that the relationship was ended by the sponsor and not himself.
The Tribunal also had regard to the Applicant’s behaviour in relation to the Department and noted there was no negative information contained in the Department’s file to suggest that the Applicant had not complied with requirements of prior visas.
The Tribunal noted that the Applicant raised no other matters.
The Tribunal concluded that, having regard to the evidence and material before it and having regard to the MSI Guidelines, it was satisfied that the reasons for cancelling the Applicant’s visa outweighed the reasons for not cancelling the visa.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented by counsel, Dr Azzi, before this Court.
Dr Azzi sought and was granted leave, by consent, to file in Court and rely upon an amended application in the following terms:
“1. The Tribunal failed to exercise jurisdiction when affirming the delegate’s decision to cancel the applicant’s visa under s 116 of the Migration Act 1958 (Cth) (the “Act”) in circumstances where the delegate failed to follow prescribed procedure and exercised discretion not in accordance with policy guidelines:
Particulars:
a. The delegate did not consider all relevant circumstances (viz., hardship on the applicant) before cancelling the visa pursuant to s 116(1)(a) of the Act.
b. The delegate failed to make a finding on a material question of fact – viz., whether it was correct or preferable to cancel the applicant’s visa.
2. The Tribunal constructively failed to exercise jurisdiction by failing to deal with the integers of the applicant’s claim.
Particulars:
a. See particulars to Ground 3 below.
3. The Tribunal constructively failed to exercise jurisdiction by failing to make a finding on material questions of fact.
Particulars:
a. The Tribunal did not consider whether it was correct or prefereable (sic) to cancel the applicant’s in circumstances where:
(i) he was suffering from symptoms of “depression and anxiety”;
(iii) the applicant would suffer great shame and embarrassment at having to return to Fiji impecunious and unmarried;
d. The Tribunal did not consider whether cancelling the visa is the correct or preferable decision iin (sic) circumstances where the Tribunal “generally restrict[ed] itself to considering the grounds for cancellation raised by the delegate” (CB 61).”
At the heart of the Applicant’s submissions was a complaint that the Tribunal failed to consider relevant and material information, being information contained in a letter received by the Tribunal on
29 November 2004 purportedly from a Dr Grove (“the Grove Letter”). The Grove letter is in the following terms:
“To whom it may concern,
regarding [Applicant], DOB 19.5.75.
This patient attended here on 18.10.04. His family are long standing patients of this practice. He came from Fiji to marry an Australian girl in March this year but the marriage was called off due to a breakdown in the relationship.
Since then the situation has caused him to develop symptoms of depression and anxiety. Apart from grief over the relationship breakdown there are family pressures as he was engaged in Fiji.
I believe he requires medication and counselling to help him through this situation. I have prescribed the antidepressant Zoloff and suggested avenues of counselling.”
Counsel for the Applicant submitted that the Grove Letter disclosed that the Applicant was suffering from a psychiatric condition and that the Tribunal had erred in failing to make any finding about the existence in the Applicant of any such condition and to have regard to that matter in considering whether or not it should exercise its discretion to cancel the Applicant’s visa.
Counsel for the Applicant submitted that it was critical for the Tribunal to consider the information about the Applicant’s depression and anxiety as it was material to the exercise of its discretion.
Counsel for the Applicant submitted that, because the Tribunal did not mention the information, it was not information considered by the Tribunal to be material. Counsel for the Applicant submitted that s.430 of the Act obliges the Tribunal to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. Counsel for the Applicant referred the Court to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] (“Yusuf”) where McHugh, Gummow and Hayne JJ stated that “The Tribunal’s identification of what it considered to be material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.”
Counsel for the Applicant also referred to the citing in Yusuf of Craig v South Australia (1995) 184 CLR 163 at [82] where the High Court stated, inter alia, that ignoring relevant material in a way that affects the exercise of power is to make an error of law at [77].
Counsel for the First Respondent, in responding to the Applicant’s submission arising out of Yusuf, referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] where the Full Court stated the following:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.”
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 Mason J identified the relevant considerations that a Court should bring to bear in respect of material or information that a Tribunal may have regard to. His Honour identified the following categories:
a)“The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision”;
b)“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion”;
c)“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision”;
d)“The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.”
Plainly the information identified by the Applicant being the evidence of the Applicant’s depressive state is not a fact that the Tribunal was prohibited from having regard to. Plainly it was a relevant fact that the Tribunal may have regard to. Whether it was a fact that the Tribunal was bound to consider is the issue before this Court.
Counsel for the First Respondent stated that it is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it (SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 (“SZEHN”)at [58]).
Counsel for the First Respondent also submitted that because a piece of evidence may not have been referred to does not “necessarily require a conclusion that it has been overlooked” (SZEHN at [58]).
Counsel for the First Respondent also submitted that there was no duty on a decision-maker to make findings on material fact and referred to Yusuf at [67]-[68] in support of that proposition.
The difficulty that the Applicant has with the submissions that he makes is that there is no reference by the Tribunal to any submission made by him arising out of the Grove Letter. The Tribunal noted that the Applicant said he “had tried his best to maintain the relationship and had suffered emotionally because of the sponsor’s decision.” The Applicant provided no evidence to this Court to suggest that he said more to the Tribunal about his emotional state. Moreover, there is no evidence before this Court provided by the Applicant as to any other reference by the Applicant to the Grove Letter or any depression or anxiety he may be suffering.
The Tribunal’s reference to the Applicant’s claim of having “suffered emotionally”, suggests that the Tribunal understood that he had claimed to have suffered because of the breakdown of the relationship. However, the Tribunal noted specifically that there were no other matters raised by the Applicant, other than the fact that his relationship had broken down, that the marriage had not taken place, that it would be embarrassing for him and his family for him to return to Fiji after having his visa cancelled, that he had lost money in coming to Australia, and that he had resigned his employment. The Tribunal had regard to all those matters and there is nothing on the face of the decision to suggest that the Applicant made any other claim or submission of any other matter that the Tribunal should have considered.
In the circumstances, I am not persuaded that the reference in the Grove Letter to the Applicant’s depression and anxiety was a material fact which the Tribunal was bound to have regard to, such that, it erred in failing to make a finding in respect of that piece of evidence. It would appear to be no more than a piece of evidence before the Tribunal in respect of which the Applicant had not made any submission or reference.
It is not clear from the Relevant Documents (Exhibit 1R), and there is no evidence before me, how the letter came to be received by the Tribunal. One assumes it was provided to the Tribunal by the Applicant. In the circumstances, it was for the Applicant to rely upon it or make such submissions as he saw fit in respect of it.
A fair reading of the decision suggests that the Tribunal accepted that the Applicant may have suffered emotionally because of the sponsor’s decision to end the relationship. The Grove Letter does no more than support such a contention.
The Grove Letter does not provide medical evidence of a psychiatric condition, as contended for by counsel for the Applicant.
Accordingly, the Grove Letter whilst it was material that the Tribunal could take into account as relevant, it was not a material fact that the Tribunal was required to make a finding about in the consideration of whether or not the Applicant’s passport should be cancelled.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Counsel for the Applicant also submitted that the Tribunal stated in its decision that generally it restricted itself to considering the grounds for cancellation raised by the Delegate (see ground 3 particular d), and in doing so the Tribunal constructively failed to exercise jurisdiction. However, the Tribunal, in considering the claims before it, stated that it had regard to the material in the Department and Tribunal files as well as the evidence given during the hearing.
Accordingly, no such ground is made out.
Conclusion
The Tribunal complied with its obligations under the legislative regime in the conduct of its review, including the making of its decision. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
There is no error by the Tribunal in the exercise of its discretion and the decision of the Tribunal is a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this Court is dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 26 March 2007
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