Nassouh v Minister for Immigration

[2006] FMCA 500

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASSOUH v MINISTER FOR IMMIGRATION [2006] FMCA 500

MIGRATION – Application to review decisions of Migration Review Tribunal and of delegate of first respondent – cancellation of prospective marriage visa – whether lack of procedural fairness or breach of s.359A of the Migration Act 1958 – whether Tribunal failed to consider a claim or erred in its interpretation or application of the law – whether delegate of the first respondent failed to follow procedures under the Migration Act – whether Tribunal decision could ‘cure’ any defect in delegate’s decision.

Migration Act 1958 (Cth), ss.116, 338, 348 & 359A

Kioa v West (1986) 60 ALJR 113
Somaghi v Minister for Immigration & Local Government & Ethnic Affairs (1991) 31 FLR 100
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 457
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Paul v Minister for Immigration & Multicultural Affairs (2001) 73 FCR 396 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314
Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132
Twist v Randwick Municipal Council (1976) 136 CLR 106
Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218

Applicant: SAMI MAHMOUD NASSOUH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number: SYG217 of 2004

Judgment of: Barnes FM

Hearing date: 22 March 2006

Delivered at: Sydney

Delivered on: 26 April 2006

REPRESENTATION

Counsel for the Applicant: Mr N. Dobbie

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG217 of 2004

SAMI MAHMOUD NASSOUH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 31 December 2003 affirming a decision of a delegate of the first respondent to cancel a Prospective Marriage (Temporary) (Class TO) visa held by the applicant and also for review of the decision of the delegate on 20 February 2002 to cancel the visa. 

2. The applicant, a citizen of Lebanon, was granted a Subclass 300 (Prospective Marriage) visa on 22 May 2001 on the basis that he intended to marry his Australian sponsor during the visa period

   
   

   (22 May 2001 to 22 February 2002) and that he and his sponsor genuinely intended to live together as spouses.  The applicant entered Australia on 1 July 2001.  However in a statutory declaration dated

   
   

   17 January 2002 the sponsor informed the Department that her relationship with the review applicant had ended a month after he arrived in Australia, that she had told the Department of Immigration that he was no longer her fiancé and that he had returned to Lebanon but had come back to Sydney on 11 January 2002 using the fiancé visa. 

3. On 30 January 2002 the Department sent a notice to the applicant of intention to consider cancelling his visa under s.116(1)(a) of the Migration Act 1958 (Cth) (the Act) on the basis that the circumstances which permitted the grant of the visa no longer existed. The letter advised the applicant that information before the Department claimed that the proposed marriage ceremony between himself and his sponsor had been cancelled or had not been organised. In a written response of 11 February 2002 the applicant’s migration agent advised that marriage between the applicant and his sponsor had been solemnised in mid-July 2001 before a Lebanese priest. A copy of a document headed Certificate of Islamic Marriage was attached. It was conceded that the relationship had subsequently deteriorated allegedly as a result of a change in the sponsor’s attitude and advised that the applicant had travelled back to Lebanon on 17 October 2001 returning on 11 January 2002 hoping that things would improve in the relationship. It was stated that although this had not occurred, the applicant still hoped that the sponsor’s behaviour would change.

4. A Departmental minute records that a Departmental officer spoke to the sponsor on 18 February 2002 and that she advised that she had not officially married the applicant and that she had neither seen nor spoken to him since he returned to Australia on 11 January 2002. 

5. On 20 February 2002 a delegate of the first respondent cancelled the applicant’s visa, finding grounds for cancellation under s.116(1)(a) of the Act based on information from the sponsor that the relationship had broken down, that she and the applicant were no longer engaged and that she was no longer prepared to marry him and that the reasons for cancelling the visa outweighed the reasons for not doing so.

6. The applicant sought review by application lodged with the Tribunal on 21 February 2002. On 4 September 2002 the Tribunal wrote to the applicant under s.359A of the Act inviting him to comment on information that his relationship with the sponsor ended one month after he arrived in Australia on 1 July 2001. In a response of

   
   

   13 September 2002 the applicant’s migration agent advised that he was instructed to state that the applicant’s marriage to the sponsor was “legally solemnised” on 14 July 2001 and that the marriage was intact, that there had not been a breakdown in his relationship with the sponsor and since January 2002 his relationship with the sponsor had been “uneventful and positive”.  A translated document headed Extract of Islamic Marriage Certificate was provided to the Tribunal. 

7. The applicant attended a Tribunal hearing on 29 October 2002 at which oral evidence was given by the applicant, his brother and his sister.  The transcript of the Tribunal hearing is before the Court as an annexure to an affidavit of Mr Nassouh. 

8. Sometime after the hearing, on 24 June 2003, the Tribunal wrote to the applicant again under s.359A of the Act inviting him to comment on information that a search at the New South Wales Registry of Births, Deaths and Marriages showed that no record could be found of a marriage between the applicant and the sponsor between 1993 and 2003. The applicant appointed a new migration agent, who sought and was granted an extension of time to respond to the s.359A letter.

9. On 2 December 2003 the applicant’s solicitor and migration agent wrote to the Tribunal, apparently in response to the s.359A letter, enclosing letters from the visa applicant and his sister (an Australian citizen) and a “to whom it may concern” letter of 1 June 2003 in relation to the applicant’s sister’s medical condition. It was submitted that the Tribunal must consider “the exceptional circumstances in the sister’s family and recognise the extreme hardship which the family will experience if they can no longer receive the support from the applicant”. The claims made in the letters from the applicant and his sister in relation to their circumstances are discussed further below. Neither the migration agent’s letter or the other material provided addressed the issue of the absence of registration of the marriage raised in the s.359A letter, except that the unsigned letter from the applicant stated that within a month of his arrival problems with his wife began and “she decided to end our marriage”. 

Tribunal decision

1. In its statement of decision and reasons dated 31 December 2003 the Tribunal found that at the date of cancellation (20 February 2002) it was satisfied that the following circumstances which permitted the grant of the Subclass 300 visa to the visa holder on 22 May 2001 no longer existed:

   That the applicant intended to marry an Australian citizen, that he was sponsored by the prospective spouse, that the parties intended to marry, that the marriage was to take place within the visa period and that the Minister was satisfied that the parties intended to live together as spouses. 

2. The Tribunal found that although the parties intended to marry at the time of the visa grant and after the arrival of the applicant in Australia, such intention no longer existed by 20 February 2002.  It found that although an Islamic wedding ceremony was held in July 2001 (it referred to 22 July 2001 although the certificate of Islamic marriage and earlier recitation of the facts refers to a ceremony of 14 July 2001) the sponsor “refused to have the ceremony registered and then refused to live with the review applicant in a spousal relationship”. For this reason the Tribunal found that at the date of cancellation the sponsor did not intend to live with the visa applicant in a spousal relationship. Hence the Tribunal found that the grounds for cancellation under s.116(1)(a) of the Act had been made out.

3. The Tribunal went on to consider whether, and to find that, the cancellation decision was the correct and preferable decision in all the circumstances.  It referred to the employment and other difficulties and upheavals the applicant claimed he would encounter if he had to return to Lebanon and start his life anew, particularly after having settled into life in Australia and having established a working relationship with his brother and his claim that he would feel shame at returning to Lebanon following the failure of his relationship with his sponsor.  It also addressed the applicant’s claims (in his late submissions) as to the assistance he provided to his sister “who is suffering from back pain and depression and who, until the release of her husband from gaol, is the only parent caring for her three children on a day to day basis.” 

4. However the Tribunal also had regard to the fact that the applicant had entered Australia on the basis of an intended marriage which had not occurred and on the evidence would not occur, to the fact that his parents were in Lebanon and that he himself returned to Lebanon between 17 October 2001 and 11 January 2002.  It found that this made his argument that he was “completely settled in Australia´ less persuasive.  It accepted that the applicant would have some difficulty and personal embarrassment in returning to Lebanon, but was satisfied that there was support available to him there.  It also had regard to its assessment of the applicant as a “pleasant, articulate and intelligent man” in finding that, although he may encounter initial difficulties in re-establishing himself professionally, he had the experience and skills to find further employment.  The Tribunal accepted the assistance the review applicant provided to his sister but noted that the review applicant’s brother lived in Australia and “may well be an alternative source of support for their sister pending her husband’s release from prison.”

5. The Tribunal concluded by accepting that the review applicant was still committed to a relationship with the sponsor and, on the evidence before it, was not to blame for his current situation.  However it found that at the time of the visa cancellation there was “no prospect of the marriage between [the applicant] and the sponsor being finalised or the two living in a spousal relationship”.  It found that the intended marriage between the parties and their continued intention to live together as spouses was fundamental to the grant of a Subclass 300 (Prospective Marriage) visa and concluded that “taking into account such essential aspects to the grant of the visa and the personal circumstances of the applicant” the correct and preferable decision was to cancel the visa held by the applicant.  Hence it affirmed the decision under review. 

6. The applicant sought review of both the Tribunal’s and the delegate’s decisions by application filed in this Court on 28 January 2004.  He now relies on an amended application filed in Court on 22 March 2006.  It is convenient to deal first with those grounds that relate only to the Tribunal reasons and procedures. 

Procedural fairness

1. One of the grounds in the amended application is that the Tribunal failed to accord the applicant procedural fairness.  The particulars are that the Tribunal failed to put to the applicant that it considered that the applicant’s brother living in Australia might well be an alternative source of support for the sister pending her husband’s release from prison.  It was contended for the applicant that the transcript of the Tribunal hearing showed that there was no such disclosure by the Tribunal to the applicant, despite the fact that this was material to the Tribunal’s decision because the applicant had claimed that he provided important assistance to the sister because she suffered from depression and chronic back pain, had to run the family business while her husband was in prison and because she had three children and the applicant was a father-figure to her children.  It was suggested that the failure of the Tribunal to put to the applicant that it considered that the applicant’s brother living in Australia might well be an alternative source of support for their sister was a denial of procedural fairness consistent with the principles discussed by Brennan J and Mason J in Kioa v West (1986) 60 ALJR 113 at 140 to 144 and 127.

2. In support of this ground it was contended that in the applicant’s letter dated 27 November 2003, provided to the Tribunal with the migration agent’s letter of 2 December 2003, he made claims about the assistance he provided to his sister, including a claim that his sister’s husband was in gaol, that she had been left with the burden of raising three children and managing the business and that she suffered from depression and back pain.  He stated:

   having to take care of three boys, the eldest 14 years, and her second son is ten years, and the youngest child is six years, it is extremely hard for her to raise them on her own, the boys need a father figure like to communicate to and relate to, this is were [sic] I come in.

   I also help within the workshop.  My sister depends and relies on me when it comes to the banking, supplying material and paperwork.

   I pick the children from school and take care of them.

   My sister and I are very close and she needs a brother and father figure like help.

3. It was contended that in this way the applicant made a claim that he provided particular support for his sister and her children and that, despite the fact that his brother and sister gave evidence at the Tribunal hearing, it had not been put to the applicant that the applicant’s brother could provide that assistance, was able to do so or that the sister wanted that brother to provide the assistance.  Indeed it was contended that it appeared from the transcript of the Tribunal hearing that the Tribunal never raised this issue with the applicant either at the hearing or in writing. 

4. It was submitted that the claim of such assistance was a significant claim in relation to whether or not the visa should be cancelled and that in those circumstances the Tribunal had an obligation to accord the applicant procedural fairness by informing him that it considered that the applicant’s brother may well be an alternative source of support for his sister pending her husband’s release from prison.  It was suggested that this was consistent with the principle that “fairness may require the applicant to have an opportunity to deal with the matters adverse to the applicant’s interests which a decision-maker proposes to take into account”.  (Somaghi v Minister for Immigration & Local Government & Ethnic Affairs (1991) 31 FLR 100 at 119 per Gummow J, referred to with approval by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591). It was also suggested that the Tribunal’s conclusion in relation to the applicant’s brother was an “adverse conclusion which has been arrived at which would not obviously be open on the known material”.  (Alphaone at 592)

5. The respondent contended that the applicant’s claim amounted to a contention that the Tribunal was obliged to reveal to him its thought processes about material put before it.  It was submitted that, consistent with what was said in Alphaone, there was no such obligation and hence this ground ought to be rejected. 

6. In Alphaone the Full Court of the Federal Court stated at 591 – 592:

   “Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his mental processes or provisional views to comment before making the decision in question.”

7. The relevant Tribunal findings are summarised at [13] above. The Tribunal accepted that the applicant provided assistance to his sister as claimed, but noted that his brother lived in Australia and “may well be an alternative source of support for their sister pending her husband’s release from prison.”  I accept that the Tribunal’s findings in this respect involve an evaluation of the material put forward by and on behalf of the applicant in support of his case.  This is not a case where such evaluation was not a natural and obvious evaluation such that it could take the applicant by surprise (cf. Kioa v West at 573, 588 and 634). The need for assistance raised by the letters of the applicant and his sister was the need for an adult male sibling for the sister. The fact that there was already an adult male sibling living in Sydney was a matter known to the applicant, as were his sister’s circumstances. That the brother could potentially give the assistance required could not be said to be a conclusion not obviously open on the known material (see Alphaone).  I note in this regard that the Tribunal did not go so far as to say that the brother would definitely be able to provide such assistance, it being sufficient for the exercise of its discretion to have regard to the possibility. 

8. Insofar as the applicant takes issue with the Tribunal’s failure to raise this matter with the applicant in the Tribunal hearing, this is hardly surprising, as the claim about assistance to his sister and family was not made until after the hearing.  No lack of procedural fairness is established in the manner contended. 

Whether Tribunal failed to consider or to make findings on a material claim

1. The next ground in the amended application is that the Tribunal failed to consider and/or make a finding on a material claim being the applicant’s claim and/or his sister’s claim that he was needed as a father-figure for his sister’s three children. 

1. It was contended that such a claim was made by the applicant in his unsigned letter of 27 November 2003 as set out above and also in the sister’s letter of the same date.  It was submitted that the applicant’s letter made a clear differentiation between the assistance the applicant gave to his sister and the assistance he gave to his nephews who, according to the applicant, “need a father, like to communicate with and relate to”.  It was said that this was direct assistance to the children allowing them to communicate and relate to a father-figure and that it was something apart from assistance to the sister.  It was submitted that the Tribunal had failed to appreciate or make a finding on this aspect of the applicant’s claims and that in its reasons for decision it dealt only with the assistance that the applicant gave to his sister.  This was said to be apparent from its reference to the visa applicant speaking of “the assistance he provides to his sister who is suffering from back pain and depression and who until the release of her husband from gaol is the only parent caring for her three children on a day to day basis”.

2. It was contended that the Tribunal did not refer expressly in its reasons to the claim of assistance to the children and it could not be assumed that it did address this claim merely because it referred to the assistance the applicant provided to his sister. 

3. A failure to consider an integer of a claim made by the applicant constitutes a jurisdictional error in the manner considered in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 per Allsop J at [42] – [44] and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 1120 per McHugh, Gummow and Hayne JJ. If the Tribunal failed to address and deal with the claims as put, the Tribunal would have failed to complete the exercise of jurisdiction embarked upon. (See NAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 457 at [10] per Jacobson J).

4. However, as submitted for the first respondent, consideration of this ground requires a consideration of the Tribunal’s task under the Migration Act 1958 and Regulations in the particular circumstances of this case. The decision of the delegate under review was a decision to exercise a discretion to cancel a visa held by the applicant under s.116 of the Act. Relevantly s.116 is as follows:

   (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

   …………………

   (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 is not a case in which there are prescribed circumstances such as to bring s.116(3) into play. Hence it is not a matter for mandatory cancellation and the Tribunal must consider if the decision to cancel the visa was the correct and preferable decision in all the circumstances.

6. The delegate’s decision was an MRT reviewable decision (s.338(3) of the Act).  When the applicant applied for review, the Tribunal was obliged to review that decision (s.348).  For the purposes of the review the Tribunal could exercise all the powers and discretions conferred by the Act on the delegate (s.349(1)) and in particular could affirm the decision to cancel the visa, could vary it or set it aside and substitute a new decision under s.349(2).

7. As contended for the respondent and consistent with the approach of the Full Court of the Federal Court discussed below at [68] – [69], the Tribunal’s task is not to determine the correct and preferable decision on the basis of the material before the delegate, but rather on the basis of the material before it. In this instance it proceeded appropriately to consider first whether it was satisfied of any of the matters in s.116(1), in particular whether any circumstances which permitted the grant of the visa no longer existed and then to consider whether or not to exercise the discretion to cancel the visa.

8. The Tribunal was satisfied that circumstances that permitted the grant of the prospective marriage visa no longer existed. No issue is taken in relation to this ground of review with this aspect of the Tribunal reasons for decision. The Tribunal went on to consider whether or not to cancel the applicant’s prospective spouse visa. In that context it is necessary to have regard to the applicant’s “claims”. The relevant “claims” were presented to the Tribunal as attachments to a letter of 2 December 2003 from the applicant’s solicitor and migration agent, which apparently was sent, after extensions of time, in response to the Tribunal’s letter under s.359A of the Act of 24 June 2003. Neither the agent’s letter or the attachments addressed the issue of the absence of registration of the marriage which had been raised in the s.359A letter. Nor, more generally, did the material address the issue of whether circumstances that permitted the grant of the visa no longer existed.

9. Rather this material raised matters which addressed the question of the Tribunal’s discretion to cancel the visa.  This is apparent from the migration agent’s submission that the Tribunal must consider “the exceptional circumstances in the applicant’s family and recognise the extreme hardship which the family will experience if they can no longer receive the support from the applicant”. 

10. The accompanying letter from the applicant’s sister stated that its purpose was to inform of the circumstances why her brother would like to remain in Australia and why it was important for him to remain permanently in Australia.  The applicant’s sister explained that she was the mother of three boys who all depended on her because her husband was in prison, that she had the burden of running the workshop and raising three boys, that she suffered from depression for which she was on medication and chronic back pain which caused hardship in relation to particular duties in the workshop.  She described the age of her children and her need to provide them with special care and attention and continued:

    communication becomes very difficult for me.  This is were [sic] I need a father figure like to help me out. 

    In this aspect my brother sami is an inspiration for my children, they respect him and turn to him for advice when needed.

    He is also extremely helpful within the workshop.  I depend and rely on him when it comes to the banking, supplying material and paperwork.

    He picks the children from school and takes care of them until my completion from the workshop.

    My brother sami and I are very close and I honestly need his brotherly nature and father figure like help. (emphasis added)

11. In his letter the applicant explained in very similar terms the circumstances why he would like to remain in Australia. He referred to the breakdown of his relationship with his sponsor, to his sister’s depression, which he said became worse when her husband was gaoled, to the fact that she had been left with the burden of raising three children and managing the workshop and that she was on medication and suffered chronic back pain causing hardship with particular duties in the workshop. The letter then continued as set out at [17] above.

12. In its reasons for decision the Tribunal summarised the material provided in support of the submission of 2 December 2003: “requesting the Tribunal to consider the exceptional circumstances in the family of the review applicant’s sister and recognise the extreme hardship which the family will experience if they can no longer receive the support from the applicant”.  It listed:

    A letter from the review applicant stating the reasons why he wishes to remain in Australia.  The letter outlines problems experienced by his sister in caring for the three children and running a business while her husband is in prison.  The review applicant assists her to care for the children and manage the business; 

    A letter from the review applicant’s sister stating that she suffers from depression and relies on the review applicant to assist her with the children and her business;

    A letter from the medical practitioner for the review applicant’s sister confirming that she suffers from anxiety and depression disorders, impaired coping mechanisms and chronic back problems.  The letter is addressed to “Whom it may concern” and states that the visa applicant’s sister “is on medications for her conditions and her progress is very slow.  Her prognosis could be considerably improved if the possibility of her husband allowed work release which may be a positive step towards early remission of symptoms”.

13. I accept that this is an accurate summary of what is set out in the submission and in the supporting letters.  In light of this initial summary, in the findings and reasons part of its decision, the Tribunal then summarised more succinctly what it had set out in relation to these claims in indicating “In later submissions the visa applicant spoke of the assistance he provides to his sister who is suffering from back pain and depression and who, until the release of her husband from gaol, is the only parent caring for her three children on a day to day basis”.

14. The Tribunal went on to discuss other factors relevant to the exercise of its discretion and continued:

    The Tribunal accepts the assistance the review applicant provides to his sister but notes that the review applicant’s brother lives in Australia and may well be an alternative source of support for their sister pending her husband’s release from prison. 

15. In stating that it accepted the assistance the review applicant provided to his sister, the Tribunal was clearly having regard to all that had been referred to in its reasons for decision, in particular the claims contained in and accompanying the migration agent’s letter of 2 December 2003.  These claims were made after the hearing, in individual letters under cover of a letter from the applicant’s advisers which described the claim as a claim about assistance for the family “of the review applicant’s sister”.  Both the letters from the applicant and his sister stated that the assistance was given to the sister and that this was what was required. 

16. Understood in context the claim in the applicant’s letter that:

    Having to take care of three boys … it is extremely hard for her to raise them on her own, the boys need a father figure like to communicate with and relate to, this is were I come in

    is a claim that the applicant’s sister needed a male figure to help with her sons.   The applicant’s letter focused on the assistance that his sister and her family claimed to need, in particular that they needed a man around because her husband was in gaol.  The sister’s letter was clearly focused on the assistance she needed.  Part of that assistance was a father-like figure for her children, because at the time her husband was in gaol, but it was nevertheless assistance given to her and her family as a global concept consistent with what was described in the letter from the applicant’s migration agent.

17. When these documents are read together with the migration agent’s submission and given that there was no oral evidence to the Tribunal on this issue (and hence obviously no questions asked about it) the claims can be accurately summarised in an umbrella way as a claim that the applicant’s sister needed assistance in the family context because her husband was not there at the moment to provide it.  In that context she claimed to need male assistance and the assistance of a brother. 

18. Reading the Tribunal decision fairly and as a whole, in particular in light of the accurate summary of the claims and the subsequent more succinct description of those claims, I accept that when the Tribunal referred to the assistance the review applicant provided to his sister it was doing no more than “wrapping up” the entire claims referred to in the letters annexed to the submission from the migration agent.  It is apparent from the Tribunal reasons for decision that it properly understood and dealt with the claims made by the applicant, in particular insofar as they related to claims that he assisted his sister with the care of the children and (and this is in fact the essence of the claim) that he provided a father-figure and a figure to communicate and relate to for the children.  The applicant’s claim was that his sister needed a male figure to help with her sons.  This claim was understood and addressed by the Tribunal.  No jurisdictional error is established on the basis contended for in this ground.

Section 359A

1. Another ground relied on in the amended application is that the Tribunal failed to comply with s.359A of the Act in that it failed to notify the applicant in writing that it was going to rely on information that he had departed Australia for Lebanon on 17 October 2001 and returned to Australia on 11 January 2002 and failed to explain why it was relevant to the review. It was contended that the applicant did not give such information to the Tribunal so that the s.359A(4)(b) exception was not applicable.

2. The Tribunal finding of relevance in this respect is its finding that “the review applicant’s parents are in Lebanon, and he himself returned to Lebanon between 17 October 2001 and 11 January 2002, which makes less persuasive his argument that he is completely settled in Australia”. 

3. It was submitted that one of the reasons the applicant claimed he should not have his visa cancelled was because he had settled into life in Australia. However the Tribunal was said to have relied on his departure on 17 October 2001 and his return on 11 January 2002 as a reason why the discretion ought not to be exercised in his favour. Hence it was submitted that the Tribunal had an obligation to put the departure date and arrival date information to the applicant in accordance with s.359A, consistent with what was held by the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 per Weinberg J at [157] – [158] and per Allsop J at [219] and [223]. It was submitted that the Tribunal had relied on the exact information as to dates and time out of the country in making a finding that it found “less persuasive” the applicant’s argument that he was completely settled in Australia and that even though the applicant had discussed at the hearing the fact that he left Australia the exact dates were not given.  It was submitted that the information in question was a part of the reason for the decision of the Tribunal in the broad sense considered in SZEEU.  

4. It was contended for the applicant that the information in question related to the dates when the applicant departed Australia for Lebanon and when he returned to Australia.  It was acknowledged that these dates were given to the Department by the applicant in support of claims made by him in response to the notice of intention of cancellation (in particular in the response from his migration agent of 11 February 2002 which discussed his departure to Lebanon on

   
   

   17 October 2001, what occurred there and his return to Sydney on

   
   

   11 January 2002), but it was said that they were not repeated in claims made to the Tribunal. In those circumstances it was said that the obligation under s.359A applied, as the exception in s.359A(4)(b) was not applicable because it was not information that the applicant gave for the purpose of the application in the sense considered in Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 and applied in SZEEU. 

5. However, reading the Tribunal reasons fairly and as a whole and in context, for the reasons given below I am satisfied that what was the “relevant fact or circumstance” (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [205] per Allsop J) to the Tribunal was not the particular dates that the applicant left and returned to Australia, but rather the fact that having come to Australia in July 2001, for a period of some months from late 2001 to early 2002 the applicant went back home to Lebanon and that his parents live there. That is the “information” which formed part of the Tribunal’s reasons for its decision. Such information was given to the Tribunal by the applicant and hence is within the s.359A(4)(b) exception to s.359A(1).

6. First, the fact that the Tribunal referred to the actual dates of departure and return does not of itself establish that such dates formed part of the reason for the decision under review.  As was said in SZEEU at [216] per Allsop J in relation to s.424A (the equivalent of s.359A applicable to the Refugee Review Tribunal):

   “One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion…Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision.  The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or part of the reason).  Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s.424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s.424A.  The above task of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straight forward and may lead to conclusions about which minds may differ.”  (See Paul v Minister for Immigration & Multicultural Affairs (2001) 73 FCR 396 and VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471).

7. In assessing why the Tribunal acted as it did it is helpful in this instance to bear in mind that it was determining whether cancellation of a prospective marriage visa issued in May 2001 and valid until

   
   

   22 February 2002 was the correct and preferable decision.  The Tribunal noted that the applicant had entered Australia on 1 July 2001 and that the visa was cancelled on 20 February 2002. As part of the determination of whether (given that cancellation was not mandatory) the decision to cancel the visa was the correct and preferable decision in all the circumstances it was considering the personal circumstances of the applicant, and in particular his claim about the hardship he would suffer if the visa was cancelled, because he was completely settled in Australia. 

8. It is apparent from the transcript of the Tribunal hearing that the Tribunal had discussed with the applicant his past employment and standard of living in Lebanon and his circumstances in Australia.  In relation to his return to Lebanon the applicant gave evidence about what occurred after his initial arrival in Australia and the Islamic marriage ceremony of 14 July 2001.  The applicant told the Tribunal of difficulties and that his sponsor told him to go back to his parents.  The Tribunal stated:

   Q40.  I’ll take you back to where we were.  You were talking about your expectations from when you and Rola were discussing your future lives in Lebanon and what happened when you arrived in Australia.  So Mr Nassouh, what it seems is from the time of the marriage in July until I think you left for a visit to Lebanon in October, things aren’t going particularly well between you and Rola.  Is that correct?

   Applicant:  I was completely lost, I went to Lebanon to talk to her family.

1. The applicant continued:

   “… The time I went to Lebanon I stayed two months and a half…”

2. The applicant went on to state that when he returned to Lebanon he found he did not have work, could not go back to his former job and that he was unable to find a different job.  He claimed he wanted to stay in Australia to sort out the problem with his sponsor and “The second reason I have nothing in Lebanon.  When I live in Lebanon you can’t hear the news.. I’m thirty years old, how many times I have to start my life.” 

3. The Tribunal told the applicant that one of the things it had to consider was what hardship would be occasioned to him by cancellation of his visa.  In response the applicant claimed (amount other things) “I’m getting used to here and I have decided to work with my brother because he got jobs, so I said I live here.  If my visa be cancelled I go back to Lebanon, I was still for a long time without (indistinct) job, that job will not satisfy my demands.”  He claimed it would take 5 to 10 years to start a new life, marry and have a family.  The applicant’s brother and migration agent also told the Tribunal that it would be hard for the applicant to return to Lebanon. 

4. It is clear from the transcript that the applicant told the Tribunal that after coming to Australia he returned to Lebanon for 2½ months.  Further, in his letter to the Tribunal dated 27 November 2003 the applicant set out a chronology which clarified what had occurred.  He stated that he arrived in Australia on 2 July 2001 and that within the first month of his arrival his problems with his wife began.  He went on to state that he remained in Australia “for another three months” and then that he “returned to Lebanon to try and alter the problem with her parents”.  He then continued that “after two months of negotiating with her parents I come back to Australia”. 

5. Analysing the whole of the written reasons, it is clear that in having regard to the persuasiveness of the applicant’s argument that he was completely settled in Australia, the information the Tribunal relied on was the fact of the applicant’s return to Lebanon for such a period of time, at such a time as well as the fact that his parents were in Lebanon.  The Tribunal referred to the fact that the delegate of the Minister could not assess the degree of hardship the applicant may experience if his visa were cancelled, as this issue had not been addressed by the applicant in his response to the notice of intention to cancel the visa (hardship being a matter referred to by the delegate consistent with policy guidelines) but, importantly, noted that the delegate “reasoned that since the review applicant has only been in Australia since 1 July 2001 and during this period travelled back to Lebanon for three months, the degree of hardship the review applicant would face ‘should be minimal’”.

6. The Tribunal described the applicant’s evidence at the hearing about his marriage ceremony (on 14 July 2001) soon after his arrival in Australia his evidence of his subsequent decision to return to Lebanon “in October 2001” (that is three months after his arrival in Australia as he told the Tribunal) to discuss the situation with the sponsor’s parents and that on their advice he returned to Australia “in January 2002” (that is after some two and a half months as stated in the hearing) to try to continue the relationship.  Relevantly the Tribunal outlined the applicant’s claim about hardship (in finding employment in Lebanon and “uprooting himself again just as he has become settled in Australia”) he claimed that he would encounter should his visa remain cancelled and he be forced to return to Lebanon.  It also noted that the applicant’s brother stated that it would be difficult for the applicant to return to Lebanon as the economic situation had deteriorated and he would be unlikely to find work, that the applicant’s life had been “uprooted” when he moved to Australia and that “To now return to Lebanon and recommence his life there would, he submitted, be very difficult”.  It also referred to the claim of the applicant’s former adviser that “[t]he amount of hardship to the…applicant should the visa remain cancelled would…be inconceivable, particularly in the light of the difficulties in obtaining employment in Lebanon”. 

7. Importantly, it was these claims of hardship that the Tribunal was considering in determining whether the decision to cancel the visa was the correct and preferable decision.  The reference to the dates of travel to Lebanon should be seen in light of the above material and in the context in which the dates were referred to in the decision, which was as follows:

   “The review applicant has spoken of the difficulties he would encounter on his return to Lebanon.  He left a responsible and well paid position when he relocated to Australia and that position will not be available to him upon his return to Lebanon.  He has concerns that given the deterioration of the economy in Lebanon, he will experience problems in finding work.  He would also experience further upheaval in having to relocate again and start his life anew, particularly when he has settled into life in Australia, including a working relationship with his brother.  Similarly, he spoke of his shame at returning to Lebanon following the failure of his relationship with the sponsor.  In later submissions, the visa applicant spoke of the assistance he provides to his sister who is suffering from back pain and depression and who, until the release of her husband from gaol, is the only parent caring for her three children on a daily basis.

   The Tribunal notes, however, that the review applicant entered Australia on the basis of an intended marriage which has not occurred, and on the evidence, will not occur.  The review applicant’s parents are in Lebanon, and he himself returned to Lebanon between 17 October 2001 and 11 January 2002, which make less persuasive his argument that he is completely settled in Australia.  While the Tribunal accepts that he will have some difficulty and personal embarrassment in returning to Lebanon, the Tribunal is satisfied that there is support available to him there.  The review applicant is a pleasant, articulate and intelligent man who, although he may encounter initial difficulties in re-establishing himself professionally, has the experience and skills to find further employment.  The Tribunal accepts the assistance the review applicant provides to his sister but notes that the review applicant’s brother lives in Australia and may well be an alternative source of support for their sister pending her husband’s release from prison.”

8. The reference to the information in question arose in the Tribunal’s assessment of the applicant’s claims of hardship (consistent with the policy on visa cancellation) as part of its determination of whether the visa should be cancelled.  In that context what was relevant to its reasoning was the fact that despite the applicant’s claims about hardship in Lebanon, that he had settled in Australia and so would face “upheaval” in having to relocate again, there were countervailing circumstances, including, in particular, that the fact and timing of the applicant’s return to Lebanon made “less persuasive his argument that he is completely settled in Australia”.  The limited persuasiveness of his claim about being settled in Australia was one of the personal circumstances of the applicant considered in the context of the absence of ‘essential aspects for the grant of the visa’ which led the Tribunal to conclude in all the circumstances that the correct and preferable decision was to cancel the applicant’s prospective marriage temporary visa. 

9. Insofar as the applicant relies on what was said in SZEEU about “flight information” (in SZBMI) being information that was the reason or part of the reason “for the decision” (see in particular [157] – [158] per Weinberg J and Allsop J at [219] – [220]), that information was that an applicant had “fled overseas” shortly after a particular political party gained power in the applicant’s home country after elections (see Moore J at [15]), not the actual date of the travel.  In this instance it was the fact of travel and the time of travel by reference to other events that was the information that was (consistent with the principles referred to by Weinberg and Allsop JJ) part of the reason for the decision under review.  The aspect of the information relevant to the exercise of the Tribunal’s discretion was not the exact dates of travel, but the fact of the applicant’s return to Lebanon for over two months some three to four months after coming to Australia.

10. In this context I am satisfied that, I while described by reference to actual dates of travel, it was the information as to how long after arrival the applicant returned to Lebanon and the period of time he spent in Lebanon that was the information that was a part of the reasoning process and thus formed part of the Tribunal’s reason – not the actual dates of departure and return. As set out above, in the Tribunal hearing and in his letter of 27 November 2003, the applicant gave the Tribunal the information that he came to Australia in July 2001, that he stayed here for some three months, went back to Lebanon for 2 to 2½ months and then returned to Australia. Thus, the applicant gave this information to the Tribunal – in the hearing and in his post hearing submission. Such information is thus within s.359A(4)(b) of the Act and the obligation in s.359A(1) does not arise in relation to such information. Hence no jurisdictional error has been established on the basis contended for by the applicant.

The delegate’s decision

1. The first ground relied upon in the amended application was that the delegate of the Minister constructively failed to exercise jurisdiction under the Act.  The particulars of this ground are that the delegate failed to follow the mandatory procedures in Subdivision E of Division 3 of the Act because the information on which the ground for cancellation was based was not given to the applicant in accordance with ss.119 and 120, in that the delegate found that the reason for cancelling the visa was information dated 25 June 2001 and 9 July 2001 from the sponsor, whereas the prior notice to consider cancellation sent to the applicant stated that the marriage ceremony had been cancelled or had not been organised.  It was contended the delegate had breached the mandatory provisions of the Act relating to notice by not putting this information to the applicant and submitted that because there was no lawful notice issued, the cancellation was null and void, as it was a condition precedent to such cancellation that a lawful notice be issued. 

2. The applicant provided written submissions in relation to this ground.  However it was conceded that as this Court was bound to follow the decisions of the Full Court of the Federal Court in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561 and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314 it must reject this ground and the next ground discussed below. The submissions were made to preserve the applicant’s rights on any appeal. In light of this concession, which is properly made, the respondent’s written submissions did not address these grounds. Nor did either party address this ground further in oral submissions or clarify the circumstances in which, as an alternative to orders being sought directing the Tribunal to re-hear and re-determine the matter of the cancellation of the visa according to law, the Court should make the orders sought in relation to the decision of the delegate (including a declaration that the delegate’s decision was void and of no effect). For the reasons given above, it has not been established that the Tribunal fell into jurisdictional error. It is not in these circumstances necessary for me to determine whether or not the delegate’s decision was unlawful and hence whether the delegate’s decision to cancel the visa should be declared void and of no effect (cf Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132).

3. In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court of the Federal Court found that the Migration Review Tribunal had the power to review a delegate’s decision notwithstanding that the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act or may, or may arguably, have committed an error of law and that the Tribunal was “in consequence” able to “cure” the defect in the delegate’s decision:  see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116” (at 32). In Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 the Full Court concluded (at 43) that Zubair should be followed.  On this basis the Tribunal had power to review the delegate’s decision whether or not it contained a jurisdictional error and in consequence to “cure” any defect in the delegate’s decision including the alleged ‘defect’ in relation to compliance with the notification procedures.  Hence this ground must be rejected. 

Whether Tribunal erred in relation to delegate’s decision

1. Ground 2 in the amended application was that the Tribunal erred in its interpretation or application of the applicable law in finding that the Minister’s delegate followed the procedure set out in Subdivision E (of Division 3) of the Act, when such procedure was not followed as no valid notice was given.  It was contended that the statutory procedure was mandatory, that the delegate had not complied and hence had not given a valid notice and did not have power to cancel the visa.

2. It was further contended that the Tribunal was limited to the breach set out in the delegate’s purported notice dated 30 January 2002, being that the proposed marriage ceremony between the applicant and the sponsor had been cancelled or had not been organised and that despite such limitation the Tribunal found that the grounds for cancellation under s.116 had been made out because at the date of cancellation the sponsor did not intend to live with the applicant in a spousal relationship.

3. It was also conceded in relation to this ground that the Court was bound to follow the decisions of the Full Federal Court in Ahmed and Zubair such that the Tribunal could affirm the decision under review despite the delegate’s decision allegedly being unlawful.  Again, the applicant provided written submissions in relation to this ground and sought to preserve his rights on appeal on the basis of a contention that s.124 of the Act limits the power of a Tribunal to affirm the decision under review (cf Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218) in light of a pending application for special leave to appeal to the High Court in relation to such an issue. Counsel for the respondent did not address this ground because the applicant had conceded that the Court was bound by decisions of the Full Court of the Federal Court and must reject both the first ground and this ground.

4. In Uddin the Full Court followed the approach adopted in Ahmed, in which it had been held that despite accepted inadequacies in notification given by a delegate of the respondent to a visa holder under s.119 of the Act, the function of the Tribunal on review was not limited to recognising that the delegate had no power to cancel the visa (Uddin at [50] and [55] per Wilcox and Branson JJ and at [78] per Bennett J). Similarly in this case it was not necessary for the Tribunal to determine whether the Minister’s delegate followed the procedure out in Subdivision E of Division 3 of the Act as the Tribunal had power to review and affirm the delegate’s decision notwithstanding such an arguable failure and could “cure” any such defect.

5. It was also conceded for the applicant that on the present state of the authorities the Tribunal was not confined to the “breach” set out in the delegate’s purported notice in the sense of the particular factual matters asserted: “that the proposed marriage ceremony between the applicant and the sponsor had been cancelled or had not been organised”. 

   
   

   As Hely, Gyles and Allsop JJ stated in Ahmed at [34] the “decision” the subject of the “review” conducted by the Tribunal is “a decision in fact, purported to be made under the Act or purported to be made in exercise of the powers conferred by the Act” (also see Brian Lawlor Automotive Pty Limited v Collector of Customs (1979) 24 ALR 307).

6. In this instance the delegate had a statutory power to exercise under s.116(1)(a) of the Act. Whether or not the delegate erred in cancelling the visa for reasons other than the reasons specified in the notice of cancellation, as was stated in Ahmed at [36]:

   “The review is of the MRT – reviewable decisions of the delegate.  The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate.  It may be that one can discern a failure to follow required procedures, such as ss.119 and 120.  That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate.”

   Further, as was stated at [38]:

   “what was done under s.119, or what should have been done under s.119 neither destroys the power under s.116(1)(b) [the applicable power in Ahmed] nor governs the identification of the context of the decision.  What the decision was is to be found by examining the terms of the power purportedly exercised, its statutory context, the terms of the reasons, the form of the decision and the material before the decision-maker”.

   Also see generally the further discussion at [37] – [44] and note that as the Court stressed at [41] “under s.349 of the Act the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them”, that the Tribunal conducts a review on the merits and that “Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal” (at [42]).  (Also see Uddin at [44] – [46] and [56] – [58]). 

7. The MRT – reviewable decision in the present case was the decision to cancel the applicant’s visa under s.116(1)(a) on the basis that “any circumstances that permitted the grant of the visa no longer exist”. The Tribunal had the power to conduct a review of this decision on the merits. As the authorities stand, it is clear that the Tribunal was not limited to the breach set out in the delegate’s purported notice dated 30 January 2002 and that the Tribunal did not err as contended in finding that the grounds for cancellation under s.116(1)(a) had been made out because at the date of cancellation the sponsor did not intend to live with the visa applicant in a spousal relationship (a criterion for the grant of the visa in issue under Clause 300.216 Schedule 2 to the Migration Regulations). I note that in any event the Tribunal notified the applicant in its s.359A letters of 4 September 2002 and 24 June 2003 of the information that was the basis for its view that circumstances which permitted the grant of the visa no longer existed thus ‘rectifying’ any inadequacies in the delegate’s s.119 notice as discussed in Uddin at [56] – [58].

8. As no jurisdictional error on the part of the Tribunal and no basis for review of the delegate’s decision has been established the application must be dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  26 April 2006.