MIAC v Yucesan

Case [2008] FCAFC 110

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Citizenship v Yucesan [2008] FCAFC 110

MIGRATION – appeal from Federal Magistrates Court – whether the requirement in cl 300.214 of the Migration Regulations that parties to a proposed marriage have “met” requires that they have come into each other’s company or physical presence – whether Federal Magistrate erred in holding the Migration Review Tribunal was correct when it found that a meeting in person was not required – relevance of ‘meeting’ in the law of corporations considered

ADMINISTRATIVE LAW – Chevron doctrine – whether doctrine of judicial deference to findings by an administrative decision-maker applies in Australia

WORDS AND PHRASES – “met”

Corporations Act 2001 (Cth) ss 249S, 249T
Migration Regulations 1994 schedule 2 cl 300.211, 300.212, 300.213, 300.214, 300.215,
300.216
Migration Regulations (Amendment) 1996 No 211 (Statutory Rule SR 1996 No 211)

Bell v Burton (1993) 12 ACSR 325 considered

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 considered
Chevron USA Inc v Natural Resources Defense Council, Inc. 467 US 837 (1984) discussed

Higgins v Nicol (1971) 18 FLR 343 considered
Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 565 cited

Minister for Immigration v Yucesan & Anor [2008] FMCA 317 overruled

Re Farnell Electronic Components Pty Ltd (1997) 25 ACSR 345 considered
Re Ferguson (1995) 58 FCR 106 considered
Re Southern Resources Ltd; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 770 cited
Sharpe v Dawes (1876) 2 QBD 26 considered
Wagner v International Health Promotions (admin apptd) (1994) 15 ACSR 419 considered

Macquarie Dictionary (second revised edition)

MINISTER FOR IMMIGRATION AND CITIZENSHIP v DEMET YUCESAN AND MIGRATION REVIEW TRIBUNAL

NSD 483 OF 2008

EMMETT, STONE AND EDMONDS JJ
20 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 483 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

DEMET YUCESAN
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

EMMETT, STONE AND EDMONDS JJ

DATE OF ORDER:

20 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Orders 1 and 2 made by the Federal Magistrates Court on 19 March 2008 be set aside, and in lieu thereof the following orders be made:

(a)the decision of the second respondent signed on 25 June 2007 and handed down on 4 July 2007 be quashed;

(b)the second respondent be directed to hear and determine the application for review according to law; and

(c)the first respondent pay the applicant’s costs.

3.The first respondent pay the appellant’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 483 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

DEMET YUCESAN
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

EMMETT, STONE AND…

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AGLC
Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 110
Case
[2008] FCAFC 110
Decision Date

CaseChat Overview and Summary

In this matter, the respondent, a citizen of Turkey, applied for a visa to travel to Australia to marry the applicant, an Australian citizen. The respondent’s visa application was rejected by the delegate because he and the applicant had never been physically in each other’s company and, therefore, in the delegate’s view, they had not 'met'. The respondent applied to the Migration Review Tribunal for a review of the delegate's decision, and the Tribunal found that the respondent and the applicant had met in person was not required, and that the criterion in clause 300.214 of the Migration Regulations 1994 had been satisfied. The Minister appealed against the Tribunal’s decision to the Federal Magistrates Court, which was dismissed. The Minister now appeals against the Federal Magistrates Court’s decision to the Federal Court.

The primary issue before the court was whether the parties had met and been known to each other personally as required by clause 300.214 of the Migration Regulations 1994. The court considered the submissions of the parties and the evidence presented to the Tribunal. The court found that the Tribunal did not err in its interpretation of the regulation and that the respondent and the applicant had met and been known to each other personally, even though they had not been physically in each other’s company. The court also found that the Chevron doctrine, which was applied by the Federal Magistrate in his decision, was not a principle that applies in Australia.

The court allowed the appeal and set aside the orders made by the Federal Magistrates Court. The court quashed the decision of the Migration Review Tribunal and directed it to hear and determine the application for review according to law. The court also ordered that the respondent pay the applicant’s costs.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1 and 2 made by the Federal Magistrates Court on 19 March 2008 be set aside, and in lieu thereof the following orders be made:

(a) the decision of the second respondent signed on 25 June 2007 and handed down on 4 July 2007 be quashed;

(b) the second respondent be directed to hear and determine the application for review according to law; and

(c) the first respondent pay the applicant’s costs.

3.

Background

Background to the litigation

The factual background and evidence in this matter was summarised by the Tribunal as follows:BackgroundThe visa applicant is a twenty four year-old male who is a citizen of Turkey and states his employment as electronic technician. He states that he has never been married. The review applicant is a 23-year old female who was born in Australia and is an Australian citizen. She states her employment as customer services officer and states that she has never been married.The visa applicant lives in Turkey and the review applicant, who lives in Sydney, states that she has never met him in person. She states that her family and the visa applicant’s family were close friends for twelve years and that she was introduced to him through the families as is the custom in Turkish culture. She states that she was shown photographs of the visa applicant and that they communicated by SMS, email and telephone for three months before deciding to become engaged on 14 November 2005. She states that she and the visa applicant planned to be married on 7 April 2006.Information before the delegateDocumentary information before the delegate included identity documents, confirmation of the visa applicant’s employment and income, the visa applicant’s military service discharge documents and a notice of intention to marry on 8 April 2006.Information before the TribunalOn 8 June 2006 the Tribunal received a letter from the review applicant reiterating the circumstances in which she and the visa applicant became engaged. On the day of the hearing the review applicant provided further documentary evidence relating to her relationship with the visa applicant, as follows:· A number of photographs showing the visa applicant and other people, said to have been transmitted on the internet.· A transcript of text messages, in Turkish, said to have been exchanged between the applicants on fifteen days in the period February - May 2007.· Two email messages, in Turkish, said to have been sent to the review applicant by the visa applicant, in November 2005 and April 2007 respectively.On 22 June 2007, in response to a request by the Tribunal for further information, the review applicant submitted a further Notice of Intended Marriage, signed by an authorized marriage celebrant, indicating that the ceremony would take place in Sydney on 20 October 2007. On the basis of this evidence and the consistent evidence given at the hearing, the Tribunal accepted that a number of criteria for the grant of the visa had been satisfied including, relevantly, clause 300.214. In relation to this criterion the Tribunal said:Clause 300.214 requires that at the time of the application the parties have met and are known to each other personally. The Tribunal finds that at the time of application the parties had not met in person. The Tribunal notes, however, that the term ‘met’ is capable of differing interpretations and that it may go beyond the sense of meeting face-to-face by including less direct forms of contact such as letter, telephone or internet. The validity of such an interpretation is reinforced by rapid developments in communications technology which facilitate cheap and easy messaging, including internet telephony and video telephony. … The Tribunal is satisfied that the ordinary meaning of the words “met and known to each other personally” does not exclude non physical person-to-person interactions. In the present case, although the evidence concerning contact between the applicants is somewhat sparse the Tribunal is prepared to accept that at the time of application they had met, albeit indirectly, and that in the course of regular contacts they can be said to have come to know each other personally. The Tribunal accepts that they have maintained their level of contact since that time up to the time of decision. Accordingly, the Tribunal finds that the requirements of cl.300.214 of Schedule 2 are met.REVIEW IN THE FEDERAL MAGISTRATES COURT

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT, STONE AND EDMONDS JJ
Clause 300.214 of the Migration Regulations 1994 provides that the parties to the proposed marriage must “have met and be known to each other personally”. The delegate rejected Mr Ilhan’s visa application because he and Ms Yucesan, the first respondent, had never been physically in each other’s company and, therefore, in the delegate’s view they had not ‘met’. The Tribunal rejected this interpretation of the regulation and found that meeting in person was not required and that the criterion in clause 300.214 had been satisfied. The Federal Magistrate was satisfied that the Tribunal did not err in reaching that conclusion. The Minister now appeals from his Honour’s decision; [2008] FMCA 317.THE TRIBUNAL’S DECISION The factual background and evidence in this matter was summarised by the Tribunal as follows:BackgroundThe visa applicant is a twenty four year-old male who is a citizen of Turkey and states his employment as electronic technician. He states that he has never been married. The review applicant is a 23-year old female who was born in Australia and is an Australian citizen. She states her employment as customer services officer and states that she has never been married.The visa applicant lives in Turkey and the review applicant, who lives in Sydney, states that she has never met him in person. She states that her family and the visa applicant’s family were close friends for twelve years and that she was introduced to him through the families as is the custom in Turkish culture. She states that she was shown photographs of the visa applicant and that they communicated by SMS, email and telephone for three months before deciding to become engaged on 14 November 2005. She states that she and the visa applicant planned to be married on 7 April 2006.Information before the delegateDocumentary information before the delegate included identity documents, confirmation of the visa applicant’s employment and income, the visa applicant’s military service discharge documents and a notice of intention to marry on 8 April 2006.Information before the TribunalOn 8 June 2006 the Tribunal received a letter from the review applicant reiterating the circumstances in which she and the visa applicant became engaged. On the day of the hearing the review applicant provided further documentary evidence relating to her relationship with the visa applicant, as follows:· A number of photographs showing the visa applicant and other people, said to have been transmitted on the internet.· A transcript of text messages, in Turkish, said to have been exchanged between the applicants on fifteen days in the period February - May 2007.· Two email messages, in Turkish, said to have been sent to the review applicant by the visa applicant, in November 2005 and April 2007 respectively.On 22 June 2007, in response to a request by the Tribunal for further information, the review applicant submitted a further Notice of Intended Marriage, signed by an authorized marriage celebrant, indicating that the ceremony would take place in Sydney on 20 October 2007.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT, STONE AND EDMONDS JJ

Counsel for the first respondent submitted that the narrow meaning of “have met” ascribed by the Minister does not serve the purposes of the provision as revealed by the statutory context, as well as the broader meaning ascribed by the Tribunal and the Federal Magistrate. It was also submitted that although clause 300.214 contains two elements, they are complementary, and so if two people know each other personally they may be said to have met. Consideration and conclusion The Chevron doctrine gets its name from the decision of the United States Supreme Court in Chevron USA Inc v Natural Resources Defense Council, Inc. 467 US 837 (1984) in which the Court stated, at 844:We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations“has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. … If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” United States v Shimer 367 US 374, 382, 383 (1961). In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 submissions based on the Chevron doctrine were put to the High Court. In their joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ commented at 152:An undesirable consequence of the Chevron doctrine may be its encouragement to decision-makers to adopt one of several competing reasonable interpretations of the statute in question, so as to fit the facts to the desired result. In a situation such as the present, the undesirable consequence would be that the decision-maker might be tempted to mould the facts and to express findings about them so as to establish jurisdiction and thus to insulate that finding of jurisdiction from judicial examination. Gaudron J also expressed the view that there is “limited scope for the notion of ‘judicial deference’ with respect to findings by an administrative body of jurisdictional facts”. It is clear that the Chevron doctrine is not a principle that applies in Australia and, in our view, to the extent that the Federal Magistrate adopted such an approach, his Honour was in error. Before the 1996 amendment to clause 300.214, to which the Federal Magistrate referred (see [6]-[7] above), the clause provided that the applicant for a Prospective Marriage visa and the sponsor must be known to each other personally. It allowed an exception to this requirement in favour of arranged marriages. The 1996 amendment did two things: it removed the exception and added a requirement that the parties must have met. The fact that this requirement was added to the existing requirement that the parties be known to each other personally suggests, as the Minister submitted, that there was:… a conscious decision to limit the grant of prospective spouse visas to circumstances where the parties had “met” even for persons whose traditional culture involved arranged marriages. Moreover, it suggests that the meeting requirement was independent of the requirement that the parties know each other personally.