FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1856 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal (Tribunal) affirming decision of delegate of the first respondent (Minister) not to grant the visa applicants Visitor (Class FA) visa (Visitor visa) – whether Tribunal made jurisdictional error in concluding it was not satisfied the visa applicant did not have a genuine intention to stay temporarily in Australia – whether in so concluding the Tribunal relied on a fact for which there was no evidence – whether such fact was a jurisdictional fact – whether the “no evidence” ground of jurisdictional error is restricted to jurisdictional facts – whether it was reasonably open to the Tribunal to consider relevant to whether the visa applicants did not have a genuine intention of staying temporarily in Australia one of the visa applicant’s parents visiting the visa applicants in China, the father of one of the visa applicants (Son) purchasing in the names of the father and the Son’s wife (wife) a four-bedroom property in Australia, the Son’s having previously been included in his mother’s application for a partner visa, the father’s having entered Australia on a tourist visa but after entering Australia successfully obtaining a Protection visa – whether Tribunal considered separately the wife’s claim for a Visitor visa – whether the Tribunal misunderstood claim made by the Son’s mother – whether Tribunal mistakenly attributed to Son evidence given by father – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(4), 359A(4)(a), 359A(4)(b), 360(1), 424A, 424A(1), 424A(3)(a) Migration Regulations 1994 (Cth), Sch.2, cl. 600.211, 600.211(c) |
| Applicant: | SZVCL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1964 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 11 June… |
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- Case
- [2016] FCCA 1856
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Tribunal made a jurisdictional error in its assessment of the visa applicants' genuine intention to remain temporarily in Australia. Specifically, the court considered whether the Tribunal relied on a fact for which there was no evidence, and whether such a fact constituted a jurisdictional fact. The court also examined the scope of the "no evidence" ground of jurisdictional error, particularly in relation to jurisdictional facts, and whether the Tribunal's consideration of certain matters, such as a parent's property purchase in Australia, previous visa applications, and a parent's immigration history, was reasonably open to it. Further issues included whether the Tribunal considered the wife's claim separately, misunderstood the son's mother's claim, or mistakenly attributed evidence given by the father to the son.
The court found no jurisdictional error. In relation to the interpretation of "information" under section 359A(1) of the Migration Act 1958 (Cth), the court adopted the principle that such information must be evidentiary material or documentation that the Tribunal provisionally considers to be the reason, or part of the reason, for affirming the decision under review. This means the information must be capable of contradicting or undermining an essential element of the applicant's claim, either on its own or in combination with other evidence. The court determined that the son's income in China was not "information" within the meaning of section 359A(1) because it was relied upon by the applicant to support their case, rather than to undermine it. The court's reasoning indicated that the Tribunal's consideration of the various factual circumstances did not, in itself, constitute a jurisdictional error.
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Ratio Decidendi
Legal Principle Established
I made some observations in SZQQA v Minister for Immigration& Anor about the meaning of “information” in s.424A(1) of the Act (which is equivalent to s.359A(1) of the Act). I there said:[72][12] A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) applies is that given by the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another.[73] In that case, the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations”.[74] And in Minister for Immigration and Citizenship v SZLFX and Another, the High Court said that for s.424A(1)(a) to be engaged, “the material in question should in its terms contain a rejection, denial or undermining of the review applicant’s claim to be a refugee”.[75][13] The presence of the words “in their terms” in the High Court’s formulation suggests that to fall within s.424A of the Act the information must on its face disclose a rejection, denial or undermining of a claim. That, in turn, suggests that the information must contain some reasoning which links the information to the claim. But that cannot be what the High Court intended the expression to cover. [14] In my opinion, the information that is caught by s.424A of the Act is “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. Thus, it must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection.[15] Accordingly, whether the information which the applicant claims, and the Minister disputes, is information to which s.424A(1) applied depends on whether the Tribunal considered either item of information to be evidence that by itself contradicted or undermined an essential element of the applicant’s claim or was evidence that, in combination with other evidence the Tribunal accepted, led to the making of a finding of fact that by itself contradicted or undermined an essential element of the applicant’s claim. That requires an analysis of the applicant’s claims, and the Tribunal’s reasons for affirming the delegate’s decision . . . .[72] SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 at [12]-[15][73] (2007) 235 ALR 609 [74] (2007) 235 ALR 609 at page 615 ([17])[75] (2009) 238 CLR 507 at page 513 ([22]) As I have already said, the review applicant relies on two items of information he submits is “information” within the meaning of s.359A of the Act, namely, the income the Son earned in China, and “the income the visa applicant [Son] would be able to earn in Australia”.[76] I first turn to the Son’s income in China. That is not “information” within the meaning of s.359A of the Act. That is so because it is information on which the review applicant relied to support the visa applicants’ case. That is, the review applicant relied on the Son’s income to submit that it offered incentive for the Son to return to China, rather than remain in Australia. It was not information, therefore, that constituted a rejection, denial, or undermining of the visa applicants’ claims for Visitor visas.[76] Outline Submissions for Applicant. [44]