Malavige v Minister for Immigration - [2004] FMCA 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALAVIGE v MINISTER FOR IMMIGRATION

[2004] FMCA 38

MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal affirming a decision not to grant a partner (temporary) class UK visa – whether the Tribunal erred in considering that the applicant and nominator were in a genuine marriage relationship at the time of the visa application for the purposes of Regulation 1.15A of the Migration Regulations – whether incorrectly addressed notice to applicant amounted to a jurisdictional error – whether the Tribunal failed to consider the domestic violence matters raised at the hearing in order to properly assess the relationship between the applicant and the nominator – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.45D, 66, 66(2), 66(2)(d)(ii), 359(2), 379G, 379G(1), 412(1)(b), 473, 475A, 494B, 494B(1), 494B(4)(c), 494C, 494C(4), 494D(1),
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994, Regs 1.15A, 1.15(1A), 1.15A(3), Clauses 820.22, 820.221(1), 820.211(2), 820.211(3), 820.211(4), 820.211(5), 820.211(6), 820.211(7), 820.211(8), 820.211(9)

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
A v Minister for Immigration and Multicultural Affairs (1999) FCA 227 Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 30
NACB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 235
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALB 139
Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, unreported 29 November 1991)
Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 162 ALR
NACB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 235
Re Minister for Immigration and Multicultural Affairs & Ors; ex parte Cohen (2002) 177 ALR 473
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lam v Minister for Immigration and Multicultural and Indigenous Affairs 1995 ALR 502
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 102
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 327
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56
Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292
Vean of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 311
Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292
Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788
Veta v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1; (2003) 211 CLR 476

Applicant:

NILANGA DAYARATHNE MALAVIGE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 743 of 2003

Delivered on:

6 February 2004

Delivered at:

Melbourne

Hearing date:

28 January 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Hamilton

Solicitors for the Applicant:

Di Mauro Solicitors

Counsel for the Respondent:

Mr W Moseley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

THAT the Application be dismissed.
THAT the Applicant pay the Respondent's costs fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 743 of 2003

NILANGA DAYARATHNE MALAVIGE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and s.475A of the amended Part 8 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") affirming the decision of a delegate of the respondent not to grant to the applicant a partner (temporary) class UK visa.
The application was commenced in the Federal Magistrates Court on 10 July 2003. The decision of the Tribunal was made on 20 June 2003. The applicant applied for a partner (temporary) class UK visa on

22 July 2002. On 31 October 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) refused to grant this visa and the applicant sought review of that decision.
The issue in the case before the Tribunal was whether the nominator of the applicant and the applicant, were in a genuine marriage relationship at the time of the application within the meaning contained in Regulation 1.15A of the Migration Regulations 1994.

Background

The applicant is a national of Sri Lanka born on 4 November 1979. He entered Australia initially on a student visa and held that visa until

22 July 2002. His visa expired on the date of his application on 22 July 2002 and since then he has held a bridging visa.
The applicant and the nominator Ms Rebecca Jessie Gemmell, an Australia citizen were married at Glen Waverley on 6 July 2002. The visa applicant claimed to have met the nominator at a friend's place in August 2000.
The couple were invited to attend an interview with the respondent's delegate on 17 September 2002 but advised they were not able to attend because the nominator was unwell. They were invited to attend a rescheduled interview on 7 October 2002. However, the nominator on that date called the delegate asking that the interview be rescheduled again because she had sprained her ankle.
On 21 October 2002 the delegate received a facsimile from the applicant's migration agent advising that the applicant had been subject to domestic violence perpetrated by the nominator. The letter written by the applicant's adviser indicated that the applicant's wife had become violent to him as a result of an accusation that he had previously been married in Sri Lanka and advised that the applicant would be proceeding with his application under the domestic violence provision of the Regulations.
On 31 October 2002 the delegate made a decision that the applicant and his wife were not in a genuine and ongoing relationship. Following his application to the Tribunal to review the delegate's decision the visa applicant was sent a letter pursuant to s.359(2) of the Act on 19 March 2003. He was invited to provide information on the following:
a)evidence of the history of their relationship, how and when he met his nominator;
b)evidence of the wedding and wedding celebration;
c)details of financial arrangements between him and the nominator;
d)evidence of the social aspects of their relationship at the time of application in particular, evidence of cohabitation with the nominator since the marriage;
e)the nature of his and the nominator's household; evidence of his commitment to the relationship with the nominator; and
f)the degree of companionship and emotional support that he and she provided for each other.
On 7 April 2003 the applicant's agent responded to the Tribunal's letter. The agent enclosed an uncertified copy of the marriage certificate dated 6 July 2002 and statutory declarations from the visa applicant and two competent persons as evidence that he had suffered domestic violence at the hands of his estranged wife. In his statutory declaration dated 7 April 2003, the applicant described briefly how he had met his wife at a friend's party. They saw each other again, and after some time discussed getting married. He told his parents, they did not like the idea of him getting married because he was young and studying, but after he convinced his parents that he could manage marriage and study they accepted the marriage. They were married at a friend's house by a marriage celebrant. As his parents in Sri Lanka could not send him money because of his father's redundancy things became difficult financially. As a student he could only work 20 hours a week so he lodged a spouse visa application as this would enable him to work. Soon after lodging this application there was a change in his wife's attitude to him. This he alleged was because his friend had told her that the visa applicant was married in Sri Lanka, and that she would not believe his denial.
On 17 September 2002 he and his wife were invited to attend an interview with the department. As his wife's behaviour had become extremely threatening to him his social worker advised him to seek legal advice. On 28 October 2002 he notified the department that he had suffered domestic violence.
A hearing was held on 2 June 2003 and oral evidence was given by the applicant. Also present were the applicant's agent, Mr Nwankwo of Di Mauro solicitors and an observer. The visa applicant tabled a prescription, a pharmacy receipt dated 31 May 2003 and a print out of a brief email from his wife dated 15 October 2002.
The applicant told the Tribunal that his student visa was cancelled because he could not pay the fees.
The Tribunal referred the visa applicant to the questions that were sent to him in the letter of 19 March 2003. He gave evidence that his wife was a student when he met her at the end of July 2000. She was studying how to get a job and was in recept of Centrelink payments when she moved in with him in April 2002. The visa applicant said that he earned between $800 and $1000 a month at the time and his wife received $200 per fortnight from Centrelink. His parents sent him money occasionally after he was married.
The visa applicant said that he and his wife had a joint bank account. Neither of them put all of their money into it and they each had separate accounts. The account was used for shopping. He claimed to put $500 into it at first. The applicant said that he did not have any receipts. He shared a two bedroom townhouse with a friend and he and his wife shared a room there. He did not have any receipts for rent, electricity, gas or telephone. He said that all of these were in his friend's name and he and the nominator did not own anything jointly. When asked about the household expenses he said that he paid the rent and she did the shopping, although sometimes, he gave her something for the shopping and sometimes she gave him something for the rent. There was no fixed amount and she did the housework.
The applicant said his wife left him at the end of October as a result of arguments after he she was told that he was already married in Sri Lanka she became violent and was angry with him.
The Tribunal asked the visa applicant about the wedding. He claimed that there were about 60 guests but the photographs showed only three people beside the celebrant. Neither sets of parents came to the wedding although his wife's parents live in Gisborne. He said the two mature persons in the photograph were his uncle and her aunt. There were no photographs of the couple in social settings. The applicant claimed that after their marriage they went to three parties and one wedding together. He claims that they went shopping together. The Tribunal asked the visa applicant to tell it about his commitment to the relationship with his wife. He said they went to parties together and asked what their plans for the future were and said that she would start hairdressing and he would finish his course.
The Tribunal asked the visa applicant about the companionship and emotional support with which he and his wife had provided each other. He mentioned what they had done before they were married by way of entertainment and that they went on a two day honeymoon. The Tribunal asked the applicant whether they shared interests. He said that after they were married they had played pool. He did not know the name of the place at which she was studying after they were married. He said at that time he had a cleaning job which he went to after four and/or five o'clock for three and a half hours. He stopped working in October. He claimed that the friends with whom he was living did not want to know about his problems and that his wife's family believed that he was married in Sri Lanka.

The relevant statutory framework

In assessing the application the Tribunal is required to consider the definition of spouse in Regulation 1.15A which provides:
(1)for the purposes of these Regulations, a person is a spouse of another person if the two persons are:
a) in a married relationship, as described in sub regulation (1A).
(1A) persons are in a married relationship if :
a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
b) the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
(3) in forming an opinion whether two persons are in a married relationship ... in relation to an application for: ...
(ae) a Spouse (provisional) T (class US) visa ...
The Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or any other major assets; and
(ii)any joint liabilities; and
(iii)to the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one party to the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day to day household expenses;
(b) the nature of the household including:
(i)   any joint responsibility for the care and support of children, if any, and
(ii) the parties living arrangements; and
(iii) any sharing of responsibility of the housework;
(c)      the social aspects of the relationship including:
(i) whether the persons represent themselves to other people as being married ... ;
(ii) the opinion of the person's friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the person's commitment to each other including:
(i)     the duration of the relationship; and
(ii)   the length of time during which the persons who have lived together; and
(iii)   the degree of companionship and emotional support that the persons draw from each other; and
(iv)   whether the persons see the relationship as a long term one
(iv) in forming an opinion whether two persons are in a married relationship ... in relation to an application for a visa other than a class specified in paragraph (3) ... (ae), ... a Minister may have regard to any of the factors set out in sub regulation (3)
If the relationship breaks down before the grant of the visa the application for a visa will generally be refused. There is however an exception to this in relation to a relationship that has broken down as a result of violence. In relation to the criteria to be satisfied for an 820 spouse visa at the time of decision, the Regulations state in Schedule 2 as follows:
820.22 criteria to be satisfied at the time of decision.
820.221(1) In the case of an applicant referred to in sub clause 820.211(2), (3), (4), (5), (6), (7), (8), or (9) the applicant either:
(a) continues to meet the requirements of the applicable sub clause;   or
(b) meets the requirements of sub clause (2) or (3).
(2)   an applicant meets the requirements of this sub clause if the applicant:
(a) would continue to meet the requirements of sub clause 820.211(2), (3), (4), (5) or
(6) accept that the sponsoring spouse has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring had not died; and
(c) has developed close business, cultural or personal ties in    Australia.
(3) an applicant meets the requirements of this sub clause if:
(a) the applicant would continue to meet the requirements of sub clause 820.211(2), (3), (4), (5) or (6) accept that the relationship between the applicant and the sponsoring spouse has ceased; and
(b) either or both of the following circumstances applies;
(i) either or both of the following:
(A) the applicant;
(B) a dependant child of the sponsoring spouse or of the applicant or both of them; has suffered domestic violence committed by the sponsoring spouse.
Division 1.5 of Part I of the Migration Regulations 1994 contains provisions in relation to establishing domestic violence.

The Tribunal's decision

The Tribunal identified, correctly, that before undertaking an analysis of whether domestic violence is taken to have occurred under Division 1.5 of the Regulations, the Tribunal was required to first determine whether, at the time of the application, the nominator and the applicant were in a genuine spousal relationship. The Tribunal identified the central issue as being whether or not the applicant was "the spouse" of the nominator at the time of the application. This required, in addition to the parties being married to each other under a marriage recognised as valid for the purposes of the Act, that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them was genuine and continuing. The Tribunal correctly identified that it had to take into account the considerations set out in sub regulation 1.15A(3) in forming an opinion whether two persons are in a married relationship. The Tribunal noted that sub regulation 1.15A(3) sets out mandatory considerations and the Tribunal in forming an opinion whether a married relationship or de facto relationship did exist must take into account the considerations set out in sub regulation 1.15A(3) (Nassouh v Minister of Immigration and Multicultural Affairs [2000] FCA 788).
In summary the Tribunal concluded that it was not satisfied that the applicant and the nominator had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them was genuine and continuing. Consequently, it was found that at the time of the application that he applicant was not a "spouse" in the meaning of regulation 1.15A and accordingly he did not meet the requirements of sub clause 820.211(2).
As there was no spousal relationship at the time of application, the Tribunal found that it was not required to consider any time of decision criteria. Domestic violence arises as a matter which may be relevant to time of decision criteria only and accordingly the Tribunal did not consider any claim to domestic violence.

The applicant's claims

Notwithstanding the grounds in the application the applicant agitated only three matters. The first error said to be made by the Tribunal and which was contended was a jurisdictional error, it was alleged to be constituted by a breach of s.379G(1) of the Act which it is contended is an inviolable limitation and thereby jurisdictional error occurs if it is breached.
Section 379G says as follows:
379G Authorised Recipient
(1) if:
(a) a person (the applicant) applies for review of an MRT - reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
The Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

It is conceded that the applicant had properly appointed an agent who fell within the description of "authorised recipient" (Court book page 54).
The Tribunal wrote to the applicant on 19 March 2003 inviting him to provide information. The letter said:
I am writing about your application to the Tribunal for review of a decision on a partner (temporary) (class UK) visa.
Section 359(2) of the Migration Act allows the Tribunal to invite a person to give it additional information that is relevant to the review of a decision.
Accordingly the Tribunal now invites you to provide the following additional information:
·    Evidence of the history of the relationship, how and when you met the nominator;
·    Evidence of your wedding and wedding celebrations;
·    Details of financial arrangements between yourself and the nominator;
·    Evidence of the social aspects of your relationship at the time of your application in particular;
·    Evidence of cohabitation with your nominator since your marriage;
·    Nature of your and the nominator's household;
·    Evidence of your commitment to the relationship with your nominator;
·    Degree of companionship and emotional support that you provide for each other.
The letter invited the applicant to provide the requested information in writing within 28 days in notification of the invitation and provided for an extension of time to be granted.
In response to that letter the authorised agent of the applicant wrote to the Tribunal on 7 April 2003 and enclosed statutory declarations from the applicant and two other persons indicating domestic violence suffered by him. The applicant swore a statutory declaration on 7 April in which he provided some details about his marriage and surrounding circumstances and also the domestic violence which he alleged had occurred. He provided a statutory declaration from a social worker and a medical practitioner in relation to the domestic violence.
Subsequently the applicant was advised to appear before the Tribunal at the hearing which he did. At the hearing, in addition to considering the matters raised by the applicant in the statutory declaration the Tribunal referred him to the questions it had sent him in the letter of 19 March 2003(Court book 103, paragraph 20). The applicant had an opportunity to give evidence and provide information about matters raised in the letter (Court book, pages 103 to 104 inclusive - see paragraph 20 to 29 inclusive).
It was common ground that the letter inviting him to provide information was addressed to:
Mr Nilanga Dayarathne Malavige care of Mr Godson Nwankwo of Di Mauro Solicitors, Level 4, 21 Victoria Street Melbourne 3000.
Mr Nwankwo was the authorised recipient. It is thus clear, and conceded, that the letter was addressed to the applicant care of the authorised person.
Ultimately, the Tribunal concluded that the evidence as provided did not satisfy it that the applicant met the criteria for a "spouse" within the meaning of regulation 1.15A. It was not suggested that the applicant did not receive the letter, nor that he had an opportunity to respond to it. Nor is it contended that he did not have an opportunity to respond to the relevant criteria when put to him by the Tribunal at the hearing.
What is contended is that in addressing the letter to the applicant care of his authorised recipient the Tribunal did not comply with s.379(G)(b) which required the Tribunal to give:
The authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
It is contended that a breach of an inviolable limitation in the Act and constitutes jurisdictional error. The applicant relied in support of this contention on two decisions of the Federal Court Vean of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 311 and Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292). The decision in Chan Ta Srey was delivered on 12 November 2003 and the decision in Vean on 23 September 2003. As both cases involved similar argument or similar issues they require careful consideration.
The case of Vean involved the procedures with respect to the Refugee Review Tribunal and the construction of s.494B(1) of the Act. However the wording is consistent with the wording in s.379G(1). In Vean the applicant was sent a letter notifying him of the delegate's decision rejecting his visa application and enclosing the delegate's reasons for decision on 3 January 2002. The letter was addressed to the applicant care of his authorised agent and the authorised agent's address. In Vean the authorised agent was a sister of the applicant and the address was her address.
Section 473 provides that if the respondent gives a document to a person by one of the methods specified in s.494B, that in case of despatch by prepaid post or other prepaid means, a person is taken to have received the document, if it was despatched from a place in Australia to an address in Australia, seven working days after the date of the document. If the Act had been complied with, s.494C would have deemed the applicant to have received the document no later than 15 January 2002 being seven working days after the date of the letter.
Section 412(1)(b) provides a 28 day period in which to make application to the Refugee Review Tribunal for a review of the decision in a period ending not later than 28 days after the notification of the decision. Section 494B had been complied with, s.494C would have deemed the applicant to receive the document no later than

15 January and the 28 day period would have expired on 11 February.
The applicant actually received notification on 6 February 2002 after his brother collected a registered mail article from the post office. His application was made on 26 February 2002 and was accordingly out of time not being lodged within a period ending no later than 28 days after the notification of the decision of the delegate. The Tribunal had no power to extend the time within which an application for review may validly be made to it.
Thus the critical issue in Vean was how and when the applicant had been notified of the decision of the delegate. The applicant argued inter alia, that the application to the Tribunal had been made within time because
a)on its proper construction s.494D(1) was not complied with because following the authorisation, the notification was not given to the authorised recipient instead of the applicant, it was given to the applicant care of the authorised recipient at the authorised recipient's address.
The Judge at first instance found firstly that he could see no reason why the use of the word –
give
could not include a letter sent to the applicant care of his authorised recipient as the word –
give
is a word of wide amplitude and was not to be equated with physically handing over an object. Secondly, he held that if he was wrong as a matter of construction conformably with Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the failure to name the authorised recipient of the person to whom the letter is addressed, rather than the applicant care of the authorised recipient, does not of itself invalidate the notification process:
The likelihood of the applicant being informed of the arrival of the letter is no different in either case. Considerations of substance rather than form should prevail.
That view did not prevail in the Full Court. The Full Court held that s.494B(1) was enlivened only when the relevant document, namely the letter of 3 January 2002, was given to the authorised recipient and held that in the circumstances the letter was not given to the authorised recipient. The practical effect of that was that the authorised recipient did not consider the letter was addressed to her, notified the appellant of the letter that was addressed to him at her address and the appellant subsequently arranged for collection of a letter from the Post Office. The Court held that there were two essential elements for compliance. One was the giving of the document to the appellant or to the authorised recipient and the second was the despatch of the document to one of the addresses specified in s 494B(4)(c). The Full Court noted that the correct specified address of the authorised recipient was used but the addressee was not the authorised person and said at paragraphs 41-42:
This is one of the two critical elements of the means of notification described in section 494B(1) and 4(c) and section 494D(1).
The Full Court then referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 38–39 [91] and [93]. Where, discussing the continued utility of the distinction between mandatory and directory requirements Their Honours said at [93]:
A better test for determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision should be invalid.
The Full Court then proceeded at paragraph 45:
In this matter, of course, the sending of a letter of 3 January 2002 in the manner described was not invalid. The issue is whether it was done in the manner prescribed by s 494B(1) and (4) and s 494D(1) so as to have the effect prescribed by s 494C(4) and 494B(2). That is, the issue is whether it should result in the notification being taken to have been given to the appellant and the appellant being taken to have received it, seven days after the date of the letter.
The Full Court at paragraph 46 said:
The consequence is that the letter of 3 January 2002 was not given to the authorised recipient because it was addressed to another person, the appellant, care of the address of the authorised recipient. And it was not given to the appellant at one of his addresses provided for by s 494B(4)(c). Accordingly, the notification is not one which attracts the operation of s 494C(4) or s 494B(2), that is the appellant is not taken to have received the document seven working days after its date of 3 January 2002.
47. In our judgment the Tribunal therefore erred in law in determining that the application for review was outside the time specified in s 412(1)(b) in dismissing the application. Such an error, reflecting an incorrect conclusion that the letter of 3 January 2003 answered the statutory description in s 494B and 494B is an error of law: see Veta v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]. Its decision involved jurisdictional error because, by error of law, it wrongfully refused to exercise its jurisdiction; see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.
In Chan Ta Srey a similar issue arose and Gray J concluded that notification of the decision of a delegate which specified the time for review as being:
Within 28 days of the date of this letter
as not fulfilling the requirements of s.66(2)(d)(ii) of the Act. It did not state the time within which the application for review might have been made.
In that case his Honour referred to the purpose of s.66(2) of the Act as being to ensure that the legislative scheme:
In relation to rights of review of decisions operate fairly. The contention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so (Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292 at [45]).
… without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme in which the time limits are strict and in which there exists no power discretionary or otherwise, to enlarge them.
He concluded that each element of the requirements of s.66(2) was an integral part of the scheme of notification so that all of the requirements must be met before there could be a
notification
of the delegate's decision and before the time for review described by s.412(1)(b) could commence to run.
At paragraph [42]he said:
In the course of argument there was a tendency of counsel for both parties to treat this question as being one of the "validity" of the letter of 19 May 2000 with the notification, for the purposes of s 66. To some extent, focussing on the question of "validity" is distracting. As I have said, the real question is whether the applicant was notified of the refusal to grant a visa so at to start time running with respect to the operation of his bridging visa. The principles applicable however might not differ very much. As Marshall J recognised, the question of "validity" depends not upon the traditional classification of statutory provisions into mandatory or directory, but on the application of the principles discussed in Project Blue Sky. It is necessary to ascertain the intention of the legislation as to whether non-compliance with a statutory requirement should result in the act concerned having no effect. The question of legislative intention is also highly relevant, when asking the question whether the applicant was notified of the result. It is complicated to some extent by the fact that the provision to be construed is found in the Regulations.
His Honour noted at paragraph 45 that the intention of the legislative scheme is that not only should an unsuccessful applicant be told that his or her application has been unsuccessful but should be given enough information to pursue the right of appeal if disposed to do so. That information included the criterion or criteria that the applicant failed to satisfy, the legislative provision that prevented the grant of a visa, reasons why the criterion were not satisfied or the provision prevented the grant of visa and the steps required to make an application to review the decision. His Honour noted that without all of this information an unsuccessful applicant would be disadvantaged in the operation of the scheme in which the time limits are strict and in which there exists no power discretionary or otherwise to enlarge them.
His Honour said at paragraph 46:
In this context it is easy to see that each element of the requirements of s 66(2) is an integral part of the scheme of notification. The absence of any one item of information would disadvantage an unsuccessful applicant. There is, therefore, a strong case for saying that, if one of the requirements of s 66(2) has not been complied with the duty of notification imposed by the section has not been carried out.
His Honour distinguished the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56 which concerned a written notice pursuant to s.501G of the Migration Act. One issue before the High Court in Palme was whether the written notice was deficient in that it failed to set out the reasons for the decision. The High Court held that the written notice was deficient in that respect but then dealt with the question of whether a consequence of that deficiency was that the decision was capable of being quashed on the ground of jurisdictional error despite s 501G(4) a provision similar to s.66(4) preserving the validity of the decision. By majority the High Court held that the decision was not tainted by jurisdictional error because of the defect in the written notice.
Gray J distinguished Palme on the basis that the High Court was not dealing with the issue of whether the written notice did not comply with s.501G because of the absence of reasons was nevertheless a discharge of the obligation to give a written notice under that section so as to commence the time limit running. His Honour noted the question was not discussed at all. His Honour thus concluded that the obligation to notify pursuant to s.66 is only discharged when all the requirements of s.66(2) have been met and only then can the time limit for an application for review begin to run. He thus concluded that a statement of an incorrect time was not a statement for the purpose of compliance with the provision and as a consequence the obligation to notify the applicant of the decision to refuse the grant of a substantive visa he sought, imposed by s.66, was never discharged. And in the absence of such notification time did not begin to run in respect of an application to the MRT to review the decision. The consequence of that was that the applicant's bridging visa did not expire by the effluxion of time and he had not become an unlawful non-citizen.
The applicant relies upon Chan Ta Srey and Vean and contends that as the letter to the applicant was addressed to him care of his authorised recipient as had been the case in Vean, the statutory requirements, of the scheme which required strict compliance, had not been met, that constituted an inviolable limitation which had not been complied with and constituted jurisdictional error.

Conclusion

The respondent contends that this case can be distinguished from Vean and Chan Ta Srey because the breach of the statutory provision did not result in jurisdictional error. I agree with that submission. In Chan Ta Srey and Vean the effect of the written notice not complying with the Act was that the obligation to notify the applicant of a right in respect of which a time limit applies, was never discharged and the Tribunal having no discretion to extend the time, wrongfully refused to exercise its jurisdiction creating a jurisdictional error.
In the present case, the breach of s.379G(1)(b) is an error of law but no consequences flowed from it despite the error of law. The applicant did receive the relevant notices, did provide information he was invited to provide, and the Tribunal did conduct a hearing at which the applicant was present. Hence no jurisdictional error occurred. The distinction in my view is clear from the cases cited.
The issue is not the procedural obligation imposed upon the Tribunal in performing its review function under the Act but whether the Tribunal had power to entertain the application for review lodged out of time. [paragraph 33, Vean]
In this matter of course the sending of the letter of 3 January 2002 in the manner described was not invalid. This issue is whether it was done in the manner prescribed by s 494B(1) and (4) and 494D(1) so at to have the effect prescribed by s 494C(4) and 494D(2). That is the issue is whether it should result in the notification being taken to have been given to the appellant and the appellant being taken to have received it, seven working days after the date of the letter. [paragraph 45, Vean].
In our judgment, the Tribunal therefore erred in law in determining that the application for review was outside the time specified in s 412(1)(b) and in dismissing the application. Such an error, reflecting an incorrect conclusion that the letter of

3 January answered or satisfied the statutory description in

ss 494B and 494D is an error of law … its decision involved jurisdictional error because by error of law, it wrongfully refused to exercise its jurisdiction. [paragraph 47, Vean].
In this case there was an error of law but the Tribunal did not wrongfully refuse to exercise its jurisdiction and no jurisdictional error occurred.
In Chan Ta Srey, Gray J indicates in my view that an error of law by failure to comply with the statutory requirement will not necessarily be a jurisdictional error.
There is, therefore, a strong case for saying that if one of the requirements of s 66(2) has not been complied with, the duty of obligation imposed by the section has not been carried out. [Paragraph 46, Chan Ta Srey].
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 327, a case cited in Vean also concerns a failure to comply with the notice requirements of the statute resulting in the Tribunal failing to exercise its jurisdiction.
The difference between the result in this case and Vean and Chan Ta Srey is not simply as the trial Judge in Vean described it:
Considerations of substance rather than form should prevail.

It is a question of whether there has been only an error of law or whther there had been a jurisdictional error. The point was touched upon in NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 102 where the Court had to consider a failure to comply with s.424A(2). That section provided that an invitation to the applicant to provide information sought by the Tribunal under s.424A(1) was to be given in accordance with subsection (2). The Court observed:
It is sufficient for us to say that here, in particular in light of the presence of s 474 in the Act (but even in the absence of s 474) the failure to observe the procedural requirements of s 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness did not amount to a failure to exercise jurisdiction or an exceeding of jurisdiction. [paragraph 25]
And:
In conclusion, to meet the point raised by the Court about the apparent failure to comply with subsection 424A(2) of the Act it is sufficient to say that such failure was not jurisdictional, with or without any reconciliation process involving s 474. [paragraph 27]
The point made at paragraph 23 by the Court is apposite to this case. The –
Mandatory language (the word "must" is used in subsection 424A(2)) is relevant to but not decisive of this inquiry. In our view it cannot be concluded that invalidity of the Tribunal's decision is a necessary consequence of any failure to comply with subsection 424A(2), irrespective of the absence of any unfairness, whether of a substantive or a procedural kind. Thus we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional. This is so, it seems to us, even without considering the applicant of s 474 of the Act (quite different considerations might attend the analysis had there been a breach of s 424A(1)).
Similar considerations apply in this case. The breach here concerns s.379G(1) which was the manner in which the notice should be given, a similar provision to the provision in s.424A(2). As in NAHV in this case, despite the apparently mandatory language of s.379G(1) the Tribunal undertook its task of review and did so fairly. An act done in breach of a condition regulating the exercise of a statutory power does not necessarily lead to the conclusion of the invalidity of the exercise of the power. Whether it does or not depends on ascertaining from the statute whether such an intention exists, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388 – 89.
Finally, dealing with this ground, relief under s.39B is discretionary. In this case there has been no practical injustice to the applicant at all. He received notification despite the fact the letter was addressed to him care of his authorised agent. He responded to the Tribunal's request to provide information. The Tribunal held a hearing, he attended and put his case (see Lam v Minister for Immigration and Multicultural and Indigenous Affairs 1995 ALR 502, per Gleeson CJ paragraph 37 to 39.
The second ground raised by the applicant was that the Tribunal failed to apply the divisions of Regulation 1.15A(3) in that in forming an opinion whether two persons are in a married relationship or a de facto relationship the Minister must have regard to all of the circumstances of the relationship. The contention of the applicant was that in this case the period between the marriage and the application was only 15 days and that in order to discharge the obligation under regulation 1.15A(3) in such circumstances the Tribunal had an obligation to look at the matters to be considered under subsection (3) both at the time of application and subsequently up to the time of decision. As the Tribunal did not consider those matters at the time of decision it is contended that the Tribunal did not address the relevant issues and jurisdictional error occurred.
Part of this submission included the contention that the domestic violence issue was relevant in a general sense (as distinct from whether the statutory requirements were met) because it was part of the circumstances of the relationship of the parties. It is contended that the Tribunal never addressed the position as at the date of decision.
The applicant was required relevantly, to be the "spouse" of the nominator at the time of application (Clause 820.11(2)). That required satisfaction of the relevant definition of "spouse" in Regulation 1.15A. The point is easily dealt with. Clause 820.21 spells out the criteria to be satisfied at the time of application. Clause 820.22 deals with the criteria to be satisfied at the time of decision. 820.221(3) says as follows:
An applicant meets the requirements of this subclause if:
b)The applicant would continue to meet the requirements of subclause 8.20.211(2)(3)(4)(5) and (6) except that the relationship between the applicant and nominating spouse has ceased; and
c)Either or both of the following circumstances applies:
i)either or both of the following:
A.the applicant:
has suffered domestic violence committed by the nominating spouse.
The use of the words continue to meet the requirements of subclause 8.20.211 in paragraph 3(a) assumes that the requirements of clause 820.211 have already been met. Thus, the questions posed by the Tribunal has been the questions arising from the legislation (CB 104, paragraph 32) are in my view demonstrably correct.
·    Was the visa applicant the spouse of the nominator at the time of the visa application.
·    Was the nominator an Australia citizen, an Australian permanent resident or eligible New Zealand citizen at the time of the visa application.
·    Was the visa applicant the holder of a "substantive visa" at the time of the application?
·    Does the visa applicant continue to be the spouse of the nominator at the time of the decision. (CB 104 paragraph 32) are questions arising from the legislation and are demonstrably correct.
Once the Tribunal determined that the visa applicant was not the spouse (as defined in the Act) at the time of the visa application then the subsequent requirements could not be met. Absent satisfaction of time of application criteria, a decision maker is not required to consider time of decision criteria. See Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, per Conte J at [30].
The other part of the applicant's argument involves a consideration of whether the Tribunal properly considered the matters put by the applicant and in particular whether it should have considered a period after the application including the domestic violence in order to properly assess whether the applicant was the spouse of the nominator at the time of application.
A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. The Court should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that the administrative Tribunal so misunderstood the question it had to decide that its error constituted jurisdictional error. [Re Minister for Immigration and Multicultural Affairs & Ors; ex parte Cohen (2002) 177 ALR 473 per McHugh J at [35] – [36]]
Moreover the Court cannot set aside a decision merely because it regards the Tribunal as having followed a process of logically reasoning which does not commit itself to the Court. [Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 162 ALR 577 per McHugh J at 587 [40]; NACB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 235].
The Tribunal did deal with the question of the facts which occurred after the time of application and cited the comments of O'Loughlan J in Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, unreported 29 November 1991) where His Honour said:
But the evidence of subsequent history is only relevant so long at it "tends logically to show the existence or non-existence of facts relevant to the issues to be determined; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALB 139 at 160 per Deane J.
There is nothing to indicate that the Tribunal did not consider all of the matters put before it both in response to the written invitation to do so and by the applicant at the hearing. At paragraph 44 the Tribunal again referred to Bretag and at paragraph 45 said:
The Tribunal takes into account the lack of evidence to support the factors listed in regulation 1.15A as noted above, so that on balance, the Tribunal is not satisfied that the subsequent history of the relationship is sufficient to outweigh the lack of evidence and improbability of the genuineness of the relationship at the time of application.
The Tribunal considered all of the evidence before it in relation to each of the relevant considerations in Regulation 1.15A and was not satisfied that that evidence established that the relationship was genuine and continuing at the time of application in July 2002. These were questions of fact a judgment for the decision maker.
Insofar as the written submissions of the applicant contend that the decision was irrational or illogical and not based on findings and inferences of facts supported by logical grounds, the applicant contended that paragraphs 14 to 20 of the decision of the Tribunal provided evidence to support a finding in favour of the applicant and that the Tribunal's findings were illogical, irrational and unreasonable in that the Tribunal failed to act on the evidence before it.
Paragraphs 14 to 20 of the reasons describe the evidence given by the applicant both in writing and before the Tribunal. The analysis of that evidence and the findings in respect of it appear at paragraph 36 to 47 inclusive. Given what the Tribunal found to be the paucity of evidence to support the factors listed in Regulation 1.15A, after a consideration of each of the elements and the evidence supporting it, it is difficult to see how such a contention can be maintained. However the Court cannot set aside the decision merely because it regards the Tribunal as having followed a process of logic or reasoning which does not commit itself to the Court (See NACB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 235).
Insofar as the applicant is asserting the decision is unreasonable in a Wednesbury sense (See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 2230), there is nothing to support such error in this case. There was material before the Tribunal that justified its conclusion and it certainly could not be said the conclusion was so unreasonable that no reasonable person could reach it.
The applicant contends that the Tribunal when considering the elements set out in regulation 1.15A found that there was 'no evidence' in respect of certain matters when there was evidence and the Tribunal misdirected itself in finding there was no evidence. A fair reading of the reasons however indicates that the use of the phrase –
no evidence
was not used in a technical sense as meaning no evidence at all but rather a reference to no evidence as being to a lack of probative material confirmatory of what the applicant had put to the Tribunal

(A v Minister for Immigration and Multicultural Affairs (1999) FCA 227 per Katz J at [27], and Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 30).
The applicant contended that the accusation of the applicant having had a prior marriage in Sri Lanka to be fanciful or unconvincing was made despite the fact that statutory declarations from competent people under the Regulations in relation to the domestic violence situation referred to this allegation. This was essentially a finding that the applicant's evidence and the supporting evidence was implausible (see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30).
Finally, the applicant contended that the evidence before the Tribunal was that the nominator had moved in with the applicant in April 2002 and moved out in October 2002 (Court book page 103, paragraph 20 and 22). It was contended by the applicant constituted a period of six months and that regulation 1.15A(5) provided:
If two persons have been living together at the same address for six months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.
The applicant contended that the evidence supported a finding that the nominator and the applicant had been living together at the same address for six months and that the Tribunal had not taken this into account. However, as the application was made in July 2002, in considering the criteria to be satisfied at the time of application, the Tribunal was demonstrably correct in noting in paragraph 42 (Court book page 106) that:
There was minimal evidence put forward that the visa applicant and the nominator had lived together for three months at the time of the application.
Thus I am not satisfied that the applicant has demonstrated any jurisdictional error which would entitle him to relief. This is so apart from any other reason, both because of the effect of s.474 (the Hickman provisos having been met) and as a matter of independent discretion, given the absence of any apparent prejudice to the applicant by the (non-jurisdictional) breach in question. Thus the application must be dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 6 February 2004