Ratu v Minister for Immigration
[2008] FMCA 358
•31 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RATU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 358 |
| MIGRATION – Visa – Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa – Migration Review Tribunal – false birth certificate – credibility – no reviewable error. |
| Migration Act 1958 (Cth), ss.65, 359A, reg.1.15A |
| VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 Craig v State of South Australia (1995) 184 CLR 163 SZGQN v Minister for Immigration & Citizenship [2007] FCA 428 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | LYDIA TIURMA IDA RATU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1941 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 February 2008 |
| Date of last submission: | 12 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Walker |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms Wong |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1941 of 2007
| LYDIA TIURMA IDA RATU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for review of a decision of the Migration Review Tribunal made on 14 May and handed down on 25th May 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
The applicant claims that the decision is affected by jurisdictional error in these ways the first ground the respondent considered that the fundamental issue in the case was the identity of the visa applicant. The respondent committed jurisdictional error of law by declining to accept two claimed reliable certificates provided by the visa applicant. One certificate was the birth certificate of the visa applicant and the second certificate was the death certificate of the visa applicant's twin sister.
The second ground, which appears to have been numbered 3 in the application, says:
The Tribunal failed to adequately determine the existence of compelling and compassionate circumstances that would lead the Tribunal to waive the requirement that the couple be in a de facto relationship for 12 months prior to the application.
The applicant seeks the following orders:
(1)An order of certiorari quashing the Tribunal decision.
(2)An order in the nature of mandamus requiring the Tribunal to consider and according to law the refusal to grant the applicant a permanent visa application for which was lodged by the applicant on 4 May 2000.
(3)Such further or other relief pursuant to s.39B of the Judiciary Act.
(4)Costs.
The background to this matter is that the applicant is a national of Indonesia who was born on 29th May 1952. She applied for a Partner (Temporary) (Class UK) visa on 4th November 2000. Her nominator was her de facto spouse, Mr Johnny Ratu. On 29th November 2000 the then Department of Immigration and Multicultural Affairs wrote to Mr Ratu inviting him to comment on an allegation that he had entered into a contrived marriage with the applicant. That letter was returned unclaimed. On 8th March 2001 a delegate of the Minister refused to grant the applicant a partner visa. On 4th April 2001 the applicant applied to the Migration Review Tribunal for review of the delegate's decision. On 13th May 2003 the Tribunal invited the applicant to attend a hearing on 3rd July 2003.
The applicant attended that hearing and gave evidence.
On 15th September 2003 the Tribunal affirmed the delegate's decision. However, on 7th June 2004, as a result of an application for judicial review to the Federal Magistrates Court, the application was remitted to the Migration Review Tribunal. The Tribunal held two further hearings. The first was on 9th February 2005, the second was on
12th December 2006. The applicant attended those hearings.
On 14th May 2007 the Tribunal again affirmed the decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The applicant then applied to this Court for judicial review by filing an application and an affidavit in support on 22nd June 2007. A copy of the Tribunal decision can be found at pages 452 to 473 of the Court Book. The Tribunal had written to the applicant inviting her to provide certified copies of her birth certificate, her sister and a statutory declaration setting out her immediate family and copies of passports. The Tribunal noted that on 9th January 2003 it was informed that the birth certificate provided for the applicant's son was in fact false.[1]
[1] See Court Book page 458.
The Tribunal considered that the fundamental issue in the case was whether the applicant was whether she claimed to be. If the Tribunal was not satisfied of the applicant's identity or found that she was in fact the person she claimed was her married but now deceased sister, then the lawfulness of her marriage, the applicant's credibility and her commitment to the spousal relationship were called into question. Another issue had been the fact that the nominator, Mr Ratu, had withdrawn the nomination and whether the parties had reconciled.
The Tribunal was not satisfied that the applicant was not Tiurma Munthe, the person that the applicant claimed was her deceased twin sister, for a variety of reasons:
(1)the failure by the applicant to disclose the names of her siblings on the application for a visa;
(2)the applicant's failure to disclose that she had a twin sister until it was put to her by the department and later by the Tribunal that she had previously been to Australia with one Ardian Tirtabudi and had overstayed her visa in Australia;
(3)the applicant's failure to disclose her sister's alleged death or disclose this to the Tribunal until hearing in February 2007, even though the death certificate submitted to the Tribunal stated that the sister had died on 17 December 2003;
(4)the implausible explanation given by the applicant as to why the birth certificates for the two children Rondang and Alvin stated that their parents were the applicant and Ardian Tirtabudi;
(5)a letter sent to the Tribunal by the nominator had withdrawn his nomination; and
(6)the applicant had submitted to the Tribunal false birth certificates not only for herself but also for her son Mateos.[2]
[2] See Court Book pages 468 to 470
The Tribunal also found that there was limited evidence that the applicant and her nominator shared day-to-day expenses or pooled their income. It found that the applicant and the nominator had provided very little evidence as to their living arrangements or to the social aspects of the relationship. It found that the nominator, Mr Ratu, was not as dependent on nursing care or assistance provided by the applicant as had previously been claimed and that the applicant had submitted relatively little objective evidence of cohabitation with the nominator which would substantiate a settled married relationship of seven years.
The Tribunal was not satisfied that the applicant was a credible witness as to her identity and it was not satisfied that the applicant had entered into a genuine spousal relationship with the nominator in May 2000, nor that he and she had a mutual commitment to a shared life as husband and wife. The Tribunal said:
As noted above, the Tribunal is not satisfied as to the identity of the visa applicant. It finds that she is not a credible witness on this issue and that she has submitted false identity documents for herself and Mateos Galoni. The Tribunal is not satisfied that the visa applicant has adequately or convincingly explained the conflicting evidence about her identity or provided evidence to satisfy the Tribunal that she did have a twin sister. As it is not satisfied on this point, the Tribunal was not satisfied that the visa applicant was not previously in Australia or that she was not married to Ardian Tirtabudi and had two children with him at the time of application.
The Tribunal further is not satisfied that the visa applicant entered into a genuine spousal relationship with the nominator in May 2000. The Tribunal is not satisfied that the nominator and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others at the time of application or at the time of this decision. Nor is it satisfied that the relationship is genuine and continuing. They therefore do not satisfy the requirements of regulation 1.15A(2)(c)(i) and regulation 1.15A(2)(c)(ii) for a de facto relationship.
The Tribunal therefore affirmed the delegate's decision not to grant the applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
The applicant essentially claims that the Tribunal:
(1)failed to investigate the authenticity of the birth and death certificates,
(2)failed to take into account information that the nominator Mr Ratu had provided, and
(3)failed to determine the existence of compelling and compassionate circumstances. Ground 2 of the application has since been withdrawn.
As to ground 1, the applicant through her counsel Ms Walker submits that there is jurisdictional error of law by the Tribunal in declining to accept two birth certificates and one death certificate provided by the applicant. The Tribunal was not under any mandatory requirement to investigate or inform itself or make further inquiries (see VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs).[3] Despite this, the applicant provided further evidence to support her claim of correct identity and the onus, it is submitted, was on the Tribunal to test the evidence. Merely making a finding that it was not reliable without any inquiry was unfair and unjust.
The submission goes on to say that the fundamental issue of the case was the identity of the applicant. Her credibility could not be re-established unless the Tribunal tested compelling information that the applicant was who she said she was. I am referred to the decision of the High Court of Australia of Craig v State of South Australia.[4]
The submission is that the authenticity of the documents submitted by the applicant should have been verified and the fact that the Tribunal did not use its enabling provisions in this case meant that it fell into jurisdictional error.
[3] [2004] FCA 459.
[4] (1995) 184 CLR 163.
As to ground 3, the applicant submits the Tribunal failed to take into consideration information provided to it by both the applicant and Mr Ratu concerning the compelling and compassionate circumstances of their relationship. For example, the Tribunal ignored clinical notes relating to Mr Ratu's treatment in respect of a fractured skull by
St George Hospital and failed to take into account properly a psychological assessment of the applicant on 16th September 2006 by one Terry Smith, a clinical psychologist, revealing her troubles relating to the emotional and physical abuse she often suffered at the hands of her husband. That report it is submitted predates the date of the reconciliation of the parties.
The applicant also submits that the Tribunal failed to take into account the following evidence:
(1)a statutory declaration of 5 December 2006 from Mr Ratu where he attested to dependency on the applicant;
(2)a statutory declaration of 18 April 2002 from one Robert Tjhin stating that he and his wife are very close to the applicant and Mr Ratu and they were active together in the Indonesian community;
(3)a statutory declaration sworn 23 July 2003, again from Robert Tjhiin, a previous supervisor of Mr Ratu, saying that he had known Mr Ratu for eight years and the applicant for four years and he believed their relationship was genuine and continuing;
(4)a statutory declaration of 28 February 2001 from one Hosana Charly stating that he was at the wedding and sees the applicant and Mr Ratu every weekend. He claimed to be the chairman of a community organisation of which the applicant and Mr Ratu were active members;
(5)a statutory declaration of 28 February 2001 from Manuel Manoe stating that he was best man at the parties' wedding;
(6)a further statutory declaration of 20 April 2002 from Mr Manoe stating that he was a long-time friend of Mr Ratu, having known him since the 1960s, and he believed the marriage to be genuine;
(7)a statutory declaration of 23 July 2003 from Mr Peter Mead who claims to have been a friend of the parties for four years and guest at their wedding;
(8)a statutory declaration of 22 July 2003 from Jonetta Parera stated that she attended the parties' wedding; and
(9)a statutory declaration of 22 July 2003 from Teddy Hatumale who claimed to know the parties through their involvement in the Indonesian community dance group.
The applicant submitted the Tribunal failed to properly take into account unsworn statements from other members of the public and failed to take into account statements in writing and orally to the Tribunal of the parties' genuine relationship, love and affection and dependence on each other.
In oral submissions Ms Walker of counsel submitted that the previous Tribunal had tried to verify the authenticity of the birth certificates of the applicant and the son and the reply came back that both certificates were false. This Tribunal did not verify whether the other certificates were authentic when the fundamental issue was the applicant's identity. The applicant came to the Tribunal knowing that was the issue and the Tribunal did not verify that situation. Ms Walker drew the Court's attention to the fact the Tribunal had verified a certificate that was not supplied by the applicant. She also submitted that the issue in respect of the applicant's son Mateos was important and that nowhere in the Tribunal's decision does the Tribunal actually identify the birth certificate by its number. Ms Walker submitted that the applicant had actually provided a death certificate of her twin sister, but that certificate was not checked. She went on to submit that the sister's husband went to the authority to say that his wife had in fact a twin sister and that the Tribunal should have made inquiries about the documents. She also submitted there are compelling and compassionate circumstances relating to the applicant's psychological assessment.
For the respondent Minister Ms Wong of counsel submitted that the principal difficulty for the applicant is that there was no general duty upon the Tribunal to investigate or inform itself or make further inquiries as acknowledged by the applicant herself in the written submissions (see VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[5], also SZGQN v Minister for Immigration & Citizenship).[6] The Tribunal had already conducted investigations into two other birth certificates provided by the applicant and these were found to be false by the Indonesian authorities.
Having regard to the alterations made to the face of the further birth certificate submitted for the applicant and the applicant's inability to name her purported son Mateos at hearing, the Tribunal was entitled to place little weight on the further documents provided, and in particular, the death certificate for the applicant's alleged twin sister.
[5] [2004] FCA 459
[6] [2007] FCA 428 at [28]-[29].
Whilst the application further stated that the authenticity of the applicant's birth certificate and the death certificate of the alleged twin sister were not raised with the applicant, Ms Wong submitted that prior to the hearing before the Tribunal she already understood that her identity and the existence of her alleged twin sister was in issue by reason of three notices issued pursuant to s.359A of the Migration Act. First, a notice dated 27th October 2004 where the Tribunal sent a letter headed "Invitation to Comment on Information" and invited the applicant to comment on certain information which the Tribunal said was relevant to the review. The letter told the applicant that the Tribunal had received information from the civil registry office in Jakarta that the birth certificate she had provided to the Tribunal as her birth certificate was false and said:
This information is relevant to the review because you have claimed that you have a twin sister in Jakarta. The provision of the above birth certificate was provided as evidence that you and your claimed twin sister in Jakarta are not one and the same. The falsifying of your birth certificates indicates that you may not have a twin sister.[7]
[7] See Court Book page 184.
Second, the Tribunal wrote to the applicant on 10th February 2005, again in a letter headed "Invitation to Comment on Information", again inviting the applicant to comment in writing on the information.
The Tribunal has received information from the civil registry office in Jakarta that the birth certificate you provided to the Tribunal as your birth certificate is false. (A copy of the letter from the civil registry office in Jakarta is attached). This information is relevant to the review because you have claimed that you have a twin sister in Jakarta. The provision of the above birth certificate was provided as evidence that you and claimed twin sister in Jakarta are not one and the same. The falsifying of your birth certificate indicates that you may not have a twin sister.[8]
[8] See Court Book page 197.
The Tribunal also wrote to the applicant on 22nd June 2006, again in a letter headed "Invitation to Comment on Information" referring to the provisions s.359A of the Migration Act. This letter invited the applicant to comment on certain information saying as follows:
· On 18 June 2006 Johnny Ratu notified the Tribunal in writing that he had withdrawn all ties with you and that he has withdrawn all support for your application before the Tribunal.
· On 20 June 2006 a member of the Tribunal staff contacted Johnny Ratu to confirm the accuracy of the letter received on 18 June 2006. He stated that you had not lived with him for four years and that you have been living with your son and daughter at 248 Gloucester Road, Hurstville, New South Wales 2220.
· That information is in conflict with both the written and oral evidence of both yourself and Johnny Ratu that you live together in a spousal relationship and are in a continuing and genuine relationship.[9]
[9] See Court Book page 336.
Ms Wong pointed out that the covering letter to the Tribunal from the applicant's migration agent of 14th February 2007 enclosing birth certificates for the applicant and her son Mateo bore the words:
I do note that there seems to be some alteration with Lydia Ratu's birth certificate with the "Tiurma" in Lydia Tiurma Ida it seems that someone rubbed out and typed over.
Ms Wong submitted that by the time of the hearing and as a result of exchanges between the Tribunal member and the applicant during the hearing, it could not be doubted that (a) the applicant understood that it was an issue in the proceedings as to whether or not she had a twin sister and whether the evidence provided by the applicant to demonstrate the existence of a twin sister should be accepted by the Tribunal and (b) the applicant understood that everything she said in support of her application was in issue (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs).[10] Ms Wong submitted that no jurisdictional error had been demonstrated.
[10] (2006) 228 CLR 152 at [47].
As to the surviving ground, ground 3, where the applicant claimed the Tribunal failed to take into account relevant information in determining the existence of compelling and compassionate circumstances,
Ms Wong referred the Court to the provisions of reg.1.15A of the Migration Regulations which set out a number of criteria that a person must establish in order to demonstrate that they are in a de facto relationship for the purpose of obtaining a spouse visa. The criteria includes:
a)the Minister must be satisfied that the persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others;
b)the Minister must be satisfied that the relationship between the persons is genuine and continuing;
c)the Minister must be satisfied the persons live together or not do live separately and apart on a permanent basis; and
d)for the period of 12 months immediately preceding the date of the application the Minister must be satisfied of the existence of the three factors listed (a), (b) and (c) above or the applicant can establish compelling and compassionate circumstances for the grounds of the visa.
Ms Wong submitted that the requirements of paras.(a), (b), (c) and (c) are cumulative and if any one of those requirements was not satisfied, the Tribunal was required to affirm the decision of the Minister's delegate not to grant a visa.
The Tribunal had determined that the requirements in (a) and (b) had not been satisfied, namely that (a) that the applicant and Mr Ratu did not have a mutual commitment to a shared life as a husband and wife to the exclusion of all others, and (b) that the relationship between the persons was not genuine and continuing. Thus, the Tribunal was not required to consider whether there had been a de facto relationship for the period of 12 months immediately preceding the date of application, nor whether there are compelling and compassionate circumstances for the grant of the visa.
Whilst the applicant submitted that the Tribunal had failed to take into account evidence submitted for consideration, that the Tribunal had included a lengthy history of the proceedings and referred in detail to the material provided by the applicant. The Tribunal was not under any obligation to refer to every piece of evidence and every contention made, particularly where the evidence was irrelevant to the criteria under consideration; (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs).[11]
[11] (2003) 75 ALD 630 at [46].
In considering the matters before the Court, I am satisfied that the applicant was well aware that her identity was a fundamental issue. The finding that birth certificates submitted to the Tribunal were false was a serious blow to the applicant's credibility on that very issue.
The s.359A letter sent to the applicant made it very clear to the applicant that her identity was in issue and that there was evidence to the contrary which the applicant would need to overcome. There was no obligation on the Tribunal to conduct its own investigations to verify the applicant's claims. It was the applicant's obligation under s.65 of the Migration Act to establish her entitlement to a visa and that she was unable to do.
I am also of the view that the applicant had not satisfied the criteria set out in reg.1.15A of the Migration Regulations. Upon the Tribunal not being satisfied that the applicant and Mr Ratu had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and not being satisfied that the relationship between them was genuine and continuing, there was no requirement for the Tribunal to go further. Certainly there was no requirement for the Tribunal to consider the question of compelling and compassionate circumstances. I am of the view that the Tribunal cannot be said not to have conducted an intensive investigation of the applicant's claims and I am strongly of the view that no jurisdictional error has been made out.
In the absence of jurisdictional error, it is clear that the Tribunal decision is a privative clause decision and is not subject to orders in the nature of certiorari or mandamus. It follows that the application must be dismissed. I will consider the question of costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 31 March 2008
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