FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUIS REVOLLO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 154 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal misconstrued the applicant’s evidence – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8, 101, 105, 109, 474 Migration Regulations 1994 (Cth), Schedule 2 |
| Cases Cited: Chen & Anor v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 Li v Minister for Immigration and Citizenship & Anor (2008) 102 ALD 354 Revollo v Minister for Immigration & Anor [2011] FMCA 899 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 |
| Applicant: | LUIS ALBERTO ZAMBRANA REVOLLO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1824 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 16 April 2013 |
| Date of Last Submission: | 16 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nicholas Poynder |
| Solicitors for the Applicant: | Lazarus Legal Group |
| Counsel for the Respondents: | Mr Justin Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1824 of 2012
| LUIS ALBERTO ZAMBRANA REVOLLO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 26 July 2012 and handed down on the same day (“the Tribunal”).
The Applicant claims to be a citizen of Bolivia (“the Applicant”).
Background
The Applicant’s partner visa application (Form 47SP) was lodged on 5 April 2007 with the Applicant being sponsored by his Australian citizen spouse.
On 24 May 2007, the Applicant was granted a subclass 309 (Spouse (Provisional)) visa and he arrived in Australia in July 2007 having departed from Bolivia.
After four to six months after his arrival in Australia, the Applicant started having problems with his relationship and on 5 July 2009, he separated from his sponsor wife permanently.
On 18 January 2011, the Applicant was notified of the decision to cancel his subclass 309 visa by the Department of Immigration and Citizenship essentially on the basis that the Applicant had failed to provide information about his children on the Partner visa application and, being aware that he had children, failed to provide this information when given notice by the Department pursuant to s.109 of the Act.
On 4 February 2011, the Applicant lodged an application for review of the Delegate’s decision with the Migration Review Tribunal.
On 30 May 2011, the Migration Review Tribunal affirmed the decision of the Delegate to cancel…
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Details
- Case
- [2013] FCCA 154
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (the Tribunal) to affirm the cancellation of the applicant's subclass 309 visa. The applicant, Luis Revollo, had previously sought judicial review of an earlier Tribunal decision, which had been quashed and remitted for reconsideration. The Tribunal, on reconsideration, again affirmed the cancellation of the visa.
The legal issues before the court were whether the Tribunal had properly considered the relevant factors under regulation 2.41 of the Migration Regulations 1994 (Cth) when deciding whether to exercise its discretion to cancel the applicant's visa, and whether the Tribunal had adequately considered the applicant's psychological state and its potential impact upon his return to Bolivia. Specifically, the court had to determine if the Tribunal had correctly identified the "jurisdictional fact" giving rise to the power to cancel the visa, which is a decision that the visa holder had not complied with the requirements of section 108 of the Act.
The court noted that the Tribunal was required to determine if the power to cancel under s.109(1) had arisen and, if so, whether it ought to be exercised having regard to the matters prescribed in reg.2.41. These matters included the correct information provided, the content of any genuine document, the likely effect of correct information on a visa decision, the circumstances of non-compliance, the present circumstances of the visa holder, and their subsequent behaviour. The Tribunal's exchange with the applicant's representative and the applicant himself revealed a focus on the applicant's psychological state, particularly the potential re-emergence of anxiety and depression if he returned to Bolivia due to financial stress and past experiences with his ex-wife. The Tribunal indicated it might not accept this evidence, considering it potentially fabricated.
The court's decision and orders are not detailed in the provided text.
The legal issues before the court were whether the Tribunal had properly considered the relevant factors under regulation 2.41 of the Migration Regulations 1994 (Cth) when deciding whether to exercise its discretion to cancel the applicant's visa, and whether the Tribunal had adequately considered the applicant's psychological state and its potential impact upon his return to Bolivia. Specifically, the court had to determine if the Tribunal had correctly identified the "jurisdictional fact" giving rise to the power to cancel the visa, which is a decision that the visa holder had not complied with the requirements of section 108 of the Act.
The court noted that the Tribunal was required to determine if the power to cancel under s.109(1) had arisen and, if so, whether it ought to be exercised having regard to the matters prescribed in reg.2.41. These matters included the correct information provided, the content of any genuine document, the likely effect of correct information on a visa decision, the circumstances of non-compliance, the present circumstances of the visa holder, and their subsequent behaviour. The Tribunal's exchange with the applicant's representative and the applicant himself revealed a focus on the applicant's psychological state, particularly the potential re-emergence of anxiety and depression if he returned to Bolivia due to financial stress and past experiences with his ex-wife. The Tribunal indicated it might not accept this evidence, considering it potentially fabricated.
The court's decision and orders are not detailed in the provided text.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Tribunal then had an exchange with the Applicant’s representative in relation to the Applicant’s psychological state at the time of the first Tribunal hearing and the earlier decision of the Federal Magistrates Court (Revollo v Minister for Immigration & Anor [2011] FMCA 899). The exchange was as follows: Q 422 MemberYesApplicant’s RepresentativeWhat he’s stating is his psychological state as it was - - - Q 423 MemberThat’s right. Applicant’s Representative- - - is relevant - - -Q 424 MemberIt is relevant, yes.Applicant’s Representative- - - to regulation 231. And then, I think, that then has to be looked at in conjunction with his psychological state now, I agree with that. But, then, one can’t ignore the expert evidence of the psychologist, Hugo Rodriguez, where he states, in the last paragraph of the report, which is Annexure K, “It is likely that a – a return to Bolivia will result in Mr Zambrana exhibiting heightened levels of stress and worry, and that as a result he will be subject to a re-emergence of symptoms, in particular anxiety and depression”. (emphasis added)Q 425 MemberYes, all right, look, I – I have – it is possible that he’ll have a re-emergence of anxiety and depression because of financial circumstances, as he said. Whether it is got a connection with his DV that he suffered three years ago, I may have difficulty finding in that manner. And, I am not – I take into account what the judge said. I am taking into account his current circumstances. Applicant’s RepresentativeYesQ 426 MemberOf his mental health, and how he – it has affected him to this day, I have taken evidence from him. And, I may rely more on his evidence than your argument relying on the – the psych report. Applicant’s RepresentativeYes, of course, his answers are his answers, absolutely , yes. But, I would submit that the – the psych report has to be taken into account. Q 427 MemberSure, of course. Applicant’s RepresentativeAnd, of course, you will - - -Q 428 MemberYes.Applicant’s RepresentativeIt’s within your discretion as to how much weight to attach to each of these factors.” Following the Tribunal’s exchange with the Applicant’s representative, the Tribunal had a further exchange with the Applicant in which the applicant adopted as a further reason that he did not wish to return to Bolivia, because if he has a financial crisis resulting in financial problems, it may impact on him psychologically. That exchange is as follows:“Q 429 MemberAll right, so , what I’m going to do now is I am going to close the hearing and – Mr Revollo, I am ready to close the hearing. SO, I am going to adjourn the review until 18 June 2012 for the – for your representative to provide a submission dealing with the adverse information that I gained before. And, he is also going to follow up some other evidence supporting – evidence in relation to whether you worked with – your current work I not off the records, is a proper work when – which you declared to the Tax Office, and also whether you have permission to work, apart form the rime I gave the dates, which I think it was from March – June 2011 onwards. And, also whether your work – I think you said that your work with your – those private individuals from Peru and Bolivia and Columbia were off the record. All right, so, if there’s nothing else you want to tell me, I’m going – I’m going to close the hearing. ApplicantYeah, because I been listening carefully to what you have been saying and, yes, I do agree that if I returned to Bolivia I don’t know what my emotional reaction will be. Q 430 MemberYou said that you’re worried about the consequences of not being able to financially support your sons and your mother the way you are able to support if you live in Australia. ApplicantYes, I said that. Yes, but one situation leads to the other, that is when you have a financial crisis then you enter into a sort of depression and crisis and stress, and that’s the situation I’ve been going through. Q 431 MemberSo, you’re saying that your financial problems can – can impact on you psychologically? Am I right? ApplicantAnd – and, not only that, but the – the situation I have lived with my ex-wife, all those things will come back to my head. Q 432 MemberMr Revollo, I have given you three opportunities before, three times I have asked you this question, three times you talked about finance. Now, after listening to your representative’s argument, which was interpreted by the interpreter, you are now telling me that what happened with your wife may also affect you when you go back to Bolivia? I may not accept this evidence. I may consider this to be fabricated only to strengthen your case, after listening to what your representative said. All right, so, shall I close the hearing now?ApplicantYes.” (emphasis added)
Decision
Reasons for decision
On 30 May 2011, the Migration Review Tribunal affirmed the decision of the Delegate to cancel the subclass 309 visa (“the First Tribunal Decision”). On 25 June 2011, the Applicant filed an application in this Court seeking judicial review of the First Tribunal Decision. On 25 November 2011, Raphael FM, made orders directing that the First Tribunal Decision be quashed and directed the Second Respondent to reconsider the matter according to law. On 26 July 2012, the Tribunal, being a differently constituted Migration Review Tribunal, reconsidered the matter and affirmed the decision of the Delegate to cancel the Applicant’s subclass 309 visa. On 23 August 2012, the Applicant filed an application in this Court seeking a judicial review of the Tribunal’s decision dated 26 July 2012. Subdivision C of Division 3 of Part 2 of the Act imposes obligations on non-citizens to provide accurate information in visa application forms and provides for a discretionary power to cancel visas based on incorrect information. Section 109(2) of the Act provides that the Minister must cancel a visa if circumstances exist that are declared by the regulations to be circumstances in which a visa must be cancelled. Relevantly, reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes the circumstances pertaining to the Applicant’s 309 visa and include the following matters for consideration:“For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed: (a) the correct information; (b) the content of the genuine document (if any); (c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (j) any breaches of the law since the non-compliance and the seriousness of those breaches; (k) any contribution made by the holder to the community.” The Tribunal, on review of the delegate’s decision, was required to determine, first, whether the power to cancel under s.109(1) had arisen and, if so, whether it ought to be exercised having regard to the matters it was required to consider. The “jurisdictional fact” that gives rise to the power to cancel the visa is a decision by the Tribunal that there was non-compliance by the holder of the visa with the requirements of s 108: SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; 134 FCR 43 at [17]; Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; 201 FCR 240 at [50]. The Applicant was represented before this Court by Mr Nicholas Poynder, of counsel.
Ratio Decidendi
Legal Principle Established
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