Tran v Minister for Immigration (No.2)
[2005] FMCA 412
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 412 |
| MIGRATION – Permanent spouse visa – whether opportunity given to provide further information – address relied upon by department – obligation of applicant to provide notice of change of address – whether decision-maker obliged to defer decision in absence of material verifying that relationship is genuine and ongoing – no jurisdictional error – whether jurisdiction to consider application – s.476 of Migration Act applies – insufficient evidence of application filed with Migration Review Tribunal. |
| Migration Act 1958, s.476 Judiciary Act 1903, s.39B |
| Tran v Minister for Immigration (No.1) [2005] FMCA 411 |
| Applicant: | THI DONG THAO TRAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 587 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 24 January 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Cheung |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application filed 24 May 2004 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6.250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 587 of 2004
| THI DONG THAO TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application seeking judicial review of a decision of a delegate of the respondent dated 6 November 2003. When the application commenced, it was indicated by the representative for the applicant that an adjournment was sought following a further application for leave to rely upon the applicant's contentions of fact and law dated 6 January 2005. I have dealt with the issue of the adjournment in a separate decision related to this matter (see Tran vMinister for Immigration (No 1) [2004] FMCA 411). In that decision it is evident that I was not satisfied that the applicant had sought review of the primary decision with the Migration Review Tribunal (the MRT) and hence issues raised in relation to the alleged failure by the MRT to consider the decision do not require further consideration.
The delegate's decision in this matter was a decision to refuse to grant an application by the applicant for a permanent spouse visa. It is appropriate to set out the factual background before considering the matters raised for and on behalf of the applicant. The factual background is set out in the respondent's contentions of fact and law and do not appear to be substantially in dispute save and accept that there is an issue raised today in relation to the address of the applicant and whether or not the applicant had indeed received correspondence from the respondent referred to in the delegate's decision. As a result it is argued that the applicant has been denied the opportunity to provide relevant material.
By way of background, it is noted that the applicant is a Vietnamese citizen who had last arrived in Australia on 30 June 1999 on a class 300 prospective marriage visa. The applicant married her husband, Tran Van Cong, on 13 January 2000. Tran Van Cong, the nominator, is an Australian citizen. On 4 February 2000 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs an application for a subclass 801 visa permanent spouse visa. On 9 February 2000 the respondent's delegate granted the applicant a subclass 820 visa temporary spouse visa. Correspondence appears in the court book arising from the granting of that temporary spouse visa. The correspondence, which appears at page 35 of the court book, is addressed to the applicant care of 3 Willow Avenue, St Albans. In the correspondence the delegate states the following:
Generally, permanent residence is not granted earlier than two years from the date of lodgement of your application. This office will contact you around November 2001 regarding your permanent residence application as you will need to supply further evidence that your relationship is ongoing at that stage. You are reminded that the grant of the EETV, extended eligibility temporary visa, does not necessarily mean that you will be granted permanent residence.
The author goes on to state under ‘Change of Circumstances’ the following:
If you change your address, divorce or separate from your partner, have children or otherwise change your circumstances, you are required by law to notify this department in writing as soon as possible.
On 6 June 2000 the nominator lodged with the department a statutory declaration in which he states the following:
My wife left me soon after I submitted an application to the Department of Immigration. I've tried to search for my wife and discussed our future. Until now my wife is no longer wish to remain with me as husband and wife. I have made up my mind and I reached a final decision that I no longer wish to support Ms Tran Thi Dong Thao to remain permanently in Australia because we are no longer lived together.
The statutory declaration lodged on 6 June 2000 from the nominator also provides a further address where the nominator claims the applicant then lives, namely, 2 Apollo Place, Ardeer. By a letter dated 7 June 2000 (court book page 38), the respondent's delegate states to the applicant care of the address 2 Apollo Place, Ardeer, the following:
The department has received information to suggest that the spouse relationship on which your application is based is no longer continuing.
In that letter there is a reference to the applicant being required to contact the author within 28 days of the date of the letter and reference is also made to the prospect that a decision may be given in circumstances where it would appear the relationship has ended. Significantly, the letter also states the following:
Please note: it is your legal responsibility to notify this department of any change of address and any changes of circumstance concerning the application.
I note for the sake of completeness that that letter has a handwritten notation on it which states the following:
Couple have reconciled. We will get letter from Lisa Tran to this effect.
That notation is dated 21/6/2000. A further statutory declaration was lodged by the nominator dated 24 June 2004 (court book page 39). In that statutory declaration reference again is given to the address 3 Willow Avenue, St Albans. The nominator declares that he wishes to withdraw the statutory declaration dated 3 May which he claims was sent -
because my wife and I had an argument in relation to start a family this year. I am 31 years old. I wish to have children soon with my wife but my wife wish to work and save some money before we have start a family. Therefore my wife went to stay her relative's place. During this period we still see and care for each other.
The statutory declaration goes on to say:
My wife have reached to an agreement. My wife came home with me and we are currently living together. I still love and care very much for my wife. I apologised for my statutory declaration if it has caused any inconvenience for your assessment.
…
I have contacted your office in relation to my previous statement. Mr John McLaughlin advised me that I must provide a statement to clarify it. I, Tran Van Cong, state that I continue to support my wife Tran Thi Dong Thao for a grant of permanent residence in Australia. My wife and I are currently living together.
It appears from the court book that an Appointment of Person to Act as Agent was lodged with the department on 27 June 2000. In that document the applicant requests that future correspondence from the department or the respondent's delegate be sent to her representative. On that form the applicant refers to her residential address as 3 Willow Avenue, St Albans and otherwise gives the address of the agent. The name and address of the agent which is given is Global Interchange Australia Pty Ltd, 163 Barkly Street, Footscray.
It would appear that on 2 April 2002 further correspondence had previously been forwarded to the applicant's representative requesting the further documentation to which I have referred, namely, the second statutory declaration. That item of correspondence is not included specifically in the court book, though referred to in the background and claims of the delegate's decision at court book page 75. An item of correspondence which does appear in the court book dated 7 March 2003 addressed to the applicant care of her agent at the agent's address appears to have been forwarded by registered post on the date of the letter. A request is then made of the applicant to provide further information, including statutory declarations from the applicant and the nominator confirming the genuine and continuing nature of their relationship. A letter dated 13 March 2003 from Global Interchange Australia Pty Ltd addressed to the department states:
I have received some documents from your office about the above‑named. I wish to inform you that I am no longer acting for the above‑named for your information.
By letter dated 27 March 2003 from the department to the applicant and the nominator, the department effectively repeats earlier correspondence dated 7 March 2003. It is noteworthy that that correspondence is forwarded to the then known residential address of the applicant, 3 Willow Avenue, St Albans. I am satisfied and I accept that throughout the process it would appear that the applicant has provided as a residential address the address of 3 Willow Avenue, St Albans. It would appear that the delegate did not receive a reply. It is claimed in the delegate's decision that an attempt was made to contact the applicant on 30 May 2003. A person purportedly answering the phone advised that he did not know anyone by the name of the applicant. On 6 November 2003 the respondent's delegate refused to grant the applicant a permanent spouse visa. The delegate stated that the applicant had not supplied any evidence to suggest she was satisfied that the requirements of clause 801.221 of part 801 of schedule 2 to the Migration Regulations (the Regulations). Reference is made to the requirements of those regulations and it is not necessary for me to recite them in detail. The delegate observed there was no evidence to suggest the nominator had died or that the nominator had committed domestic violence against the applicant.
The delegate considered other subclauses and otherwise states, relevantly, the following, which appears at page 76 of the court book:
The applicant has been requested on no less than four occasions to provide standard documentation to confirm that the relationship is genuine and continuing but has failed to do so. I consider that the applicant has been offered a reasonable opportunity to provide the necessary information and according to section 55 of the Migration Act I am not obliged to defer my decision because further information might possibly be forthcoming at some time in the future. As I have no evidence before me to confirm that the relationship between the two parties is genuine and ongoing, I am unable to make a positive conclusion in this respect.
As a result, the delegate refused to grant the applicant a permanent spouse visa. The decision refusing to grant the visa was forwarded under cover of letter dated 6 November 2003, which I note was sent to two addresses: 2 Apollo Place, Ardeer, and 3 Willow Avenue, St Albans. For present purposes, the inclusion of a reference to that letter in the delegate's decision as having been sent and a notation that it was sent registered 6/11/2003, together with the date of the letter and the address which I have found appear to be the consistent residential address of the applicant, namely, 3 Willow Avenue, St Albans, satisfies me that that correspondence and earlier correspondence which appears in the court book and to which reference has been made in any event by the delegate, though a copy is not available in the court book, were sent to the address on the date as indicated. I am satisfied that is an appropriate method of communication in the absence of notification by the applicant of a change of address or an alternative address. It is not a matter, in my view, for the respondent to undertake a search regarding the whereabouts of an applicant in order to forward correspondence in circumstances where there is clearly a chain of correspondence, including the filing of further statutory declarations, which provide a sufficient basis upon which the respondent could properly and appropriately regard the address of 3 Willow Avenue, St Albans as the current relevant residential address of the applicant at all material times.
An issue has been raised by the respondent that in this instance the delegate's decision was a primary decision in respect of which the court does not have jurisdiction. In considering whether there is an arguable case in relation to the application for adjournment, I have found that in the circumstances, subject to other issues concerning the alleged filing of an application to the MRT, that this would appear to be the case and that s.476 of the Migration Act 1958 would apply so that this court does not have jurisdiction in relation to a primary decision. I am satisfied the decision of the delegate to which I have referred earlier is indeed a primary decision. That preliminary issue effectively deals with the application and would lead the court to dismiss the application were it not for the suggestion made in submissions to the court and perhaps made indirectly in the application that there is a jurisdictional error which has occurred.
It seems to me that in the circumstances where there is no evidence in a proper form to support a suggestion that there had been an application lodged with the MRT, that the court should not act upon the assumption that there was indeed an application lodged. If it was lodged, according to the submissions for and on behalf of the applicant, it would appear to have been lodged within time and it is difficult to understand how it would then be, as suggested by the respondent, declined to be considered by the MRT. In any event, there is simply insufficient evidentiary basis before this court currently which would enable this court to make a finding that there had indeed been an application filed or attempted to be filed with the MRT. In the original application filed with the court the orders sought were orders simply seeking judicial review pursuant to s.39B of the Judiciary Act 1903 and prerogative writs. Relief sought arising out of the claimed failure by the MRT to entertain the application for review cannot succeed in circumstances where I am not satisfied that an application had indeed been filed with the MRT.
An issue which was agitated before the court this day was the issue of whether or not correspondence forwarded by the respondent had indeed been forwarded to the applicant. As I have indicated, I am satisfied not only in relation to the correspondence of which copies appear in the court book, but also reference to dates and correspondence in the delegate's decision, together with the statutory declaration material referring to the address and my finding that the address of 3 Willow Avenue, St Albans has been the residence of the applicant throughout. All the items of correspondence referred to in the court book were indeed forwarded to the applicant care of the relevant address. I am not satisfied that there has been any failure to properly forward correspondence to the applicant. Even if I were satisfied that on occasions some items of correspondence were not received by the applicant, that would not, in my view, be a proper basis upon which this court could conclude that there has been jurisdictional error.
In relation to the delegate's decision, I cannot see any jurisdictional error in the reasoning of the delegate who had made a decision with appropriate reference to the relevant regulations, had considered the material then before the delegate and, albeit including material which in a sense was clearly contradictory, that is, the first and second statutory declarations of the nominator, it was clearly open to the delegate to seek, as the delegate did, further evidence from the applicant which was not forthcoming. The failure to provide that evidence led inevitably to a conclusion in relation to the facts, applying the relevant regulations, that the appropriate visa would be refused. I cannot see in the reasoning process of the delegate, nor in the procedure adopted in relation to the forwarding of correspondence any error of a kind which would enable this court to conclude that there has been jurisdictional error. It follows that the application should be dismissed.
It is appropriate to make an order for costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 24 January 2005
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