NEPAL v Minister for Immigration
[2015] FCCA 305
•13 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEPAL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 305 |
| Catchwords: MIGRATION – Migration Review Tribunal – review - partner visa – challenge to interpretation of legislation – allegations of denial of procedural fairness – allegations of bias – dismissal of application. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 65, 359A, 359AA, 360, 474 Migration Regulations 1994 (Cth), cl.820.2, reg.1.09A(3), 2.03A |
| Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 Craig v South Australia (1995) 184 CLR 163 Antipova v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 151 FCR 480 Chen v Minister for Immigration and Citizenship (2013) 218 FCR 561 SZQGB v Minister for Immigration and Citizenship [2012] FCA 113 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 |
| Applicant: | ARUN NEPAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 510 of 2013 |
| Judgment of: | Judge Coates |
| Hearing date: | 14 January 2015 |
| Date of Last Submission: | 14 January 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 13 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondents: | Ms Stoker |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That all applications for judicial review be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $6,464.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BUNDABERG |
BRG 510 of 2013
| ARUN NEPAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 2 February 2011 a delegate of the Minister for Immigration and Citizenship (whose title has since been changed to Minister for Immigration and Border Protection) refused to grant the applicant a visa, being a Partner (Temporary) (Class UK) Visa, pursuant to s.65 of the Migration Act 1958 (“the Act”).
The delegate rejected the applicant’s claim that he was in a de facto relationship with Mr Otto Remely, after deciding that the evidence supplied did not satisfy cl.820.211 of the Migration Regulations 1994. That clause sets out a range of requirements which must be met for the issue of the visa sought.
On 22 February 2011, the applicant filed an application in the Migration Review Tribunal (the Tribunal) and in a decision dated 26 April 2013, the Tribunal affirmed the decision of the delegate not to grant the visa.
The Tribunal gave reasons for its decision.
On behalf of the applicant, Mr Remely then applied to this court to have the Tribunal decision set aside, although the applicant was later substituted in Mr Remely’s place, as Mr Remely had no standing to file an application.
The application filed 28 May 2013 sought to have the Tribunal’s decision set aside.
The first respondent seeks to have the Tribunal decision upheld.
Before going to the substantive matter, I should state that after a long history in this court canvassing a diverse range of matters, the applicant failed and refused to attend the final hearing on Wednesday 14 January 2015, at Bundaberg.
Mr Remely, assisting the applicant, stated at a prior appearance, on 19 November 2013, that the applicant would not be attending the final hearing, on the basis that he (Mr Remely) could not represent him by order of the court.
The applicant was warned that should he not attend, the court may be asked to determine the matter without him being present.
Mr Remely attended court on Wednesday 14 January 2015, the hearing day, and stated that the applicant was in fear of being arrested on instructions from the Immigration Department if he attended court. That was a very different statement than his previous statement that the applicant would not be attending without Mr Remely being able to represent him.
The applicant lives with Mr Remely. Pleas to Mr Remely to contact the applicant to have him appear were met with a statement to the effect that he (Mr Remely) had no influence over the applicant, that the applicant was out of telephone contact and had probably left Bundaberg. Whether that means he does not now live with Mr Remely is impossible to determine.
I decided to hear the review in Bundaberg, where the applicant lived when I set a date for the hearing, because the applicant had never appeared personally before the court in Brisbane and it appeared that he would not do so, claiming many difficulties in travelling. I concluded there were extreme difficulties in conducting this matter by telephone link. A grave concern was the difficulty of oral communication between the court and the applicant when hearings were conducted over the telephone, including simple control of the proceedings so that I could properly understand the case, due to the manner in which the applicant’s case was conducted during appearances. There were difficulties in having the applicant address the court on issues relevant to his substantive application, with Mr Remely making most of the statements.
That the applicant refused to attend the hearing is irrelevant to the need to determine the matter and I was asked by the first respondent to hear the matter and determine it on the merits, referring to any of the material previously filed by the applicant.
The difficulty created by the applicant’s refusal to attend is that he was not present to assist the court in understanding all of his case.
The applicant did not file new material despite directions made on 19 November 2014. In setting the dates for material to be filed, I had allowed time for the applicant to address matters to be raised by the first respondent’s response material, based on a previous submission by Mr Remely that the applicant was not a lawyer and he required time to answer any issues raised by the first respondent. It goes without saying that the first respondent did not need to file material until the applicant had done so, but as the applicant did not file new material, the first respondent responded to previous submissions made by the applicant.
Because of the applicant’s refusal to attend court and refusal to file updated submissions, I will try and piece together what his case actually is. That may of course put the applicant in the position of not having some issues identified, although I will try to anticipate these where I can.
The review comes within s.474 of the Migration Act, which is a privative clause provision. As such it can only be set aside if jurisdictional error identified.
It is not an appeal on its merits.
A broad understanding of jurisdictional error can be gleaned from the decision in the Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323, where the High Court referred to its earlier decision of Craig v South Australia (1995) 184 CLR 163:
“When a Tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
There seemed to be no challenge to the review coming under s.474 or the basis on which such decisions can be challenged as stated in Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf. If I am incorrect in that, then I would rule that such a submission would amount to an objection and I would be overrule such objection.
The latest relevant material from the applicant was a document called Particulars, filed 3 October 2014, however, I will refer to it and back to as much of his material that also appears to be relevant.
At this stage I will note the structure of the Tribunal’s decision. It identifies:
a)The nature of the application as a review of the delegate’s decision (paragraphs 1 to 5 of the decision);
b)The sections of the Migration Act and Regulations relied on by the Tribunal (paragraphs 6 to 13 of the decision). In making references to the law to be considered, the Tribunal referred to a two stage process for the grant of partner visas. Among other things, the decision referred to the consideration of visa subclasses under cl.820.211 (2 to 9) and determined that only cl.820.211(2) was relevant – which requires that the applicant be the de facto partner of an Australian citizen who was not prohibited from being a sponsoring partner. In determining the applicability of these considerations, as a matter of fact, the Tribunal identified that the “principle issue in the present case is whether the applicant is the de facto partner of the sponsor at the relevant time”. Because that was a question to be determined, the tribunal then identified considerations of a de facto relationship stated in s.5CB of the Act (a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, living arrangements and other considerations). The Tribunal then addressed the considerations stated in reg.1.09A(3), (the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the commitment of the alleged partners). In particular the Tribunal referred to what I consider the major issue, stated in paragraph 13:
“…Subject to some exceptions specified in r.2.03A(4) and (5), the Tribunal must also be satisfied for visas of this kind that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa: r2.03A(3)”.
c)The claims and evidence, including third party evidence supplied by the applicant (paragraphs 14 to 50 of the decision) as to the existence of the de facto relationship, as well as the material before the delegate;
d)Analyses of the evidence to reach a conclusion that the applicant’s evidence did not satisfy the requirements set out under the Migration Act to be granted the visa (paragraphs 51 to 99 of the decision), as well as
e)Setting out and discussing various authoritative, relevant cases.
In determining the matter, the Tribunal also referred to the alleged history – that the applicant arrived in Australia on a student visa, that he stopped attending the classes, that he met Mr Remely on a train on 2 June 2009 and that they formed a friendship and began a long term relationship on 15 August 2009. In assessing the alleged history, the Tribunal repeated the words used by both the applicant and Mr Remely as to the claim of being in a de facto relationship. Reproducing words used by a witness ensures that a mistake is not made as to what has actually been said, because facts have to be decided from the actual evidence. The Tribunal referred to a statutory declaration dated 23 July 2010 from the applicant (at paragraph 24 of the decision) in which he stated that he began assisting Mr Remely because of medical problems, stating: “My father died when I was 12 years old and I feel that Otto is like a father to me…”. As well, a statutory declaration by Mr Remely, sworn 23 July 2009 was reproduced, whereby Mr Remely stated he was in a de facto relationship, but also stated that the applicant cared for him due to his medical issues, that he could not get a carer, that he (the applicant) shows no great interest in other relationships and that he “looks to me as something of a mentor or father figure and I’m certainly able to contribute greatly towards his general knowledge and education”. The Tribunal decision scrutinizes those statements and the statements by others, and in particular two psychologists, as to their observations of the relationship, which is quite proper in determining the facts. In applying all of the evidence and assertions, the Tribunal, under separate headings, analysed the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the nature of the commitment shown and whether all of the evidence shows that at the time of the application, the applicant could be said to be in a de facto relationship. The Tribunal also stated it had regard to subsequent history and whether that assisted the determination of the question of whether the relationship existed at the time of the application, referring to Bretag v Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, No SG72 of 1991, 29 November 1991). The Tribunal then held, as a matter of fact finding, that the applicant was not in the de facto relationship as claimed, that he did not meet the requirements of s.5CB(2)(a) for a de facto relationship and that the applicant did not satisfy cl.820.211(2), at the time the application was made.
I now turn to the applicant’s case before the court.
I am assisted by the submissions on behalf of the first respondent, who has had to try and assess what the applicant is relying on with regard to showing jurisdictional error. The applicant’s case seems to be that:
a)A proper interpretation of reg.2.03A makes it unnecessary for the relevant de facto relationship to be of at least 12 months duration prior to the date of the visa application where compelling and compassionate circumstances exist. I will add that the applicant’s submission clearly states that reg.2.03A(3)(b) “unconditionally requires the assessment of the existence of compelling and compassionate circumstances. Only if that requirement is not met is it necessary to provide evidence of the existence of the relationship for 12 months prior to the application.”;
b)The Tribunal did not consider compelling and compassionate circumstances;
c)Because compelling and compassionate circumstances were allegedly not considered, all relevant circumstances were then not considered;
d)The Tribunal wrongly refused to accept the two psychologists reports supplied by the applicant;
e)The applicant was not afforded procedural fairness because it only provided him with an opportunity to respond, at the hearing, to information that could be the reason or part of the reason for affirming the decision under review, and that he should have been given an opportunity to respond in writing; and
f)There was demonstrated apprehensive bias in the Tribunal’s decision.
In my view, those grounds for review follow reasonably closely the original application which was filed by Mr Remely on 28 May 2013, although the original grounds have been changed in some respects by the applicant, so I am satisfied as to the correctness of the interpretation of the grounds of review in the face of Mr Nepal’s refusal to attend the hearing and give oral submissions to assist the court. There is also some understanding, despite many claims of not being legally trained, of the nature of the review and there has been a reasonable attempt to address issues generally known as jurisdictional error.
I will address the applicant’s case in the same order that I have identified his grounds of review as stated above at paragraph 26.
Ground one – that a proper interpretation of reg.2.03A makes it unnecessary for the relevant de facto relationship to be of at least 12 months prior to the date of the visa application where there are compelling and compassionate circumstances and there was a requirement for such circumstances to be considered.
I stated earlier that the structure of the decision referred to the relevant law. The decision indeed referred to reg.2.03A. At paragraph 13 of the decision, the Tribunal stated:
“13. In addition to the criteria set out in Schedule 2 to the Regulations, if a person claims to be in a de facto relationship for the purposes of a visa application the Tribunal must be satisfied that the applicant and the person with whom the applicant claims to be in a de facto relationship are both at least 18 years of age: r.2.03A(2). Subject to some exceptions specified in r.2.03A(4)and (5), the Tribunal must also be satisfied for visas of this kind that the applicant had been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A (3).”
The last sentence of the paragraph shows that the Tribunal understood that the issue of the existence of “compelling and compassionate circumstances”, where claimed, had to be considered and I assume from reading the decision and the material supplied by the applicant that Mr Remely’s alleged need for a carer amounts to the claim of “compelling and compassionate circumstances”.
The jurisdictional error claimed here is a matter of statutory interpretation, the applicant is submitting that r.203A(3) imposes an unconditional requirement on the need to assess the existence of compelling and compassionate circumstances.
The respondent submits that such is an incorrect interpretation.
The regulation states:
“r.2.03A(3) Subject to subregulations (4) and (5), if:
(a) a person mentioned in subregulation (1) applies for:
…
(v) a Partner (Temporary) (Class UK) visa; … and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
The Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.”
The first respondent submits that the regulation does not stand alone and that cl.820.211 had to be satisfied, which requires that at the time of the application, a de facto relationship has to be in existence.
That clause was addressed from paragraph 7 of the decision, where the Tribunal recognised that at the time the application was filed, the applicant had to be in a de facto relationship, and for 12 months, unless there were “compelling and compassionate circumstances”.
There is nothing in the legislation or regulations which I was taken to which would allow for the interpretation as contended by the applicant – that a de facto relationship did not have to exist, before “compelling and compassionate circumstances” could be considered.
On the evidence provided at the time of the application, the question arose in the Tribunal’s mind as to whether a de facto relationship existed at the time of the application.
The evidence considered were the statements by the applicant and the respondent as to the nature of the relationship, with the applicant stating he looked to the respondent as a father figure and the respondent stating he was assisting the applicant’s knowledge.
As well, others gave evidence of their observations, however, a factual decision still had to be made.
There is no doubt that there was a relationship, but the Tribunal went on to identify the sections of the Act and the regulations pertaining to identification of a de facto relationship, which is different from a mere relationship.
Further, because the applicant could not satisfy the requirements set out in cl.820.211 of the regulations as to being in a de facto relationship at the time the application was made, the Tribunal had no power to go onto to consider the other matters set out or claimed circumstances.
The Minister relied on Gray J’s decision in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 151 FCR 480 where it was said:
“The Tribunal’s task was to determine whether Ms Atnipova met the criteria in item 820 of Schedule 2 to the Migration Regulations. It was not open to the Tribunal to choose which criteria to apply; it was bound by all of them and if Ms Antipova failed to meet any one of them, the Tribunal could not grant her a visa. The first step in the Tribunal’s reasoning; inevitably, was to apply the criteria to be satisfied at the time of the application. If Ms Antipova failed to satisfy those criteria, she was not entitled to the visa she sought, and there would be no point in the Tribunal proceeding to determine whether she satisfied any other criteria. By approaching the matter in this way, the Tribunal was not exercising any discretion to limits its inquiry. It was performing its task.”
In my view, the requirement under the Act and regulations is clear, that there must be an existing de facto relationship at the time of the application, and only then can “compelling and compassionate circumstances” be considered, if the de facto relationship has been one of 12 months or less. The existence of “compelling and compassionate circumstances” cannot exist without the de facto relationship, because whatever facts make up such circumstances, they would not be “compelling and compassionate circumstances” if not related to a de facto relationship. Such circumstances cannot develop at a date earlier than the formation of the de facto relationship, because the “compelling and compassionate” are inextricably linked to an existing de facto relationship. The Tribunal thoroughly analysed the words of both the applicant and Mr Remely – that they were good friends, that at the relevant time the application was made the applicant looked to Mr Remely as a father figure and Mr Remely to the applicant as a young person he could assist. The Tribunal held, on the evidence they supplied, that the nature of the relationship did not amount to a de facto relationship at the time of the application.
It is this failure to appreciate the meaning of the legislation and regulations and the factual assessment of the Tribunal and the reasoning process embarked upon by the Tribunal which is being missed by the applicant.
There is no jurisdictional error made out on this ground.
Ground two – that the Tribunal did not consider “compelling and compassionate circumstances”, is, in my view a restatement of ground one.
The Tribunal referred to the alleged claim of “compelling and compassionate circumstances”, but had arrived at a factual decision that at the time of the application there was no de facto relationship in existence.
Whether a de facto relationship developed later is irrelevant to the situation found to have been existing at the time the application was made, as is the consideration of alleged “compelling and compassionate circumstances” which cannot exist in isolation from a de facto relationship. As I have stated, the legislation and regulations allow for “compelling and compassionate circumstances” to be applicable only where there is a de facto relationship established.
A reading of the whole of the decision shows that the order in which the law was considered on the facts as presented, shows no error in the process. It is apparent that if the parties were not in the de facto relationship at the time of the application, an invariable requirement of the Act, then there is no power to consider the ground of “compelling and compassionate circumstances”.
In case I was mistaken about that, I have had to try to piece together from the submissions and the decision the meaning of the claim that there were “compelling and compassionate circumstances” which were not considered. This raises the question of how such circumstances are to be applied in making a determination. Firstly, such circumstances have to be identified. Secondly, such circumstances attach to the applicant, not to his alleged partner, although the relationship itself may give rise to “compelling and compassionate circumstances”. That Mr Remely may be in unfortunate circumstances of needing a carer, which was not established on the evidence, does not create “compelling and compassionate circumstances” for the applicant, without there being a de facto relationship in existence at the relevant time, and without evidence then to show how the circumstances would be applied to the applicant. As I interpret the submissions and evidence relied on, it appears that the claim is that the visa ought to have been granted because of the “compelling and compassionate circumstances” that Mr Remely required a carer. The Tribunal referred to the claim and as such it was aware of the claim. There did not appear to be a submission by the applicant that the Tribunal did not consider his actual claims going to this ground. I assume that the evidence he gave was as recorded in the decision, which was to the effect that Mr Remely claimed he needed a carer and could not get a carer, with no further particularisation within the meaning of the words “compelling and compassionate” grounds. The submission that the Tribunal did not consider this ground is in general terms, and I was not taken to evidence given to the Tribunal by the applicant which would be the bases of a finding that the Tribunal ignored relevant material. Apart from that, the scheme of the Act is undoubtedly that the de facto relationship had to exist at the time the application was made and then, if the relationship did not exist for the 12 months prior to the application, a shorter time could be considered because there were existing circumstances which could be classified as “compelling and compassionate circumstances” which could be taken into account.
This ground cannot succeed and it is not jurisdictional error by failing to consider what is claimed to be “compelling and compassionate circumstances”. In fact because the factual finding is that there was no de facto relationship, it would have been jurisdictional error to go on to determine that “compelling and compassionate circumstances” provide the ground to allow the visa to be issued in the circumstances.
Ground three – because “compelling and compassionate circumstances” were allegedly not considered, then all relevant circumstances were then not considered – is a ground which in my view repeats grounds one and two.
It is merely stating in another way that the Tribunal failed to consider all of the facts and the law relevant to the decision, but in the circumstances propounded by the applicant, there can be no way that the Tribunal had power to consider “compelling and compassionate circumstances”.
There is no jurisdictional error here.
Ground four – the Tribunal wrongly refused to accept the reports of two psychologists relied on by the applicant, is a submission in the sense that the Tribunal fell into jurisdictional error by substituting its view for that of two exerts.
In the applicant’s view the Tribunal was required to accept the opinions of the psychologists who prepared the reports on behalf of the applicant because reg.1.09A(3)(d)(iv) requires an interpretation of the mind and feelings of the applicant and Mr Remely.
I was taken to that part of the regulation which requires the decision-maker to take into account “the nature of the persons commitment to each other, including: (iv) whether the persons see the relationship as a long term one”. The regulation provides a process which is to be adopted, but it does not dictate or substitute the decision to be made. Nor could it. If the regulation dictated the decision, the Tribunal review would be superfluous. The Tribunal must make its decision and conclusion about facts after assessing the evidence. The experts relied on are professionals who gave their expert opinion, but their opinion cannot automatically be accepted. The Tribunal examined the expert’s reports, and at paragraph 56 and 57 of the decision, stated:
“56. In relation to the evidence before presented in this case, the Tribunal considers that it is necessary to make comment on the reliance which the applicant’s representative, the sponsor, has sought to place on the reports by the two psychologists, Dr Pearce and Ms Page. As noted above, Mr Remely has submitted that the Tribunal should accept their assessments of his relationship with the applicant because they are better qualified to assess de facto relationships than the Tribunal.
57. In the Tribunal’s view both of the psychologists’ reports are useful in terms of the assessment of the emotional commitment of the applicant and the sponsor to each other. The assessment of that factor in the context of determining whether they are in a de facto relationship, a concept defined for the purposes by the Migration Act and Regulations, is however a task for the Tribunal. It is not a matter on which the psychologists are expert.”
In my view the Tribunal gave proper consideration to the reports and the Tribunal was also aware of the authorities in relation to such evidence because at paragraph 58 the Tribunal stated:
“58. In Leonid Zakinov v John Gibson & Anor [1996] FCA 696 (26 July 1996) North J dealt with a challenge to the approach to the evidence of a psychologist in a decision of the Refugee Review Tribunal as follows:
The applicant relied on Fuduche v Minister for Immigration & Local Government & Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515, in which the Court held that no reasonable person could have rejected the opinion of a psychiatrist relating to the applicant’s psychiatric condition. In that case, the applicant sought to establish that his presence in Australia was required by the special needs of his sister because of her psychiatric condition. The sister’s treating psychiatrist gave evidence that the sister had an emotional need for the presence of the applicant. The Tribunal rejected that evidence on the basis of the Tribunal’s lay opinion of the patient’s condition. The rejection was found by the Court to be unreasonable.
The distinctions between that case and the present are clear. The psychiatrist in Fuduche gave a medical opinion, that is to say, an opinion in a field of specialisation on a subject requiring medical skill, such that is was unreasonable for a lay Tribunal to reject the uncontradicted view of the expert. Burchett J put it thus, at 522:
“Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own”.
Further, his Honour held that a reasonable lay person could not have avoided the conclusion, in the extreme circumstances of the case, that the patient had a special need for the applicant. The opinion was formed after many years of treating the patient, the treatment commenced before any application was made under the Migration Act 1958, and the opinion was formed for the purposes of treatment and not for the purposes of the application. These factors made it unreasonable for the Tribunal in Fuduche to reject the psychiatrist’s opinion.
In the present case, the evidence of Mr Dunn was not in a field in which lay opinions could not be validly held. The opinion was formed in circumstances which Mr Dunn conceded reduced its value, and the opinion was sought for the express purpose of the application. In these circumstances, the unreasonableness which was found to exist in Fuduche does not exist in the present case.”
In determining the weight to be accorded to such evidence the Tribunal was aware that it had to follow the law and at paragraph 61 stated:
“61. In making the assessment of the relationship between the applicant and Mr Remely against the definition of a ‘de facto relationship’ in the Migration Act and Regulations, the Tribunal has found Ms Page’s report of more assistance than that of Dr Pearce, but notes that as she saw them for the first time shortly before the Tribunal hearing her report is of little assistance in evaluating the relationship as it was at the time of the application under review.”
It is not the case that the Tribunal wrongly refused to accept the reports. The Tribunal identified the evidence, analysed the evidence and came to a factual decision. A decision as to fact finding, in the circumstances here, is not open to review.
There has been no jurisdictional error here.
Ground five – the applicant was not afforded procedural fairness because it only provided him with an opportunity to respond to information at the hearing, which could be part of the reason of affirming the decision under review and that he should have been given an opportunity to respond in writing – is a claim I am finding difficulty in understanding.
The complaint seems to be that any adverse material should have been made known to the applicant before the hearing so that he had opportunity to prepare a response.
The applicant submitted that s.360 of the Act requires the Tribunal to give “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.
That is an interpretation of s.360, which states:
“s.360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
The applicant states in the written submissions that during the hearing “the member made reference why the application should not be refused but failed to inform the applicant of the option to request additional time to comment or respond to the information required under the Act”.
The square brackets used by the applicant refer to further submissions. It is not clear to me what these written submissions actually refer to and since the applicant refused to come to court, he was not in a position to assist the court to understand his case. If he is referring to notice of particulars, the applicant reproduced part of the transcript of the Tribunal hearing. Contrary to the submission, the Tribunal informed the applicant of the issues it was considering – being the nature of the relationship, whether there was a genuine and continuing de facto relationship and whether it had been in existence in the 12 months prior to the application being filed. The statement made by the Tribunal member was in plain language and was stated to put the applicant on notice of the enquiry. The Tribunal did not rely on extrinsic material which needed to be supplied to the applicant, however, it questioned the applicant, seeking particulars of the claim of the existence of a de facto relationship. These were the “particulars” the Tribunal considered, was well as particulars of law given to the applicant at his hearing.
The first respondent addressed the submission by stating that the applicant’s reference to s.360 misinterprets the scope of the obligation imposed, and ignores two sections of the Act, being s.359AA and s.359A.
Section.359AA states:
“s.359AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
Section 359A states:
“s.359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.”
The first respondent relied on the judgment of Logan J in Chen v Minister for Immigration and Citizenship (2013) 218 FCR 561 where it was said:
| “Section 359AA of facultative. It permits the tribunal, if the tribunal chooses, to put potentially adverse information to an applicant for a response during the course of a hearing. If the tribunal adopts this procedure it has no further obligation to invite an applicant to respond to potentially adverse information before making its decision: s 359A(3)… How and when occasion might arise for the tribunal to adopt [the] practice [in s 359AA] during the course of a hearing will inherently be related to the circumstances of a particular case. What is necessary to engage the dispensation for which s 359A(3) provides is that, on a fair reading of the record of the whole of the proceedings at the hearing conducted by the Tribunal, it can be seen that, in substance, the requirements of s 359AA were observed.” |
In relying on both the sections and the decision in Chen the first respondent submits that:
a)The information upon which the Tribunal made its decision was information given to the Tribunal by the applicant in the process leading to the decision under review and is not subject to any obligation under ss.359AA or 359A of the Act;
b)The information the Tribunal made its decision on was also information given by the applicant before the review;
c)All of the issues upon which the Tribunal made its decision were raised and discussed with the applicant and Mr Remely and the applicant (and Mr Remely) was given the opportunity to respond orally at the hearing in accordance with s.359AA;
d)There is no obligation to provide a written opportunity to respond pursuant to s.359A where s.359AA is relied on by the Tribunal;
e)As was pointed out in the Tribunal’s decision, further materials were filed by the applicant and Mr Remely and this was taken into account. At paragraph 52 of the decision, under the heading of findings and reasons, the Tribunal notes that following the hearing Mr Remely made further extensive submissions to the Tribunal, including submissions that:
i)the Tribunal should accept the psychologists assessments of the relationship on the basis that the psychologists were better qualified to assess relationships, and
ii)the applicant had been unable to understand much of the Tribunal’s questioning, not because of English language difficulties, but because they related to concepts under the Acts and Regulations.
I could not detect in the applicant’s submissions just what his complaint is actually about, other than a general compliant that he was not given particulars and he was denied time to respond in writing. I do not understand the submission of the applicant that more time was needed because in reading the decision, I could not identify any issue which would or could have taken the applicant by surprise. I will make the observation that it has been the case while the matter has been before me that the applicant, through Mr Remely, has continually stated that he always needed time to prepare his matter on the basis that he is not a lawyer. I even allowed time when I gave directions for the filing of material for the applicant to file a reply to the first respondent’s submissions, despite there being no necessity at law for him to do so. In the circumstances, despite the plea for lead-up time before I set the hearing, the applicant did not file new material in any case and subsequently did not appear. I mention this because the Tribunal told the applicant what it was enquiring into – the nature of the relationship, how genuine it was and whether it had been in existence for the 12 months prior to the application being made. It referred to the relevant sections of the Act and Regulations.
Despite considering material filed later, there was nothing new to be offered by the applicant in relation to his case for the Tribunal’s consideration.
In pursuing questions about the relationship, which Mr Remely complained about at the hearing, the Tribunal was putting to the applicant the issues which arose on the evidence he and Mr Remely supplied. In determining questions of fact, the Tribunal was fulfilling its duties.
There was no breach of procedural fairness and no jurisdictional error made out on this ground.
Ground six - there was demonstrated or apprehended bias in the Tribunal’s decision – is also a difficult ground to understand on the material filed.
The authorities require that to make out a ground of bias such must be clearly made and distinctly proven – see SZQGB v Minister for Immigration and Citizenship [2012] FCA 113 at 14. The test would be what a fair minded lay observer would detect. It is not a difficult test to make out but requires precision as to the evidence relied on.
There must be evidence of bias produced, or at least assertions referred to which could be considered to be evidence of bias, whether actual or apprehended.
When a person who needs to make an application of this nature, and a failure to find for him or her has the consequence of affecting their legal status to remain in Australia, such a decision may cause them to form a view there is a bias demonstrated.
The Tribunal noted that during the hearing Mr Remely protested about questions concerning the circumstances of the applicant meeting Mr Remely, the beginning of the relationship, the living arrangements and the applicant’s previous relationships.
Given the nature of the application for a partner visa based on a de facto relationship, in my view the Tribunal would not be discharging its function if it did not seek to question the applicant about these and associated factors. In doing so, the Tribunal embarked on a careful analysis of the claim that a de facto relationship existed and examined the evidence of the applicant and his witnesses. It then came to a conclusion of fact.
It is this type of scenario in which of course an applicant could perceive that there is a bias but in my view the first respondent is correct when it relies on the High Court of Australia decision and the statement in Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 27 – 30:
| “The test for apprehended bias in relation to curial proceedings is where a fair-minded lay observer might reasonably apprehend that the judge might not bring up an impartial mind to the resolution of the question to be decided… Perhaps it would be better, in the case of administration proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issues and the conduct which is said to give rise to an apprehension of bias. Where, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.” |
The arguments presented do not show that there has been jurisdictional error on the part of the Tribunal.
On that basis, I will dismiss the application.
The second respondent sought a costs order against the applicant in the sum of $6,646.
In my view, that the applicant refused to appear to actually assist the court with the arguments he wanted determined, a costs order is appropriate.
He had indicated through Mr Remely that he would not appear, and that threat was carried out.
That he did not appear did not allow the court to appraise his financial situation with regard to consideration of costs, and that is a position he put himself in.
I will make a costs order that the applicant pay the first respondent’s costs of $6,646.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 13 February 2015
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