Reddy v Minister for Immigration and Citizenship
[2008] FCA 948
•19 May 2008
FEDERAL COURT OF AUSTRALIA
Reddy v Minister for Immigration & Citizenship [2008] FCA 948
EDWARD NERANDRA REDDY v MINISTER FOR IMMIGRATION & CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
NSD 1814 OF 2007
SPENDER ACJ
19 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1814 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
EDWARD NERANDRA REDDY
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER ACJ
DATE OF ORDER:
19 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of and incidental to this appeal, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1814 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
EDWARD NERANDRA REDDY
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER ACJ
DATE:
19 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Mr Reddy is a citizen of Fiji. In 1999 he lodged an application for a visa on spouse grounds. A delegate of the first respondent refused the application for a visa on 23 July 2002. A review of that decision by the Migration Review Tribunal (the Tribunal) was sought and the Tribunal affirmed the delegate’s decision on 14 April 2004.
On 22 March 2006, the Federal Magistrates Court by consent quashed that decision and remitted the matter to the Tribunal. This appeal has been instituted following the Tribunal’s reconsideration of the matter and a further reconsideration by the Federal Magistrates Court.
The Tribunal was not satisfied that Mr Reddy and his sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing. As a consequence, the Tribunal held that Mr Reddy had not satisfied the requirements of reg 1.15A of the Migration Regulations 1994 (Cth) (the Regulations) for a married relationship.
On 23 November 2007, I granted leave to appeal from the decision of Federal Magistrate Scarlett given on 10 May 2007. Before the Federal Magistrate, the appellant argued seven grounds of appeal. These are set out at paragraph 21 of his Honour’s reasons (Reddy v Minister for Immigration and Citizenship [2007] FMCA 764). Following consideration of the appellant’s arguments, Scarlett FM dismissed the appeal, concluding (at [58]):
I accept the fact that all [the appellant’s] family are here and that he wants to stay in Australia. Unfortunately the Court, as I indicated earlier, can only set arise the Tribunal decision if the Court is satisfied that the Tribunal has fallen into jurisdictional error. There is no jurisdictional error. I read through the decision independently of the Applicant’s submissions and independently of the Applicant’s application. I am not able to discern any jurisdictional error into which the Tribunal fell, whether it has been referred to by the Applicant in his documents or not.
None of the grounds originally raised by Mr Reddy has been pursued
After I granted leave to appeal, a Notice of Appeal was filed which alleges the following three grounds: first, that the President of the Tribunal failed to reconstitute the Tribunal in accordance with s 422A of the Migration Act 1958 (Cth) (the Migration Act); secondly, there had been a failure to comply with s 425 of the Migration Act in that there was no invitation to a hearing in light of the invitation to provide further material; thirdly, there was a breach of s 424A, namely that there was no real opportunity to respond to new material. The appellant also alleges that, in general, the Tribunal denied the appellant procedural fairness. None of those grounds expressly asserts error by the Federal Magistrate.
In the course of the proceeding in the Tribunal, after Mr Reddy had indicated, through his agent, that he wished not to attend the Tribunal hearing to give evidence, the Tribunal sent another letter inviting Mr Reddy to provide further material. Some material in response was provided. As I indicated when I granted Mr Reddy leave to appeal on 23 November 2007, but for the Tribunal’s letter, no grounds for error in the Tribunal’s decision would be able to be demonstrated.
As it was, the question that might have arisen was whether there was some obligation in the Tribunal to take the matter further, having regard to what it sought from Mr Reddy.
The first ground now sought to be relied upon deals with the question of whether the reconstitution of the Tribunal occurred regularly. This ground, which has never previously been raised, was not the subject of any comment in the application for leave to appeal, and it seems to me is not a point which can now validly be taken. If there had been anything in this ground, it is by no means clear that it could not have been adequately dealt with by evidence.
There is nothing at all in the papers presently before me, including the written submissions by Mr Reddy today, which touch on the reconstitution question, let alone which indicates that some procedural or jurisdictional error occurred in relation to the composition of the Tribunal.
In those circumstances, the question of the reconstitution of the Tribunal ought not to be permitted as a ground of appeal.
The remaining grounds of the appeal touch on the question of natural justice and whether there had been a denial of natural justice in what had in fact occurred.
The position is that neither ss 424A nor 425 apply to the Tribunal. What is sought to be relied upon seems to be the provisions of the Act which are to be found in ss 359(2) and 362B of the Migration Act.
Section 357A of the Migration Act applies in the present case. That section provides that Div 5 of Pt 5 is taken to be an exhaustive statement of the requirements of natural justice in relation to the matters dealt with by the Tribunal.
Here the Tribunal invited the appellant to attend the hearing. The invitation indicated correctly that if the appellant didn’t appear, the Tribunal was empowered to make a decision without taking any further action to allow or enable an applicant to appear before it.
As Mr Reddy today confirmed, he didn’t appear and he says that he is the person to be blamed for not attending the hearing of the Tribunal. He failed to attend because he was stressed and confused. Even accepting that as so, the legal position is that there has been, in that respect, no denial of procedural fairness.
The later correspondence from the Tribunal gave to the appellant an opportunity to persuade it with additional written materials and identified a range of materials that might assist it.
While the Tribunal may have dealt with some of the material provided by Mr Reddy more favourably than in fact it did, there seems to me to be no legal requirement for the Tribunal to advise the appellant that his response to its invitation of 15 September had failed to persuade the Tribunal.
The function of the Tribunal is to inquire. However, as the High Court noted in Abebe v The Commonweath (1999) 197 CLR 510 (Gummow and Hayne JJ):
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a convention reason. The tribunal must then decide whether that claim is made out.
In this particular case, the short fact is that the Tribunal disbelieved the nature of the relationship for which Mr Reddy contended, and it was not satisfied on all the material that had been provided that there was the kind of relationship which reg 1.15A of the Regulations requires.
While there can be some room for the view that the judgment of the Tribunal on that material was not the preferable conclusion, it was a matter for the Tribunal to determine and the Tribunal indicated that on the material which had been provided by Mr Reddy, it was not persuaded as to the requisite nature of the relationship.
I agree with the submission of Mr S. Lloyd of counsel for the Minister that the Tribunal was not under any obligation under s 359A arising from the material provided by the appellant. There is no obligation under s 359A(1) by reason of s 359A(4)(b) of the Migration Act. There is nothing in the Migration Act that imposes an obligation on the Tribunal to advise a review applicant that the evidence that has been submitted has not been viewed as sufficient.
The observation of the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 is apposite to the circumstances of the Tribunal’s dealing with Mr Reddy in this case. The Court said (at 166):
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment.
As I indicated in granting leave to appeal, this was a case that called out strongly for proper legal advice. Mr Reddy today indicated that he couldn’t spend large amounts of money as he had previously sought legal advice from a lawyer who had asked for a significant sum of money. The consequence, however, is that Mr Reddy today has not been able to put before the court any legal argument to make good a complaint of any procedural fairness or other jurisdictional error in the part of the Tribunal.
I know that Mr Reddy is unhappy with the factual conclusions which the Tribunal made, but the fact of the matter is that the Tribunal is obliged to consider the case which a person seeking review wishes to put before it and to reach a determination on that material.
In the present case, in my judgment, no jurisdictional error attended the way the Tribunal dealt with the information before it, or its dealings with Mr Reddy about the provision of information about the nature of the relationship with the woman to whom he was married.
In the circumstances, no jurisdictional error having been made out in the consideration by the Federal Magistrate, this appeal has to be dismissed.
The appeal is dismissed. The appellant is to pay the respondent’s costs, to be taxed if not agreed.
I certify that the preceding twenty-eight (28) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender. Associate:
Dated: 19 June 2008
Counsel for the Appellant: Appellant appeared in Person Counsel for the Respondents: Mr S Lloyd Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 19 May 2008 Date of Judgment: 19 May 2008
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