Migunda v Minister for Immigration
[2009] FMCA 247
•15 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MIGUNDA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 247 |
| MIGRATION – Application for judicial review – failure to consider evidence and effects thereof – consideration of “hardship” in Schedule 3 of the Migration Regulations 1994. |
| Migration Act 1958, s.424A Migration Regulations 1994, reg.1.15A, 1.15A(2)(c), 1.15A(2)(d), 1.15A(2A), 1.15A(2A)(b), 1.15A(3), 1.15A(3)(c), 820.211, 820.221, 801.221(2)(b), 820.211(2D)(ii) |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Craig v South Australia (1995) 184 CLR 163 Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557 |
| Applicant: | DAN NJORI MIGUNDA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 798 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 2 March 2009 |
| Date of Last Submission: | 2 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr M.A. Belmar Salas |
| Solicitors for the Applicant: | Kabo Lawyers |
| Counsel for the Respondents: | Ms E. Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That a writ of certiorari directed to the Second Respondent be issued quashing the decision of the Second Respondent handed down on
12 June 2008.
That a writ of mandamus directed to the Second Respondent be issued, requiring the Second Respondent to determine the application for review of the delegate’s decision made on 15 December 2006, according to law.
That the First Respondent pay the Applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 798 of 2008
| DAN NJORI MIGUNDA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 2 June 2008. He advances a number of alternative bases upon which it is asserted that the Tribunal fell into jurisdictional error.
I think that the Tribunal fell into jurisdictional error in two respects for the reasons which follow.
The Relevant Facts
In order properly to understand the Tribunal's decision and the criticisms of it, it is necessary to set out a chronology of the relevant facts.
The Applicant is a citizen of Kenya who arrived in Australia on
7 July 2003on a student visa. On 21 August 2003 he was granted another student visa with an expiry date of 15 March 2005.
On 21 February 2004 the Applicant met Ms Huntington at a birthday party (CB 16) and a spouse relationship was asserted to commence between them on 28 February 2004 (CB 16).
A daughter, Liana, was born on 14 December 2004.
On 21 November 2004 the Applicant's mother had written to him about matters to do with the relationship and the forthcoming birth of the child (CB 52), and another letter celebrating the arrival of the child was sent by the mother on 5 January 2005 (CB 55).
The Applicant lodged his application for a spouse visa on 15 August 2005. It should be noted that he had been without a valid visa since the expiry of the earlier student visa in March 2005.
On 24 October 2005 the sponsoring mother, Ms Huntington, withdrew her sponsorship. Her correspondence in support of this withdrawal is at CB 70‑71 and further at CB 72. The gravamen of what she said was that the parties had never resided together, that the Applicant had had no contact during the pregnancy and only a handful of visits since the birth. Additionally, Ms Huntington went on to "dob in" the Applicant for working unlawfully during the period when he was without a visa and complained of his failure to pay child support.
The matter came before a delegate who on 15 December 2006 forwarded the decision record to the Applicant. The delegate's decision record notes, inter alia, that:
a)the Applicant was asked during an interview on 11 November 2005, "When did you move in together and start living as a couple?" to which he replied, "Not really, she would spend a few days at my place;" and
b)there was no evidence of any financial commitment between the Applicant and Ms Huntington nor had they ever resided together for 12 months prior to lodging the application.
The delegate, accordingly, dismissed the application (CB 120).
The Applicant sought review of that decision.
Amongst the material before the delegate was a statutory declaration by Ms Huntington's aunt, declared on 10 August 2005, in which she, Ms Mack, asserted that she had seen the Applicant as the father of her niece's daughter over the previous 12 months and that, inter alia,
"I believe that the birth of Andrea and Dan's daughter, Liana, has brought these two people together and their love of their daughter and their relationship is genuine and continuing."
The Applicant applied to the Tribunal on 12 January 2007, which was the subject of a hearing on 21 February 2008. At the hearing the Applicant said, inter alia, that:
a)the relationship lasted from 28 February 2004 to September 2004, Ms Huntington staying at his place up to four or five days a week;
b)the parties were still together at the time of his application in August 2005, at which time they were very committed and ready to get married;
c)there were no joint financial arrangements of any kind;
d)the sponsor's parents knew about the relationship but did not approve, but his parents knew and did approve;
e)there was evidence in the files about mutual friends;
f)in relation to the comment made to the delegate that the sponsor indicated there was never a de facto relationship and he was not in contact during the pregnancy, the Applicant said he differed on the de facto relationship and that in respect of contact, perhaps she was talking about the last leg of the pregnancy;
g)over the three years he had developed a close relationship with his daughter.
It should be noted that pursuant to Family Court orders made in 2006 upon the Applicant's application, the Applicant had been entitled pursuant to those orders to spend increasing amounts of time with the child.
Following the sending of a s.424A letter by the Tribunal, the Applicant provided a statement dated 17 March 2008 (CB 188) which said, inter alia:
“my relationship with Andrea Huntington as said earlier had degenerated about the time we were expecting the baby in December 2004 and for a following few months after Liana's birth. However, we slowly started seeing each other again and tried to work things out again. By August 2005 we had recommitted ourselves again for the sake of the baby, this was documented in writing and it was at this time that the primary application was made. By November 2005, I realised that the whole relationship was not going to work. She went on a recluse and I couldn't contact her even by phone. By June 2006, out of frustration for not being able to see my daughter and decided to seek a Family Court order allowing me access to Liana. As stated before the Tribunal, Andrea Huntington then decided to start bringing Liana to my place on a regular basis so that we spend time together. Both parties were comfortable with the new arrangement and thus stuck to it.
All along my family was aware of the relationship and there is proof available in the form of a letter from them and they are still very supportive and care about the wellbeing of my daughter whom they hope to see one day.”
The reference to “in the form of a letter” was more probably than otherwise a reference to the correspondence referred to in paragraph
(7) above.
The Tribunal handed down its decision on 2 June 2008. Although it will be necessary to deal with the terms of the decision in much more detail, it is sufficient for present introductory purposes to say that the Tribunal formed the view that the Applicant and Ms Huntington had never been in a de facto relationship and that the Applicant had only pursued his relationship with the child with a view to remaining in Australia.
The Applicant's Case
Although the original application listed five grounds, these have been subsequently refined, both in the contentions of fact and law filed on 31 October 2008 and, more particularly, in the submissions made before the Court by counsel. The four grounds set out in the contentions of fact and law were reduced by counsel to three areas of criticism under these headings:
a)the Tribunal failed to take into account all of the evidence before it, and thereby fell into jurisdictional error and/or the Tribunal fell into error in taking into consideration irrelevant considerations;
b)the Tribunal erred in its construction of reg.1.15A(2A); and
c)the Tribunal fell into jurisdictional error by erroneously construing the Schedule 3 criteria.
Failure to Take Evidence into Account and Consideration of Irrelevant Matters
The first matter relied upon by the Applicant is the Tribunal's failure to deal with the letters from his mother, to which reference has already been made. It is common cause that the Tribunal failed to take these letters into consideration.
The Tribunal's assertion in the s.424A letter of 22 February 2008 that "There is no evidence of support from the parties' immediate families that they were aware of the alleged relationship" (CB 183-184)
is plainly wrong. The mother's letters clearly contradict this proposition.
This was plainly an error on the Tribunal's part, especially bearing in mind that the Tribunal did refer to the letter from the sponsor's aunt and other correspondence.
While the principle that to ignore relevant material may constitute jurisdictional error is straightforward enough (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at 351, per McHugh, Gummow and Hayne JJ) its application in any given case is more difficult. At [82] McHugh, Gummow and Hayne JJ quoted with approval an extract from Craig v South Australia (1995) 184 CLR 163 in the following terms:
“(A Tribunal) falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
It is clear from the judgment in Yusuf that the error must affect the exercise of power in order for jurisdictional error to occur.
Thus, the question as to whether this is an error within jurisdiction or is a jurisdictional error will tend to depend very substantially on the particular circumstances of the relevant case.
Here the First Respondent submits that, while it is conceded that this evidence was overlooked, it would have made in the ultimate no difference, in light of all the other considerations to which the Tribunal referred.
This is a difficult matter. There was in truth abundant material supporting the conclusion at which the Tribunal arrived. It was common cause that there was no evidence whatever of common financial arrangements. The Applicant's own evidence (leaving aside the very damning evidence provided by the former sponsor) showed that the parties had never really lived together. It showed, in my view, that there had been a breakdown of the relationship in 2004, as the Tribunal rightly asserted, putting the matter at its best for the Applicant.
Nonetheless, the Tribunal’s failure to have regard to the mother’s correspondence is problematic. The First Respondent submits that had it been taken into consideration, the outcome would have been no different. It is possible that that may be so.
Pursuant to reg.1.15A(3) the Minister is required to have regard to all the circumstances of the relationship, including various specified matters. At sub-regulation 1.15A(3)(c) the Minister is required to have regard to the social aspects of the relationship including whether the persons represent themselves to other people as being married or in a de facto relationship with each other and perhaps more particularly at sub-paragraph (ii) “the opinion of the persons’ friends and acquaintances about the nature of the relationship”.
That is a mandatory consideration. In this case the Tribunal plainly failed to have regard to material that touched in a most direct way upon this point.
Whilst acknowledging the force of the First Respondent’s submissions and repeating that in this case the matter is perhaps finely balanced, I think that the failure of the Tribunal to have regard to this clearly directly relevant material which touched upon a mandatory consideration under the regulation more probably than otherwise affected the exercise of the Tribunal’s power and thus amounted to jurisdictional error. The matter will have to be referred back for further hearing accordingly.
I will, however, consider and deal with all the other matters raised in the application.
The second matter alleged under this heading arises from paragraph 62 of the Tribunal's reasons for decision (CB 210). In that paragraph the Tribunal noted that the visa Applicant did not continue to meet the requirements of the applicable sub-clause at the time of decision and therefore did not meet the requirements of reg.801.221(2)(b) of the Migration Regulations 1994 (“Regulations”). It was submitted that that was a typographical error and should have read reg.820.221.
The point made by counsel for the Applicant was that this should have been in fact not a matter under reg.820.221 (time of decision) but rather a decision made under reg.820.211 (criteria to be satisfied at time of application). I accept that clearly the reference to sub-clause 801.221 was wrong, but I accept that that was more likely than otherwise a typographical error. The substantive point made by the Applicant is of course nonetheless still the same. He says that the Tribunal fell into jurisdictional error by applying the criteria at the time of decision rather than at the time of application.
The point made by way of response by the First Respondent is that whether the matter was considered under the time of decision or the time of application criteria, sponsorship is nonetheless a criterion. It was submitted therefore that, even if the Tribunal was wrong as to the basis upon which it proceeded, its decision about sponsorship was still correct.
I think there is substance in this submission. The question of active and valid sponsorship is a criterion in both the time of decision and time of application regulations. It is possible, as the First Respondent submitted, that the matter was in any event a typographical error, although I think that is the less likely proposition, bearing in mind that 801.221 and 820.221 are both time of decision criteria.
While therefore the Tribunal's conclusion deals with time of decision criteria when its introduction at paragraph 57 clearly posits the matter as a time of application consideration, and this reflects perhaps some confusion on the Tribunal's part, it does not, in my view, give rise to jurisdictional error.
The third and final matter raised by the Applicant under this heading is the question of the Tribunal's continual references to the failure of the Applicant to pay child support. It was submitted that this was an irrelevant consideration to issues of sponsorship. The Applicant referred to paragraphs 20, 21, 64 and 65 of the reasons for decision in this regard. It is true that those paragraphs deal significantly with child support issues.
I accept, however, the submissions of the First Respondent that the Tribunal dealt with the issue of child support exclusively from consideration of reg.1.15A and of the issue of sponsorship
(see paragraphs 49-62 of the Tribunal's reasons) (CB 208-210).
I accept that the Tribunal's analysis of the child support issue was merely conducted because child support might be an indicia of a relationship with the child on the part of the father. This arose only in the context of the issue of compelling reasons in reg.1.15A(2)(d) and schedule 3 of the Regulations. This does not show jurisdictional error on the part of the Tribunal.
Regulation 1.15A(2A)(b)
Here the Applicant submitted that the Tribunal failed to consider reg.1.15A(2A)(b), which provides that subclause 1.15A(2)(d) does not apply if the Applicant can establish compelling and compassionate circumstances for the grant of the visa. The Applicant pointed to the case of Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557 in that regard which establishes, it was submitted, that the compelling reasons consideration is a time of application determination.
It was conceded by the Applicant that he had not raised this issue. It was submitted that paragraphs 63‑65 of the Tribunal's decision
(CB 210‑211) were about the child but not about reg.1.15A(2A).
By contrast, the First Respondent submitted that the effect of reg.1.15A(2A) was only to remove the requirements under reg.1.15A(2)(d). It made no difference to the requirements that the Applicant meet, amongst other things, the requirements of reg.1.15A(2)(c) which the Tribunal, it was submitted, had roundly decided against the Applicant.
It suffices to say that I accept this submission so far as it goes.
The Tribunal did roundly disbelieve that the Applicant and his former sponsor had ever been in a de facto relationship because they did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and the relationship between them was not genuine and continuing. However, for the reasons already expressed I have remitted the matter for further hearing on this issue.
Nonetheless, I should say that I think that paragraphs 63‑65 of the Tribunal's decision can only sensibly be read as dealing with the compelling circumstances exemption. They had no other part to play in the Tribunal's reasons for decision, bearing in mind that the Tribunal dealt separately with the Schedule 3 criteria.
The Schedule 3 Criteria and the Exemption in Regulation 820.211(2)(d)(ii)
Although this area of debate between the parties involves references to Schedule 3 of the Regulations, this substantive issue was the applicability or otherwise of regulation 8 of the exemption conceded by both parties to exist in reg.820.211(2)(d)(ii).
Both parties proceeded on the footing that the Applicant did not satisfy the schedule 3 criteria but that if he was able to establish “that there are compelling reasons for not applying those criteria” (Regulation 820.211(2)(d)(ii)) he would in fact succeed in his application.
The Tribunal found that the Applicant did not meet the Schedule 3 criteria, a finding not challenged by the Applicant, but nonetheless considered whether or not there were compelling reasons.
The Tribunal observed at paragraph 79 of its reasons that compelling is not defined in the legislation and should be given its natural meaning and referred to dictionary definitions.
The Tribunal had already asserted that sub-clause 820.211(2)(d)(ii) was:
“inserted to allow certain spouses unlawfully in Australia but in long standing relationships with Australian residents to legalise their status provided compelling reasons exist.”
That idea does not sit comfortably with the present case where the visa Applicant has not had a long standing relationship with the sponsor.
The Tribunal did not cite any authority for the propositions stated and they may or may not be correct.
In any event, as the Tribunal itself correctly said, the phrase ‘compelling’ is not defined in the legislation and in my view it is prima facie erroneous of the Tribunal to have approached its consideration of the meaning of the legislation and its applicability to the given circumstances on the basis of an understanding of the policy underpinning the legislation which is not repeated in the legislation itself.
Even accepting that the Tribunal’s conclusions as to the nature of the relationship were unimpeachable (which for reasons I have earlier given I have not done) the Tribunal failed to consider whether the relationship between the father and the child could amount to compelling circumstances.
While the Tribunal found that the father’s relationship with the child was something described in paragraph 83 as “an artifice to bolster his claims to remain in Australia” what the Tribunal did not consider was the possible effect of the removal of the Applicant upon the child.
In my view, the consideration of compelling reasons in the context of this case required the Tribunal to consider whether the fact of the relationship between the father and the child (whatever its extant quality and motivation), and its probable permanent destruction in the event of the deportation of the father, would give rise to compelling reasons in an overall sense including the interests of the child as well of course as that of the father.
Further, I think the Tribunal’s reference to the policy underlying the introduction of the regulation caused it not to consider the issue of compelling reasons in the unrestricted way that the meaning of the words gives rise to.
I think that the Tribunal asked itself the wrong question in this regard and fell into additional jurisdictional error in doing so.
Conclusion
Accordingly, given that I have found that the Tribunal fell into jurisdictional error in two respects, I will make orders quashing the decision of the Tribunal and remitting the matter for further hearing.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: B Evans
Date: 15 April 2009
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