Sheptitskaya v MIBP
[2015] FCCA 159
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEPTITSKAYA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 159 |
| Catchwords: MIGRATION – Review of Migration Tribunal decision – whether the Tribunal complied with the s.359A notice requirement – whether the Tribunal needed to give particulars under s.107. |
| Legislation: Migration Act 1958 |
| Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 Re Refugee Review Tribunal v ex parte Aala (2000) 204 CLR 82 |
| Applicant: | OLGA SHEPTITSKAYA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2116 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 27 January 2015 |
| Date of Last Submission: | 27 January 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reilly |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the First Respondent: | Ms Mitchelmore |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application as amended be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2116 of 2014
| OLGA SHEPTITSKAYA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
| MIGRATION REVIEW TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
This is an application within the jurisdiction of the Court under s.476 of the Migration Act 1958 for a Constitutional writ in the nature of prohibition in relation to the Migration Review Tribunal, which Tribunal commenced hearing evidence on 6 June 2014. The Tribunal issued a s.359A letter on 15 July 2014 to the applicant following which these proceedings were commenced on 28 July 2014.
The nature of the orders sought by the applicant is identified in paras.1-4 of the amended application which I set out as follows:
1. A writ of prohibition preventing the second respondent from making a decision on the application for review by reference to matters that were not set out or described in either the notice sent to the applicant under s 107 of the Migration Act 1958 (Act) or the applicant’s response to that notice, in particular:
a. a certified copy of a divorce order declared by the Family Court of Australia, Sydney registry, provided in support of an application for a spouse visa by Ms Zharova and indicating that Mr Mostovoy had previously been married to Ms Elena Marinova;
b. a letter dated 12 July 2005 from Dr Melissa Barrett and Professor Gordon Parker of Black Dog Institute in relation to Mr Mostovoy and provided as part of a person’s carer visa application;
c. a Form 888 statutory declaration by Mr Andrei Vlassov dated 1 July 2003 submitted with a spouse visa application by Ms Zharova; and
d. evidence from the website of the Department of Housing.
(together, the irrelevant material)
2. A writ in the nature of mandamus directed to the second respondent requiting the second respondent to decide whether there was a breach of s101 of the Act by the applicant without reference to the irrelevant material.
3. In the alternative to the relief sought in paragraphs 1 and 2:
a. a declaration that it is not open to the second respondent to decide that there was non-compliance by the applicant in the way described in the s 107 notice; and
b. a writ of mandamus directed to the second respondent requiring the second respondent to make a decision to set aside the decision of the delegate to cancel the applicant’s visa.
4. An order that the first respondent pay the applicant’s costs.
The amended application advanced two grounds as follows:
1. In deciding the review of the decision of a delegate of the first respondent to cancel the applicant’s Partner (residence) Class BS visa under s109 of the Act the second respondent is likely to make a decision infected by a jurisdictional error.
Particulars
The second respondent is likely to make its decision based on information that was not described or contained in either the s107 notice issued precipitating the section 109 cancellation or the applicant’s response to it.
2. On the material before the second respondent it is not open to the second respondent to decide that there was non-compliance by the applicant in the way described in the s 107 notice.
Disclosure under section 486D Migration Act 1958 – Proceedings in relation to a Tribunal decision
For the purposes of the disclosure required by section 486D of the Migration Act 1958 the Applicant states that she has not made any other applications for judicial review in relation to the proposed decision of the second respondent.
Although the applicant’s submissions refer to potential breach of s.360 of the Migration Act, it was accepted by counsel for the applicant that there was no ground under s.360, in fact, being raised. It was also conceded by counsel for the applicant that the s.107 notice dated 28 June 2013 by the delegate was in no way deficient.
Subject to the argument about potentially exceeding its jurisdiction, it was not suggested that the s.359A letter dated 15 July 2014 failed to comply with the requirements of s.359A.
The thrust of the applicant’s argument was that there were four additional matters identified in the content of the s.359A letter that it was suggested identified a likelihood that the Tribunal would travel beyond its jurisdiction in determining whether there was a non-compliance within s.108 of the Migration Act.
The scheme of the Act in relation to s.108 and the work done by s.107 has been addressed in Minister for Immigration and Citizenship v Brar [2012] FCAFC 30, particularly in paras. 44-49 and 52-61. The kernel of the argument developed skilfully by counsel for the applicant was that the content of the material identified as irrelevant material in some way constituted a particular within the requirements of s.107 and that the Tribunal was therefore likely to travel beyond its jurisdiction and entertained a non-compliance particular beyond s.107.
There is no issue raised in respect of the jurisdiction of this court to grant the relief sought it were the case that a likelihood of exceeding the Tribunal’s jurisdiction could be made out. The principles relating to writs of prohibition have been discussed in a number of authorities, including Re Refugee Review Tribunal v ex parte Aala (2000) 204 CLR 82 relevantly at paras.18-42 in the joint judgment of Gaudron and Gummow JJ. Notwithstanding the skilful nature of the applicant’s argument, when it was put to counsel for the applicant to identify what particular it was that the relevant information constituted, the substance of the argument was that it was information and that no particular was able to be formulated.
Moreover, it was accepted by counsel for the applicant that the delegate’s notice under s.107 identified properly the particular of potential non-compliance as being that the applicant did not have a genuine spousal relationship and did not live together at the specified address. The delegate found that there was a non-compliance by the applicant visa holder in the way described in the notice.
There is nothing in the s.359A letter that, in my opinion, identifies any likelihood that the Tribunal would exceed its jurisdiction by going beyond that particular properly identified in the s.107 notice.
In my opinion, the s.359A notice was properly conceded to comply with the requirements of that section, which addresses a separate and distinct topic to that of s.107 by requiring the Tribunal to identify clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.
In my opinion, the content of the alleged irrelevant material identified under ground 1of the application was a matter that the Tribunal was required to turn its mind to and identify consistent with the required statutory procedural fairness under s.359A. The s.359A letter does not identify any proper basis for a finding of any likelihood that the Tribunal will travel beyond the bounds of s.108 or beyond the particular of potential non-compliance identified in the s.107 notice. It is a matter for the Tribunal to determine whether the information in the s.359A letter constitutes a reason or part of a reason for affirming the decision.
The applicant sought to advance an argument that there was a principle to be extracted from the decision of Judge Smith in SZEEM v the Minister [2005] FMCA 27, in the passages in paras.38 and 43 to the effect that the particulars in the s.107 notice where exhaustive of information that could be taken into account by the Tribunal in determining whether there was non-compliance by the visa holder in the way identified in the s.107 notice. I read Judge Smith in para.38 and 43 as travelling no further than what was identified by the court in Zhao v the Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at para.25.
The particulars given in the s.107 notice in this particular case clearly advanced and satisfied the statutory purpose of potential non-compliance and was sufficient, when read in conjunction with the supporting information, to fairly inform the applicant of the basis upon which cancellation was being considered so that the applicant adequately had an opportunity and was equipped to provide such relevant information as may be available and make such submissions as may be open.
Counsel for the applicant referred to the decision of Zhong v Minister for Immigration and Citizenship [2008] FCA 507 and, in particular, para.80, which concerned a case where there were deficient particulars. The decision in Zhong does not, in my opinion, support a proposition of the breadth that the applicant in essence needed to make out, that the information as to reasons or part thereof, for affirming the decision s.359A notice must be confined to the content of the s.107 notice.
In my opinion, that proposition as to the scope of information that may be identified in the s.359A notice cannot be made out. The issue before the Tribunal of non-compliance remains as identified in the particulars of the s.107 notice. Insofar as is necessary, to the extent that it was suggested that SZEEM goes as far as is contended by Mr Reilly of counsel, taking into account the need to be clearly satisfied that that decision, if it amounted to such a principle, was wrong, I am so satisfied and I wouldn’t follow the decision to the extent that it was suggesting that the content of the s.359A letter is confined to the content of the s.107 notice. In my opinion, there is no reasonable likelihood that the Tribunal will exceed its jurisdiction by reason of the content of the s.359A notice. For these reasons, ground 1 must fail.
In relation to ground 2, it was accepted that Centrelink have provided information identified by the delegate in the s.107 letter that clearly identified a rational and coherent ground upon which the potential non-compliance particular identified as to the applicant not being in a genuine relationship and not living together at the particular address might be made out. Nevertheless, it was suggested that a further letter from Centrelink dated 10 April 2014 was contradictory, and therefore it would be not open for the Tribunal to find that the particular under s.107 of the applicant not living in a genuine spousal relationship and not living together at the particular address in terms of non-compliance could not be made out.
It was suggested that such a decision would be irrational or one contrary to principles of unreasonableness as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76] . In my opinion, this is clearly a case where it is a matter for the Tribunal as to what significance, if any, it attaches to the letter dated 10 April 2014, and, in my opinion, it cannot be said that it would be irrational or unreasonable for the Tribunal to take into account the earlier information provided by Centrelink, and it is a matter for the Tribunal to determine what weight it seeks to give in that regard and determine what findings it seeks to make. It cannot by reason of the information from Centrelink that a finding of non-compliance by the Tribunal in respect of the particular under the s.107 notice would lack an evident and intelligible justification.
I do not regard the decision of SZEEM as advancing in any way the substance of the second ground. In expressing these views, I have also taken into account the high degree of satisfaction that is required in respect of the finding that the Tribunal could make if it so determines in respect of the particular of non-compliance identified in the s.107 notice. I have taken into account the alleged inconsistency, but for the reasons I have identified, the weight of that is a matter for the Tribunal to determine. There was reference to the other documents in some way fortifying the existence of a genuine relationship and again, that’s a matter for the Tribunal. There was also reference to the oral evidence, again these are matters for the Tribunal to determine what weight and any findings on credit in the inquisitorial process. In my opinion, to the extent that there is a suggestion that the authenticity of material or credibility of the witnesses has not been adequately identified, I reject that submission, and I on the material before the court there is no actual or likely breach of s.360.
Further, I would add that bringing an application of the kind advanced in ground 2 is one which will ordinarily face a real discretionary problem given the clear avenue open to the applicant to have a determination of those issues on the merits by the Tribunal. In expressing this view it is material to take into account the statutory regime for review under s, 348 and breadth of review powers conferred under s.349 and framework for fair and quick inquisitorial hearing before the Tribunal, and, in particular, s.353, as follows:
353(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
It would materially impact on that important statutory objective in s.353 to over encourage or lightly entertain applications of the kind identified in ground 2 except in a clear, serious or urgent case, as the application for the constitutional writ in the nature or prohibition before decision by the Tribunal has the real potential to create unnecessary delay, protraction and inefficiencies in the important work done by the Tribunal. The kind of delay that has occurred in this case that is regrettable.
These matters would be significant discretionary factors adverse to the applicant had the court found ground 2 to be made out. In response to the argument advanced in support of a favourable exercise of discretion, if that arose it was argued that the applicant would be unable to work because this case involves visa cancellation. That factor impacts alike on every other applicant in respect of a visa cancellation and the capacity to work, and ordinarily may well be an inadequate ground, as a matter of discretion, to permit the type of intervention for relief in the nature of prohibition prior to completion of the decision making process of the Tribunal on grounds of the kind raised by ground 2 in respect of irrationality or unreasonableness.
The court is however jealous in preserving this extremely important sphere of Constitutional writ jurisdiction conferred under Chapter III, s.75(v) of the Constitution where there is an apparent or likely excess of jurisdiction or jurisdictional denial of procedural fairness. For the above reasons, the application should be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street.
Associate:
Date: 28 January 2015
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