Phan v Minister for Immigration
[2007] FMCA 88
•7 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 88 |
| MIGRATION – Partner visa – Migration Review Tribunal – whether jurisdictional error – whether incorrect finding of fact effectively constitutes ‘no evidence’ finding – whether failure to take into account relevant fact namely, date of lease agreement – incorrect finding that agreement “undated” – application allowed. |
| Migration Regulations 1994, Sch.2, 3 |
| Paduano v Minister for Immigration & Multicultural & Indigenous Affairs and Migration Review Tribunal [2005] FCA 211 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | THI HUYEN PHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1693 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 15 January 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Hamilton |
| Solicitors for the Applicant: | Koenig & Simons |
| Counsel for the First Respondent: | Mr R.C. Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 23 November 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
Liberty to apply.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1693 of 2005
| THI HUYEN PHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the Applicant seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 23 November 2005. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent, that the Applicant is not entitled to the grant of a partner (temporary) (class UK) visa nor a partner (residence) (class BS) visa.
The Applicant, a citizen of Vietnam, arrived in Australia on 7 July 1999 as the holder of a visitor visa. That visa was due to expire on
7 October 1999. On 30 September 1999 the Applicant was granted a further visitor visa which remained valid until 25 March 2000.
The Applicant was granted a further visitor visa on 23 March 2000 which expired on 7 July 2000. On 9 August 2004 the Applicant applied to migrate to Australia on spouse grounds. She applied for a partner (temporary) (class UK) visa (temporary spouse visa) and if granted this temporary spouse visa a partner (residence) (class BS) visa ("permanent spouse visa").
The Applicant was sponsored by her husband ("the sponsor") whom she had married on 7 August 2004. The sponsor, at all material times, was an Australian citizen.
There is no dispute in this application that at the time the Applicant applied for the visas, referred to earlier in this judgment, she was not then the holder of a substantive visa. There was also no dispute that, having regard to that matter of fact then at the time of the visa applications the Applicant needed to satisfy criteria 3001, 3003 and 3004 in Schedule.3 of the Migration Regulations 1994 ("the Regulations") unless there were compelling reasons for not applying these criteria.
It is noted from the Court Book that, by letter dated 23 August 2004, a delegate of the First Respondent advised the Applicant of the requirement for the Applicant to satisfy the relevant criteria. The delegate invited the Applicant to make comments concerning any compelling reasons which might exist. Specifically in the letter dated 23 August 2004, the delegate states in part:
“Before your application is decided, you have the opportunity to put forward any information which you wish to be considered as "compelling reasons" why the Schedule 3 criteria should be waived in your case or, alternatively, why you feel you can satisfy the Schedule 3 criteria (above).”
(Court Book p.71)
The Applicant replied to the delegate's invitation by correspondence dated 2 September 2004 and 16 September 2004 (Court Book pp.73‑75).
It is noted that the first item of correspondence appears to have been jointly signed by the Applicant and the sponsor. The second item of correspondence has been forwarded by the Applicant's registered migration agent. A delegate of the First Respondent, in a decision dated 7 October 2004, refused to grant the Applicant the visas referred to earlier in this judgment.
The Applicant then applied to the Tribunal on 26 October 2004 for review of the delegate's decision. The Applicant lodged further documents in support of the application. The Tribunal conducted a hearing on 17 October 2005 at which the Applicant, the sponsor and the sponsor's son gave oral evidence. The Applicant, it is noted, was represented at that hearing.
As indicated earlier in this judgment the Tribunal delivered a decision dated 23 November 2005 which affirmed the delegate's decision.
Relevant legislation
To understand the nature of the claim it is appropriate to set out the relevant legislation. It is common ground that an application for a temporary spouse visa is to be assessed against the criteria set out in Part 820 of Schedule 2 to the Regulations. An application for a permanent spouse visa is assessed against the criteria set out in Part 801 of Schedule 2 of the Regulations.
It is not in issue in the present case that an Applicant cannot be granted a permanent spouse visa unless he or she has been previously granted a temporary spouse visa. It is submitted by the First Respondent, and I accept that subdivision 820.21 of Part 820 sets out the criteria to be satisfied at the time of a temporary spouse visa application. As submitted in that subdivision sub-clause 820.211(1) relevantly requires an Applicant meet the requirements of sub-clause 820.211(2), (3), (4), (5), (6), (7), (8) or (9).
It is noted the Applicant in the present case does not claim to meet the requirements of any of the subclauses other than sub-clause 820.211(2), which relevantly provides as follows:
“820.211(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring spouse; and
(c) the applicant is sponsored:
(i)if the applicant's spouse has turned 18 -- by the spouse; or
(ii) if the applicant's spouse has not turned 18 -- by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa -- either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
Both the First Respondent and the Tribunal in its decision have referred to the explanatory statement for the amending regulations which introduced subparagraph 820.211(2)(d)(ii) which relevantly states:
“3.4Subparagraph 820.211 (2) (d) (ii) was introduced into the Regulations by the Migration Regulations (Amendment) (Statutory Rule 1996 No. 75) ("Amending Regulations"). The Explanatory Statement for the Amending Regulations relevantly stated that:
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:
- where there are Australian-citizen children from the relationship; or
- where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.”
It is also relevant to note for the present purposes that criteria 3001 and 3004 of Schedule 3 provide:
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa -- 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa -- the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation -- the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.”
“3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i)the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i)in the case of an applicant referred to in paragraph (a) -- the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)in the case of an applicant referred to in paragraph (b) -- the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.”
Tribunal's decision
Under the heading "Findings" the Tribunal correctly found that the Applicant, at the time the visa application was filed, did not hold a substantive visa. It therefore correctly considered the application of sub-paragraph 820.211(2)(d)(ii) to the Applicant's circumstances. In particular it correctly considered whether or not the Applicant satisfied criteria 3001 and 3004.
It is common ground that the application was not made within 28 days pursuant to criterion 3001, given that the relevant day for the calculation of that period of time is the date upon which the Applicant ceased to hold a substantive visa. The Tribunal further found the Applicant did not satisfy the requirements of criterion 3004. It was not satisfied that the Applicant ceased to hold a substantive visa because of factors beyond her control.
There was no challenge to its finding that there was no evidence before the Tribunal that the Applicant ceased to hold a substantive visa due to factors beyond her control. It was noted that even if that was the case the Applicant would be unable to satisfy paragraph (f) of criterion 3004 because on the relevant day, namely 7 July 2000, she had not yet met the sponsor.
After dealing with the failure of the Applicant to satisfy criterion 3004 the Tribunal then correctly referred to clause 820.211(2)(d)(ii) which allows the waiver of the Schedule 3 requirements where the Minister is satisfied there are compelling reasons for not applying those criteria. In its decision the Tribunal refers to the dictionary definition of the term "compelling" and notes the dictionary meaning of "compel" includes "to urge irresistibly" and "to bring about by moral necessity".
The Tribunal correctly referred to a decision of the Federal Court in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs and Migration Review Tribunal [2005] FCA 211 (Paduano) where it was held that the legislative expression is wide and unqualified and that 'compelling' in its wide, ordinary meaning means "forceful". The Tribunal then goes on to state:
“40. … Forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.”
(Court Book p.149).
The Tribunal then refers to the extract from the Explanatory Memorandum to Statutory Rules which accompanied the introduction of the waiver of provisions set out earlier in this judgment. Relevantly, the Tribunal then makes the following significant findings:
“43. In Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 Wilcox J held that the issue of whether there are compelling reasons for not applying the Schedule 3 criteria is to be considered at the time of the visa application.
44. In regard to whether there are compelling reasons for not applying the Schedule 3 criteria the Tribunal has considered, firstly, the specific examples set out in the Explanatory Memorandum and incorporated in the relevant policy guidelines. The guidelines state that the existence of a long-standing spouse relationship (that is, a relationship of at least 2 years duration at the date of application) is a sufficiently compelling reason to justify not applying the Schedule 3 criteria.
45. Regulation 1.15A contains the test for determining whether one person is the ‘spouse’ of another person, whether in a married or a de facto relationship. In Nassouh, the Federal Court held that the Tribunal, in forming an opinion whether a married or de facto relationship exists, must take into account the considerations set out in subregulation 1.15A(3) of the Regulations. These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons’ commitment to each other.
46.The parties stated that their relationship began in early 2001. They stated that since then they have lived at two addresses in Robinvale; one at Warlen Street and one being the farm where the sponsor is presently employed. They stated that they moved from the Warlen Street address to the farm in 2003, possibly around March.
47.There is limited evidence before the Tribunal in respect of the parties living arrangements in the period prior to the lodgement of the visa application. While the parties have submitted a document which purports to be a private lease agreement commencing in November 2000, the Tribunal does not consider that this evidence alone is strongly persuasive of the parties’ claims that they were living together at the Warlen Street address. The Tribunal notes, in particular, that the lease agreement is undated so it is not possible to determine when it was signed. Apart from the lease, there is no other documentary evidence in support of the parties’ claims that they lived at the Warlen Street address from 2001 to 2003.
48.The Tribunal has had regard to the statements of the sponsor’s employer and the parties’ relatives, neighbours and friends. While the sponsor’s employer stated that the parties have lived on the farm since 2003, she did not provide details of their previous living arrangements other than to state that she first met the review applicant in 2001. While the others also stated that they met the review applicant in 2001, they did not provide any information on the parties’ past or present living arrangements. At the heating Jamie Nguyen stated that he went to Robinvale sometime in 2003 to live with his father and his step-mother, although he could not remember the exact month. Jamie’s mother indicated that she sent him to live with his father in July 2003, and the sponsor confirmed this date. There is evidence that Jamie attended Robinvale Secondary College in 2004 and that he has continued to attend this year.
49.While the oral evidence of the parties at the hearing in respect of their living arrangements was generally consistent, the Tribunal cannot overlook the almost complete lack of documentary evidence provided in support of the parties’ claims. While they have now provided additional documentation (including tax returns and joint bank statements), nearly all of this documentation post-dates the visa application. A further difficulty is that all this documentation is addressed to the parties at Warlen Street, Robinvale where, according to their oral evidence, they have not lived for well over two years. The parties have provided an explanation in this regard, stating that they are unable to have mail delivered to their farm address so they have chosen to use their previous address.
50. Whatever the current circumstances of the parties’ relationship, the Tribunal is not satisfied that they were in a long-standing spouse relationship pursuant to Regulation 1.15A at the date of visa application on 9 August 2004. Apart from the private lease agreement, there is no other evidence to suggest that their spousal relationship began earlier than March 2003, and probably some months later (although the Tribunal accepts that the parties were known to each other prior to this time). For the reasons discussed above, the Tribunal gives little weight to the lease agreement in the absence of any other supporting evidence.”
(Court Book pp.150-151)
In its decision the Tribunal further considers the child of the sponsor and has regard to the circumstances of the sponsor's child despite the fact that the child is not a child of the relationship between the Applicant and the sponsor. It then concludes that the requirement of the Applicant to depart from Australia would not create significant difficulties for the sponsor's child. Ultimately the Tribunal then, for the reasons set out earlier in this judgment, decided to affirm the delegate's decision.
The application
In the application filed 21 December 2005 the Applicant sets out what appears to be a key claim of jurisdictional error arising from a complaint that the Tribunal failed to ask itself a pertinent question when it was not satisfied as to the date of a key document. Particulars are referred to of a Residential Tenancy Agreement (“the lease”) which appears in the Court Book at p.103.
It is noted that in the grounds of the application reference is made to the lease being "undated". The same conclusion is also referred to in the Applicant's contentions though at the hearing it was correctly noted by counsel for the Applicant that the lease document which appears in the Court Book in fact has, in paragraph 1 next to the phrase "date of agreement", the date typed, "01 November 2000".
Hence it is common ground that the lease relied upon by the Applicant does in fact contain a typed date, namely 1 November 2000. It was submitted by the Applicant that the Tribunal in its findings had incorrectly referred to the lease being "undated". So much is evident from paragraph 47 of the Tribunal decision set out earlier in this judgment where the Tribunal states, in part, the following:
“47. … The Tribunal notes, in particular, that the lease agreement is undated so it is not possible to determine when it was signed. …” (emphasis added)
In dealing with this first ground it was submitted that the error in relation to the lease being undated when in fact the date appeared is sufficient to constitute jurisdictional error. It was submitted that the evidence of the lease otherwise, if accepted, had the capacity to establish that the Applicant and her sponsor lived together for over two years before the application for permanent residence.
It was submitted that where the principal finding is less than conclusive a failure to consider the "what if I am wrong" test is sufficient to amount to jurisdictional error (see Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (3 June 1999) (Rajalingam).
As I understand the submissions, consistent with the particulars subjoined to the first ground, the Applicant further submitted that as there was some doubts about the date of signing of the lease relied upon by the Applicant the Tribunal should have asked itself the question of what if it was wrong before being satisfied as to the commencement date of the lease.
It was argued further that failure to consider relevant material, namely the date of the lease, is sufficient to constitute jurisdictional error as it is a failure to consider a relevant matter. Ultimately, as I understood the submissions of the Applicant it was submitted that the Tribunal, in referring to the absence of a date on the lease, had effectively regarded it as providing no evidence upon which it could make a finding as to when the lease was signed.
It was submitted that in this case, as at the date of the visa application, namely 9 August 2006, the spousal relationship had existed for at least one year. The Tribunal, it was submitted, overlooked Regulation 1.15A, and specifically sub-regulation 1.15A2(d), the effect of which is that where the Minister is satisfied that where either of two persons seeking permanent residence have been living together for 12 months at that date of application they were in a spousal relationship.
It was further submitted that the Tribunal also overlooked sub-regulation 1.15A2(a)(v) which states that where two persons are living at the same address for six months or longer that fact is to be taken as strong evidence that the relationship is genuine and continuing. In the written submissions it was further submitted that the Tribunal was wrong in referring to the Federal Court decision of Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 (Boakye-Danquah).
It was argued that in that case the reasons were limited to consideration of those applying at the date of application and that this was distinguished by the court in a later decision in Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 (19 May 2006). (Antipova) Reference was made in that decision to the following paragraphs,
“103 The Tribunal construed this provision as a ‘waiver’ provision, and held that it was required to take into account only those circumstances existing at the date of the application for a visa. In doing so, the Tribunal said that it was following Boakye-Danquah. That was a case concerned with criteria for a particular type of visa, found in a schedule to the Migration Regulations, in which the reference to ‘compelling reasons’ appeared in the very criterion required to be satisfied at the time of application for the visa. That provision referred to compelling reasons for not applying certain otherwise applicable criteria. It is not surprising that Wilcox J in that case construed the relevant provision as requiring the compelling reasons to exist at the time of application for the visa.
104 Regulation 1.15A(2A) of the Migration Regulations is a very different provision. It is found in a separate regulation, providing a definition of the word ‘spouse’, for a variety of purposes, wherever that word is found in the Migration Regulations. It does not call upon a decision-maker to determine ‘whether to exercise the waiver of the 12 month cohabitation requirement’, as the Tribunal characterised it at [77] of its reasons. Rather, reg 1.15A(2A) provides that reg 1.15A(2)(d) does not apply if a specified condition is met. That condition is not that the applicant can establish compelling and compassionate reasons for not applying the criteria referred to in reg 1.15A(2)(d), but that the applicant can establish ‘compelling and compassionate circumstances for the grant of the visa.’ In other words, the Tribunal is not required to determine whether compelling and compassionate circumstances exist for the waiver or non-application of the 12-month requirement, but whether such circumstances exist for the granting of the visa sought. The focus is not on the criteria to be ousted from consideration, but on the end result. The wording of reg 1.15A(2A) suggests strongly that, at whatever stage of whatever decision-making process the question of special circumstances arises, it is to be determined by reference to whatever circumstances exist at the date of decision. It would be a strange result if the circumstances to be considered differed according to whether the application of the definition of ‘spouse’ was required to be applied at the time of application of the visa, or at the time of decision, or at some other stage, so that different views might be taken as to whether compelling and compassionate circumstances for the grant of the visa existed at different times. The wording of the provision suggests strongly that this is not the intention.”
It is noted that in the application before this court the Applicant claimed that the Tribunal should not have confined itself to the circumstances which existed "at the time of the application". Accordingly jurisdictional error was claimed to have occurred when the Tribunal then failed to take account of the Applicant's evidence in relation to compelling reasons which postdated the date of application.
The First Respondent’s submissions
The First Respondent submitted that any error made by the Tribunal in its reference to the lease being "undated" was simply an error of fact and did not provide any basis upon which the court could find jurisdictional error. It was submitted that the finding of fact was not a finding which could effectively be regarded as a "no-evidence" finding in relation to the lack of a date of the signing of the lease.
The absence of a date of signing the lease, it was submitted, should be inferred to mean the absence of any handwritten date under the signatures which appear on the lease agreement. Further, and in the alternative, it was submitted that in any event a proper reading of the Tribunal's findings reveals that the Tribunal, whilst referring to the undated lease has otherwise in paragraph 50 of its decision set out earlier in this judgment, proceeded to have regard to the lease and then relatively state:
“50.… there is no other evidence to suggest that their spousal relationship began earlier than March 2003, and probably some months later …”
It was further submitted that the Tribunal correctly applied the authority of the court in the decision of Boakye-Danquah. It was submitted further by the First Respondent that in Antipova the court in that case had effectively, in paragraph 103 set out earlier, accepted that the reasoning of the court in Boakye-Danquah was correct. Further, it was submitted that in applying the relevant principles of statutory interpretation it is permissible for this court to have regard to the heading which appears in Regulation 820.21, which relevantly states:
“820.21 Criteria to be satisfied at time of application
820.211 (1) …
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse of a person who:
(i) is an Australian citizen …; and
(ii) is not prohibited by subclause (2B) from being a sponsoring spouse; and
(c) …; and
(d) in the case of an applicant who is not the holder of a substantive visa -- either:
(i) …; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
It was further submitted the Tribunal's other findings in relation to the claimed spousal relationship were findings reasonably open to the Tribunal. In particular it was noted that some criticism was made of purported statements from the employer of the sponsor. In the employer's statement dated 29 October 2004, it was noted it refers to the sponsor introducing "his wife" to the employer and family in 2001 (Court Book p.105).
It otherwise refers to:
“ …The married couple are a lovely couple and they seem to have a wonderful and loving relationship. …”
It was noted that the document refers to the current living arrangements and does not refer to past living arrangements between the parties or that they were married at the time of the initial introduction. It was noted that in the document from the employer the sentence appears:
“… Since 2001 Mr and Mrs Nguyen have been living on my farm in Robinvale as Mr Nguyen job is constant all year round.”
This reference, it was submitted, was not sufficient to satisfy the Tribunal concerning the living arrangements of the parties in the relevant period prior to the application and, in the absence of other documentation, was not sufficient to enable the Tribunal to make a finding that there were in this case compelling reasons to enable the Tribunal to otherwise waive the requirements under the relevant criteria.
It should be noted in passing when considering the First Respondent’s submissions concerning the supporting material, that the Applicant submitted that that material was of itself sufficient material to enable the Tribunal to make a finding that the parties had been in a longstanding spousal relationship pursuant to Regulation 1.15A, at the date of the visa application; namely, 9 August 2004.
Reasoning
The Tribunal correctly applied the principles of law as set out by the Federal Court in the decision of Boakye-Danquah. That decision in my view was effectively the subject of approval by a subsequent decision of the Federal Court in Antipova under the paragraphs set out earlier in this judgment.
I am further strengthened in my view that the Tribunal was entitled to consider the position "at the time of application" not only having regard to those authorities but also relevantly and appropriately having regard to the heading which appears in Regulation 820.21 set out earlier in this judgment.
For those reasons I am satisfied that the appropriate time at which the Tribunal was entitled to consider whether there was compelling reasons existed for not applying the Schedule 3 criteria was correctly found to be at the time of the visa applications. Further, I do not regard the Tribunal has having committed any jurisdictional error in the manner in which it dealt with the supporting statements.
The statement of the employer regrettably was in a form which appears to be vague and of limited assistance. Likewise, the general statements of neighbours which appear at Court Book pp.106-107, which I note are identical, do not provide any or any sufficient basis upon which the Tribunal would be obliged to consider that material as being supportive of the Applicant's claims.
I do not find any error in the Tribunal's reasoning in the manner in which it dealt with the issues arising out of the sponsor's child and any potential hardship which may be suffered by that child should the Applicant be required to return to Vietnam and make an application for a visa.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
The issue remaining, however, is of far more significance, namely, whether jurisdictional error has occurred not simply making the wrong finding of fact but making a finding which effectively is a finding of "no evidence".
When considered carefully, the findings of the Tribunal clearly state, and it is common ground, that the lease relied upon by the Applicant "is undated". This is clearly an incorrect finding. The lease is dated and is dated 1 November 2000 and executed by the relevant parties. It would therefore, on the face of it, appear to be an enforceable agreement in writing. I am not aware of any requirement that to be enforceable the lease agreement must have a further date endorsed under each relevant signature.
At the very least the Tribunal should have noted that the lease was dated 1 November 2000. In its findings, and in particular in paragraph 47 set out above, it is clear that after referring to the lease agreement being "undated" the Tribunal then, in my view, significantly goes on to state in the same sentence, “… so it is not possible to determine when it was signed.”
It is those additional words which, in my view, lead to the conclusion that the Tribunal effectively made no finding as to the date on which the agreement was signed and did so because the lack of a date on the lease agreement, according to the Tribunal, meant that it was "not possible" to determine when "the agreement was signed".
Further, and significantly in my view, the Tribunal's findings which appear as set out in paragraph 50 of its decision where it refers to the lease and there being no other evidence to suggest that "their spousal relationship began earlier than March 2003" clearly indicates that the Tribunal had little or no regard to the lease. It did so having regard to its earlier finding that the lease was undated. So much is evident in the sentence which appears in paragraph 50 of the Tribunal's decision where it states:
“50.… For the reasons discussed above, the Tribunal gives little weight to the lease agreement in the absence of any other supporting evidence.”
The Tribunal reasons set out above must include those reasons which include a finding that "the lease agreement is undated". Further, and significantly, it must also include the additional words which immediately follow that finding, namely, “... so it is not possible to determine when it was signed.” That conclusion is tantamount to there being no finding as to the date upon which the lease was signed. As stated earlier it is a result of making that conclusion that the Tribunal has effectively made "no finding" when it clearly ought to have made a finding based upon the clear evidence which included "01 November 2000" as being the "date of agreement" set out in the lease.
In my view the failure of the Tribunal to make a finding in relation to the date of the lease, resulting as it did in the Tribunal claiming it was not possible to determine "when it was signed" leading then to the Tribunal to place "little weight to the lease agreement in the absence of any other supporting evidence", demonstrates a sufficient error to constitute what I regard as jurisdictional error.
It is jurisdictional error to make no finding of fact when evidence clearly was available to permit, rather than making “not possible”, a finding of fact and further it is jurisdictional error, in my view, applying the relevant authorities to which I have referred for the Tribunal to fail to take into account a relevant matter; namely, the date of the lease being 1 November 2000.
Conclusion
It follows therefore for the reasons given that the decision of the Tribunal should be set aside with consequential orders.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 7 February 2007