Tran v Minister for Immigration
[2005] FMCA 1476
•18 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION | [2005] FMCA 1476 |
| Migration – application for review of decision by the migration review tribunal – spousal visa – the meaning of the term ‘spouse’ in the migration regulations – child of the relationship – tribunal’s failure to take the existence of a child into account as a relevant consideration – jurisdictional error disclosed – application allowed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A Migration Regulations 1994 (Cth), regs.1.15A(3), 820.211 |
| Bretag v Minister for Immigration, Local Government & Ethnic Affairs (29 November 1991, Unreported, Federal Court) Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 |
| Applicant: | THI LAN HUONG TRAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1569 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 1 August 2005 |
| Date of Last Submission: | 1 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 18 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr W.G. Gilbert |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Mr P. Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
THE COURT DECLARES THAT:
A.The decision of the Migration Review Tribunal made on 15 November 2004 is invalid.
AND ORDERS THAT:
B.A writ of certiorari issue quashing and setting aside the said decision.
C.The matter be remitted to a differently constituted Migration Review Tribunal to be determined in accordance with the law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1569 of 2004
| THI LAN HUONG TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
1 December 2004 seeking judicial review of the decision of the Migration Review Tribunal on 15 November 2004 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a Partner (Temporary) (Class UK) visa or a Partner (Residence) (Class BS) visa.
The history
The applicant is a citizen of Vietnam. She lodged an application for a permanent residence visa on spouse grounds with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) on 26 October 2001 pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
The applicant applied for both a permanent visa, Partner (Residence) (Class BS) visa, and a temporary visa, Partner (Temporary) (Class UK) visa, to permit the applicant to stay until a decision is made on the permanent visa.
The applicant entered Australia on a temporary student visa on 5 June 1997. The applicant claimed that she met Mr Van Cong Thanh Le (“the nominator”), an eligible New Zealand citizen, in Melbourne in April 1999, and that they married in Footscray on 20 October 2001.
On 16 July 2003, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant the visas on the basis that he was not satisfied that the applicant was the spouse of the nominator. The applicant applied for review of that decision by the Migration Review Tribunal (“the Tribunal”) on 12 August 2003.
The applicant informed the Tribunal that she and the nominator had ceased their spousal relationship as a result of domestic violence by him, and that there was a child of the relationship.
In the decision made by the Tribunal on 15 November 2004, the Tribunal affirmed the decision of the delegate not to grant the Partner (Temporary) (Class UK) or Partner (Residence) (Class BS) visas. The Tribunal was not satisfied that the applicant was the spouse of the nominator due to a lack of evidence, and therefore the applicant did not satisfy the criterion under r. 820.211(2) of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) for the purposes of a Class UK visa. Consequently the applicant did not meet the criteria for a Class BS visa.
On 1 December 2004, the applicant lodged an application in this Court, being MLG 1569 of 2004, pursuant to s. 39B of the Judiciary Act 1903 (Cth) (and s.475A of the Migration Act 1958 (Cth)), for review of the Tribunal’s decision. The applicant filed an amended application and contentions of fact and law on 4 May 2005. The applicant claimed that the Tribunal had committed jurisdictional error. Summarily, the applicant claimed:
a)the Tribunal misapplied or misunderstood the term ‘spouse’, and applied a ‘rigid’ definition of the term;
b)the Tribunal failed to take into account material before it in respect to evidencing the spousal relationship and joint travel;
c)the Tribunal failed to take into account the consideration that there was a child of the relationship;
d)there was a breach of natural justice because the Tribunal had told the applicant at the hearing that they would seek further information from her, but did not do so before making its Tribunal; and
e)the Tribunal failed to apply the principles in Bretag.
The applicant also filed an affidavit on 12 July 2005, in which she provides details of her recollections of the Tribunal hearing.
The respondent’s contentions of fact and law, which were filed on
25 May 2005, rebutted the applicant’s contentions, arguing that:
a)there is no basis for the contention by the applicant that the Tribunal did not consider all the circumstances in respect to whether the term ‘spouse’ was satisfied;
b)the Tribunal assessed all the evidence before it and there is no basis for the contention that the Tribunal did not engage in a balancing exercise in relation to the pieces of evidence before it; and
c)the applicant suffered no practical injustice to substantiate a claim that there was a failure to accord her natural justice, and the applicant has not specified what part of the Migration Act was allegedly contravened.
The Law
Regulation 1.15A(3) of the Migration Regulations states as follows:
In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ab) a Special Eligibility (Residence) (Class AO) visa; or
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) 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.
Regulation 820.211(2) of the Migration Regulations specifies criteria to be satisfied at the time of application for a spousal visa, as follows:
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring spouse; and
(c) the applicant is sponsored:
(i)if the applicant’s spouse has turned 18 — by the spouse; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian
permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa — either:
(i)the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Regulation 820.211 specifies criteria to be satisfied at the time of making a decision, as follows:
(1) In the case of an applicant referred to in subclause 820.211 (2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b)meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a)would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the sponsoring spouse has died; and
(b)satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died; and
(c)has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(b)either or both of the following circumstances applies:
(i)either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
(ii)the applicant
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to domestic violence, see Division 1.5.
(4) The sponsorship mentioned in paragraph 820.211 (2) (c), (3) (f), (4) (f), (5) (f) or (6) (c) has been approved by the Minister and is still in force.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions & findings
The first contention of the applicant is that the Tribunal misapplied or misunderstood the meaning of the term ‘spouse’ contrary to the inclusive direction in regulation 1.15A(3) of the Migration Regulations in that the Tribunal did not have regard to all the circumstances of the relationship. The Procedures Advice Manual 3 (“PAM 3”) is a policy document produced by the Department. PAM 3 addresses regulation 1.15A(3) of the Migration Regulations as follows:
9.2 Officers must consider all circumstances
Reg. 1.15A(3)
In all cases, officers must decide whether, on balance, the marital relationship meets regulation 1.15A(1A)(b) [or corresponding regulation 1.15A(2)] requirements.
It is important that officers realised that regulation 1.15A(3) factors (a), (b), (c) and (d) – see, respectively, sections 9.3, 9.4, 9.5 and 9.6 below – are not criteria that must all be satisfied in order for the parties to be regarded as each other’s spouse.
The assessment
·should not be based solely on a comparison of the number of factors satisfied against the number that are not satisfied; but rather
·involves considering each individual relationship against all listed factors, and, taking into account any other relevant information presented by the applicant, decided whether on balance the requirements of regulation 1.15A(1A)(b)…
The applicant further argued that the Tribunal failed to apply in this regard the relevant policy contained in PAM3 relating to regulation 1.15A(3)(c) which provides:
9.5 Social aspects
Reg 1.15A(3)(c)
Officers may be satisfied on the basis of some or all of the following:
·indications that the relationship has been declared to other government bodies and commercial/public institutions and authorities and acceptance of these declarations by these bodies;
·statements of parents, family members, relatives, friends and other interested parties. Statements in the form of statutory declarations are preferred as, under policy, they carry more weight;
·joint membership of organisations or groups, documentary evidence of joint participation in sporting, social or other activities; and
·joint travel.
The applicant argued that the Tribunal did not involve itself in the balancing exercise required by the legislation and that what was required was that each of the subsections in regulation 1.15A(b)(3) be considered, not necessarily satisfied. It was the applicant’s submission that in particular the Tribunal failed to consider one of the most indicative factors of a spousal relationship – that is, that the applicant and the nominator were the parents of a child.
The applicant pointed out that the parentage of the child was never questioned. The relationship prior to or at the time of conception was never raised by the Tribunal as an issue. Further it is clear from the transcript of the Tribunal hearing that the child was actually present at the hearing before the Tribunal member. According to the transcript, the Tribunal member made the following remark at the hearing [Supplementary Court Book, p.14):
Thank you very much, and now your extra little witness has been very good. How old is she now?
Yet in the Tribunal’s reasons for decision, it stated [Court Book p.80]:
The nature of the household
No evidence was provided. According to information on the application form (Form 47SP), character assessment form (Form 80) and information provided at the Departmental interview, the parties commenced living together, with friends, in Robinvale, Victoria, sometime in April 1999. According to the delegate’s notes of the interview, the parties stated that they were unable to produce any co-habitation documents because they were ‘constantly on the move and therefore there was no proof that they resided in the one home together’ (D1, f51). At the hearing the visa applicant reiterated her inability to produce evidence.
This ignores the fact that regulation 1.15A(3)(b) requires the Minister to have regard to all of the circumstances of the relationship including in particular:
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any;…
The respondent in its contentions says that it is clear from paragraph 32 of the Tribunal’s decision [Court Book p.82] that the Tribunal did consider the matter of the child as follows:
Aside from the certificate of marriage and the birth certificate for the child, and two declarations of work colleagues, there is no evidence to substantiate the claim of a spousal relationship between the visa applicant and her sponsor. No evidence has been provided about financial aspects of the relationship, or of the nature of the household, or of social aspects (photos that the visa applicant claims she showed to a departmental officer are not on file). The lack of evidence makes it difficult to concluded that there was a genuine relationship. The Tribunal finds that the visa applicant does not meet the test of regulation 1.15A as the spouse of another person.
But all the Tribunal is doing here is looking at the birth certificate but not the underlying fact in relation to it, that is, that there was a child and that it was a child of the parties. I am satisfied that the decision was either a failure to deal with the relevant PAM3 or a failure to deal with an integer of the claim. The existence of the child of the union was not simply a piece of evidence but it was a relevant consideration which the Tribunal was bound to take into account. In this regard the child of the parties must be considered as a time of decision criterion (regulation 820.221(3)(b)(ii)). The Tribunal in my view did not address the claim as put by the applicant. This amounts to a fundamental misunderstanding of its task, amounting to jurisdictional error.
The second and third aspects of the applicant’s claim are based on the alleged failure by the Tribunal to consider recognition by government bodies and to consider the issue of joint travel by the parties. It is contended the Tribunal had before it evidence that the relationship had been declared to three government bodies and that those bodies had accepted the declaration. Firstly, it is argued there is the birth certificate which shows the applicant and the nominator are the parents of a child and that they live together at the same address which coincides with the latest address shown on the application. Secondly, it is contended that the reference to Centrelink in the Tribunal’s letter pursuant to s.359(c) of the Migration Act [Court Book p.58] establishes that there was material before the Tribunal that the applicant had declared she was no longer in a spousal relationship with her husband. The applicant argued it was logical that prior to this there had been a declaration to Centrelink to the contrary. Thirdly, the applicant submitted there are the interim and final intervention orders which involved the applicant declaring to the Robinvale Magistrates’ Court that she was an aggrieved family member in that she was the spouse of the defendant to those proceedings. I am satisfied the Tribunal effectively discounted this because of its primary finding that the applicant was not in a spousal relationship at the time of the application. This in effect misunderstood the nature of the document and discounted its use in determining the prior issue (of the spousal relationship).
Further the Tribunal failed to have regard to policy with respect to these three documents and it did not apply the reasoning in Bretag v Minister for Immigration, Local Government & Ethnic Affairs (29 November 1991, Unreported, Federal Court) per O’Loughlin J (“Bretag”), in that it did not look to or consider the subsequent history to establish the existence of an earlier fact relevant to the issue to be determined. I am satisfied that the Tribunal did not consider the evidence in the manner mandated in Bretag.
The Tribunal also failed to consider the issue of joint travel. The applicant contended that she could not provide the usual evidence of joint travel because her husband was an itinerant fruit picker. Her evidence that they lived at Robinvale is supportive of joint travel in that Robinvale is a well-known location for itinerant workers.
The applicant submitted that these failures with respect to considering the recognition by government bodies and the issue of joint travel are a failure to take into account relevant considerations. Indeed I am satisfied in this regard that the Tribunal failed to address the application put before it and failed to properly exercise its jurisdiction.
It is therefore not necessary to determine the final aspect of the applicant’s claim which was based on what the Tribunal said at the conclusion of the hearing [Supplementary Court Book, p.14]:
Okay. Thank you. That’s all we can do at this stage, I think, and we’ll probably – I think, given the circumstances, we’ll need to write to you through your agent about whether there’s additional information required. Okay. No other questions you have?
The Tribunal clearly indicated to the applicant it would seek further information from her before providing a decision and it did not do this. Whether this led to any practical injustice is in my view not clear.
However for the reasons outlined above I am satisfied that the Tribunal failed to take into account relevant considerations and thereby fell into jurisdictional error. The decision of the Tribunal should be set aside with costs, and the matter remitted for reconsideration and I order accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 18 October 2005
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