FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 427 |
| MIGRATION – Partner visa – Migration Review Tribunal – whether compliance with s.360 of Migration Act – continuing obligation to complete hearing – hearing offer should be genuine – applicants to be given opportunity to give evidence and present arguments – interpreter absent before Tribunal concluded hearing and before dealing with all witnesses – offer of resumed hearing not made whilst interpreter present at hearing – concessions by agent made in absence of interpreter – agent’s conduct obsequious – whether breach of s.360 – whether breach of s.359 and 363 of Migration Act – whether failure to make further enquiries unreasonable – whether jurisdictional error – whether apprehended bias – whether failure to have regard to relevant material – validity of Regulation 1.15A of Migration Regulations. |
| Migration Act 1958, ss.359, 360, 363, 425, Migration Regulations 1994 (Cth) Marriage Act 1961 |
| Second Applicant: | THUY LINH VO |
| Third Applicant: | DHUY ANH KHOA VO |
| Fourth Applicant: | LE KIM LOAN VO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 738 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 2 November 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 March 2007 |
REPRESENTATION
| Counsel for the Applicants: | Mr A. Krohn |
| Solicitors for the Applicants: | Erskine Rodan & Associates |
| Counsel for the First Respondent: | Mr E. Heerey |
| 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 1 May 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 shall pay the Applicants’ costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF… |
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- Case
- [2007] FMCA 427
- Decision Date
CaseChat Overview and Summary
The court examined whether the Tribunal had erred by not taking into account the duration of the applicants' marriage and other relevant factors, such as joint responsibility for the care and support of children, as stipulated by the Regulations. It was argued that the Tribunal should have given particular weight to the short duration of the marriage, as patterns in a marriage may not have been established so soon after the marriage. However, the court found that while the Tribunal had recorded the dates of marriage and visa application, it did not necessarily mean that it failed to consider the duration of the marriage. The court held that the issue of whether to place particular weight on the duration of the marriage was a matter for the Tribunal to determine on the merits, not a jurisdictional error. Furthermore, the Tribunal had considered the necessity of holding a second hearing and receiving further evidence, but the applicants had declined the opportunity.
The court concluded that the Tribunal had not failed to consider relevant matters and did not commit a jurisdictional error. Therefore, the Tribunal's decision was not subject to being quashed. The court issued a writ of certiorari to quash the decision of the Second Respondent dated 1 May 2006 and a writ of mandamus requiring the Second Respondent to determine the application for review according to law. Additionally, the court ordered that the First Respondent shall pay the applicants' costs fixed in the sum of $5,000.00.
Orders
Orders of the court
1.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 1 May 2006.
2.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
3.
The First Respondent shall pay the Applicants’ costs fixed in the sum of $5,000.00.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
It was submitted that the Tribunal was obliged to consider whether to invite the Applicants and the nominator to a further hearing to deal with the issues referred to earlier in this judgment. That hearing would have then dealt with matters claimed to be made relevant by Regulation 1.15A and in particular the matters of 1.15A(3)(c)(i)and (ii) which relevantly provide,“Migration Regulation 1.15A(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for: …(c) the social aspects of the relationship, including: (i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other; (ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and …(d)the nature of the persons' commitment to each other, including: … (ii) the length of time during which the persons have lived together; and …” The Tribunal it was submitted was also obliged to consider whether to make further enquiries. In assessing whether the First Applicant and the sponsor were spouses at the time of the application for visas on the basis of the indicia made relevant by Regulation 1.15A of the Regulations. The Tribunal though recording the dates of marriage and of the application for the visas did not have regard in its findings to the fact that at the date of the application for visas on 11 August 2002 the parties had been married for only one month. It was submitted the duration of the relationship is a relevant consideration pursuant to Regulation 1.15A(3)(d)(ii). A short duration of the marriage it was submitted was an important fact for the Tribunal to consider and to weigh up as patterns in a marriage may well have not have been established so soon after a marriage. A further relevant consideration referred to in submissions was joint responsibility for care and support of children (Regulation 1.15A(3)(b)(i)). The failure to take into account relevant matters is a jurisdictional error. It was submitted that it cannot be established that the Tribunal has erred by failing to take into account a relevant consideration unless it was a consideration the Tribunal was bound to take into account (see Peko-Wallsend. In this case it was submitted the Tribunal having complied with s.360 of the Migration Act regarding any question concerning a second hearing and otherwise complying with ss.359 and 363 regarding additional information that the Tribunal was then not bound to take any further consideration into account in this regard. It was further submitted that the Tribunal in any event has clearly stated in the transcript considered the necessity of holding a second hearing and receiving further evidence and gave the opportunity to the Applicants through their agent and the opportunity was declined. According if considerations were relevant then the Tribunal did not fail to have regard to them. It was further submitted the Tribunal did not ignore the duration of the parties marriage as it clearly recorded the date of marriage and the visa application. The question of whether the Tribunal ought to have placed any particular weight on the fact of the duration of the marriage was matter for the Tribunal to determine on the merits and is beyond the scope of judicial review.