Minister for Immigration v Kanongovere

[2009] FMCA 446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v KANONGOVERE & ANOR [2009] FMCA 446

MIGRATION – Minister’s appeal – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether there was evidence to support the Migration Review Tribunal’s findings – whether the Migration Review Tribunal addressed the correct criteria required by law to be addressed – writs issued.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), pt.8 div.2
Migration Regulations 1994 (Cth), cl.679.225

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Lobo v Minister for Immigration and Multicultural Affairs (2003) 132 FCR 93
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
ABT v Bond (1990) 170 CLR 321
NABE (No 2) v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1

Applicant: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent: MARGARET REVAI KANONGOVERE

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 105 of 2009

Judgment of: Emmett FM

Hearing date: 12 May 2009

Date of last submission: 12 May 2009

Delivered at: Sydney

Delivered on: 12 May 2009

REPRESENTATION

Counsel for the Applicant: Mr G. Johnson

Solicitors for the Applicant: Ms M. Palmer, Sparke Helmore

First Respondent appeared in person

Solicitors for the Second Respondent: Australian Government solicitor by submitting appearance

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 105 of 2009

MINISTER FOR IMMIGRATION & CITIZENSHIP

Applicant

And

MARGARET REVAI KANONGOVERE

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Minister for Immigration and Citizenship (“the Minister”) pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) for judicial review of a decision of the Migration Review Tribunal dated 18 December 2008.

2. The Second Respondent made a submitting appearance on 2 March 2009.

3. The First Respondent is a resident of Australia who lodged applications for sponsorship on 11 May 2007 for subclass 679 visas in respect of her daughter and her grandson, Jama Hintsa Mnukwa, born on 25 June 2005 (“Jama”). The First Respondent’s daughter was subsequently granted a visa, however, Jama was not.

4. Clause 679.225 is a mandatory criterion in respect of the visa and states as follows:

   “If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.”

5. Public interest criteria 4017 and 4018 are as follows:

   “4017

   The Minister is satisfied of 1 of the following:

   (a) the law of the applicant’s home country permits the removal of the applicant;

   (b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

   (c) the grand of the visa would be consistent with any Australian child order in force in relation to the applicant.

   4018

   The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.”

6. Relevantly, on 29 July 2008, a delegate of the Department of Immigration and Citizenship (“the Department”) refused the First Respondent’s application in respect of Jama.

7. On 15 September 2008, the First Respondent lodged an application for review by the Migration Review Tribunal (“the Tribunal”).

8. On 18 December 2008, the Tribunal remitted the visa application to the Department for reconsideration.

9. On 15 January 2009, the Minister filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal’s decision

1. The Tribunal noted that the First Respondent had provided documents in support of her application, including a Protection Order issued in South Africa under s.6 of the Domestic Violence Act 1998. The Protection Order is dated 10 July 2007 and appears to confirm that the First Respondent’s daughter, the mother of Jama, had successfully applied for a Protection Order against Jama’s father, Mbulelo Mnukwa, on 23 May 2007 in South Africa.

2. The First Respondent also provided an affidavit, dated 8 September 2008, from her daughter in support of the application that stated as follows:

   “I am the mother and sole custodian of [Jama]… his father, Mbulelo Mnukwa, has no custody or visiting rights as I have a protection order against him in a case of domestic violence in May 2007. This reason that I kindly request that my son be granted a visa to Australia as he would have no one to remain with while I am away.”

3. The First Respondent’s daughter also provided a copy of a Maternity Certificate and a Birth Certificate in respect of Jama. The Maternity Certificate identified Mbelelo Mnukwa as Jama’s father and the Birth Certificate confirmed that Jama had Mr Mnukwa’s surname.

4. The Tribunal noted that the question before it was whether the First Respondent satisfied the requirements of clause 679.225 which required that if her grandson had not turned 18, public interest criteria 4017 and 4018 must be satisfied.

5. The Tribunal found that the requirements of public interest criteria 4017 and 4018 were both met. In reaching its decision, the Tribunal stated that it had considered the following:

   “The applicant is a minor who is to accompany his mother on a visit to Australia to visit his grandmother. The applicant’s mother’s visa has been approved and a finding has been made by the Department that her intention to visit Australia is genuine. As has been noted, the only basis for the refusal of the applicant’s visa has been the fact that his father has withdrawn consent for his visit.

   The evidence before the Tribunal indicates that the applicant’s mother has sole custody of her son and the child’s father does not have access or visitation rights as a result of a Domestic Violence Order issued in May 2007. 

   The evidence before the Tribunal is such that the Tribunal is able to find that the expressed intention to only visit is genuine.

   Further to this as the applicant’s mother is his sole guardian and that his father does not have access or visitation rights the Tribunal finds that the applicant meets the requirements of cl.679.225 with regard to the PIC at 4017 and 4018.”

The proceeding before this Court

1. On 15 January 2009, the Minister filed an application in this Court seeking judicial review of the Tribunal’s decision. The Minister relied on an amended application, filed on 20 March 2009, in the following terms:

   “1. The Tribunal applied the wrong test, asked itself the wrong question or failed to take into account a relevant consideration and constructively failed to exercise its jurisdiction in applying the requirements of public interest criteria 4017 and erred in finding that the requirements of clause 679.225 of Schedule 2 of the Migration Regulations 1994 (Cth.) were met.  

   Particulars

   (a) The Tribunal erred in failing to ask itself a fundamental question on the review or taking into account a relevant consideration namely, whether the law of South Africa permitted the removal of Jama Hintsa Mnukwa (the visa applicant) in accordance with Public Interest Criteria 4017(a).

   (b) The Tribunal failed to apply the correct test or failed to ask itself the correct question in relation t Public Interest Criteria 4017(b) because it did not consider whether the visa applicant’s father was a person who could lawfully determine where the visa applicant could live and therefore whether the father was required to provide consent to the grant of the visa.

   (c) and in circumstances where Public Interest Criteria 4017(c) had no relevant application.

   2. In so far as the Tribunal found any paragraph of Public Interest Criteria 4017 to be satisfied, there was no evidence upon which the Tribunal could have been so satisfied.”

2. The First Respondent was unrepresented, although she had been provided with the contact details of various legal services providers by this Court at a directions hearing on 2 March 2009. At the directions hearing, the First Respondent was also directed to file and serve any evidence by way of affidavit in support of her case and to file and serve written submissions seven days before the hearing.

3. At the commencement of the hearing, the Court explained to the First Respondent the narrow issue before this Court, namely, whether or not the decision of the Tribunal is affected by a legal mistake that goes to its jurisdiction. The First Respondent confirmed that no other documents had been filed by her or on her behalf in support of her case. The First Respondent was invited to make submissions in support of her case following the oral submissions of counsel for the Minister, Mr Johnson. The First Respondent was unable to assist herself with any meaningful or relevant submissions. Both Mr Johnson and the Court spent some time endeavouring to explain to the First Respondent the purpose of the Minister’s application before this Court and the consequences that may flow from it.

4. Counsel for the Minister, Mr Johnson, submitted that there was no evidence before the Tribunal to support its finding that any of paragraphs (a), (b) or (c) of public interest criterion 4017 were met.

5. Mr Johnson read the affidavit of Megan Louise Palmer, sworn 26 March 2009, that annexed three documents from the Department’s computer records. Those records showed that on 24 July 2008 a Department officer telephoned the Jama’s father, Mbelelo Mnukwa, who informed the officer that he no longer gave permission for his son to travel with his son’s mother to Australia. The Tribunal noted in its decision that Jama’s father had initially provided consent for his son to travel to Australia in February 2007, but that his consent had since been withdrawn. I accept Mr Johnson’s submission that the documents attached to Ms Palmer’s affidavit appear to be the source of the Tribunal’s finding that the father’s consent had been withdrawn.

6. However, a fair reading of the Tribunal’s decision record and the documents provided by the First Respondent in support of her application to sponsor Jama as contained in the Court Book, marked Exhibit 1A, do not provide evidence to support findings that criterion 4017 (a), (b) or (c) were met.

7. In relation to criterion 4017(a), there was no evidence of the law of South Africa, being Jama’s country of birth, in relation to whether or not the law of South Africa would permit the removal of Jama from South Africa.

8. In relation to criterion 4017(b), a fair reading of the Tribunal’s decision record suggests that the Tribunal relied on the First Respondent’s daughter’s evidence (that she had sole custody of Jama and that his father has no access or visitation rights because of the Domestic Violence Order) to satisfy paragraph (b) of criterion 4017 that the father was not a person who could lawfully determine where his son is to live. The only evidence before the Tribunal from the father, Mr Mnukwa was to the effect that he does not consent to the grant of the visa in respect of his son. Plainly, the evidence of either or both of the mother and the father are not sufficient to support a finding that Jama’s father could not lawfully determine where Jama is to live. Such an issue requires evidence and consideration of the relevant law of South Africa.

9. In the circumstances, there was no evidence as to whether or not Jama’s father, Mr Mnukwa, is a person who can or cannot lawfully determine where Jama is to live.

10. In the circumstances, there was no evidence before the Tribunal as to whether the father could lawfully determine where Jama was to live according to South African law. Neither was there evidence to support a finding that the mother was the only person who could lawfully determine where Jama was to live according to South African law. I accept Mr Johnson’s written submission that “there was no evidence that the fact that the mother had sole custody of the child necessarily meant that no-one else had a legal voice in South Africa where the child was to live (including whether he could leave the country)”.

11. In relation to criterion 4017(c), there is no evidence of any Australian child order in force in relation to Jama, nor does the First Respondent suggest otherwise.

12. In the circumstances, the Tribunal made findings in respect of which there was no evidence upon which it could be so satisfied and failed to identify and address the correct criteria required by law to be addressed, in particular, public interest criterion 4017. Although the Tribunal appeared to acknowledge that it was required to consider public interest criterion 4017, a fair reading of the Tribunal’s decision record makes clear that it did not.

13. For the sake of completeness, I accept the written submissions of counsel for the Minister as follows:

    “The proposition that it is jurisdictional error for the Tribunal to ask the wrong question, or to fail to ask the right question is evidence from MIMA v Yusuf (2001) 206 CLR 323 at 351, [82],

    The need to ask the right question in this sense is a need to identify and address the correct criteria required by the law to be addressed. In other words, the Tribunal is obliged to apply the correct criteria and, if it fails to do so, it commits jurisdictional error; Lobo v MIMA (2003) 132 FCR 93, especially at [43] and [62]. To not consider the correct criteria prescribed by the Migration Regulations is to fail to have regard to a relevant consideration n the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41.

    Here the Tribunal’s satisfaction as to PIC 4017 was a jurisdictional fact and if it found itself to be so satisfied when there was no evidence upon which it could be so satisfied, that would also be an error of law (ABT v Bond (1990) 170 CLR 321 at 356) and a jurisdictional one – at least to the extent that the fact is jurisdictional one (See NABE (No 2) v MIMIA (2004) 144 FCR 1 at [53] [54]).

    In all of these ways, the Tribunal fell into jurisdictional error in its understanding and/or application of each of the components of PIC 4017.”

14. The Tribunal’s errors go to its jurisdiction and, in the circumstances, the relief sought by the Minister should be granted.

15. Accordingly, the grounds of the amended application are made out.

16. It was made clear to the First Respondent during the hearing that, if the matter was remitted to the Tribunal for determination according to law, she would have a further opportunity to provide evidence in support of her application to sponsor Jama’s visa to Australia, particularly in relation to South African law relevant to satisfying criterion 4017(a) or (b).

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  12 May 2009