Nand v Minister for Immigration

[2011] FMCA 612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAND v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 612

MIGRATION – Review of decision of Migration Review Tribunal – cancellation of a Provisional Residence Subclass 300 (Prospective Marriage) visa – withdrawal of sponsorship – consideration of a spouse visa – relevance of domestic or family violence – consideration of information put to the applicant – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.116, 366A, 359A, 476
Migration Regulations 1994 (Cth), Sch.2

Malik v Minister for Immigration & Multicultural Affairs [2000] FCA 562
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1
Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448; (2009) 253 ALR 219; (2009) 83 ALJR 539
Wu & Anor v Minister for Immigration & Anor [2011] FMCA 14
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 222 ALR 411; (2005) 80 ALJR 228
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
SZNLK v Minister for Immigration & Anor [2009] FMCA 823

Applicant: ROHIT NAND

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 315 of 2011

Judgment of: Nicholls FM

Hearing date: 19 May 2011

Date of Last Submission: 19 May 2011

Delivered at: Sydney

Delivered on: 12 August 2011

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Nadeem Lawyers

Counsel for the Respondents: Mr D H Godwin

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 25 February 2011, amended on 19 April 2011, and further amended on 19 May 2011, is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $7,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 315 of 2011

ROHIT NAND

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court was made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 25 February 2011, amended on 19 April 2011, and further amended on 19 May 2011. It seeks review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 3 February 2011, affirming the decision of a delegate of the respondent Minister to cancel the applicant’s “prospective marriage” visa.

2. A bundle of relevant documents is before the Court (Court Book – “CB”). This reveals the following relevant background.

Background

1. Mr Nand, the applicant before the Court, is a citizen of Fiji. He was granted a Provisional Resident (subclass 300) (Prospective Marriage) visa on 11 March 2010. The applicant had been “sponsored” for this visa by an Australian citizen. It was a regulatory requirement that, at the time of application for any such visa, the applicant have such sponsorship (cl.300.313 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”)).

2. This visa enabled the applicant to travel to Australia for the purpose, amongst other things, of marrying his sponsor. The applicant travelled to Australia and married the sponsor on 18 April 2010.

3. On 17 June 2010 the sponsor withdrew her sponsorship of the applicant. A copy of her letter to this effect is at CB 5 to CB 7.

4. Section 116(1)(a) of the Act was, at the relevant time, in the following terms:

   “Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (a) any circumstances which permitted the grant of the visa no longer exist; or

   (b) its holder has not complied with a condition of the visa; or

   (c) another person required to comply with a condition of the visa has not complied with that condition; or

   (d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

   (e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

   (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

   (fa) in the case of a student visa:

   (i) its holder is not, or is likely not to be, a genuine student; or

   (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

   (g) a prescribed ground for cancelling a visa applies to the holder.

   (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

   (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”

5. This enabled the Minister to cancel this type of visa if he is satisfied that (amongst other things): “any circumstances permitting the grant of the visa no longer exists.”

6. The delegate of the Minister issued a “Notice of Intention to Consider Cancellation” of the visa on 7 July 2010. The applicant responded to this (CB 12 to CB 28).

7. The delegate cancelled the applicant’s visa on 16 August 2010 (CB 30 to CB 38). The basis of the cancellation was the withdrawal of the sponsorship.

8. The applicant applied to the Tribunal for review on 19 August 2010. He appointed his “uncle/guardian” as his representative (CB 38 to CB 43).

9. The applicant, his uncle and a witness attended a hearing with the Tribunal on 2 February 2011 (CB 79). Written submissions were made (CB 83 to CB 84 and CB 102 to CB 104) annexing a letter previously sent to the Minister’s delegate (CB 85 to CB 101). Further submissions were made by lawyers acting in relation to the applicant’s affairs generally (CB 105 to CB 106).

10. The Tribunal was satisfied that the ground for cancellation in s.116(1)(a) existed. That is that, given the withdrawal of the sponsorship, a fact acknowledged by the applicant’s representative, the basis which permitted the grant of the visa no longer existed ([21] at CB 164).

11. The Tribunal also found that, given this was not such a circumstance as required cancellation pursuant to s.116(3), it should then proceed to consider whether the power to cancel the visa should be exercised ([22] at CB 164).

12. In considering its discretion the Tribunal concluded, with regard to “the circumstances as a whole”, that the visa should be cancelled. The Tribunal said it attached “most weight” to the fact that the marriage had broken down and that the applicant therefore had no legal basis to obtain a visa to enable him to reside permanently in Australia.

Before the Court

1. Ultimately, the applicant put five grounds before the Court, although grounds one and two were said to be “consolidated” into ground one and not separately pressed.

2. Mr A Kumar of counsel appeared for the applicant. Mr D H Godwin of counsel appeared for the respondent. Taken into evidence was the affidavit of Shahid Nadeem, the applicant’s solicitor, made on 18 April 2011, annexing a transcript of the hearing with the Tribunal (“T”).

Consideration

Grounds One and Two

1. Grounds one and two allege error on the part of the Tribunal in that it failed to take into account relevant law and evidence relating to the issue of domestic violence.

2. The particulars to these grounds refer to reg.1.21 to reg.1.27 of the Regulations, which are provisions relating to family violence. These provisions apply to certain visas which may be granted where an applicant has been found to have suffered domestic violence. The Regulations set out how this can be established.

3. The applicant relies on evidence put before the Tribunal as to the claimed harassment of the applicant which he now says formed the basis of the need for the Tribunal to have considered the issue of domestic violence. Its failure to do so is said to be an error in the exercise of its jurisdiction.

4. See in particular at T10.46 to T11.30:

   “MEMBER: There’s no criminality involved. She hasn’t been charged.

   WITNESS KUMAR: Well it – no, she hasn’t been charged, but if – if you read through the evidence that was previously there, and a lot of it that you are going to read, you will find that the abuse that Rohit has suffered in the time that he’s been here with this family, is verging on domestic violence.

   MEMBER: Well again, if you’d been granted a spouse visa, and you’d suffered relevant family violence there are provisions within that visa for you to make that claim and if it’s found that that claim is justified, then you can retain the visa, but unfortunately, within the provisions of the Prospective Spouse Visa, which you were granted and which is the one that has been cancelled, there are no provisions for the perpetrating of family violence or domestic violence against you by your wife, okay? So there’s no really legal provisions for claimed abuse of that sort within the visa that was granted to you. So that’s really not an option. If you’d been granted a spouse visa then that would’ve clearly been an option if you felt that you’d suffered domestic or family violence at the hands of your wife, then that would’ve been an option. But because there aren’t those provisions within the terms of the Prospective Spouse visa you don’t really have that as an option. Yes, so it’s not something that – it’s not an avenue that we can really go down. There’s no legal basis for it.

   WITNESS KUMAR: No, as far as I can see and Rohit will probably understand is, yes, I mean as far as the legal question goes which you’ve dealt with, that is entirely true. That situation doesn’t exist. And as far as any legal basis of him staying here further, there’s no legal point in that, now there’s no legal basis. It’s – it’s – it’s based on compassionate grounds. It’s based on the fact that Rohit was suffering this, and Rohit’s in the situation today through no fault of his. And as I – as we say, he is here. He will – he was granted a visa, and if he – if he – if you – if he hadn’t been put in this situation by his in-laws, then the cancellation wouldn’t have arisen. The point to note is that they are the ones who effected the cancellation. They’ve – they’ve – they’ve sponsored him. They’ve cancelled it and they’ve cancelled it purely on the basis that Rohit has been very clear with them that he did not come here and he does not wish to get permanent residency based on slavery.”

5. In written submissions to the Tribunal, the applicant’s lawyers relevantly stated (CB 105.5):

   “(b) The relationship failed because the wife’s relatives attempted to blackmail our client into virtual submission to their every whims and demands for the next four (4) years. This would be similar to the case of domestic violence where one spouse is placed in a situation where there is constant abuse and humiliation at the hands of the other spouse.”

6. I note that before the Tribunal the applicant’s uncle described the conduct of the applicant’s wife’s family as conduct “verging on domestic violence” (Witness Kumar – T11.1).

7. The applicant now relies on Malik v Minister for Immigration & Multicultural Affairs [2000] FCA 562 for the proposition that, for the purposes of a spouse visa, there does not need to have been any physical assault to constitute “violence”, and that the Tribunal therefore failed to consider the evidence that the harassment claimed by the applicant constituted domestic violence. The failure to consider this reveals error.

8. The applicant also takes issue with the Tribunal’s statement (at T11.11 to T11.14) to the effect that if he had been granted a spouse visa then any domestic violence suffered at the hands of his spouse may have been of relevance, but that, given that the prospective spouse visa has no domestic violence provisions within its terms (or which may otherwise relate to it), then the applicant did not have this “option”.

9. The applicant’s argument is that the applicant and his sponsor had legally married and, contrary to the Tribunal’s statement that, given the marriage had broken down, there was no basis for obtaining a permanent spouse visa, the applicant could still at least have, applied for a spouse (partner) visa.

10. Further, the applicant also submits that as the purpose of the grant of the visa was to enable the applicant to travel to Australia to marry, and as this event occurred, then it was not open to the Tribunal to rely on s.116(1)(a) of the Act to say that the circumstances which permitted the grant of the visa no longer existed.

11. The applicant’s grounds fail at a number of levels, both factual and legal.

12. First, the material before the Tribunal does not allow for the submission that the applicant suffered harassment or domestic violence from his sponsor (wife). The applicant’s allegations were clearly aimed at the sponsor’s mother, not the sponsor (see generally his written submissions and the transcript of the hearing). The applicant himself wrote to the Tribunal and said that (CB 126.2):

    “I still Love my wife Pooja just as much as the day I married her. I firmly believe that left to our own devices we will have absolutely no problems in resolving this enabling us to proceed with our life together.”

    [Errors in the original.]

13. Second, the applicant’s submissions appear to have overlooked that the visa which was the subject of the cancellation and of the review before the Tribunal was a prospective spouse visa, not a spouse visa.

14. The applicant’s submissions infer that, given that the applicant and the sponsor had married, the issue for the Tribunal is one of a spouse visa consideration, even though no spouse visa (class 820) had been applied for, let alone granted to the applicant.

15. The cancellation which was the subject of the Tribunal’s review was of a prospective marriage or spouse visa (cl.300). The criteria for this visa (see at Sch.2, item 300) makes no provision for the grant of the visa on grounds relating to domestic or family violence. Such provisions are set out in relation to a subclass 820 “partner” (or spouse) visa. Amongst other matters, a person who is the holder of a subclass 300 prospective marriage visa may be granted a subclass 820 partner visa where such a partner has “suffered family violence committed by the sponsoring spouse” (cl.820.211(9)).

16. The regulatory scheme generally, and potentially (as at the time prior to his marriage to the sponsor) relevant, was that once he obtained the sponsorship of his prospective spouse (as occurred here) the applicant was eligible (so long as he met other necessary criteria) for the grant of a prospective marriage visa. He was granted such a visa. He subsequently married his sponsor, a criterion necessary for the subsequent grant of partner or spouse visa. It is to this latter visa that the question of any family violence committed by the spouse may become relevant.

17. The applicant’s case did not proceed to this latter stage. He did not apply for a partner visa. Nor was the refusal or cancellation of such a visa the issue before the Tribunal. The question for the Tribunal was whether it should affirm or set aside the delegate’s decision to cancel the prospective spouse visa.

18. The applicant’s arguments have sought to conflate this scheme by reference in part to events that had not taken place, and to confuse the question of family violence with a visa class to which this question did not apply.

19. The fact that a marriage had taken place between the applicant and his sponsoring spouse, and even that it was a marriage recognised as valid for the purposes of the Act, does not assist the applicant, given the regulatory regime relevant to the applicant’s circumstances. It is the application of this regime to the facts as they occurred, not as they may have developed in the future this is relevant.

20. Section 116(1)(a) of the Act provides that the Minister may cancel a visa if he is satisfied that any of the circumstances which permitted the grant of the visa no longer existed. Such circumstances included that the applicant be, and continue to be, sponsored, initially by his prospective spouse and subsequently by his spouse.

21. Once the sponsorship was withdrawn this criterion was found by the delegate not to be satisfied. Although expressed ineloquently this ultimately was the reason given by the Tribunal for affirming the delegate’s decision to cancel the prospective spouse visa (see [25] at CB 165).

22. The fact of the marriage did not alter the applicant’s visa status. There is no provision, for example, for any “automatic” grant of a partner visa. The applicant himself plainly recognised this when, in written submissions to the delegate, and subsequently put before the Tribunal, he stated (at CB 14.8):

    “My current Visa allows me to work & there is no reason why my current visa can not be converted to a Partner Visa without having to live at my wife’s home and having to provide FALSE affidavits…”

    [Errors in the original.]

23. Had the applicant suffered family violence at the hands of his spouse he may indeed have been successful in obtaining a partner visa had he applied for it on that basis. But he did not. Nor did the applicant ever allege any such violence perpetrated by his spouse.

24. It is the case that the applicant and his representative did raise the issue of domestic or family violence, both in written submissions (see generally CB 13 to CB 16, CB 55 to CB 57, CB 83 and CB 105) and at the Tribunal hearing (see [20] above). But at no time were these allegations made against the sponsoring spouse.

25. Further and importantly, as the Tribunal told the applicant and his uncle at the hearing, the issue of family violence was not relevant to the visa which was the subject of the delegate’s cancellation and the review before it.

26. At the hearing the Tribunal made it clear (at T11.3 to T11.16):

    “MEMBER: Well again, if you’d been granted a spouse visa, and you’d suffered relevant family violence there are provisions within that visa for you to make that claim and if it’s found that that claim is justified, then you can retain the visa, but unfortunately, within the provisions of the Prospective Spouse Visa, which you were granted and which is the one that has been cancelled, there are no provisions for the perpetrating of family violence or domestic violence against you by your wife, okay? So there’s no really legal provisions for claimed abuse of that sort within the visa that was granted to you. So that’s really not an option. If you’d been granted a spouse visa then that would’ve clearly been an option if you felt that you’d suffered domestic or family violence at the hands of your wife, then that would’ve been an option. But because there aren’t those provisions within the terms of the Prospective Spouse visa you don’t really have that as an option. Yes, so it’s not something that – it’s not an avenue that we can really go down. There’s no legal basis for it.”

27. The applicant’s uncle/representative agreed (at T11.18 to T11.21):

    “WITNESS KUMAR: No, as far as I can see and Rohit will probably understand is, yes, I mean as far as the legal question goes which you’ve dealt with, that is entirely true. That situation doesn’t exist. And as far as any legal basis of him staying here further, there’s no legal point in that, now there’s no legal basis.”

1. Grounds one and two are not made out. The Tribunal was not obliged to take into account the allegations relating to family violence as a basis for setting aside the cancellation of the prospective spouse visa. That the Tribunal discussed with the applicant the relevance of family violence to a spouse visa does not mean it could alter the regulatory criteria relevant to the cancelled visa such that it was compelled in its analysis to further consider this matter.

2. In any event, as set out above, the applicant’s complaint now that the Tribunal failed to take into account evidence relevant to the question of family or domestic violence does not assist him. There was no evidence presented that his spouse had occasioned any such violence upon him.

Ground Three

1. Ground three of the application asserts that the Tribunal fell into jurisdictional error because it did not consider or “enquire” as to whether there was “another basis” for the applicant to remain in Australia.

2. This complaint appears to have been particularised as follows. The applicant had been the holder of prospective marriage visa. The marriage had taken place. The applicant and the former sponsor remained married as at the time of the review. The Tribunal’s failure to consider in its discretionary consideration whether the “domestic violence” had occurred was a failure to properly exercise its jurisdiction.

3. The argument is that, because of the marriage, the applicant was no longer a prospective spouse but a spouse, and as such could have applied for a spouse (or partner) visa. The complaint against the Tribunal is that its “enquiry” should have gone beyond the consideration only of the subclass 300 visa to consider the question of family violence in the context of a subclass 820 visa.

4. I note that ultimately the argument put was not one of a failure to make inquiry, as understood from such cases as Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123, but rather, as a failure, in the exercise of its discretion, to take into account a relevant consideration.

5. It must be said it can be well understood, having regard to the Tribunal’s decision record, why the applicant would seek to advance this argument. Paragraph 25 of the decision record, which is the essence of the Tribunal’s thinking and conclusions, is poorly drafted and, with respect, is a poorly expressed attempt at explaining the decision. Brevity is commendable, but Tribunals need to get the right balance between brevity and properly explaining their reasoning.

6. On its own, this paragraph presents some difficulties for the Minister now. For example, the reference to the marriage having broken down leading to the conclusion that there is no legal basis for the applicant obtaining a “permanent spouse” visa must clearly be seen in light of those provisions in the regulations that specifically contemplate circumstances where an applicant can be granted a visa where a marriage has broken down, for example where an applicant has “suffered family violence committed by the sponsoring partner” (subclause 820.211(9) at Sch.2 to the Regulations).

7. However the requirement for this Court is to read Tribunal decisions at least fairly. This means that, while ambiguous language is not to be excused in favour of the Tribunal, its reasons should be read as a whole and in context (see with reference to Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568, SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9). This is reinforced by the Tribunal’s words at the beginning of [25]: “Considering the circumstances as a whole…” (CB 165). These circumstances include the fact that at the hearing the Tribunal raised the issue of the applicant’s eligibility for a spouse visa with specific reference to family violence (subclause 820). This was noted in the Tribunal’s account of the hearing in its decision record (see [16] and [19] at CB 163).

8. In these circumstances, and in this context, the Tribunal’s ultimate analysis can be understood as saying that there was an absence of evidence before it to show whether family violence by the sponsor occurred such as to have been the reason for, or contributed to, the breakdown of the marriage. What was left therefore, even if no “blame” for the breakdown were attributed to the applicant, was that the marriage had broken down, and in all the circumstances this left the applicant ineligible for the grant of a permanent (presumably subclass 820) visa.

9. The applicant’s ground as pleaded and explained is not made out. The Tribunal did not fail to take into account a relevant consideration as asserted. The Tribunal did address the applicant’s eligibility for a permanent visa in the exercise of its discretion.

10. The applicant’s argument in submissions that the Tribunal erred in “using” s.116(1)(a) of the Act because the applicant and his sponsor had married must be rejected. As Mr Godwin submitted, the fact of the marriage, valid under Australian law, did not “change” the visa which permitted the applicant to remain in Australia.

11. Why the applicant did not apply for a subclass 820 visa was never satisfactorily explained before the Tribunal. But even if it had been, what remains is that he made no such application. The issue for the Tribunal was whether the prospective spouse visa should be cancelled. Where the subsequent breakdown of the marriage and the withdrawal of the sponsorship meant that the applicant did not continue to meet a key criterion for that visa, this led the Tribunal to consider the relevant circumstances in determining whether the cancellation should be affirmed. That it found on the evidence before it (or the lack of evidence) that the cancellation should be affirmed was a finding which was open to the Tribunal.

12. The fact of the marriage was considered. Importantly the fact of the marriage could not, as a matter of law, operate to convert the applicant’s visa (prior to its cancellation) to one where the issue of family violence may have been relevant to the criteria for that visa.

Ground Four

1. Ground four complains that the Tribunal relied on a concession made by the applicant’s representative that a key circumstance which permitted the grant of the visa no longer existed (an ongoing marital relationship). The applicant asserts jurisdictional error on the basis that it was not open to the Tribunal to accept what the applicant’s uncle said at the hearing in this way because his uncle was not a “representative” as “recognised” under the Act.

2. There are a number of complete answers to this.

3. First, on any plain reading the “uncle/representative’s” concession was not the basis on which the Tribunal relied to proceed to consider the cancellation pursuant to s.116(1)(a) of the Act.

4. That basis, as the Tribunal makes clear (see [21] at CB 164), was the withdrawal of the applicant’s sponsorship by his sponsor. The circumstance which no longer existed, and which had previously permitted the grant of the visa, was the applicant’s sponsorship for the purposes of that visa. Clause 300.222 of Sch.2 to the Regulations makes it clear that the sponsorship is to continue “in force”. The sponsor’s formal advice to the Minister’s department in this regard was sufficient in itself to engage s.116 of the Act. There was never any argument from the applicant that the sponsor had not made such a withdrawal.

5. Second, in any event if the applicant’s basis for this argument is that his uncle was not his “representative”, then there was certainly sufficient material before the Tribunal to regard him as such.

6. First, the applicant himself, with his uncle’s endorsement, appointed his “uncle/guardian” as his representative for the purposes of the review (CB 41). Second, at the hearing, the following exchange is clear (T2, line 27 to line 42):

   “MEMBER: Take a seat. We’ve got Mr Ashok Kumar.

   KUMAR: Correct.

   MEMBER: So are you the rep or are you a witness?

   KUMAR: Nope, I’m his uncle.

   MEMBER: So you’re not the rep, you’re here with Mr Kumar to--

   KUMAR: I am his rep--

   MEMBER: Excuse me. Excuse me. Would you like Mr Kumar to give evidence?

   APPLICANT: Yes, he is my representative, yes, yeah.”

   Both the applicant and his uncle confirmed that the uncle was the applicant’s representative.

7. While the Tribunal also treated the uncle as a witness, this was plainly done to assist the applicant so that the uncle could give evidence in circumstances where any person wishing to assist the applicant at the hearing is “not entitled to present arguments… or to address the Tribunal…” (s.366A(2) of the Act).

8. Nor is there any suggestion in the material before the Court that the Tribunal was under any misapprehension that the uncle was present at the hearing as a registered migration agent and representing the applicant in that capacity.

9. The Tribunal’s reference to “The applicant’s representative” at [21] must therefore be seen in this light. Ground four is not made out.

Ground Five

1. Ground five asserts jurisdictional error on the part of the Tribunal by claiming a breach of s.359A of the Act. This complaint is particularised with reference to the letters sent by the applicant’s sponsor to the Minister’s department which dealt with her withdrawal of the sponsorship of the applicant. The letters were dated 17 June 2010 and 28 June 2010 (CB 1 to CB 2 and CB 5 to CB 7).

2. The Tribunal’s error was said to be that it did not give the letters to the applicant, or at least put to him the substance of those letters. Therefore the Tribunal is said to have breached s.359A(1)(a) and (b) of the Act.

3. Mr Kumar relied on Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1 (“Khan”) per Buchanan J at [55]:

   “Mr Khan was also entitled to know the circumstances in which his sponsor said his sponsorship had been withdrawn. He was therefore entitled to know not only about the existence of Mr Sangha’s two letters but to know their content. It was those letters (and in particular the first of them) which disclosed to the Department (whether falsely or not) the circumstances in which the sponsor withdrew support from Mr Khan. None of those things were communicated to Mr Khan. They could not be quarantined from the operation of s 359A of the Act either.”

4. Mr Kumar submitted that as the letters contained “some allegation” they should have been provided to the applicant as had been found in Khan. The complaint was that the applicant was at no time told the “basis” on which it was “alleged that the cancellation should occur and that the sponsorship no longer exists”.

5. In response, Mr Godwin referred the Court to Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448; (2009) 253 ALR 219; (2009) 83 ALJR 539 and to the review of relevant authorities in Wu & Anor v Minister for Immigration & Anor [2011] FMCA 14, especially at [44]:

   The information which the Tribunal must give to an applicant pursuant to s.359A(1) is information which, unless the Tribunal is persuaded to the contrary by the applicant, would be the reason or part of the reason for affirming the decision under review: MZYFH v Minister for Immigration & Citizenship [2010] FCA 559; (2010) 188 FCR 151 at 164 [64]. However, that does not require the Court to pore over all the information in the Tribunal’s hands to determine which of it might possibly be considered to be dispositively relevant, even if the Tribunal did not think that it was. The Court is to determine the question objectively from the available evidence including, in appropriate cases, the Tribunal’s reasons: SZMNP v Minister for Immigration & Citizenship [2009] FCA 596.”

6. It is the case that “information” for the purposes of s.359A is “information” that the Tribunal considers to be the reason or a part of the reason for affirming the delegate’s decision (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [17]).

7. In this regard, attention must be given to what exactly was the “information” that it could be said the Tribunal considered in this way. When consideration is given to the transcript of the hearing and the Tribunal’s decision record, to the extent that this record can assist in informing what the Tribunal would have considered “would be” the reason for affirming the decision under review, it is clear this information was the fact of the marital break down and the withdrawal of the sponsorship.

8. I agree with Mr Godwin that care must be taken to distinguish between “information” and “document” (see Kumar at [33] to [34] in particular. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 222 ALR 411; (2005) 80 ALJR 228 at [29]). Section 359A of the Act does not require a document containing information to be provided to an applicant. In some circumstances the provision of such document may be necessary so that an applicant can understand the information which would be relied upon, but this is not one of those cases. The applicant has sought to rely on Khan, but did not explain to the Court how the actual letters would advance his understanding.

9. In the current case, the two pieces of “information” that the Tribunal considered would be the reason for affirming the cancellation were that the marital relationship had broken down and, importantly, that the sponsorship had been withdrawn. This is made clear when regard is had to the Tribunal’s actual “Findings and Reasons” (see [25] for the former and [21] for the latter).

10. Both sets of “information” were given to the Tribunal by the applicant for the purposes of the review. The first was a letter from the applicant to a departmental officer dated 29 July 2010 (CB 54). The second was a letter by the applicant to the Tribunal which was received by the Tribunal on 2 February 2011. This second letter attached the letter dated 29 July 2010 (CB 85 to CB 101), where the applicant makes reference to “providing previous evidence”.

11. This material makes reference to both the breakdown of the relationship and the withdrawal of the sponsorship (see for example CB 84.4 and CB 100.3).

12. A letter submitted by solicitors to the Tribunal on 30 January 2011 also makes reference to this information (CB 105).

13. I agree with Mr Godwin that this was “information” provided by the applicant to the Tribunal for the purposes of the review. As such it falls within the exception to the obligation in s.359A(1) set out at s.359A(4)(b).

14. Further, and separately, the delegate’s decision record made specific reference to information received from the sponsor to the effect of the break down of the marital relationship and the withdrawal of the sponsorship (CB 35.6).

15. A copy of that decision record (and a letter from the applicant previously given to the delegate) was given to the Tribunal at the time of making the application for review (CB 38 to CB 70). The information in question therefore can be said to have been given to the Tribunal by the applicant for the purposes of the application for review. As such, this information falls within the exception set out in s.359A(4)(b) of the Act from the obligation set out at s.359A(1) (see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [16] and SZNLK v Minister for Immigration & Anor [2009] FMCA 823).

16. Ground five is not made out.

Conclusion

1. With the benefit of counsel the applicant has put forward five grounds asserting jurisdictional error on the part of the Tribunal. None of the grounds are made out. The application, as amended, is therefore to be dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  12 August 2011