Makwasa v Minister for Home Affairs & Anor
[2018] FCCA 1179
•15 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAKWASA v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1179 |
| Catchwords: WORDS AND PHRASES – “must”. |
| Legislation: Constitution, s.109 Migration Act 1958 (Cth), ss.5CB, 65, 359AA, 474, 476 Migration Legislation Amendment (2014 Measures No.1) Regulation 2014 |
| Cases cited: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 SZLPH v Minister for Immigration & Citizenship [2008] FCA 744 WAKK v Minister for Immigration & Border Multicultural & Indigenous Affairs [2005] FCAFC 225 The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973) |
| Applicant: | REHEMA SOSPETER MAKWASA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 708 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 May 2018 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Counsel for the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 708 of 2017
| REHEMA SOSPETER MAKWASA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Rehema Sospeter Makwasa (“Ms Makwasa”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 19 December 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Home Affairs (“Minister”) to not grant Ms Makwasa a Student (Temporary)(Class TU) visa (“Student Visa”).
Background
The background to the Judicial Review Application is as follows:
a)Ms Makwasa is a citizen of Tanzania, first granted a student visa on 31 October 2012: CB 33;
b)in January 2013 Ms Makwasa met Mr John Joseph Kasonde (“Mr Kasonde”), another student visa holder, and began a relationship with him in November 2014 they moved in together and on 21 May 2015 they were married: CB 27-28 and CB 37-39;
c)on 9 October 2015 Ms Makwasa applied for the Student Visa as a subsequent entrant on Mr Kasonde’s student visa: CB 10;
d)on 20 October 2015, the Delegate refused to grant the Student Visa on the basis that the Ms Makwasa was not declared as a member of the family unit on Mr Kasonde’s primary application and, therefore, she did not meet the requirements of cl.573.314 of sch.2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 77-79;
e)Ms Makwasa applied to the Tribunal on 2 November 2015 for review of the Delegate’s Decision and was invited to attend a hearing before the Tribunal on 21 November 2017 (“Tribunal Hearing”): CB 96-99;
f)prior to the Tribunal Hearing Ms Makwasa was asked to provide supporting documentation and on 10 November 2017 she provided a completed response form, academic transcripts, certificates of completion, a statement regarding the circumstances of her marriage and photographs of her wedding and infant child: CB 100-178;
g)at the Tribunal Hearing on 21 November 2017 both Ms Makwasa and Mr Kasonde attended, with Mr Kasonde being listed as an “observer” on the Migration Hearing Record: CB 189, but recorded as having “appeared … by video” in the Tribunal Decision: CB 195 at [7]; and
h)on 23 November 2017, the Tribunal affirmed the Delegate’s Decision not to grant Ms Makwasa a Student Visa: CB 194-197.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that with her application, Ms Makwasa provided statements and documents to support the genuine nature of the relationship, including a statement of how she met her Mr Kasonde, a personal statement from Mr Kasonde and letters of support as to the genuine nature of their marriage, and that the evidence indicates that they met in 2013, began living together in November 2014, and were married on 21 May 2015: CB 195 at [3];
b)stated that the Delegate's Decision was to refuse to grant the Student Visa as Mr Kasonde did not declare Ms Makwasa as a member of his family unit in his application for a student visa, that being the primary application: CB 195 at [4];
c)explained the requirements of cl.572.314 of sch.2 to the Migration Regulations as they applied to Ms Makwasa and Mr Kasonde: CB 195 at [7];
d)referred to the evidence provided at the Tribunal Hearing where Ms Makwasa initially indicated that she had been in a de facto relationship with Mr Kasonde from November 2014, that they were living together and sharing household chores and finances, similar to a married couple, and they then married in May 2015, and had a baby together in October 2017: CB 195 at [7];
e)pursuant to s.359AA of the Migration Act raised its concerns that Mr Kasonde in the primary application dated 6 March 2015 did not indicate he was in a de facto relationship with, nor refer to, Ms Makwasa, but rather said he was never married, to which Ms Makwasa responded and repeated that it was because Mr Kasonde had issues with his ex-fiancée and the bride price for his ex-fiancée, and he could not therefore refer to Ms Makwasa in the application or a relationship with her, otherwise he would be sued in relation to the bride price: CB 195 at [7];
f)questioned this evidence as Ms Makwasa had said they were in a de facto relationship from November 2015 (this is an error and should be November 2014: see [27] below) and also questioned why her husband would be concerned about this in a confidential application: CB 195 at [7];
g)reproduced verbatim cl.572.314 of sch.2 to the Migration Regulations: CB 196 at [9];
h)accepted that Ms Makwasa and Mr Kasonde are in a genuine relationship and that they commenced a de facto relationship in November 2014, but did not accept the evidence that Mr Kasonde did not refer to their relationship because of the bride price for an ex-fiancée and a fear of being sued: CB 196 at [10];
i)found that Mr Kasonde applied for a student visa on 6 March 2015, that the student visa was granted on 13 March 2015, and that Mr Kasonde did not refer to or claim Ms Makwasa to be a member of his family unit, either in the application for, or up until the time of decision in relation to, his student visa: CB 196 at [11];
j)accepted that Ms Makwasa became a member of the family unit of Mr Kasonde before Mr Kasonde applied for and was granted a student visa, and found Ms Makwasa was not included in Mr Kasonde's application for the purposes of reg.2.07AF(3) of the Migration Regulations, or in information provided in relation to Mr Kasonde's application for the purposes of reg.2.07AF(4) of the Migration Regulations: CB 196 at [11];
k)found that Mr Kasonde did not inform the Minister, in writing, of the name, date of birth and citizenship of the applicant and the relationship between them prior to the grant of his student visa, and accordingly that Ms Makwasa did not satisfy cl.572.314 of sch.2 to the Migration Regulations: CB 197 at [11]-[12]; and
l)stated there is no suggestion that Ms Makwasa meets any of the primary criteria for the grant of a Student Visa or the requirements of any other subclasses within the relevant visa class: CB 197 at [14].
Judicial Review Application
The grounds advanced by Ms Makwasa in the Judicial Review Application largely took the form of a submission, and can be summarised as follows:
a)a failure by the Tribunal to consider the reasons why Mr Kasonde did not disclose he was married or in a de-facto relationship with Ms Makwasa, particularly that it was morally right that Mr Kasonde be cleared by the family of his ex-fiancée, and that it was difficult to deal with Australian law at the same time and meet the demands of the customary laws of Tanzania and Zambia regarding marrying while Mr Kasonde had a fiancée who was almost his wife (“Ground 1”);
b)the Tribunal misconstrued the applicant being in a “de-facto” relationship with Mr Kasonde from November 2015 (including the Tribunal Decision not being “in accordance with the Family Court of Western Australia”) and at no point in Ms Makwasa’s statement did she indicate she started living with Mr Kasonde in November 2015 (“Ground 2”); and
c)the Tribunal did not consider the baby who was just one month old at the time of Tribunal Hearing, “the importance of the microsystem on the growth of a child”, the danger of HIV/ AIDS if she were not given an opportunity to live with Mr Kasonde for the period of his studies, or her individual circumstances of looking after a little baby by herself (“Ground 3”).
On 14 February 2018 a Registrar of this Court made an order allowing Ms Makwasa to file any amended Judicial Review Application, further supporting affidavits and a written outline of submissions prior to the hearing. No written submissions were provided by Ms Makwasa. Ms Makwasa filed a further affidavit on 6 April 2018 (“Ms Makwasa’s Affidavit”). The content of Ms Makwasa’s Affidavit is primarily in the nature of submissions, and is dealt with further below: see [17]-[18] and [41]-[56] below. Ms Makwasa’s Affidavit also included a further 107 pages of documents including academic transcripts, financial records and photographs.
At hearing the Minister objected to the Court receiving certain parts of Ms Makwasa’s Affidavit on the grounds the material was not before the Tribunal and therefore should not be considered by the Court, and in any event is irrelevant to the task of the Court in this proceeding. Those objections are dealt with below: see [17]-[18] below.
Ms Makwasa’s oral submissions at hearing were to the following effect:
a)it states on the website of the Minister for Home Affairs (“Website Information”) that what constitutes a “de-facto” relationship is that evidence must be adduced to establish the individuals have been living together for at least one year, and in a relationship for at least one year. Based upon this Website Information Mr Kasonde was right to not include Ms Makwasa as a de-facto as they only moved in together in November 2014 which was four months prior to his student visa application not one year (which adds to Ground 2);
b)the Tribunal did not address the “bride price” and that was relevant because Mr Kasonde could be sued if that had not been resolved (which repeats Ground 1); and
c)her individual circumstances and her little baby need to be considered, and she implored the Court to consider this (which repeats Ground 3).
Minister’s submissions
The Minister made the following submissions:
a)clause 572.314 of sch.2 of the Migration Regulations was explained in the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014 Explanatory Memorandum (“Explanatory Memorandum”):
The policy intention is that primary student visa applicants are required to declare all of the members of their family unit in their application… Declaring family members upfront is critical in order to provide the department with information about the applicant‘s circumstances and consider whether they are a genuine student and a genuine temporary entrant. It also ensures that financial safeguards are in place for the student and their family members‘ welfare while the student is studying in Australia;
(It is relevant at this point to note that cll.572.314 and 573.314 of Sch.2 to the Migration Regulations are in identical terms so far as the relevant criteria are concerned, with the former relating to a vocational education and training student visa and the latter a higher degree student visa;
b)in relation to grounds 1 and 3, it is apparent that the Tribunal considered Ms Makwasa’s explanations regarding the bride price at CB 195 at [7] and CB 196 at [10];
c)having found that Ms Makwasa was a member of the family unit of Mr Kasonde before the grant of his student visa and that Ms Makwasa had not been included in Mr Kasonde’s primary application, the Tribunal had no discretion to waive the requirements to comply with the relevant criteria;
d)the reason for Ms Makwasa not being included in Mr Kasonde’s student visa application or any inability for her to care for their child by herself were irrelevant to the Tribunal Decision;
e)in relation to ground 2, the definition of “de facto relationships” according to the Family Court of Western Australia has no bearing on this matter;
f)regulation 1.12(6) of the Migration Regulations relevantly provides that a person is a member of the family unit of an applicant for the Student Visa application if the person is a spouse or de facto partner of the holder, and the relevant definition of “de facto partner” imposes no requirement for Ms Makwasa to have lived with Mr Kasonde for a specific period of time in order to meet that definition;
g)it was open for the Tribunal to find that Ms Makwasa was a member of the family unit of Mr Kasonde at the time of his student visa application; and
h)to the extent that Ms Makwasa complains that the Tribunal erred in referring to her having given evidence that she had been in a de facto relationship with Mr Kasonde from November 2015, rather than November 2014, it is apparent that the reference to November 2015 was no more than a typographical error which has not affected the Tribunal’s exercise of power.
The Court asked the Minister to address the issue of the Website Information “definition” of “de facto relationship” raised by Ms Makwasa. The Minister submitted that:
a)Ms Makwasa in her own evidence to the Tribunal conceded she had been in a de facto relationship with Mr Kasonde since November 2014 and there was no error in the Tribunal taking that evidence at face value; and
b)were the Court to be of the view Mr Kasonde was “misled” by the Website Information it would be futile to remit the matter as Mr Kasonde’s student visa granted on 13 March 2015, expired on 13 March 2018, and is therefore no longer effective.
Relevant criterion and legislative provisions
Under s.65 of the Migration Act the Minister is to grant a visa if satisfied that the relevant criteria have been met, and the grant of the visa is not otherwise precluded, and not grant a visa if not satisfied the relevant criteria are met.
Ms Makwasa was required to satisfy cl.573.314 of sch.2 to the Migration Regulations which is as follows:
(1) If the applicant claims to be a member of the family unit of a person (the primary person) who holds a student visa having satisfied the primary criteria for that visa, the applicant meets subclause (2) or (3).
(2) The applicant meets this subclause if:
(a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person; and
(b) the applicant was included in the primary person’s application under subregulation 2.07AF(3) or in information provided in relation to the primary person’s application under subregulation 2.07AF(4).
(3) The applicant meets this subclause if the applicant became a member of the family unit of the primary person:
(a) after the grant of the student visa to the primary person; and
(b) before the application was made.
The Court notes in the Tribunal Decision at CB 196 at [9] the Tribunal states “The issue in the present case is whether the applicant satisfies the criteria set out in cl.572.314”. The Tribunal erred in that regard as the relevant criterion was cl.573.314 of sch.2 to the Migration Regulations. The error is irrelevant to the correctness of the Tribunal Decision as cl.572.314 of sch.2 of the Migration Regulations is in exactly the same terms as cl.573.314 of sch.2 to the Migration Regulations. Therefore, there is no jurisdictional error in the Tribunal referring to the incorrect clause of the Migration Regulations where:
a)the reference can simply be considered a mere typographical error: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [29] per Marshall J; SZLPH v Minister for Immigration & Citizenship [2008] FCA 744 at [26]-[32] per Weinberg J; EPP17 v Minister for Immigration & Anor [2018] FCCA 591 at [11(e)] per Judge Lucev; and
b)even if the reference was more than a typographical error, the error had no material effect on the Tribunal Decision, and has resulted in no practical unfairness as Ms Makwasa was required to satisfy identical criteria under cl.573.314 of sch.2 to the Migration Regulations, and that criteria where not met (as is the case here), bound the Tribunal to refuse the application for review: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219 at [4] per Gleeson CJ and [103] and [121] per McHugh J; Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363 at [47]-[48] per Besanko J (with whom Moore J at [1] and Buchanan J at [20] agreed).
The relevant definition of “member of the family unit” for present purposes is provided in reg.1.12(6)(a) of the Migration Regulations:
(6) A person is a member of the family unit of an applicant for, or of a holder of, a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the applicant or holder …
Sub-regulations 2.07AF(3) and (4) of the Migration Regulations are as follows:
(3) An application made on form 157A, 157A (Internet), 157E or 157G by a person who seeks to satisfy the primary criteria (the primary applicant) must include:
(a) the name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application; and
(b) the relationship between the person and the applicant.
(4) If a person becomes a member of the family unit of the primary applicant after the time of application and before the time of decision, the primary applicant must inform the Minister, in writing, of:
(a) the name, date of birth and citizenship of the person and
(b) the relationship between the person and the primary applicant.
The applicable definition of “de facto partner” in s.5CB(1) and (2) of the Migration Act is relevantly as follows:
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
Consideration
Matters to be addressed
The Court will address:
a)the objections to Ms Makwasa’s Affidavit;
b)the three substantive grounds of review in the Judicial Review Application; and
c)having regard to the fact that Ms Makwasa was a self-represented litigant, and to the extent necessary, any issues arising from Ms Makwasa’s Affidavit, or otherwise arising: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112]-[113] per Mortimer J.
Objections
In respect of the objections raised by the Minister regarding Ms Makwasa’s Affidavit the Court considers the material from page 5 and onwards of Ms Makwasa’s Affidavit is inadmissible or irrelevant because the material:
a)is already before the Court in the Court Book, and it is not for the Court to reconsider the factual merits of the evidence and materials before the Tribunal, because to do so would be to engage in impermissible merits review contrary to the long-standing principle arising from Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); and
b)in respect of a number of documents and photographs it is not open to the Court on a judicial review application to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. Furthermore, the Court notes these documents pertain to Ms Makwasa’s academic results and financial capacity, as well as photographs of Ms Makwasa and Mr Kasonde, and are therefore irrelevant to the Court’s consideration of whether the Tribunal was in error by affirming the Delegate’s Decision on the basis that Mr Kasonde had not referred to Ms Makwasa as a member of his family unit in the primary application. It is also not open to the Court to admit new evidence from the applicant for the purpose of asking the Court to disagree with a factual conclusion reached by the Tribunal, and where the Court does admit such evidence it will engage in impermissible merits review: Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [53]-[55] per Reeves, Robertson and Rangiah JJ, contrary to the long-standing principle arising from Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As referred to at [42] below, Ms Makwasa’s Affidavit at pages 1-4 ought to be treated as submissions, and are dealt with hereunder.
Jurisdictional error
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474, 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine Ms Makwasa’s Student Visa application: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow J.
Ground 1
Ground 1 asserts that the Tribunal failed to consider the “moral” and “customary” considerations and factors in the explanation Ms Makwasa provided for Mr Kasonde not disclosing their relationship on his primary application form.
In the Tribunal Decision at CB 196 at [10] it can be seen the Tribunal set out Ms Makwasa’s explanation for her not being included by Mr Kasonde in the primary application, and expressly referred to the claims concerning Mr Kasonde’s ex-fiancée, the bride price and the possibility of his being sued in relation thereto. The Tribunal was, however, under no obligation to draw conclusions with respect to those claims, or consider them in the context of whether Ms Makwasa ought to be granted the Student Visa. That was because the criteria for the Student Visa were set by cl.573.314 of sch.2 to the Migration Regulations, and there is no provision for consideration of any other criteria or circumstances (including exceptional circumstances) in determining whether the Student Visa ought to be granted to Ms Makwasa. Considerations associated with the bride price for Mr Kasonde’s ex-fiancée, and customary law in Tanzania and Zambia, and issues of morality, are all simply irrelevant to the criteria to be satisfied for the grant of the Student Visa under cl.573.314 of sch.2 to the Migration Regulations.
The bride price issue does however explain why it is that Mr Kasonde did not include Ms Makwasa in his primary application, because there would have been difficulties associated with doing so (at least in Mr Kasonde’s mind), and it is fair to infer from the strength of the submission to the Tribunal in that regard: see CB 107, that Mr Kasonde would never have disclosed the relationship with Ms Makwasa as at March 2015 for reasons associated with the complications arising from the bride price. Even if the Tribunal had accepted that there had not been disclosure of the de facto relationship between Ms Makwasa and Mr Kasonde for the reasons put forward by Ms Makwasa, that would not have altered the fact that the relevant criteria under cl.573.314 of sch.2 to the Migration Regulations had not been met, and that the Tribunal could not be satisfied that the criteria for the grant of the visa had therefore been met, and could not therefore grant the Student Visa: Migration Act, s.65.
It follows from the foregoing consideration that the Tribunal did not commit jurisdictional error by not considering, or not giving any weight to, those matters referred to in ground 1 when considering whether to grant Ms Makwasa the Student Visa.
Ground 1 establishes no jurisdictional error in the Tribunal Decision.
Ground 2
In ground 2 Ms Makwasa takes issue with the following statement in the Tribunal Decision at CB 195 at [7]:
The Tribunal questioned this evidence as she had said they were in a de facto relationship from November 2015.
Ms Makwasa asserted that she did not tell the Tribunal that she and Mr Kasonde were in a de facto relationship “from November 2015”, but rather “from November 2014”. Even though there is no transcript of the Tribunal Hearing before the Court, the Court accepts Ms Makwasa never stated she had been in a de facto relationship “from November 2015”. The reference to “November 2015” is plainly a typographical error, and “November 2015” should read “November 2014”. The error is evident when regard is had to:
a)the Tribunal’s reference to the evidence indicating that Mr Kasonde and Ms Makwasa “met in 2013, began living together in November 2014 and were married on 21 May 2015”: CB 195 at [3];
b)the reference to Ms Makwasa indicating that she had been in a de facto relationship with Mr Kasonde “from November 2014 living together and sharing household chores and finances, similar to a married couple”: CB 195 at [7]; and
c)the Tribunal’s finding that Mr Kasonde and Ms Makwasa “commenced a de facto relationship in November 2014”: CB 196 at [10].
Having accepted that Ms Makwasa and Mr Kasonde were married in May 2015, the Tribunal could not have intended to refer to them being in a de facto relationship from six months later in November 2015, or to Ms Makwasa having said anything to that effect. Thus, when one considers the Tribunal Decision as a whole it is evident that the reference to “from November 2015” at CB 195 at [7] is a typographical error which had no bearing on the outcome of the Tribunal Decision, and that “2015” should read “2014”.
Even if the reference to “from November 2015” were to be considered as a factual error it makes no difference for two reasons:
a)firstly, there is no jurisdictional error where the Tribunal simply misconceives a visa applicant’s evidence: WAKK v Minister for Immigration & Border Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[63] per Marshall, Mansfield and Siopis JJ, where the Full Court of the Federal Court also made reference to the judgment of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [88] per Kirby J where it was said that:
Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction
and to the observations of another Full Court of the Federal Court decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”) at [63] per Black CJ, French and Selway JJ, where it was said that an error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome as it may be subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected; and
b)secondly, because the length of the de facto relationship between Mr Kasonde and Ms Makwasa prior to their being married was not relevant, particularly in circumstances where the Tribunal found that the de facto relationship between them commenced in November 2014 prior to the primary application for a student visa being made by Mr Kasonde, and it was the making of that primary application, and the failure to refer to the de facto relationship between Mr Kasonde and Ms Makwasa therein which meant that the criteria under cl.573.314 of sch.2 to the Migration Regulations had not been satisfied: Migration Act, s.65.
Ms Makwasa also took issue with the Tribunal’s use of the term “de facto” and contended it was incompatible with a definition referred to by the Family Court of Western Australia on its website. In support of this contention Ms Makwasa’s Affidavit and her Judicial Review Application contained excerpts of the Family Court of Western Australia webpage material explaining the nature of a “de facto relationship”, and the necessity for a de facto relationship to have been in existence for 12 months. With respect to Ms Makwasa, the material from the Family Court of Western Australia is entirely irrelevant because s.5CB(1) and (2) of the Migration Act relevantly defines “de facto partner” for the purpose of an application made under the Migration Act. For present purposes, that definition stands alone and requires no reference to, or consideration of, any other federal or state family law legislation, and to the extent that s.5CB(1) and (2) of the Migration Act is inconsistent with anything in state family law legislation, s.5CB(1) and (2) (and hence the definition therein of “de facto partner”) prevails to the extent of any inconsistency over any state family law legislation: Constitution, s.109.
In relation to the assertion that the Court ought to have regard to the Website Information that Ms Makwasa said was contained on the Department of Home Affairs website in relation to a definition of “de facto relationship” as being a relationship which had to be in existence for 12 months, and that because of that definition Mr Kasonde did not declare Ms Makwasa as a member of the family unit on Mr Kasonde’s primary application, that submission must fail for a number of reasons:
a)there is, conspicuously, no evidence from Mr Kasonde to that effect, either before the Tribunal (bearing in mind he was present at the Tribunal Hearing: see [2(g)] above), or before this Court;
b)this matter has been in issue since the time of the Delegate’s Decision, and therefore Ms Makwasa was on notice that the failure to declare the de facto relationship was an issue: in the Delegate’s Decision at CB 78 the relevant criteria (by reference to cl.573.314 of sch.2 to the Migration Regulations) are set out including the requirement that the applicant be included in the primary person’s application, or that information provided in relation to the primary person’s application. The fact that the applicant was not so included is then set out, and the Delegate then finds that:
John Joseph Kasonde did not declare the applicant Rehema Sospeter [Makwasa] on his previous student visa, therefore the client does not meet regulation 573.314.
CB 78;
c)the submission now put to the Court as to there being a Departmental rule that a de facto relationship must be one of 12 months or more in standing, and that that was the reason Mr Kasonde did not declare the relationship, was not a matter which, on the face of the Tribunal Decision was put to the Tribunal: CB 194-197;
d)Ms Makwasa’s submissions to the Tribunal did not rely upon any information from the Department of Home Affairs (or its predecessors) in relation to the definition of de facto relationship as a reason why Ms Makwasa was not included in the primary application by Mr Kasonde, and, indeed other reasons were given related to the finalisation of the bride price for the family of the ex-fiancée, and the impossibility of nominating Ms Makwasa at the time of the lodgement of the primary application because of the cultural and traditional issues involved, and otherwise there were submissions made concerning the consequences of not being granted the Student Visa: CB 107-109;
e)there is no explanation by Ms Makwasa for not putting this argument to the Tribunal; and
f)there is no evidence of what is said to be the policy of the Department of Home Affairs (or any of its predecessors) with respect to the issue of defining de facto relationships, and no such evidence was put to the Tribunal, and notwithstanding that the requirement to name Ms Makwasa in the primary application formed the basis for the Tribunal Decision (in addition to the Delegate’s Decision), there is no evidence put before this Court (as it could have been pursuant to the Registrar’s orders) that there was any definition of the type claimed published by the Department of Home Affairs (or any of its predecessors) at the time the primary application was made by Mr Kasonde in March 2015 (assuming that such a definition had any relevance or probative value, which in the Court’s view, it did not, and could not in light of s.5CB(1) and (2) of the Migration Act).
In the absence of any evidence of the alleged definition of de facto relationships said to be applied by the Department, and in the absence of this argument having actually been put to the Tribunal, this assertion is not and cannot be made out. In any event, the Tribunal was not in error because it applied the criteria set out in the Migration Act, and in that regard had regard to the definition of “de facto partner” in s.5CB of the Migration Act, as it was obliged to do.123456
The Tribunal Decision at CB 196 at [10] states that:
10. The Tribunal accepts that the applicant and Mr Kasonde are in a genuine relationship. Based on their evidence to the Department and that initially provided at hearing the Tribunal finds that they commenced a de facto relationship in November 2014.
The Tribunal made a finding that was completely open to it on the factual material and evidence provided by the applicant, and the finding that Ms Makwasa was a de facto partner of Mr Kasonde at the time of his making the primary visa application is not in dispute.
Ground 2 establishes no jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 asserts the Tribunal fell into error by having failed to consider Ms Makwasa and her circumstances if she were to not be allowed to stay in Australia with her husband, and particularly asserted that the Tribunal failed to consider the interests of the couple’s child.
The Tribunal made a finding at CB 196 at [10] that Ms Makwasa was a member of a “family unit”, being Mr Kasonde’s “de facto partner” at the time he lodged the primary application, being his student visa application, on 6 March 2015. Having made this finding of fact, cl.573.314(2) of sch.2 to the Migration Regulations, set out at [11] above, was applicable to Ms Makwasa’s Student Visa application.
Pursuant to regs.2.07AF(3) and (4) of the Migration Regulations, Ms Makwasa was required to be included in the primary application by Mr Kasonde, or alternatively Mr Kasonde was required to advise the Minister of Ms Makwasa’s name, date of birth and citizenship, and of the relationship between them, prior to Mr Kasonde being granted the student visa on 13 March 2015. The relevant requirements of reg.2.07AF of the Migration Regulations are mandatory and not discretionary, as can be seen from the use of the phrases “must include” and “must inform” in sub-regs.(3) and (4) of reg.2.07AF of the Migration Regulations. The use of “must” is indicative of an imperative command, either positive or negative, depending on the word or words which follow it in the relevant statutory provision. It expresses necessity in the sense of an obligation or requirement: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376; Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461; (1947) VLR 276; (1947) ALR 61; (1947) 20 ALJ 444, CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275 per Millhouse J; Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J. The mandatory requirements which obliged Mr Kasonde to include Ms Makwasa as a member of the family unit in the primary application, or to inform the Minister of her status prior to the grant of his student visa were not met. Hence, Ms Makwasa did not meet the requirement for a grant of the Student Visa because she did not meet cl.573.314(2)(b) of sch.2 to the Migration Regulations.
The Minister referred to the Explanatory Memorandum which notes the intention of the Parliament in enacting the criteria in cl.572.314 of the Migration Regulations, which are identical to those in cl.573.314 of the Migration Regulations, was to make clear that applicants must declare members of the family unit upon application, or before a determination is made, in order to ensure a comprehensive assessment of the visa application against the necessary criteria is undertaken. While substantial compliance with the directions on a visa application form may be sufficient in some circumstances: Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 at [24] per Katz J, Mr Kasonde’s failure to comply with the direction by not including Ms Makwasa as a member of his family unit on his student visa application, or providing the information before the grant of Mr Kasonde’s student visa, meant that the Tribunal was not affirmatively satisfied Ms Makwasa met that criterion for the Student Visa, and the Tribunal was obliged to refuse to grant the Student Visa: Migration Act, s.65; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ.
There was no discretion, as there are for some other classes of visa under the Migration Regulations, for the Tribunal to consider “exceptional circumstances” to grant Ms Makwasa the Student Visa. As there was no discretion the Tribunal was mandated to apply the Student Visa criterion as set out above: see [11] above, and also [13]-[15] above, and the only decision open to the Tribunal was to affirm the Delegate’s Decision to refuse the Student Visa, which the Tribunal did, and which was a valid exercise of its statutory jurisdiction under the Migration Act.
Ground 3 establishes no jurisdictional error in the Tribunal Decision.
Ms Makwasa’s Affidavit
The Court has dealt with the objections to Ms Makwasa’s Affidavit, and its admissibility and relevance generally, at [17]-[18] above.
Ms Makwasa’s Affidavit essentially comprises submissions, and as indicated above: see [18] above, the Court will examine those submissions to see whether any of them grounds possible jurisdictional error: MZAIB at [100] and [112]-[113] per Mortimer J.
Introductory paragraph
An introductory unnumbered paragraph in Ms Makwasa’s Affidavit states as follows:
Having read the decision of the Administrative Tribunal that was made on 23/11/2017, I would like to bring to the attention of this honourable court that some of the content of the decision did not reflect what I said as some words used in the decision as mine were the same words that the member used when asking questions but the same words were put to be my words. As a result, I strongly believed the member's decision was based on those words. Refer to number seven and ten of the Member's decision
Ms Makwasa refers to the Tribunal Decision at CB 195 at [7] and CB 196 at [10].
At CB 195 at [7] the Tribunal:
a)noted the appearance of Ms Makwasa and Mr Kasonde before the Tribunal by video “to give evidence and present arguments”;
b)said that the Tribunal explained to them the requirements of cl.572.314 of sch.2 to the Migration Regulations (which the Court has noted at [12] above are the same as cl.573.314 of sch.2 to the Migration Regulations which is the provision actually applicable);
c)noted that Ms Makwasa indicated that she had been in a de facto relationship with Mr Kasonde from November 2014, that they were married in May 2015 and had a baby in October 2017, and that the baby was present at the Tribunal Hearing;
d)noted that the Tribunal raised its concerns under s.359AA of the Migration Act that Mr Kasonde had not indicated in the primary application that he was in a de facto relationship, and did not refer to Ms Makwasa at all, and said that he was never married, and noted Ms Makwasa’s response that that was because of the issues with his ex-fiancée and the bride price, which he said were finalised in April 2015, and that her husband could not refer to Ms Makwasa in the primary application because he would have been sued; and
e)referred to the fact that it questioned this evidence as Ms Makwasa had said that they were in a de facto relationship from November 2015 (which for reasons set out above: see [27] above, should be November 2014), and questioned why Mr Kasonde would be concerned about these issues in a confidential application.
At CB 196 at [10] the Tribunal accepted that Mr Kasonde and Ms Makwasa had commenced a de facto relationship in November 2014, and then refers to the evidence as to why Mr Kasonde did not refer to that relationship, but indicates that that is contrary to the earlier evidence of the relationship existing from November 2014, and that the Tribunal places weight on that initial evidence of the commencement of the de facto relationship from November 2014.
Apart from the typographical error (see [27] above) referring to “November 2015” rather than “November 2014” what is said by the Tribunal is consistent with both Ms Makwasa’s evidence before the Tribunal and the material otherwise before the Tribunal.
Ms Makwasa has not provided a transcript of the Tribunal Hearing to the Court in order to support her claim that the content of the Tribunal Decision did not reflect what she said, and without that transcript, and having regard to the Court’s conclusions with respect to the error in the date (as set out at [27] above), Ms Makwasa cannot discharge the onus of establishing the Tribunal fell into a jurisdictional error for the reason she alleges: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J. In the circumstances, nothing contained in the introductory paragraph of Ms Makwasa’s Affidavit gives rise to jurisdictional error in the Tribunal Decision.
Paragraphs [1]-[5]
At [1]-[5] of Ms Makwasa’s Affidavit she makes submissions as to why Mr Kasonde did not include her in the primary application against a background of factual material which in relation to Mr Kasonde’s reasons for not including her are essentially inadmissible hearsay: Evidence Act 1995 (Cth), s.59(1). In any event, the submissions disclose no jurisdictional error on the part of the Tribunal in the Tribunal Decision and amount to nothing more than a request for impermissible merits review by this Court: Wu Shan Liang, CLR 272 per Brennan CJ, Toohey, McHugh and Gummow J.
Paragraphs [6]-[7]
At [6]-[7] of Ms Makwasa’s Affidavit Ms Makwasa reiterates she did not tell the Tribunal she had been in a de facto relationship with Mr Kasonde from November 2015. The Court accepts this to be the case, as did the Tribunal: CB 196 at [10] and see [27] above. The Court has already concluded that the reference to November 2015 was a typographical error, and that, in any event, even if it was a factual error it made no difference to the Tribunal Decision, and did not constitute jurisdictional error: see [28] above. No jurisdictional error in the Tribunal Decision is therefore established by [6]-[7] of Ms Makwasa’s Affidavit.
Paragraphs [8]-[9]
At [8] of Ms Makwasa’s Affidavit it appears there is a claim that the Tribunal based its decision on s.359AA of the Migration Act. It suffices to observe that the Tribunal was merely affording the applicant procedural fairness in putting information to Ms Makwasa for comment pursuant to s.359AA of the Migration Act. In circumstances where it is not alleged that there was a failure to put information to Ms Makwasa, the mere putting of information to her to afford her the opportunity to respond does not give rise to jurisdictional error in the Tribunal Decision.
At [8] and [9] of Ms Makwasa’s Affidavit she reiterates submissions concerning state family law legislation, and what she says is a requirement for de facto couples to have lived together for at least two years which she says (without any corroborating evidence from Mr Kasonde) caused Mr Kasonde to not refer to her in the primary application. The Court has already dealt with this issue at [29]-[31] above, and found that it gives rise to no jurisdictional error in the Tribunal Decision. It follows that [8]-[9] of Ms Makwasa’s Affidavit establish no jurisdictional error in the Tribunal Decision.
Paragraphs [10]-[11]
The matters raised at [10]-[11] of Ms Makwasa’s Affidavit in relation to the child of Ms Makwasa and Mr Kasonde were not matters that the Tribunal was obliged to consider, and are otherwise dealt with in relation to ground 3 above: see [35]-[40] above. It follows that no jurisdictional error in the Tribunal Decision arises in relation to Ms Makwasa’s Affidavit at [10]-[11].
Final paragraph
The final paragraph of Ms Makwasa’s Affidavit contains a plea to this Court to “consider overturning the decision of the Tribunal and use the powers vested in this Honourable Court to instruct granting me student Visa”. This Court cannot provide the relief Ms Makwasa seeks because the Court is not empowered to grant an application for a visa, but rather to determine whether the Tribunal has committed a jurisdictional error in making the Tribunal Decision, and if so, in most cases, to grant relief by way of, amongst other things, remitting the matter to the Tribunal to be determined according to law: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The relief sought is therefore relief that this Court cannot grant.
Final page of Ms Makwasa’s Affidavit
On the final page of Ms Makwasa’s Affidavit, following 105 pages of various documents including academic transcripts, photographs and financial documents, Ms Makwasa provides “ADDITIONAL INFORMATION” and refers to the typographical error the Court has discussed at [12] above whereby the Tribunal referred to the incorrect clause in sch.2 of the Migration Regulations. For the reasons set out above at [12] reference to the incorrect clause does not give rise to jurisdictional error in the Tribunal Decision.
Conclusion - Ms Makwasa’s Affidavit
It follows from the foregoing consideration of Ms Makwasa’s Affidavit that it establishes no jurisdictional error in the Tribunal Decision.
Futility or lack of utility
Finally, and in any event, even if there was jurisdictional error in the Tribunal Decision a remittal to the Tribunal would, in the Court’s view, lack utility: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J, or would be “an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, upheld on appeal: Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J, because Mr Kasonde’s student visa ceased to have effect on 15 March 2018: CB 36.
Conclusion and Orders
The Court has found that none of the grounds, or any of the other matters raised by Ms Makwasa, establishes jurisdictional error in the Tribunal Decision. Further, any remittal to the Tribunal would be futile or lack utility because of the expiry of the student visa granted to Mr Kasonde upon the primary application. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 May 2018
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