Perera v Minister for Immigration

[2014] FCCA 1168

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1168

Catchwords:

MIGRATION – Judicial review – Migration Review Tribunal – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (subclass 461) – student visa (subclass 573) – whether the tribunal engaged in jurisdictional error – whether the applicant’s spouse was an “eligible New Zealand citizen” – whether the applicant’s visa cancellation would have affected an Australian citizen – failure by the applicant to raise the effect of cancellation upon an Australian citizen – no error demonstrated by tribunal – application dismissed – costs awarded.

Legislation:  

Australian Citizenship Act 2007 (Cth) s.12
Migration Act 1958 (Cth) s.359A
Migration Regulations 1994 (Cth) reg.1.03
Social Security (Administration) Act1999 (Cth) s.240
Social Security Act 1991 (Cth) s.7

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Re Ahmed v Secretary, Department of Family and Community Services (2005) 82 ALD 454
Re Bhikha Patel and Secretary, Department of Family and Community Services [2004] AATA 791
Sanmugasundaram v Secretary, Department of Family and Community Services (2004) 86 ALD 315

Applicant: RAJITHA RAMINAL PERERA WEERASINGHE ARACHEMIGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 873 of 2013

Judgment of: Judge Burnett

Hearing date: 13 March 2014

Date of Last Submission: 13 March 2014

Delivered at: Brisbane

Delivered on: 18 March 2014

REPRESENTATION

Counsel for the Applicant: Mr L. Burrow

Solicitors for the Applicant: Gopal and Chand Lawyers

Counsel for the First Respondent: Ms A. Stoker

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the name of the Applicant be amended to “Rajitha Raminal Perera Weerasinghe Arachemige.”

2. That the application filed on 1 October 2013 be dismissed.

3. That subject to application for any other order made within 7 days of the date of this order, the Applicant pay the Respondents’ costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 873 of 2013

RAJITHA RAMINAL PERERA WEERASINGHE ARACHEMIGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant, a citizen of Sri Lanka, seeks judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 3 September 2013 affirming a delegate’s earlier decision not to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (subclass 461) (“461 visa”). 

2. He entered Australia as a holder of a student visa (subclass 573) (“student visa”), which was granted on 27 March 2008. Condition 8202(2)(a) of that visa required him to be enrolled in a registered course.

3. Until 4 June 2010 he was enrolled in various courses at the Metro College of Technology to do with the food and beverage industry.  However, he did not continue those studies beyond that time.  On 30 August 2011, he applied for a 461 visa. Receipt of that visa application was acknowledged, and on 21 September 2011, the Department of Immigration and Citizenship (as it then was) (“the Department”) wrote to the applicant requesting the provision of certain documents. 

4. Those documents included documents that had been earlier requested from him, such as evidence of his relationship with the sponsoring spouse, Ms Tivalu, a personal declaration and character information.  He supplied some documents to the Department, which included copies of Ms Tivalu’s passport, bank statements and Medicare card, as well as Centrelink reference numbers for Ms Tivalu and her children. 

5. On 2 November 2011, the Department again wrote to him to request other documents. It was described as a “final request” directed to the provision by him of a certified copy of Ms Tivalu’s passport, an original Sri Lankan police clearance certificate, further evidence of the relationship between the applicant and Ms Tivalu and an x-ray examination. 

6. The applicant ultimately did supply those documents to the Department.  However, on 13 December 2011, the Department sent to the applicant a notice of intention to consider cancellation of his student visa.  The letter said that “it has come to the Department’s attention that there may be grounds for cancellation of your subclass TU-573 student visa … because you may be in breach of visa condition 8202(2)(a).”  The letter invited the applicant to give a written response as to why his visa should not be cancelled.

7. That matter was not satisfactorily addressed, and on 22 December 2011 the Department made the decision to cancel the applicant’s student visa.  As a consequence, his visa status at that time switched to a “Bridging Visa A,” which permitted him to remain in Australia until his application for the 461 visa was finally determined.

8. It is to be noted that the applicant did not challenge the student visa cancellation decision.  However, with respect to the 461 visa, on 5 January 2012 the Department sent a letter to the applicant inviting him to comment on unfavourable information.  That information was the cancellation of his student visa and the effect of that cancellation on his application for a 461 visa.  The letter observed:

   “This means you do not satisfy public interest criterion 4013 in Schedule 4 of the [Migration Regulations 1994 (Cth) (“the Regulations”)] … As a result, this visa cannot be granted to you unless:

   ·   You apply again after 22^nd December 2014 (3 years after the cancellation of your student visa);  or

   ·   Provide information that shows that in your case:

   ·   There are compelling circumstances that affect the interests of Australia;  or

   ·   There are compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

   to justify the granting of the visa within 3 years of the cancellation of your student visa.

   I also note that you are required to meet criterion 461.225 of this visa.  Criterion 461.225 states: “If the application is made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

   According to our records you have not substantially complied with your previous visa conditions, leading to the cancellation of your student visa …”

9. On 19 January 2012, the Department received a handwritten letter from the applicant which explained why he wanted his 461 visa and gave some background history of his relationship with Ms Tivalu, who by then was his wife.  Ms Tivalu also wrote a letter in similar terms.  On 9 February 2012 the Department notified the applicant that his application for the 461 visa had been refused for his failure to satisfy cl.461.223 of the Regulations.  Reasons were provided.

10. On 29 February 2012, the applicant lodged an application with the Tribunal for review of that decision, receipt of which application was acknowledged, and the applicant was also invited at that time to provide material or written arguments for the Tribunal to consider.  On 17 July 2013, the Tribunal invited the applicant to respond to further information concerning the cessation of his enrolment as a student on or around 4 June 2010 and the cancellation of his visa for breach of condition 8202.  He was required to provide any response by 31 July 2013.  

11. The applicant did not respond, and as at 1 August 2013, the Tribunal had not received a response from him.  On 12 August 2013, the applicant telephoned the Tribunal and said that his migration agent was on holidays but would provide the response to the Tribunal by the due date.  It seems apparent that at this time the applicant was unaware that the due date had passed.  In any event, on 15 August 2013 the applicant’s migration agent made a submission in writing to the Tribunal. 

12. To understand matters that follow from here, it is necessary to understand the regulatory framework relevant to the visa application.  The framework was summarised in the letter which I have earlier noted was forwarded to the Tribunal on 5 January 2012.  In particular, one of the requirements for the grant of the visa was that, at the time of the decision, the applicant satisfied the Public Interest Criterion 4013 (“PIC4013”). 

13. PIC4013 relevantly provided:

    “(1) If the applicant is affected by a risk factor mentioned in subclauses (1A), (2), (2A), (3), (4) or (5):

    (a)     the application is made more than 3 years after the cancellation of the visa or temporary entry permit, or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant;  or

    (b)     the Minister is satisfied that, in the particular case:

    (i) compelling circumstances that affect the interests of Australia;  or

    (ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen;

    justify the grant of the visa within 3 years after the cancellation or determination.

    …

    (2)    A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Act:

    (a)     ...

    (b)     if the visa was of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass; or

    …”

14. It should be noted that an “eligible New Zealand citizen” is defined in the Regulations. Relevantly, they require that a person was in Australia as the holder of a Subclass 444 (Special Category) visa on 26 February 2011; or for a total of one year in the two years before that date; or has a certificate issued under the Social Security Act 1991 (Cth) (“SSA”) that states that he was residing in Australia on a particular date. 

15. It follows that the applicant fell within the class of persons who was affected by a risk factor, as the student visa was a schedule visa under PIC4013, and he did not comply with a condition under it.  However, he could satisfy PIC4013 if the Minister was satisfied of compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justifying the grant of the visa within three years after the cancellation or a termination. 

16. The applicant contended that he had satisfied the terms of clause 1(b)(ii) because he had married a New Zealand woman now permanently resident in Australia and was the putative father of her three children.  In summary, that was the case put by the applicant to the Tribunal.  It should be noted at this point that the Tribunal did not proceed to determine the application only on the material before it, because despite forwarding an invitation to the applicant to comment upon the material, on the ground that it could be part of the basis for affirming the decision,[1] the applicant did not respond in time.

    [1] See s.359A Migration Act 1958 (Cth).

17. In deciding the application, the Tribunal concluded:

    “[17] The Tribunal has before it a copy of Ms Tivalu’s passport of New Zealand. However, there is no evidence before the Tribunal that Ms Tivalu was in Australia on or before 26 February 2001 and the parties have not presented a certificate issued under the Social Security Act 1991 in relation to her. The Tribunal thus finds that she is not an ‘eligible New Zealand citizen’ as defined in the Regulations. Nor is there evidence that Ms Tivalu is an Australian citizen or permanent resident. Therefore, the impact on Ms Tivalu of the applicant not being granted a visa do not fall within the terms of PIC 4014(1)(b)(ii).

    [18] The applicant’s representative has submitted that there are relevant circumstances in relation to the best interests of the children and that it is not in the interests of Australia that a family unit be destroyed and Australia does not live up to its obligations under the United Nations Convention on the Rights of the Child.  It was stated that the applicant is the step-father of Ms Tivalu’s children who are attending school in Australia and have had all of their education in Australia. However, there is no evidence that any of Ms Tivalu’s children are Australian citizens or permanent residents or eligible New Zealand citizens and any impact on the children does not fall within the terms of PIC 4014(1)(b)(ii).  The Tribunal has considered the submission that Australia would be in breach of its obligations under the Convention on the Rights of the Child but it does not accept on the material before it that the alleged breach gives rise to compelling circumstances that affect the interests of Australia.

    [19] It was also stated that the applicant’s wife has two sisters living in Australia, the eldest sister being an Australian citizen who has five children.  It was stated that the sisters are of Samoan descent and it is in the best interests of the children that the cousins spend time together as one big family.  The Tribunal does not consider that the applicant’s sister, Ms Faapale Tivalu, will be affected if the application does not succeed. The Tribunal notes that there is no suggestion that the applicant’s wife and her children will be departing Australia if the applicant’s application fails.  In fact the submissions were that the applicant and Ms Tivalu’s family unit would be destroyed which suggests that Ms Tivalu and her children will be remaining in Australia even if his application was not successful. It was submitted that Ms Tivalu’s other sister is living in Australia and has issues with the Department of Child Safety who have requested that the applicant and his wife care for her three children.  It was submitted that the applicant and Ms Tivalu are raising six children and this gave rise to compassionate circumstances. The Tribunal notes that no further details have been provided regarding the nature of the request from the Department of Child Safety.  It is unclear whether any of these children are Australian citizens or permanent residents or eligible New Zealand citizens.  Compassionate circumstances are relevant only where the interests of such a person are affected, and the Tribunal does not accept that there are any Australian citizens or permanent residents or eligible New Zealand citizens that will be affected in this case.”

18. In summary, the Tribunal:

    a)concluded that the applicant’s spouse was not an eligible New Zealand citizen;

    b)concluded that she was not an Australian citizen or permanent resident;  and

    c)rejected any argument advanced that the applicant’s deportation would destroy the family unit, including an extended family unit, as contended for by the applicant.

19. In seeking review, the applicant contended that the Tribunal had engaged in jurisdictional error.  It stated its grounds of review in his application as:

    “1. The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects: 

    (a)That the Tribunal erred in that it failed to apply the law correctly in assessing the applicant’s eligibility. 

    (b)The Tribunal had not taken into account a relevant consideration namely the interests of the Australian citizens stipulated in the Migration legislation.

    (c)The Tribunal reached its decision without analysing the critical question of compelling and compassionate circumstances.

    (d)The Tribunal failed to observe a procedure mandated by law.”

20. The applicant made two submissions in support of its contentions.  The first was that the Tribunal’s finding that there was no evidence that the spouse was not an eligible New Zealand citizen was incorrect. Alternatively it was contended that she was a permanent resident.  The second submission was that Ms Tivalu’s eldest child was an Australian citizen. Accordingly, the Tribunal had not properly considered the application in the context of compassionate or compelling circumstances that affect an Australian citizen or an eligible New Zealand citizen.

21. The question of whether or not Ms Tivalu was an “eligible New Zealand citizen” was an important question.  That term is provided for in reg. 1.03 as follows:

    ““eligible New Zealand citizen” means a New Zealand citizen who:

    (a) at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009; and

    (b) either:

    (i) was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Category) visa that was in force on that date; or

    (ii) was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001; or

    (iii) has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.”

22. The issue raised by the applicant was that the Tribunal erred in failing to accept that his spouse had satisfied reg.1.03(b)(iii) by having produced a certificate issued under the SSA “that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.” 

23. In fairness to the Tribunal, this point did not appear to have been specifically advanced before it at the hearing.  However, the Tribunal does and did exercise both an inquisitorial and adversarial role, so the matter should have been considered, and in passing it was.  I make that observation particularly because this is a specialist tribunal. In its decision, the Tribunal stated:

    “[5] An ‘eligible New Zealand citizen’ is defined in the Regulations and relevantly requires that the person was in Australia as the holder of a Subclass 444 visa …”

24. It particularly recognised the need for the certificate. However, its decision does not suggest that it was directed to or considered the matter now raised by the applicant, namely, the effect of the material related to the spouse’s Medicare card and a social security income statement, particularly that which was pointed to in submissions at pages 192, 193 and 215 of the Court Book. 

25. The first issue to arise was whether or not this material referred to constituted a “certificate.” In Butterworths Australian Legal Dictionary, “certificate” is defined as:

    “A written document setting out certain facts. It may be a declaration, attestation or a simple record under hand.”

26. In addition, I was provided with a definition from the LexisNexis online publication which defines “certificate” in these terms:

    “A written document setting out certain facts, in formal recognition of compliance with statutory or administrative requirements.  It may be a prerequisite to enable a controlled activity to be carried out.”

27. The definition of “Australian resident” is provided for in s.7 SSA, and in respect of “certificate” is informed in part by s.240 Social Security (Administration) Act1999 (Cth), which deals with documentary evidence. It provides:

    “Documentary evidence

    (1) If the signature of any person who:

    (a) holds or has held the office of:

    (i) Secretary;  or

    (ii) Director-General of Social Security;  or

    (iii) Director General of Social Services;  or

    (b) is or has been an officer;

    purports to be attached or appended to any official document, the document is to be received in all courts as prima facie evidence of the facts and statements contained in it.

    (2) A statement in writing signed by a person referred to in subsection (1) that a person is or was receiving a social security payment under the social security law or the 1947 Act on a certain date at a certain rate is to be received in all courts as prima facie evidence that the person is or was receiving the social security payment on the date, and at the rate, stated.”

1. It does not appear that it would be difficult for a certificate to be produced certifying that Ms Tivalu is an eligible New Zealand citizen.  A series of AAT decisions suggest that this form of certificate is commonly requested and produced: see Re Ahmed v Secretary, Department of Family and Community Services (2005) 82 ALD 454 at [1]; Sanmugasundaram v Secretary, Department of Family and Community Services (2004) 86 ALD 315 at [3]; and Re Bhikha Patel and Secretary, Department of Family and Community Services [2004] AATA 791 at [3].

2. The Medicare card is plainly not a certificate. The Centrelink income statement does not appear to satisfy the requirements of a certificate.  I accept the respondent’s submission that the applicant’s contention to the contrary is based upon a flawed logic, that is, the applicant reasons backwards by stating that because a person receives social security benefits the person is an Australian resident. The range of benefits open was not explored, but I accept that the person does not necessarily have to be an Australian resident to be entitled to Centrelink benefits.

3. The legislation states that only Special Category visa (“SCV”) holders qualify as Australian residents and can access the full range of Centrelink payments, provided that they are currently living in Australia and satisfy certain rules, such as qualification criteria and relevant waiting periods. That is not to say that those who are not SCV holders are not also entitled to benefits, but as I have noted the detail of the benefits had not been explored. 

4. The fact remains that no material was put before the Tribunal appropriately addressing the certification requirement to establish that Ms Tivalu was an eligible New Zealand citizen.  As I have noted, it would not have been a difficult thing to do had the applicant turned his mind to it.  It follows that there is no basis to challenge the Tribunal’s conclusion at [17], where the Tribunal ultimately concluded that the matter had not been established. I am not satisfied that any error has been demonstrated in the Tribunal’s reasoning in coming to that conclusion, and, accordingly, no error enlivening a right to judicial review on this point has been established. 

5. The second error contended for was that the Tribunal failed to recognise that the youngest child of the spouse was an Australian citizen.  The applicant contended that by operation of the Australian Citizenship Act 2007 (Cth) (“ACA”), the youngest child was an Australian citizen.  Section 12 ACA relevantly provides:

   “Citizenship by Birth

   (1) A person born in Australia is an Australian citizen if and only if:

   (a) ...

   (b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.”

6. It was contended that the child, Tatiana Brown, whose date of birth is 24 March 2001, was, by reason of s.12, an Australian citizen. Furthermore, it was contended that she satisfied the residential requirement provided for in s.7(5) SSA. As in the first complaint, the applicant pointed to the inquisitorial/adversarial role of the Tribunal and contended that this was a matter that could have been readily ascertained had it taken the trouble to make some inquiry.

7. The general principles concerning the Tribunal’s approach to its duties in that context were discussed recently by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, where at [25] the Court stated:

   “… The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction …”

8. Here the issue concerned whether or not the child was a citizen of Australia. As in Minister for Immigration and Citizenship v SZIAI, it seems that further inquiry was not indicated on the material.  At page 335 of the Court Book is displayed a screenshot of the relevant child’s “Client Details.” The document indicates that the child’s date of birth is known, but other characteristics indicate that she was not born in Australia. The country of birth was stated to be unknown. Her citizenship status was left blank, and it was observed that she was a lawful onshore entrant with a date of “10/04/2006” marked underneath.

9. These documents were documents maintained by the Department.  The Tribunal, as a specialist tribunal, would have had a reasonable appreciation of the significance of the information contained within these documents and an understanding of them.  In the absence of any other material, there would not be any reason to expect the Tribunal to look behind the information provided by the Department, which otherwise appears to be produced in the ordinary course of the Department’s business.

10. The applicant himself did not raise any issue concerning this matter.  In fact, his arguments on these matters are directed to matters of compassion related to the impact of his denial of a visa upon the greater family unit.  The Tribunal found there was no evidence that the youngest child or, indeed, any of the others were Australian citizens, permanent residents or eligible New Zealand citizens.  On the material before the Tribunal, this conclusion was open to it.  It follows, in my view, that this falls particularly within the ambit of the principles, again, expressed by the court in Minister for Immigration and Citizenship v SZIAI, where at [24] they noted:

    “Mason CJ and Deane J in [Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273] also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.”

11. In my view, this is especially so given that there was material before the Tribunal upon which it could have based its conclusion. Furthermore, the applicant never raised any argument to the contrary. It follows that this ground fails. 

12. I am not satisfied that the applicant has demonstrated any proper basis for judicial review. I will direct that the application be dismissed and that, subject to any application being made within seven days of today’s date, the applicant pay the respondent’s costs fixed in the sum of $6646.00.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Burnett.

Date: 5 June 2014