Sautehi v Minister for Immigration - [2006] FMCA 489

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAUTEHI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 489

MIGRATION – Review of Migration Review Tribunal decision – cancellation of visitor visa on the basis that the applicant was working, based upon opinion of departmental officers – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.116, 359A
Migration Regulations 1994 (Cth)

Attorney-General of New South Wales v Quinn (1990) 170 CLR 1

Applicant:

BRENDA NAOMI SAUTEHI

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

MIGRATION REVIEW TRIBUNAL

File Number:

SYG3682 of 2005

Judgment of:

Driver FM

Hearing date:

7 April 2006

Delivered at:

Sydney

Delivered on:

7 April 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3682 of 2005

BRENDA NAOMI SAUTEHI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to show cause why relief should not be granted in relation to a decision of the Migration Review Tribunal (“the MRT”). The MRT decision was made on 5 December 2005 and notified to the applicant by letter dated 6 December 2005. The MRT affirmed a decision of a delegate of the Minister to cancel the applicant's short stay visitor visa. The application before me asserts notification of the decision on 6 December 2005. The application was filed on 14 December 2005. On that basis I find that the application was made within time.
Relevant background material is set out in the Minister's written submissions filed on 31 March 2006. I adopt as background for the purposes of this judgment paragraphs 2 to 5 of those submissions:
The applicant is a citizen of the Solomon Islands who arrived in Australia on 16 September 2005 as the holder of a short stay (visitor) (Class TR) visa. On 21 October 2005, the applicant was located by officers of the Department in a brothel at Strathfield in a bedroom where a large volume of paraphernalia associated with sex work was also found. A delegate of the first respondent decided to cancel the applicant’s visa on the basis that she no longer had the intention of remaining in Australia as a visitor. The applicant applied to the MRT for review of that decision.
The applicant was invited to, and attended a hearing conducted by the MRT on 28 November 2005. She and another person, who was claimed to be her boyfriend, gave evidence in support of her application for review. The MRT handed down its decision affirming the decision to cancel on 5 December 2005.
MRT’s decision
The MRT did not accept the applicant as a credible witness and found that she had given incorrect information on her visa application, namely that she was in a de facto relationship with a person named Keith Morgan. It also found that the applicant was in fact working at the brothel at the time she was discovered there by officers of the Department. On the basis of these findings the MRT was satisfied the applicant had ceased to have an intention only to visit or to remain in Australia as a visitor temporarily for the purpose visiting an Australian citizen or Australian permanent resident who was a parent, spouse, child, brother or sister or for another purpose other than related to business or medical treatment. On that basis it found that there was a prescribed ground under Regulation 2.43(1)(j) of the Migration Regulations 1994 (Cth) for cancelling the review applicant’s visa under s.116(1) of the Migration Act 1958 (Cth) (“the Migration Act”).
The MRT then went on to consider whether, in the exercise of its discretion, the cancellation of the visa was the correct and preferable decision. In this respect it had regard to the matters set out in the policy document entitled “Migration Series Instruction: MSI 368 “Visa Cancellation under Sections 109, 116, 128 and 140”. Having had regard to these matters the MRT found that the reasons for not cancelling the visa did not outweigh the reasons for cancelling the visa and so affirmed the decision under review.
This matter came before me on 24 January 2006, at which time I made orders listing this matter for final hearing, and also dealt with a range of other preliminary matters. Among other things I struck out ground 6 in the application, which raised a spurious constitutional issue. The other grounds are dealt with in the Minister's written submissions.
The applicant, in her oral and written submissions, makes clear that she disagrees with the decision of the MRT. She feels poorly treated. She maintains that she was not working as a prostitute and now asserts that the premises at which she was detected at 25 Albert Street, Strathfield, are not a brothel. Those assertions, however, do not assist the applicant in these proceedings. I agree with and adopt for the purposes of this judgment paragraphs 6 to 11 of the Minister's written submissions:
Ground 1: The decision made by MRT was done with a preset mind
This appears to be an allegation that the MRT was actually biased. However, there is no evidence to support it. The fact that the applicant was invited to attend the hearing and that ultimately the MRT affirmed the decision under review cannot properly support the conclusion that the MRT has so made up its mind that it was unable or unwilling to change its mind regardless of the evidence put before it.
Ground 2: The MRT made legal errors in making her decision
This ground is not particularised and, in the absence of written submissions, is difficult to address. However, it is apparent from the MRT’s reasons that it properly considered the task before it as required by s.116(1) of the Migration Act. In particular, it understood that it had to determine firstly whether there were prescribed circumstances and secondly whether in the exercise of discretion it was the correct and preferable decision to cancel the visa. There is no error of law in the MRT’s reasons.
Ground 3: The Migration Act 1958 was not properly observed
Once again this ground is not particularised and not supported by any submission. The MRT properly invited the applicant to attend a hearing: court book, page 31; further, it gave written notice to the applicant of particulars of information that it considered was relevant to its decision in accordance with s.359A of the Migration Act. Although there is a suggestion in the applicant’s submission to the MRT (court book, pages 43-46) that there was a wrong interpretation of the applicant’s evidence at the hearing (court book, page 45.1) there is no evidence to establish that fact. For these reasons, on the face of the material before the Court, it cannot be argued that there was a failure to comply with procedures required by the Act.
Ground 4: The MRT member was acting in very bad faith in making her decision
This ground, like the ground of actual bias, cannot be made out on the evidence before the Court.
Ground 5: The MRT failed to justify the genuine evidence provided by me
This ground takes issue with no more than the merits of the case. It is true that the MRT did not accept the explanations given by the applicant during the hearing conducted by it, and in the responses to the s.359A invitations; however, it is a matter for the MRT whether or not to accept the evidence of an applicant and it is not required to have rebutting evidence before it does so.
Ground 6: The decision exceeds the limit set out in the Commonwealth Constitution
This ground does not properly raise any constitutional matter and in the absence of any particulars it ought to be rejected.
That deals with all except the last ground of review asserting that the MRT’s decision was incorrect and unfair. In relation to that, the Minister submits that it may well be that the MRT’s decision was incorrect and unfair, but that that is not a subject of judicial review. The submissions refer to the decision in Attorney-General of New South Wales v Quinn (1990) 170 CLR 1 at page 36 per Brennan J. I accept the submission in relation to general considerations of fairness. However, if an issue of procedural unfairness had been raised, a legal issue would have existed that might hypothetically have invalidated the MRT decision.
The applicant, when detained by the Minister's officers, was given very little time to comment on the proposed cancellation of her visa. That might well have been unfair, but any unfairness in relation to the delegate's decision was effectively cured by the application for review to the MRT and the MRT’s decision on it. I see no procedural unfairness in the manner in which the MRT dealt with the review application.
The applicant was properly invited to comment by letter dated 29 November 2005 (court book, pages 40 to 42) on the information before the MRT that it considered would be a reason, or part of the reason, for affirming the decision under review. The applicant took the opportunity to comment on that information in a letter dated 1 December 2005 (court book, pages 43 to 46). The applicant's comments were taken into account by the MRT but essentially she was not believed. The findings made by the MRT were open on the material before it.
The applicant tells me that she has now married Mr Babu and is concerned about the manner in which she has been depicted and the circumstances that have resulted from her detention. It is not for me to advise her on what to do now, but I note that the visa she held would have now expired and if she wishes to remain in this country, several courses of action are probably open to her. One of those would be to make arrangements to depart Australia, acceptable to the Minister, which would permit her release from immigration detention. Another would be to explore the possibility of applying for a spouse visa if she wishes to return to this country to live with her husband. Those are matters properly for the applicant to consider.
The decision of the MRT is, in my view, free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Court rules provide for an award of costs in the sum of $5,000 after a final hearing. The Minister, through Mr Smith, has properly pointed out that the Minister's party/party costs are less than that. The Minister's estimated party/party costs are $3,800. I accept that estimate. The applicant wishes to discuss the issue of costs with her husband. That is, of course, a matter for her. I am satisfied that costs of $3,800 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,800.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:13 April 2006