Prasad v Minister for Immigration
[2007] FMCA 484
•4 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRASAD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 484 |
| MIGRATION – Application for judicial review – no jurisdictional error – application dismissed. |
| Migration Act1958 (Cth) |
| MIMIA v Katisat (2005) FCA 1908 |
| Applicant: | JACKSON PRASAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1767 OF 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 25 October 2006 |
| Date of Last Submission: | 25 October 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 4 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
That the name of the First Respondent be altered to Minister for Immigration and Citizenship.
That the Application is dismissed.
That the Applicant make a contribution to the costs of the First Respondent fixed in the sum of five thousand dollars ($5,000), within thirty (30) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYG1767/2006
| JACKSON PRASAD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, JACKSON PRASAD (born 5 November 1985) is a Fijian citizen. He first entered Australia on a visitor’s Visa on
22 November 1995, and left within three (3) months. He again entered Australia on 22 February 1997 as the holder of a sub-class 676 (visitor) Visa. The Applicant arrived in Australia with his Mother, Sunita Prasad and was subsequently granted a sub-class 686 (Tourist Long Stay) Visa valid until August 1997. He completed all his secondary schooling in Australia.
Application (as a dependent) for a sub-class 457 Business (Long Stay) Visa were refused on two occasions as was an application for a Protection Visa (as a dependent), such decision being affirmed by the Refugee Review Tribunal.
After turning eighteen (18) in November 2003, the Applicant lodged an application for a sub-class 832 (Close Ties) Visa on 23 February 2004. It is this decision of the Migration Review Tribunal delivered 26 May 2006 (which affirmed the delegate’s decision on 28 February 2005 refusing the application), that was the catalyst for the filing of an application to Review in this Court on 22 June 2006.
Primary criteria
At Court Book (CB) pages 256-260, the learned member accurately sets out the criteria for sub-class 832 (Close Ties) Visa both “at the time of application” (832.211) and “at time of decision” (832.22) and further relevant definitions and regulations. No issue is taken that the member correctly identified the correct criteria and applied that criteria.
Grounds Relied upon by the Applicant
The grounds relied upon by the Applicant are as follows:-
a)That the assessment carried out by the Department was improperly conducted; and
b)The Tribunal sought additional written material from the Department and failed to give the Applicant an opportunity to properly test same; and
c)The Tribunal sought and obtained additional written material under s359 of the Migration Act 1958 (Cth) (“the Act”) which should have invoked a further s359 request.
The Tribunal’s decision
In very detailed and thorough reasons the learned member set out at paragraphs 15 to 52 the evidence before it. To provide some context to these reason I summarise the evidence as follows:-
a)
The Department file contained a file note of a “Home visit” sent by NIIU field officer, Liza Foote to the Department on
20 September 2004 (see CB 74-76). The file note records that on Saturday 4 September 2004, officers Alcorn, Legeret, Vlahos and Zammitt visited 6/10-14 Priddle st, Westmead. A search Warrant was executed in respect of the premises.
b)The file note records the following:-
“Summary Information from visit on 4/9/2004
· The occupant of the premises (Ms Ram Kumaribell), an Australian citizen stated that neither JAIN nor SUNITA PRASAD reside at the residence. The family is known to them- they are distant relatives.
· Ms Kumaribell also stated that the POI’s have previously lived at the address, but now use it only as a postal address.
· Ms Kumaribell stated that Jackson and Jaison Prasad do not and have never lived at this address on a full time basis. She added that she does not know where the family is living at this time.”
c)
Within three (3) days of the visit, both the Applicant and
Ms Kumaribell had contacted the investigating officer to advise that Jackson Prasad “had simply not been at home” (at the time of the visit on Saturday), and “that he had been on holidays in Brisbane”. The Applicant was alleged to have said that his Aunt “is sick and confused and was scared” when ‘7 officers’ turned up at her unit. Mr Prasad stated that he had since ‘spoken to’ his aunt. Ms Kumaribell also made a telephone call to the officer in effect saying that “Jackson has been living at her unit in Westmead” and denied “that she had made statements on Saturday that suggested that neither of the Applicants lived at the premises”.
d)Subsequently a declaration by the Applicant sworn 5 October 2004 (CB 81) and by Ms Kumaribell sworn 11 October 2004 (CB 82-83) sought to clarify the position in response to a letter dated 20 September 2004 from the Department. The Department then asked for evidence of Jackson and Jaison’s parent’s residential address, to which the Applicant responded by declaring “I do not know the whereabouts of my parents, nor have I seen or spoken to them since late last year (2003)”.
e)After the Delegate’s decision refusing the Visa, an application for Review to the Migration Review Tribunal was filed.
f)
Between the filing of the Application for Review and the Hearing before the Migration Review Tribunal on 28 October 2005 a number of declarations and further information was provided to the Tribunal by the applicant via the Applicant’s migration agent. Of some significance was a declaration by the Applicant sworn
19 September 2005 (CB 146-147), where the Applicant, inter ali swears:-
- That what he said to the Department about being on holidays was not true.
- That it was not correct when he said that he didn’t not know the whereabouts of his parents. He said he was “aware that my parents were desperately concerned that they should not be detained or forced to leave Australia. I thought that if I did say where they were living they might be arrested”.
g)A hearing was conducted on 28 October 2005. A transcript of the hearing was not offered to the Court. The Applicant, his parents and his Aunt Ms Kumaribell gave evidence and were questioned by the member.
h)By letter dated 5 January 2006, the Tribunal, pursuant to the obligations imposed by s359A of the Act, invited the Applicant to comment on information the Tribunal considered would be the reason or a part of the reason, for affirming the decision under Review. The letter is very detailed and raises a number of issues (see CB 207-212). A detailed response was provided by the Applicant’s agent by letter dated 1 February 2006 (see CB 213-221). A further declaration from the Applicant’s cousin PREMILA RAM sworn 7 February 2006 declaring that Jackson Prasad “has been living at the address since December 2003” was provided to the Tribunal on 17 February 2006.
i)Further information was sought by the Migration Review Tribunal from the Department (CB 228) and in particular from Officer Allison Alcorn. The officer provided further information about the Diary Note on 4 September 2004 and also provided to the Migration Review Tribunal a copy of the search warrant and notes taken by the officer written in her official notebook (see CB 229-223).
j)Again as a result of this further information the Tribunal sent a further s359A letter seeking further response to this further information. A response was received from the Applicant’s agent on 15 March 2006 (CB 243-248).
The critical findings of the Tribunal are:-
a)Officer Alcorn is the author of the file note and of the Warrant Return (paragraph 62).
b)Although Officer Alcorn has not provided a statement, for the reasons given at paragraph 65, the member was satisfied that “the notes were taken by Officer Alcorn and were contemporaneous notes”.
c)“On the basis of the evidence before it, the Tribunal prefers the evidence of Officer Alcorn’s official notebook, in the return warrant and the file note and finds Officer Alcorn recorded Ms Bell stated that Jackson and Jaison Prasad did not and had never lived at the address on a full time basis in the file note and warrant return. Whilst the Tribunal notes the warrant return is signed on the third day after the home visit and contains more information than the summarised text fond in the official notebook, the Tribunal finds it is not unreasonable to assume that the return warrant is based on the summarised text in the official notebook and Officer Alcorn’s recollection of events. The Tribunal finds that both record Ms Bell stated that the Visa applicant had never lived at the address on a full time basis because that is what Ms Bell said. Accordingly, the Tribunal finds at the time of the compliance visit, the Visa applicant was not living at the address (paragraph 66). And further at paragraph 67, the Tribunal that “Ms Bell is not a reliable witness and is not a witness of truth”.
d)As a result of evidence described by the member as “ those inconsistencies at hearing” relating to the Applicant’s work status and payments for board made to Ms Bell, “the Tribunal is not satisfied that at the time of its decision, the Visa applicant lives at 6/10-14 Priddle Street, Westmead.” The Tribunal for reasons given at paragraphs seventy (70) and (71), gave no weight to the statement of Premila Ram or to the evidence of the Applicant’s parents where it differed from the Department’s “version of events”. The final conclusion it set out at paragraph seventy-two (72), where the member states:-
“ Given the Tribunal’s finding that at the time of the decision, it is not satisfied the Visa Applicant is living at Priddle Street, this leads the Tribunal to find it is not satisfied that at the time of its decision, the Visa Applicant does not reside with Mrs Prasad, his Mother, a member of the family unit with which he first entered Australia. This leads the Tribunal to find that it is not satisfied the Visa Applicant meets Clause 832.221 (3) (b) of the Regulations and therefore, does not meet Clause 832.221(3). As a consequence, he does not meet Clause 832.221(1).”
Analysis and conclusions
It is clear that the critical findings of credit made by the Tribunal was the foundation for the ultimate findings of fact. The Applicant’s case was severely damaged by the swearing of declarations asserting to certain facts, which subsequently the Applicant swore were “incorrect”. It cannot be said, in my view, that there was no evidence at all upon which the finding could be based (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321). It is not a question of whether this Court, exercising powers of judicial review, would have reached the same factual finding, on the conflicting evidence, as did the Tribunal. Findings of fact are matters for the Tribunal not this Court. In my view the findings of fact made were open to the Tribunal.
The Applicant strongly contends that it was open to the Tribunal, and that the Tribunal should have found differently as to where the Applicant was living at the critical time (see written submissions 21-62). I do not propose to deal with each of those contentions as to do so is, in my view, to attempt to be drawn to an impermissible merit review of the Tribunal decision.
The Applicant complains that neither Ms Foote nor Officer Alcorn gave evidence at the hearing and that the evidence contained in documents she authorised “remained untested”.
The Respondent submits, and I agree, that:-
a)The Department was not a party to, or represented at the Tribunal hearing and has no obligation to “lead” any evidence or produce witnesses who may be cross-examined by the Applicant.
b)An applicant has not right to cross-examine any witness (s366D).
c)The Tribunal is under no obligation to summons any person to given evidence, even if requested by an applicant to do so (MIMIA v Katisat (2005) FCA 1908).
d)The procedures to be followed by the Tribunal are prescribed by Division 5 of Part 5 of the Act. The Tribunal complied with those provisions (which are “an exhaustive statement of the requirements of the natural justice hearing rule” (Respondent’s submissions).
No substantial argument was advanced by the Applicant to support the two (2) further grounds relied upon. At paragraph 68 of the Applicant’s submissions, the Applicant says:-
“The balance of the grounds relied upon flow from the fact that Alcorn was not present at the hearing and the evidence contained in documents she authored remained untestested”.
There is no merit at all in this contention. In fact it seems to me that with each apparent inconsistency identified by the Tribunal, causing quite properly an invitation to comment, the Applicant either changed the story or produced more evidence to try and persuade the Tribunal he should be believed on the critical factor of where he was living at the relevant time.
For the reasons given, I find no jurisdictional error has arisen and therefore I am bound to dismiss the application. Costs should, and will, follow the event fixed in the sum of five thousand dollars ($5,000) payable within thirty (30) days.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Baumann FM
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