Shan Lian Qiu v Minister for Immigration - [2006] FMCA 389

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAN LIAN QIU v MINISTER FOR IMMIGRATION

[2006] FMCA 389

MIGRATION – Jurisdictional error of decision of delegate – notification of decision of delegate – whether notification fulfilled requirements of s.66(2)(d)(ii) – purported notification – application allowed.

Judiciary Act1903 (Cth)
Migration Act1958 (Cth)
Migration Regulations1994

Song v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FMCA 685
Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 311
Doukmac v Minister for Immigration & Multicultural & Indigenous Affairs (2001) FCA 1821 at 37-39
Kioa v West (1985) 159 CLR 550, at 582-54, per Mason J
Sullivan v Department of Transport (1978) 20 ALR 323, at 342 per Deane J. Hot Holdings Pty Ltd v Greasy (2002) 193 ALR 90 per Gleeson CJ at 965
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 69-72

Applicant:

SHAN LIAN QIU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1136 of 2004

Judgment of:

Hartnett FM

Hearing dates:

5 September & 13 December 2005

Date of Last Submission:

15 December 2005

Delivered at:

Melbourne

Delivered on:

12 April 2006

REPRESENTATION

Counsel for the Applicant:

Mr T. Hurley

Solicitors for the Applicant:

Erskine Rodan

Counsel for the Respondent:

Mr C.J. Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDER THAT:

The application is allowed.
A writ of certiorari issue directed to the delegate of the respondent quashing the decision of the delegate made 9 August 2004.
A writ of mandamus issue directed to the delegate requiring the delegate to determine according to law the applicant’s application for a spouse visa being a UK Partner (Temporary) and BS Partner (Residence) Visa under Class 820/801.
The respondent pay the costs of the application as agreed or upon application as determined by the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1136 of 2004

SHAN LIAN QIU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

The applicant made application to the Court on the 31 August 2004 being an application for judicial review of a decision made 9 August 2004 by a delegate of the respondent to the effect that the applicant was not a spouse and thus not entitled to a UK Partner (Temporary) and BS Partner (Residence) visa under subclasses 820 and 821. The application was initiated pursuant to s.39(B) of the Judiciary Act1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act1958 (Cth) (the Act). That application was serially amended with the applicant relying on a fourth amended application filed 5 September 2005 and affidavits of the applicant sworn on 25 August 2005 and 2 September 2005; an affidavit of her spouse, Mr Alexander Yusefovich sworn

2 September 2005 and contentions of fact and law dated 17 August 2005. The respondent filed contentions of fact and law dated

26 August 2005. Thereafter supplementary contentions were filed by each of the parties and objection to parts of the affidavit material of the applicant and her sponsor taken as identified by the respondent in supplementary contentions of fact and law filed 6 October 2005. The Court also had before it a court book and supplementary court book.
The objections raised by the respondent as referred to in paragraph 2 of the respondent’s contentions filed 6 October 2005 with respect to the admissibility of parts of the affidavit material I accept and do not rely upon such evidence.
The applicant is a citizen of the Peoples Republic of China and arrived in Australia in 2000 as the holder of a student visa. On 24 February 2003 she was granted a Class TU subclass 573 student visa valid until 15 March 2006. On the 16 June 2004 the applicant completed and subsequently lodged an application for temporary and permanent residence on the basis of a claimed spousal relationship with an Australian citizen, one Mr Alexander Yusefovich whom is the nominator. On 9 August 2004 a delegate of the respondent refused to grant the Class UK Partner visa. Nor therefore was the class BS Partner (residence) visa granted. The delegate was not satisfied that the applicant was the ‘spouse’ of the nominator within the meaning of Reg.1.15A of the Migration Regulations 1994 (the Regulations) and therefore found she did not satisfy the criterion contained in clause 820.211 of Schedule 2 of the Regulations. Regulation 820.211 requires that the applicant be a Spouse in relation to the sponsor at the time of application and at time of decision, unless the criteria of subclauses 820.221(2) or (3) are met.
In finding that the applicant and nominator were not in a genuine and continuing de facto relationship since May 2003 the delegate in her “decision record” concluded the following which is accurately set out in the respondent’s contentions of fact and law filed 25 August 2005 as follows:-
………
(5.1)The delegate was not satisfied that the applicant and the nominator shared financial assets, liabilities or day-to-day expenses. The applicant submitted a statement for a bank account opened in the names of the applicant and the nominator. The delegate considered that, if this bank account were operated by the applicant and the nominator, it was operated for recreational purposes only.
(5.2) The delegate was not satisfied that the applicant and the nominator shared a household as a de facto couple. The applicant did not submit any documents showing the applicant’s and nominator’s residential address, claiming that all documents were sent to the nominator’s business address. However, the delegate did not accept that there would not be any documents showing the applicant’s and nominator’s residential address.
(5.3) The delegate was not satisfied that the applicant and the nominator represented themselves as a couple or undertook joint social activities as a couple in a de facto relationship. The statements submitted in support of the applications contained very little detail about the relationship. The delegate found that a joint trip to Sydney would have been for business purposes only.
(5.4) The delegate was not satisfied that the applicant and the nominator were in a committed, long term de facto relationship. She found that there was no evidence of any degree of commitment, or intention to combine their personal or business affairs.

………..

The applicant did not and has not applied to the Migration Review Tribunal for review of the delegate’s decision.
The application for a spouse visa was refused following an initial interview with the delegate on 2 August 2004. For the purposes of her application the applicant had engaged a solicitor, one Mr Issac Brott whom she and the nominator believed at the relevant time to be a migration agent. Accompanying the applicant and the nominator to the interview on 2 August 2004 was a female employee of Mr Brott known as ‘Susan’. The delegate of the respondent (Ms Dell) asked the nominator whom ‘Susan’ was to which he replied she was a friend of the wife. He said further that ‘Susan’ worked for the immigration agent. Mr Yusefovich, in his affidavit (paragraphs 10, 11 and 12), deposes to what then occurred:
“…Ms Dell told us that only migration agents could accompany visa applicants to the interview room. ‘Susan’ turned to me and said in English (that I do not believe my wife then understood) that she, (‘Susan’), was not a migration agent. ‘Susan’ told me to say she was a ‘friend’ because “Mr Brott’s licence was not renewed yet.”
I was confused. ‘Susan’ told me to say this so that she could attend the interview as a ‘friend’. My wife spoke limited English but ‘Susan’ is Chinese and was fluent in my wife’s native language.
‘Susan’ attempted to enter the interview room with my wife but was reject by Ms Dell. While my wife was being interviewed ‘Susan’ told me again that Mr Brott’s license had been either suspended or expired or was for some reason not operating.”
In a separate interview with the applicant, Ms Dell was told by the applicant that the woman called ‘Susan’ worked for the nominator. In her summary of Interview prepared on 2 August 2004 under the heading ‘Inconsistency’ and in the first paragraph thereof Ms Dell noted the following:
“I stated to both of them, that the applicant stated ‘Susan’ was employed by the sponsor, and the sponsor stated ‘Susan’ was the migration agent. The sponsor responded that ‘Susan’ is working as the agent. The applicant began to interject; however, the sponsor said to the applicant “we should tell the truth”. The applicant did not comment.”
As part of her assessment which took into account the above the delegate considered the responses of the applicant and sponsor to her questions and ultimately was not satisfied that they had been in a de facto relationship since 2 June 2003 which she then proceeded to elaborate on in a “decision record” of 9August 2004.
In fact Mr Brott’s migration licence had expired before he completed and lodged the application on behalf of the applicant and it remained expired until some time after the application was concluded and the review period had expired. I find this to be a matter to be known by the Department from their own records.
The applicant seeks a constitutional writ to quash the decision to refuse the applicant the spouse visa she applied for. She claims the delegate took into account irrelevant matters, those irrelevant being the role of ‘Susan’ and the responses of the applicant and nominator to it. The applicant argues this affected the applicant’s credit and the credit of her spouse. She claims there has been a breach of procedural fairness in the delegate’s consideration of her application. Further, the applicant argues that the applicant has not been notified of the decision. On the

9 August 2004 and at the offices of the Department the spouse “decision record” was handed to the applicant together with a copy of a letter from the Departmental officer Ms Helen Dell dated 9 August 2004. There is an asterisk after the phrase “this notification” in that letter (second paragraph) however no italicised paragraph was thereafter included. The applicant concedes she received notification of the decision by hand on 9 August 2004 (s.494C(2) of the Act).
Thus the applicant also argues s.66(2)(d)(ii) of the Act has not been complied with. As a consequence the applicant seeks a declaration that she has not been notified and an order that she be notified. In essence, misleading notification can be a failure to notify as held in Doukmac v Minister for Immigration (2001) FCA 1821 at 37-39.
The applicant also argues that her personal receipt of the misleading notification letter was not notification in accordance with the Act. Despite Mr Brott being unregistered, the Act provides that he must receive documents on behalf of the applicant (s.494(B) & (D)). What the applicant received by hand on 9 August 2005 she claims was a courtesy copy of the notification and that her 21 day period to apply for review of which she was not informed as a consequence of the absence of the italicised paragraph related to the time after which her authorized agent Mr Brott received the notification.
Failure to comply with the statutory requirements relating to notification cannot affect the validity of the delegate’s decision. The issue is relevant to whether the period within which an application to the Migration Review Tribunal must be lodged has commenced (s.347(1)(b) Migration Act; Reg.4.10 Migration Regulations). The delegate’s decision is a “MRT – reviewable decision” pursuant to s.338(2) of the Act.
The respondent submits on the question of the decision itself that the delegate did not take into account irrelevant considerations being matters relating to the identity and role of ‘Susan’ in reaching her decision. The respondent argues the decision contains no findings or references to any confusion concerning the identity and role of ‘Susan’ and there are no adverse credibility findings. Rather, and as said by the respondent, the decision was primarily based on an insufficiency of evidence to satisfy the delegate that the applicant and nominator were in a spouse relationship within the meaning of Regulation 1.15A.

Consideration

The applicant urges the Court to consider that the duty imposed upon the delegate to consider the valid application – imposed by s.65 of the Act – has not been performed. Looking to that issue first I find the following:-
a)it is clear the interviewing officer could have adjourned the interview on 2 August 2005 and recommenced on 9 August 2005 providing the applicant with an opportunity to properly present her case but determined not to do so;
b)the applicant was not fluent in English. She was not accompanied by an interpreter. This limited the delegate’s ability to ask relevant questions;
c)the interview was conducted in a very limited time span with two people, one of whom was not fluent in English. That interview was described by the nominator as follows:
The entire interview with Ms Dell would have taken no more than five minutes. I considered the interview to be rushed. I only answered the questions put to me by Ms Dell. She did not give me an opportunity to elaborate on the questions she asked on the circumstances of myself and my wife….
d)the documents that were submitted in support of the application contained very few details. Essentially the basis for the decision was that there was inadequate evidence to satisfy the delegate of the relevant requirements.
The delegate noted that neither the applicant nor the sponsor was prepared to volunteer any details into any topic raised. Whilst there was no articulated finding or reference to the person known as ‘Susan’ in the “decision record”, the inconsistency of the answers provide to the delegate by the applicant and nominator as referred to by the delegate on 2 August 2004 and the delegate’s noting in the “decision record” of the lack of preparedness to volunteer details clearly implied a finding on the part of the delegate adverse to the credit of the applicant and nominator.
A breach of the principles of procedural fairness constitutes an error of law: Kioa v West (1985) 159 CLR 550, at 582-54, per Mason J. The absence of an adjournment of the interview did deny the applicant a fair opportunity to present her case constituting an error of law (Sullivan v Department of Transport (1978) 20 ALR 323, at 342 per Deane J). I find the applicant was unfairly treated as a result of the inconsistency determined upon by Ms Dell in relation to the applicant and sponsors’ answers to questions concerning ‘Susan’. This denial of procedural fairness was not attended by personal fault on the part of the decision-maker (see Hot Holdings Pty Ltd v Greasy (2002) 193 ALR 90 per Gleeson CJ at 965). The applicant was given no real opportunity to make submissions about answers to questions concerning ‘Susan’ including an opportunity to have with her an interpreter and/or registered migration agent. This denial of procedural fairness constitutes an error of law.
Proceeding to a consideration of the second issue which is a separate matter. Under s.66(1) of the Act the Minister was required to notify the applicant of the decision to refuse to grant a spouse visa. Section 66(1) provides that:
“..When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way”
The “prescribed way” of notification is set out in Reg.2.16(3), which provides that the
“Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.”
The time limit is mandatory and the deemed receipt provisions of the Act are exhaustive and conclusive of the issue, even if it can be proved that documents were never received (Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 69-72).
Whether or not the applicant received notice of the decision is a question separate from whether the decision was made within jurisdiction. I accept Counsel for the applicant’s submission that the question of whether or not she was notified as required by the Act is a matter arising under a law made by the Parliament within s.39(b)(1A)(c) of the Judiciary Act 1903. Further, the Court has power to grant a constitutional writ against an officer of the Commonwealth. This is so by virtue of s.75 (v) of the Constitution and s.39B(1) of the Judiciary Act1903 (Cth) and s.483A of the Act.
Where a registered migration agent is appointed s.494D(1) requires that the Department send all documents in relation to an applicant’s case to the agent instead of the applicant. Alternatively under s.494D of the Act an applicant may appoint someone not being a migration agent, as their ‘authorised recipient’ by filling out the relevant section of the visa application. Regardless of whether the authorized recipient is registered or not the Department is required under s.494D(1) of the Act to send all documents about the applicant’s case to them instead of the applicant. Failure to do so will mean that the visa applicant has not been correctly notified of the decision. This is as distinct from communicating with the unregistered person in their unlawful role as an agent. All of the above is set out in Instruction MSI 400: ‘Migration Agents and Unregistered Persons: Dealing with Conduct of Concern and being information provided to staff of the Department.’
Notification of the decision was sent to Mr Brott by registered post. That letter was to the applicant ‘care of’ Mr Brott which is not sufficient to satisfy s.494D(1) and (2) of the Act (see Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 311). Further, such letter did not refer to the effect of the deemed notification provisions pursuant to which the applicant would be taken to have received notification 7 working days after the date of the letter (s.494C(4)) . Thus s.66(2)(d)(ii) was not satisfied if Mr Brott was the authorized recipient.
The question is whether the applicant’s completion of Part K of her visa application was not an authorization falling within the meaning of s.494D(1). If it were then the delegate was required by s.494D(1) to give notice of the decision to Mr Brott instead of the applicant personally.
When looking at the authorization completed by the applicant when viewing her visa application as a whole including the application of her sponsor who in answer to the options for receiving written communication responded “migration agent” with Mr Brott again completing those details and despite the applicant’s answer to question 81 in her application that written communications should be sent to herself it is evident that the applicant intended for Mr Brott to receive all written communications about her application. I find her authorization therefore satisfies the language of s.494(D)(1) and that although she indicated communication to be sent both to herself and to her authorized recipient this did not render her authorization under Part K devoid of legal effect (Song & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FMCA685 Smith FM at para 35 and 36).
I am satisfied that the applicant has not been given notification of the decision of the delegate as the letter forwarded to the authorized recipient was addressed to the applicant care of the address of the authorized recipient and further the notification itself was defective in form so as not to comply with s.494D of the Act. The notification provided to the applicant personally and as a Courtesy Copy also omitted to inform her of the basis on which she was to calculate the period of “21 days after receiving this notification”. As such no time has commenced in which the applicant could proceed to the Migration Review Tribunal.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 12 April 2006