OU v Minister for Immigration
[2005] FMCA 1900
•9 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OU v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1900 |
| MIGRATION – VISA – Partner (Provisional) (Class UF) visa – Partner (Migrant) (Class CB) visa – whether Tribunal fell into error by failing to reply to a post-hearing request from the applicant’s adviser – whether Tribunal imposed a burden of proof that the applicant had to meet – whether Tribunal took into account the delegate’s concerns about the evidence before the delegate – finding of jurisdictional error – certiorari and mandamus issued. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.368
Migration Regulations 1994 (Cth) Reg. 1.15A
SAAP v MIMIA [2005] HCA 24
NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62
| Applicant: | SHUHUA OU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 3786 of 2004 |
| Delivered on: | 9 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 December 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the Migration Review Tribunal is joined as Second Respondent to the Application.
That there be an order in the nature of certiorari to quash the decision of the Migration Review tribunal made on 24 November 2004.
That there be an order in the nature of mandamus requiring the Migration Review Tribunal to review according to law the decision made by a delegate of the Minister 23 May 2003 to refuse to grant a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa to Lian Han Feng.
That the First Respondent is to pay the Applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3786 of 2004
| SHUHUA OU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision made by the Migration Review Tribunal on 24th November 2004 affirming the decision of a delegate of the Minister finding that the visa Applicant was not entitled to the grant of a Partner (Provisional) (Class UF) visa and was not entitled to a Partner (Migrant) (Class VC) visa.
The short facts of the matter insofar as they are relevant are that the Applicant before this Court, who was referred to in the Tribunal decision as the Review Applicant, is the spouse of the Visa Applicant, or the Primary Visa Applicant, one Lian Han Feng, who is a national of the People's Public of China, and included in that application is the son of the Primary Visa Applicant.
The parties married and the Applicant before this Court sponsored the Visa Applicant in connection with the visa application. The Applicant before this Court is an Australian citizen and has been since 7th June of 2000. The parties claim that they met in 1975 and I notice that they had previously been married to other people, but they commenced their relationship in August 2000.
The Visa Applicant lodged an application on 23rd April 2003, but that application was refused on 23rd May 2003. The delegate of the Minister was not satisfied that the relationship between the parties was genuine and continuing. The delegate stated in her decision that she had concerns about the amount of documentary evidence the parties provided and the contradictory statements that were provided at the interview, and there are a number of reasons given as to why that should be so.
An application for review was lodged by the Migration Review Tribunal on 24th June 2003 and the Applicant provided further material for the Tribunal's consideration on 9th February and 10th March 2004. On 31st May 2004 the Tribunal wrote to the Review Applicant inviting her to provide comments on certain information the Tribunal considered that would be the reason or a part of the reason for affirming the decision on review. That letter was replied to by the Applicant's representative on 12th August 2004 and further documentary evidence was provided. Again on 23rd August 2004 further documents were provided to the Tribunal.
The Applicant attended a hearing of the Tribunal and gave oral evidence. It was the intention at the time that telephone evidence should be provided by the Primary Visa Applicant. Telecommunications problems with both a landline number and a mobile telephone meant that this did not in fact happen. On
15th October 2004 the Applicant's migration agent wrote to the Tribunal providing material and also relevantly at page 244 of the Court Book saying this:
If the Presiding Member is still unable to make a decision in favour of the Applicant we request that the Presiding Member conduct a telephone interview of the Applicant. Due to telecommunication difficulties the Presiding Member was unable to speak to the Applicant during the hearing. Since the concerns of the Presiding Member relate specifically to the testimony of the parties themselves we believe that it would be in the interests of justice and procedural fairness to afford the Applicant an opportunity to respond to these concerns. We submit that the Applicant is entitled to be heard and due to technical difficulties at the previous hearing the Applicant did not have the opportunity to present his case to the Presiding Member.
The Tribunal did not make further arrangements to interview the visa Applicant by telephone, but made a decision and handed down that decision on 24th November 2004. That decision was to affirm the decision of the delegate. The Applicant has now applied to this Court for a review of that decision.
There are basically three reasons why the Applicant submits that the Tribunal fell into error. The first, that the Tribunal took into account the concerns of the delegate about the sufficiency of the evidence of the parties’ relationship. Second, that the Tribunal imposed a burden of proof that the Applicant had to meet, and third that the Tribunal fell into error by not considering the request of the Applicant to make a further effort to speak to the Visa Applicant.
In my view the second and third grounds can be dealt with relatively speedily. In respect of the burden of proof ground Mr Johnson of counsel for the Respondent Minister submitted that there was nothing in the Tribunal's reasons to indicate that it was imposing a burden of proof, and he refers me to the positive finding made by the Tribunal in paragraph 50 about the Tribunal's finding that the Review Applicant and Visa Applicant are not a couple who have a genuine commitment to each other, that the parties do not genuinely intend to live together as spouses with a mutual commitment to a shared life as husband wife to the exclusion of all others as provided in Reg.1.15A.
In my view that submission is correct. I am unable to infer from the reasons of the Tribunal that there was an attempt to impose a burden of proof that the Applicant had to meet and I am not satisfied that that ground reveals a jurisdictional error. Turning to the third point made by the Applicant relating to the request of the Tribunal to try again to speak to the visa Applicant, I was referred to the High Court decision in applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) HCA 62; (2004) 211 A.L.R 660.
The submission on behalf of the Applicant is that it was not incumbent upon the Tribunal to make a further attempt to obtain evidence from the Visa Applicant by telephone, but it was incumbent upon the Tribunal to consider that request. In reply to that counsel for the Respondent Minister submits that this particular request has to be seen in context. It is a post hearing request made “at the heel of the hunt”, to use that delightful expression. He submitted that, rather unkindly perhaps, the post hearing request should be summarised as if the Tribunal was not prepared to make a favourable decision on the evidence so far that the Applicant should be given another go. Whilst that is perhaps unkind it does refer to an attempt made by the Tribunal at the hearing to obtain evidence from the Visa Applicant.
Mr Johnson submits that the decision in NAFF of 2002 (supra) does not apply in this particular case. He submits that that decision can be distinguished on its facts and that in NAFF the Tribunal member of the Refugee Tribunal had given an indication of a procedure which he proposed to follow by writing to the Applicant and giving him 21 days to respond to questions, but the Tribunal member in that case did not follow that procedure but in fact handed down a decision affirming the delegate's decision.
In this case the Tribunal did not indicate at the hearing that it was the intention to have another try at obtaining the evidence of the person, but indeed it was sought to rectify the lost information or the inability to obtain that information by the obtaining of statutory declarations, which were in fact provided. Mr Johnson submitted that nothing in the Act imposes an obligation to consider a post hearing request of this nature and there was no obligation on the Tribunal in giving its reasons to say anything about this post hearing request.
I was referred to the provisions of s.368 of the Migration Act setting out in sub-section (1) what the Tribunal must place in its written statement. It is also submitted that the fact that the Tribunal did not mention this post hearing request is not an indication that the request was not considered, because the Tribunal is not obliged to say so, even if there was an obligation to consider that request in the first place.
I am satisfied that there is no obligation imposed on the Tribunal to consider a post hearing request of this nature; that the Tribunal had made an effort by the obtaining of a statutory declaration to receive the information another way. In my view that ground must fail.
The ground that to my mind has the greatest strength is the first ground, that the Tribunal took into account not the evidence before the delegate but the concern that the delegate had about that particular evidence. In particular I am referred to paragraphs 48 of the decision at page 297 of the Court Book and paragraph 53, which is at page 298. For the Respondent Minister Mr Johnson submits there is a significant difference between taking into account the evidence about which the delegate was concerned and the fact that the delegate was concerned. He submitted that all the Tribunal was doing was taking into account, or it was mentioned the concerns of the delegate about certain facts, certain evidence, because the Tribunal had the same doubts.
He submitted that paragraphs 48 to 50 on page 297, and 52 and 53 on the following page, should be read in a unitary way. The Applicant submitted that what the Tribunal has done has not simply expressed concerns about the same evidence, but to take the concerns into account. That is the wording of paragraph 48. Whilst one should not read the wording of these decisions with an eye attuned to finding error, it still falls into the error of taking the fact that the delegate was concerned as a factor rather than just being concerned about the same matters that the delegate was concerned about.
The wording of paragraph 48 refers specifically to the concerns taken and I am referred to the final sentence of that paragraph where the Tribunal member said:
Further, the Review Applicant's apparently conflicting oral evidence before the Tribunal in respect of when she became reacquainted with the Visa Applicant has added to the concerns expressed by the delegate as to the veracity of the Review Applicant's evidence.
Similarly paragraph 53, which I will quote in full, says:
However, in light of the reservations the Tribunal has expressed as to the inconsistencies in the Review Applicant's evidence, and taking into account the delegate's concerns as discussed in the above findings and the above reasons, the Tribunal finds that at the time of the review application the couple was not in a genuine spousal relationship.
To my mind the wording of paragraph 53 is more than just an infelicitous term of phrase because it does contain the words:
And taking into account the delegate's concerns as discussed above.
To my mind the Tribunal has fallen into error in that regard. I am of the view that is a jurisdictional error and for that reason I propose to grant the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 20 December 2005
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