Shi v Minister for Immigration
[2008] FMCA 1107
•6 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1107 |
| MIGRATION – Review of Migration Review Tribunal decision – Partner (Provisional) (Class UF) Subclass 309 visa – refusal – Tribunal’s findings of fact cannot be reviewed in judicial review proceedings – Tribunal not obliged to make specific findings concerning any one of the circumstances detailed in reg.1.15A(3)(d) of the Migration Regulations 1994 – the requirement under s.359A(1)(b) to ensure as far as reasonably practicable that an applicant understands why notified information is relevant to the review is an objective one which does not require a particular applicant to have understood the relevance of that information – the qualification of reasonable practicability limits the Tribunal’s obligation to a requirement of clarity of expression and presentation commensurate with the applicant’s circumstances – information sought under s.359 was not sought in writing as section required – jurisdictional error proved – in the circumstances no injustice suffered by the applicant – applying a “forward-looking” test, a rehearing would be futile – relief refused in exercise of discretion. |
| Migration Act 1958, ss.424, 424A, 359, 359A, 379A Migration Regulations 1994, regs.1.15A, Sch.2 Pt.309 |
| SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Tickner v Chapman (1995) 57 FCR 451 Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 Elrifai v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1484 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 SZKCQ vMinister for Immigration & Citizenship [2008] FCAFC 119 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333 Lee v Minister for Immigration & Citizenship (2007) 241 ALR 363 |
| Applicant: | YIN ZHAN SHI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3961 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 July 2008 |
| Date of Last Submission: | 24 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Ren Zhou Lawyers |
| Counsel for the Respondents: | Ms T. Wong |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3961 of 2007
| YIN ZHAN SHI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant and his wife, whom he sought to sponsor to come to Australia, had previously been married to others and two of their former spouses were brother and sister. The applicant’s wife and stepson (“visa applicants”) applied for Partner (Provisional) (Class UF) subclass 309 visas on 1 June 2006 but on 24 November 2006 their application was refused by a delegate of the Minister. The applicant, who was the relevant sponsor, applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The primary criteria for the grant of a Subclass 309 visa are set out in Pt.309 of Sch.2 to the Migration Regulations 1994 (“Regulations”), the relevant provisions being:
309.21
Criteria to be satisfied at time of application
309.211
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant meets the requirements of this subclause if the applicant is the spouse of:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen…
309.22
Criteria to be satisfied at time of decision
309.221
The applicant continues to satisfy the criterion in clause 309.211.
“Spouse” is defined in reg.1.15A as follows:
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); …
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B)do not live separately and apart on a permanent basis.
(2) …
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ae) a Partner (Provisional) (Class UF) visa; …
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one. …
Background facts
The applicant summarised relevant facts in his written submissions and, in his written submissions, the first respondent adopted that summary which said:
On 1 June 2006 Ms Yan Qin Hong, then a 38 year old Chinese citizen living in Shanghai (CB 3-4), lodged an application for a spouse visa with the Australian consulate in that city. In that application she said that she had been married before, from 1994 to 1999, and was divorced. There was one child of the relationship (CB 3).
Her sponsor was Shi Yin Zhan, an Australian citizen born in China, then 55 years of age, who lived in Telopea, NSW and worked as a welder (CB 31-2). He had been married three times previously and had one daughter from the first marriage (CB 11).
On the application from Mr Shi stated that the couple began an “interdependent” relationship on 20 November 2004, and married in Shanghai on 27 March 2006 (CB 29). Their statements, submitted with the application (CB 37-8) described how they met and how their relationship developed. In a supporting statement, Ms Yan’s father, a retired physician, also described the development of the relationship and stated in part,
“… one day in July 2004, my daughter said to me that she would like to discuss something unexpected with me. She said that her ex husband is the brother of her current boyfriend Mr SHI’s ex wife, a fact that is hardly acceptable in the traditional environment in China. From what she said, I felt that she hoped to get my understanding and support. In view of her attitude then, I did not have the heart to object to her but said that it would depend on the development of the circumstances.” (CB 76.7)
Mr Yan senior believed that the marriage was genuine (CB 78), as did Mr Shi’s daughter, who is an Australian citizen (CB 75), and an accountant.
The delegate, stationed in the Australian Consulate in Shanghai, rejected the application on 27 November 2006 (CB 125ff), because of what were said to be numerous discrepancies in the information given to the Department (CB 130-133). An application for review was lodged on 4 December 2006 (CB 137-143).
That application was supported, on 29 May 2007, by a submission from Mr Shi’s migration agents who annexed thereto a large number of documents, including, bank transfer forms (CB 159-160), a document evidencing Ms Yan being a beneficiary of Mr Shi’s superannuation policy (CB 161), a document evidencing Mr Shi’s temporary residence in China (CB 162), records of telephone calls made by Mr Shi to Ms Yan and others in China (CB 163-175), email communications and translations thereof (CB 187-235), and numerous letters and photos.
On 26 July 2007 the Tribunal wrote to Mr Shi, presumably pursuant to s.424 [sic] Migration Act expressing concerns about aspects of the evidence (CB 382-384). The Tribunal appeared to be particularly concerned about the parties’ claim, made at various stages of the application, that although related by marriage, they did not know each other before meeting at Mr Shi’s mother’s home in 2000 (CB 383.4). This and other aspects of the case led the Tribunal to suspect that the marriage was not “genuine and continuing”. It considered their general credit to be at issue (CB 383).
Mr Shi replied in a translated letter dated 21 September 2007 (CB 403-407). His response to the question of the date that he met Ms Yan, was essentially that during the time that his ex wife’s brother was married to Ms Yan, he was divorced from the ex wife, and in any event was not in China, and so there was no reason why they should meet (CB 403-4).
The applicant’s wife and stepson sought Partner (Provisional) (Class UF) Subclass 309 visas. Because the Minister’s delegate found that the relationship between the applicant and his wife was not a genuine and continuing spouse relationship within the meaning of reg.1.15A, the applicant’s wife thereby failed to satisfy the requirements of cls.309.211 and 309.221 of sch.2 to the Regulations and the visa application was refused.
The applicant subsequently sought review of the delegate’s decision and appeared before the Tribunal on 29 May 2007. His wife appeared by telephone.
The Tribunal’s decision and reasons
The Tribunal affirmed the decision of the delegate not to grant Partner (Provisional) (Class UF) Subclass 309 visas to the visa applicants on the basis that it too was not satisfied that the applicant and his wife were, at the time of visa application, in a married relationship within the meaning of reg.1.15A(1A)(b) and were not therefore “spouses” for the purposes of cl.309.211.
The Tribunal found that the evidence provided by the applicant and his wife was generally consistent and that there existed sufficient documentary evidence concerning the financial and social aspects of their relationship, their household and their commitment to each other to generally support a claim that they were spouses. However, the Tribunal concluded that the applicant and his wife lacked overall credibility, noting that:
a)the following findings, which were not in dispute, raised suspicions that the relationship was contrived:
i)the applicant and his wife were previously related to each other by marriage; that is, their ex-spouses were siblings;
ii)the applicant and his wife did not tell the department of this connection at their interview in China; and
iii)the applicant positively denied such a connection at the departmental interview. He said he “did not know” of this connection when in fact he did;
b)given that the applicant’s first marriage ended in 1995 and his wife’s first marriage lasted from 1994 to 1999, it was implausible that the applicant and his wife did not meet or did not know of each other before 2000, when they claimed to have met for the first time;
c)while the relationship between the applicant and his wife could cause discomfort to the parties and other family members, the Tribunal was unable to find any information which suggested that marriages of this type were “frowned upon” or culturally sensitive issues. The Tribunal did not accept that the applicant and his wife failed to tell the truth about their prior relationship connection because they were ashamed or embarrassed. In any event, the applicant was asked a direct question by the department and he answered untruthfully;
d)the applicant claimed to be a man of conservative background yet he was prepared to enter into a de-facto relationship with his wife prior to their marriage. The Tribunal considered that, even if he did propose marriage at the earliest opportunity, such behaviour was not consistent with his claim to be conservative and ashamed and embarrassed by his subsequent marriage;
e)the applicant did not provide any independent information to support his contention that the parties’ marriage was less socially acceptable that their previous de-facto relationship; and
f)the Tribunal’s adverse credibility finding cast serious doubts on the truthfulness and significance of any supporting evidence other than evidence from independent sources.
In light of the above, the Tribunal was not satisfied that at the time of visa application there was a commitment by both the applicant and his wife to a shared life as husband and wife to the exclusion of all others or that their relationship at that time was genuine and continuing.
Proceedings in this Court
The second further amended application pleads the following grounds:
(1)The Second Respondent (the Tribunal) committed jurisdictional error in that it made a finding, critical to its decision, in the complete absence of evidence to support that finding.
(2)The Tribunal committed jurisdictional error in that it failed to take relevant considerations into account.
(3) The Tribunal committed jurisdictional error by failing to comply with s.359A(1)(b) Migration Act.
(4)The Tribunal erred in failing to invite the applicant to give information by a means specified in s.359(2) and s.359(3).
Findings made in the absence of evidence
The applicant particularizes the allegation that a finding was made without any supporting evidence as follows:
(a)The finding that there was no truly independent evidence as to the genuineness of the applicant’s spousal relationship.
The relevant passage in the Tribunal’s decision relied upon by the applicant is found on the last page of that decision where the Tribunal said:
… if the Tribunal has found that the review applicant and the visa applicant are not credible generally, and concludes from this that they are not in a genuine marriage, then it must cast serious doubt on the truthfulness and significance of any supporting evidence provided, unless that evidence is from an independent source. The Tribunal does not consider that any truly independent evidence as to the genuineness of the spousal relationship has been provided. (Relevant Documents (“RD”) p.448)
The applicant submitted that the finding of lack of supporting evidence was, itself, a finding for which there was no evidence. In this connection, the applicant pointed to the numerous telephone account statements documenting lengthy telephone conversations between the applicant and his wife which were reproduced in the Relevant Documents and had been available to the Tribunal. The applicant submitted that the Tribunal did not explain how such telephone records were not independent records, suggesting that such a finding was a critical step in its ultimate conclusion and, were there to be no evidence of it, then jurisdictional error might be demonstrated: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 at 407 [19]. In this regard, it was submitted that the Tribunal’s conclusion suggested that if there had been independent corroborative evidence, the truthfulness and significance of the evidence advanced by the applicant and his wife in support of the visa application would have been given greater credence.
It is the applicant’s case that the telephone account statements in question amounted to independent evidence that the marriage was genuine in that they were independent corroboration of the fact that the telephone calls took place which, in turn, demonstrated that the parties were in a bona fide relationship. In this respect, it should be kept in mind that although the Tribunal did, in general terms, accept that the evidence before it gave the appearance that the applicant and his wife were in a genuine marriage, it went on to find that because of their personal histories and because of their untruthful representations to the Minister’s department, it was nevertheless not convinced that the appearance was also the reality. As far as the telephone account statements are concerned, it can be inferred that the Tribunal was of the view that they did no more than support the appearance of a genuine relationship, which appearance the Tribunal acknowledged.
Notwithstanding the claimed corroborative strength of the telephone account statements, as Gleeson CJ said in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59:
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. (at 63 [12])
Further, as McHugh and Gummow JJ said in the same case:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. (at 70 [49])
At the end of the day, what the applicant complains of is the Tribunal’s characterisation of the evidence which was before it. The Tribunal had not overlooked the evidence in question, as revealed by paras.15, 76 and 91 of its decision (RD 433, 443, 445). Clearly then, the Tribunal assessed the telephone account statements as not amounting to “truly independent evidence as to the genuineness of the spousal relationship”. This is a factual conclusion which also reflects upon the weight which the Tribunal gave to the documents in question; it is not a conclusion that there was no evidence on a particular point. As such, it is not a matter which is subject to review by the Court and, as a consequence, the first ground pleaded in the second further amended application is not made out.
Failure to take relevant considerations into account
The second ground pleaded is particularized in the following terms:
(a)The Tribunal failed to have regard to matters that it was obliged to consider in Migration Regulation 1.15A(3)(d).
Regulation 1.15A(3)(d) is quoted above at [4].
The applicant submits that the Tribunal did no more than acknowledge, in a general way, the circumstances which the regulation required be considered when forming an opinion concerning whether the applicant and his wife were, for the purposes of the visa application, in a married relationship. Moreover, submitted the applicant, the Tribunal’s recitation of the formulaic words:
The oral evidence of the review applicant and the visa applicant and the documentary evidence before the Tribunal as to the [particular consideration] is not inconsistent with a genuine spousal relationship …
did not evidence the sort of active intellectual process which was required of it: Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. In this connection, the meaning of “have regard to” is not materially different from “to consider”, discussed by Black CJ in Ticker v Chapman at 462, namely “attention, heed, or consideration given to a thing or person, as having an effect or influence on one’s actions or conduct”: Oxford English Dictionary (2nd ed).
Although it was conceded that the Tribunal was not obliged to make specific findings concerning any one of the circumstances detailed in reg.1.15A(3)(d) (Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [35]), it was submitted that the Tribunal needed, nevertheless, to consider the nature of the parties’ commitment to each other and its overview suggested that it had not. For instance, said the applicant, it is not apparent that the Tribunal considered the degree of companionship or emotional support the parties drew from each other or whether they had lived together. In brief, the applicant’s submission was that the Tribunal skimmed over the relevant evidence, without engaging with it, in a fashion which demonstrated that it had failed to consider the prescribed circumstances as was required of it.
In order to succeed, the applicant’s argument requires acceptance of the idea that although the Tribunal identified the relevant regulation and then proceeded to deal with each of the circumstances mandated by reg.1.15A(3), it nevertheless overlooked some or all of the placita of reg.1.15A(3)(d). The Tribunal’s summary of the claims and evidence before it demonstrates that it was aware of those aspects of the allegations made by the applicant and his wife which touched on the considerations set out in reg.1.15A(3)(d). Although it made abbreviated reference to that evidence, it did so in the context of acknowledging the requirements of the regulation and, given that the Tribunal was not required to make specific findings concerning each of the matters set out in reg.1.15A(3)(d), I do not infer that, in fact, it failed to consider those matters.
Moreover, although the Tribunal employed a double negative (“not inconsistent with a genuine spousal relationship”) when expressing its views on the various matters required by the regulation to be considered, at para.94 of its decision it was not so non-committal:
As the Tribunal stated in its letter of 26 July 2007 to the review applicant, it considered that the review applicant and the visa applicant’s oral and written evidence was generally consistent and that they had provided sufficient supporting documentary evidence concerning their financial relationship, their household, their social relationship and their commitment to each other to generally support a claim that they are “spouses”.
Consequently, even were the applicant to have demonstrated that the Tribunal had failed to consider the matters in reg.1.15A(3)(d) to which it was required to have regard, this would have been unlikely to have amounted to a reason to set aside the Tribunal’s decision as, subject to the Tribunal’s credibility findings, the applicant had already achieved the outcome on this point which he wanted from the Tribunal.
Failure to comply with s.359A
Section 359A relevantly provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it. …
The breach of s.359A pleaded in the third ground of the second further amended application is particularized as follows:
(a)Failure to disclose that the information stated in the letter sent pursuant to s.359A Migration Act was relevant because it permitted the Tribunal to speculate that the marriage had been entered into for money of [sic] family connection which would permit Ms Yan to enter Australia as a spouse.
(b)Failure to disclose that the information stated in the letter sent pursuant to s.359A Migration Act was relevant because it led the Tribunal to doubt the veracity of the evidence in the applicants’ witnesses’ statements.
As to the matters raised in the first particular, the applicant submitted that in its s.359A notice the Tribunal advised the applicant, in essence, that the information outlined in the notice was relevant because it reflected on the overall credibility of him and his wife; in particular, that the evidence of how they met and when they met was implausible, that their failure to tell the truth about their pre-marriage connection might indicate the marriage was contrived for migration purposes, that their explanation for their failure to disclose their relationship was not supported by independent country information and that their pre-marital co-habitation appeared inconsistent with the reasons advanced for their alleged reticence in discussing the familial links they had prior to marriage.
Notwithstanding these explanations, the applicant submitted that the Tribunal had failed to comply with s.359A(1)(b) in that it failed to ensure, as far as was reasonably practicable, that he understood why the particularized information was relevant to the review. The applicant went on to identify the third sentence of para.96 of the Tribunal’s decision as amounting to a matter which the Tribunal considered to be relevant to its decision and yet was not identified to him as being at least part of the reason why the information particularized in the s.359A notice was relevant to the review. In that paragraph of its decision, the Tribunal said:
The significance of these findings is as follows. This previous family connection may raise suspicions that this is a marriage contrived for migration purposes. A possible scenario is that this marriage has been entered into for some reason, such as money or family connection, which would allow the visa applicant to enter Australia as a spouse. The failure to raise this relationship connection with the Department, and then to positively deny this when questioned, raises the Tribunal’s suspicions that this is a contrived marriage. (RD 446)
As the applicant said in his supplementary written submissions:
That was not the full extent of the relevance of the information. The additional relevance is the speculation that the marriage had been entered into for money of [sic] family connection which would permit Ms Yan to enter Australia as a spouse …
However, properly viewed, the third sentence of para.96 of the Tribunal’s decision was no more than speculation. The relevance of the information which the Tribunal particularized in its s.359A(1) notice was identified by the Tribunal in the second and fourth sentences of para.96. That is to say, the existence of the previous family connection and its concealment from the Minister’s department raised suspicions that the current relationship was contrived. The Tribunal’s speculations as to the motivations for such a contrivance was not a reason or part of the reason for the Tribunal’s affirmation of the delegate’s decision and thus it was not relevant to the review. Consequently, it did not need to be included in the s.359A(1) notice.
More generally as to the alleged failure to comply with s.359A(1)(b), the s.359A(1) notice was expressed in terms which ensured that the applicant understood why the information which it particularized was relevant to the review. The Tribunal squarely put to the applicant that his overall credibility was in issue, specifically because of the concerns which the Tribunal identified it had with his evidence and that of his wife. The requirement found in s.359A(1)(b) is an objective one which does not require a particular applicant to have actually understood the relevance to the Tribunal’s review of the information particularized in the s.359A(1) notice. The qualification of reasonable practicability limits the Tribunal’s obligation to a requirement of clarity of expression and presentation commensurate with the applicant’s circumstances: Elrifai v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1484 at [41]. In the circumstances of this case, where the notice in question was addressed to the applicant’s solicitor who would then communicate it to the applicant, there can be little doubt that the notice met the requirements of s.359A(1)(b).
As to the second particular, the applicant relies on paras.105 and 107 of the Tribunal’s decision where it said:
The Tribunal’s view is that the review applicant and the visa applicant are not witnesses of truth as to how they met and as to why they did not tell the Department that they were connected by prior marriages. This leads the Tribunal to doubt the truthfulness of the review applicant and the visa applicant generally, and as such, to doubt the veracity of any witness evidence, and to discount the significance of any other supporting evidence as to the parties being in a genuine marriage. The Tribunal finds that this is a contrived marriage.
…
However, if the Tribunal has found the review applicant and the visa applicant are not credible generally, and concludes from this that they are not in a genuine marriage, then it must cast serious doubt on the truthfulness and significance of any supporting evidence provided, unless that evidence is from an independent source. The Tribunal does not consider that any truly independent evidence as to the genuineness of the spousal relationship has been provided. (RD 447, 448)
The applicant submits that the information detailed in the s.359A(1) notice was relevant for a further reason which it failed to identify, namely that it led the Tribunal to doubt the veracity not only of the applicant and his wife but also their witnesses. However, contrary to these submissions, the credibility of the applicant’s witnesses was not affected by the information contained in the s.359A(1) notice but by the Tribunal’s conclusion as to the credibility of the applicant and his wife. That is to say, the Tribunal’s concerns regarding the veracity of the applicant’s witnesses were dependent upon a preliminary conclusion which the Tribunal drew from the information set out in the notice, that conclusion being that it disbelieved the evidence given by the applicant and his wife. As was said in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at 1196 [18]:
… it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.
“does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
As the conclusion that the applicant and his wife were not to be believed is not “information” for the purposes of s.359A, there was no need to notify it in a s.359A(1) notice. As the information in the s.359A(1) notice was relevant to the conclusion that the applicant and his wife were not to be believed, it had to be notified in that context, which it was. The Act did not require the Tribunal to do more.
Failure to comply with s.359(2) and (3)
Section 359 provides:
359 Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) If an invitation is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention – by a method prescribed for the purposes of giving documents to such a person. …
Section 379A provides a number of methods by which information is conveyed to persons other than the secretary of the Minister’s department and each one of those methods involves a written document. In this case, the Tribunal asked for additional information from the applicant without having put that request in writing. In para.65 of its decision record the Tribunal records its request in the following terms:
At the end of the hearing, the Tribunal asked the review applicant to provide the following documents by 29 June 2007:
· A Statutory Declaration from the review applicant’s daughter that the marriage is genuine and that she is aware of the relationship issue
· A Statutory Declaration from the visa applicant’s father that the marriage is genuine and that he is aware of the relationship issue
· Official documentation showing that the visa applicant and the review applicant’s mother lived nearby in the same block in 2000. (RD 439)
In SZKCQ vMinister for Immigration & Citizenship [2008] FCAFC 119 it was held that any information sought by the Tribunal pursuant to s.424, the Refugee Review Tribunal equivalent of s.359, had to be requested in writing and that any failure to do so amounted to jurisdictional error.
Although the applicant conceded that he suffered no prejudice by reason that the Tribunal had failed to put its request of him in writing, he nevertheless submitted that the mandatory nature of s.359(3) required that the Tribunal’s decision be set aside. In this regard, he referred to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 where the High Court dealt with the mandatory provisions of s.424A of the Act and rejected the suggestion that, jurisdictional error having been found, relief ought to be refused on a discretionary basis. In SAAP’s case the High Court noted the absence of any conduct by the applicant such as delay, waiver, unclean hands or acquiescence which suggested that the court’s undoubted discretion to refuse relief ought to be exercised against its grant.
However, relief may also be refused in the exercise of the Court’s discretion where the applicant has suffered no injustice by reason of the erroneous way in which the Tribunal conducted itself: SAAP’s case per McHugh J at 322 [80]; M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333 per Tracey J at 343 [38].
Being confronted with an incontrovertible failure by the Tribunal to observe an imperative duty placed upon it by the Act, the first respondent submitted that in the exercise of its discretion the Court should not grant relief on this occasion. In this connection, the first respondent referred to SZBYR’s case and to the observations of the majority on the discretion to refuse relief:
This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s.39B of the Judiciary Act 1903(Cth). In Aala, Gaudron and Gummow JJ noted that:
“Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
‘For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’”
(per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at 1197-1198 [28])
In this case, it has not been argued that compliance by the Tribunal with the requirements of s.359 could have had a bearing on its decision. Indeed, it has been conceded that the jurisdictional error caused the applicant no prejudice. This is a case very different, for example, from SAAP’s case. In such circumstances, Kirby J’s comments in SZBYR’s case are relevant:
The circumstances of SAAP and of the present case are very different. In SAAP, the applicants before the Tribunal were a mother and young daughter. The mother was illiterate. The mother and daughter were detained in immigration detention at Woomera. The mother had an older daughter, living in Sydney, who gave information to the Tribunal, in the mother's absence, in some ways adverse to her claim. The case was a clear example of the circumstances in which the provision of information in writing was required. It might have affected the outcome because that information was critically addressed to what “would be the reason, or a part of the reason, for affirming the decision that is under review”. (at 1204 [71])
As the “MRT Hearing Record” at RD 349 discloses, the applicant was represented at the Tribunal hearing by his solicitor. Moreover, the response made to the request for information was made by the applicant’s solicitor by his letter dated 18 June 2007, with which were enclosed ten additional documents (RD 350-381). It is undoubtedly as a consequence of the presence and involvement of the applicant’s solicitor in receiving and responding to the Tribunal’s invitation to provide information that the applicant conceded at the hearing in these proceedings that the Tribunal’s failure to comply with the procedural requirements of s.359 caused him no prejudice. That is to say, the breach did not affect the outcome of the review application.
Such a situation suggests that there would be no point in remitting the matter to the Tribunal. In Lee v Minister for Immigration & Citizenship (2007) 241 ALR 363 Besanko J held at 375 [48], Moore and Buchanan JJ agreeing, that before a court will exercise its discretion to refuse relief on the ground of futility, it must be quite clear that a rehearing or reconsideration is or will be futile. In that case, the applicant’s proposed business sponsor had had its sponsorship application refused with the consequence that, as at the date of the applicant’s Tribunal hearing, he did not have an approved business sponsor. It was a criterion for the grant of the visa which the applicant sought that he have such a sponsor. If the question of futility was to be determined having regard to the circumstances which existed at the time of the Tribunal hearing, using a “backward-looking test”, a finding of futility would have been appropriate as would have been a refusal of relief. However, it was held in Lee’s case that a “forward-looking test” was the appropriate one to apply, i.e. the point at which futility ought to be assessed is that time in the future when the reconsideration or rehearing of the review application would take place were the matter to be remitted. In that case, the consequence of such a conclusion was that while a rehearing before a freshly constituted Tribunal might have proved futile, the court could not be certain that that would necessarily be the case. The possibility of a change in circumstances or availability of additional evidence could not be excluded and the matter was remitted.
This is a case where the review was determined by an assessment of the facts; the law would not require the same outcome were the matter to be remitted to the Tribunal. In other circumstances, such as those seen in SAAP’s case, it might reasonably be posited that a different outcome might eventuate from a rehearing. However, in this case, the applicant was represented both at the hearing and in his response to the Tribunal’s invitation by solicitors and it has not been suggested that any material of relevance to the review was not placed before the Tribunal or that any additional material of this nature would or might be placed before any freshly constituted Tribunal in the future. The applicant’s concession that he was not prejudiced by the Tribunal’s error must also be noted.
In such circumstances, I conclude that the applicant has suffered no injustice and, further, and applying a “forward-looking test”, that a rehearing would be futile. Consequently, notwithstanding the jurisdictional error which has been demonstrated, on this occasion the Court will exercise its discretion to refuse relief to the applicant.
Conclusion
Although jurisdictional error on the part of the Tribunal has been demonstrated, in the exercise of the Court’s discretion the application will be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 August 2008
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