Uranek v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 956

FEDERAL COURT OF AUSTRALIA

Uranek v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 956

Statutes

Administrative Appeals Tribunal Act (1975) (Cth) s 44

Judiciary Act 1903(Cth) s 39B, s 44

Migration Act 1958 (Cth) s 501, s 474, s 483, s 475A, s 476

BOZENA MARIA URANEK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Q26 of 2002

KIEFEL J
BRISBANE
2 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q26 OF 2002

BETWEEN:	BOZENA MARIA URANEK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	2 AUGUST 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs on the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q26 OF 2002

BETWEEN:	BOZENA MARIA URANEK APPLICANT
AND:	MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	2 AUGUST 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Abdelali Byasse (“the visa applicant”), a Dutch citizen, was refused a spouse visa by the Minister’s delegate in Warsaw, Poland. The delegate found that there was evidence of poor past and present general conduct such that the visa applicant did not pass the character test: see s 501(6)(c)(ii) Migration Act 1958 (Cth). The Administrative Appeals Tribunal affirmed that decision on 1 February 2002. Ms Uranek appeals from that decision which is a “privative clause decision” pursuant to s 474 of the Migration Act. Accordingly an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act (1975) (Cth) does not lie from it: s 483 Migration Act.  The Court’s jurisdiction is governed by s 475A and s 476 of the Migration Act. It is limited to applications brought pursuant to s 39B or s 44 of the Judiciary Act 1903(Cth).  Nevertheless the respondent has approached the matter by having regard to the substance of the complaints made by Ms Uranek.

2. There is a division of opinion in this Court as to the extent to which s 474 of the Migration Act operates with respect to a Tribunal decision and the decision of a specially constituted Full Court is pending. It may not however be necessary in this case to express an opinion as to whether a Tribunal decision is effectively shielded from review for jurisdictional error. The respondent submits that even if one accepts that a decision may still be reviewed on that basis, the applicant has not identified any error of law. The matters identified relate to findings of fact, it is submitted.

3. The Tribunal found that the visa applicant had conspired with another person, an Australian citizen, to marry for the purpose of obtaining permanent residency in Australia, although that plan was not carried through.  The Tribunal had evidence by way of a statement from that person and was encouraged to accept it by reference to the fact that the marriage, which took place on 8 March 1996, lasted only a few days and that the visa applicant was in a de facto relationship with Ms Uranek at the time.  Ms Uranek had at least one child by the visa applicant.  The child was born in Australia in May 2000.  The Tribunal considered it likely that two other children, born in 1993 and 1994 were also from that union.  Ms Uranek’s divorce from her former husband, the visa applicant’s brother, had occurred in 1992.  The Tribunal also found that Ms Uranek had falsely claimed a de facto relationship with an Australian citizen when she obtained permanent residency in Australia in December 1996.

4. At the time Ms Uranek and the visa applicant underwent a marriage ceremony in New Zealand, the visa applicant’s last marriage to the Australian citizen was still subsisting.  The Tribunal did not take this into account as a crime committed in Australia, but did not accept the visa applicant’s explanation as to how the marriage came about.

5. The two persons with whom Ms Uranek and the visa applicant were said to have conspired had both provided lengthy statements about the events some years earlier.  They were not able to be located for the hearing.  The Tribunal nevertheless accepted their evidence.  There was other, objective, evidence to support it and there seemed no reason apparent to the Tribunal why two strangers would both manufacture false stories.  Whilst a motive was attributed by Ms Uranek to her alleged de facto husband, no motive for making false allegations was suggested in the case of the person whom the visa applicant had married.  In the Tribunal’s view it was “highly likely” that the two applicants came to Australia seeking a means to acquire residential status and conspired with those persons to do so.

6. The Minister’s delegate had taken into account that the visa applicant had made deceptive statements both with respect to the present application and an earlier application for a business visa which had been made in Los Angeles on 10 April 2000.  The visa applicant had not provided details of all of his previous marriages when interviewed with respect to the current application and the Tribunal did not accept that he had been told that he could provide that information afterwards.  In relation to the earlier application the visa applicant had described Ms Uranek, to whom he was then supposedly married, as his “sister-in-law” and made no reference to a marriage to an Australian citizen or a permanent resident.

7. The Tribunal then considered whether a discretion should nevertheless be exercised in the visa applicant’s favour notwithstanding the assessment on the character test, in accordance with the Minister’s Direction No 21 dated 3 September 2001.  The conduct was however regarded as very serious and deterrence of other such conduct important. Whilst the youngest child was an Australian citizen, he would be recognised as a Dutch child if he returned to the Netherlands with his parents, where there was a broader family group.  The Tribunal did not accept that Ms Uranek had a strong connexion to Australia and had spent a deal of time outside it in recent years.  She had no relatives in Australia and had not been in employment.  There was no reason to suppose that the visa applicant would obtain employment in Australia.

8. The complaints made by Ms Uranek about the decision may be summarised as follows:

   (a)that she was not provided with an interpreter;

   (b) that she had no legal representative;

   (c)that there was no proof that the visa applicant was of bad character, and no evidence of wrong dealings by him with the department;

   (d)that the decision was based on false evidence which was six years old.

   (e)the Minister’s delegate’s statement of evidence was “collaborated”

   (f)the witnesses were not called;

   (h)the well-being of the children was not considered;

   (i)she was not given a chance to defend herself, was interrogated and was not permitted to have her friend and children in the hearing room with her.

9. In her submissions Ms Uranek added that the Tribunal failed to accept that the visa applicant had made honest mistakes in the information he had provided;  it did not analyse the material properly;  relied upon improper evidence and ignored relevant material;  it had wrongly interpreted the Ministerial Direction;  and referred generally to errors of law and jurisdictional errors.

10. No legal error is apparent in the Tribunal’s approach to the Direction.  The applicant seeks a review of the evidence and findings and the Court did not have such a jurisdiction even prior to the recent amendments to the Act.  There was no denial of procedural fairness.  Indeed, although the applicant requested an interpreter for this hearing, and one was provided, it was apparent that she did not need one.  The Tribunal witness could not be located, but their evidence could nevertheless be accepted.  There is nothing to indicate bad faith on the part of the Tribunal.  Its decision was reached after a careful analysis of the evidence and objective facts.  It could not be said to be in any way racially motivated. 

11. The application will be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            2 August 2002

For the Applicant:	In Person
Counsel for the Respondent:	Ms E Ford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 July 2002
Date of Judgment:	2 August 2002