Usman v MIMIA
[2005] FMCA 966
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| USMAN & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 966 |
| MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether the Tribunal fell into jurisdictional error in finding that the applicant had not discharged the evidentiary burden that the second applicant was wholly or substantially in the applicants legal care and control – whether the Tribunal fell into jurisdictional error in its exercise of its discretion under section 359C of the Migration Act 1958 – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.359, 359A, 359B, 359B(4), 359C, 359C(2), 360, 360(1), 360(3), 363A, 359(1), 359(2),
Migration Regulations 1994, regs, 1.03 1.15
Federal Magistrates Court Rules 2001, Part 11, rule 11.11
Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 109 FCR 152
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) CLR 323
Sivasubramaniam v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1034
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Abebe v Commonwealth (1999) 197 CLR 510
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441
Azzi v Minister for Immigration and Indigenous Affairs [2002] FCA 24
W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 407
M159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 16
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S20/2002; A [2003] HCA 30
ABC World Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 934
| Applicant: | HIDAJAT USMAN & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2396 of 2004 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 7 July 2005 |
| Date of Last Submission: | 8 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That pursuant to Part 11, Rule 11.11 of the Federal Magistrates Court Rules 2001 the first applicant is appointed as the Litigation Guardian of the second applicant.
That the Migration Review Tribunal be joined as a party.
That the first applicant pay the respondent’s costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2396 of 2004
| USMAN & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by an application filed in the Federal Court of Australia on 11 June 2004 and transferred to this Court on 14 July 2004. The application challenges the validity of a decision of the Migration Review Tribunal (“the Tribunal”) made on
26 May 2004. By that decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants visas.
The applicants are father and son. The first applicant, who is a citizen of Indonesia, arrived in Australia on 12 December 1998 on a subclass 676 (Short Stay (Visitor) visa. The second applicant arrived in Australia on 15 June 1997 on a student visa which expired on
31 December 2002.
On 12 September 2003, the applicants filed an application for review of the delegate’s decision with the Tribunal.
Grounds for review
There are two grounds upon which the applicants say the Tribunal fell into jurisdictional error, namely:
(1)Finding that the applicant did not discharge the evidentiary burden to satisfy itself that the second applicant was wholly or substantially in the care and control of the first applicant; and
(2)the exercise of its discretion under s.359C of the Act.
Ground 1 contentions
It was contended for the applicants that there was additional information in the documents before the Tribunal relevant to the question of whether the second applicant was wholly or substantially in the care and control of the first applicant, but which the Tribunal ignored. The information which the applicants say was relevant is the first applicant’s visa application filed on 4 March 1999 wherein the first applicant indicated that he had “legal custody” of the second applicant and that no other person had custodial, access or guardianship rights for the second applicant. This evidence was also in the form of a statutory declaration. The second piece of information which the applicants say the Tribunal ignored is the fact that on 23 December 2002 both the first applicant and the second applicant attended an office of the Department to arrange a student visa for the second applicant.
It was contended that the first applicant’s visa application was a relevant piece of information in that it revealed that the second applicant was wholly or substantially in the care and control of the first applicant. Counsel for the applicants submitted that the Tribunal decision indicates that the Tribunal overlooked the information. In this regard the applicants contend that s.359(1) of the Act applies to this information and if the Court were to accept that the Tribunal failed to have regard to it in making the decision under review there is jurisdictional error. In pressing this contention the applicants relied upon the decision in Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 109 FCR 152. In the alternative it was contended that under general administrative law principles, the Tribunal was required to have regard to information supplied to it by the applicant and where a Tribunal fails to have regard to relevant information, it can give rise to a jurisdictional error (See Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) CLR 323 at [82]; Sivasubramaniam v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1034 at [48]-[52]).
It was further contended for the applicants that the Tribunal was aware of the fact that the second applicant had applied for a student visa in December 2002. The second applicant’s student visa application was determined by a differently constituted Tribunal in Brisbane on 10 December 2003. It was contended for the applicants that the file contained material relevant to the student visa applicant before the Tribunal in Sydney, namely that the second applicant was “wholly or substantially” in the first applicant’s care and control. In particular, the applicants contend that the following information was not considered by the Tribunal:
·the second applicant indicated that he resided at the first applicant’s address;
·the first applicant stated that he had legal custody of the second applicant;
·the first applicant indicated that the second applicant was his dependent child;
·the first applicant declared that the “custody, access or guardianship rights of another person” will not be affected if student visa was granted;
·the first applicant paid the application fee for the visa application;
·there is an indication that the first applicant was the person who had legal custody of the second applicant;
·A radiological report dated 23 December 2002 which indicates that the second applicant was wholly or substantially in the care and control of the first applicant;
·A medical examination report dated 8 May 2003 which indicates that the second applicant was wholly or substantially in the care and control of the first applicant; and
·A file note which appears to be a computer printout from the Department (undated) in which the author writes:
Lives on shore with Dad and uncle.
On 19 September 2003, the Tribunal wrote to the Secretary of the Department requesting all documents and information relevant to the decision made on 26 May 2004 together with any written arguments. On the same date the Tribunal wrote to the first applicant advising him that information relevant to his application had been sought from the Department and inviting him to provide any information upon which he wished the Tribunal to rely. The letter states:
I have requested from the Department of Immigration and Multicultural and Indigenous Affairs a copy of all documents that relate to your application. You should provide any documents or written arguments you wish the Tribunal to consider and which you have not already provided to the Tribunal or the Department.
The applicants claimed that although the Tribunal is limited as to how it can make its own inquiries it should have made inquiries with the Department so as to obtain the second applicant’s student visa application file. The Tribunal was aware of the student visa application and on the submission of Counsel for the applicants it was likely that the second applicant’s student visa application file contained documents relevant to the question of whether the second applicant was wholly or substantially in the first applicant’s care and control failure to obtain the copy of the student visa file gave rise to jurisdictional error.
Also on 19 September 2003, an officer of the then Department of Immigration and Multicultural Affairs (“the Department”) wrote to the first applicant and requested a number of documents to support his visa application.
On 11 March 1999, the first applicant’s brother wrote a letter to the effect that the first applicant lived with him and was being supported by him. I note that that letter did not make mention of the second applicant.
On the same date, the first applicant signed a statutory declaration declaring to the Department that he was no longer in a relationship with his son’s mother and that he would provide information about the termination of that relationship and consequent custody arrangements as soon as possible. He indicated that he was awaiting the consent of the second applicant’s mother. No further material was provided to the Department for approximately two years.
In a letter dated 11 April 2001, the Department noted that it was still awaiting outstanding material, including original police clearance certificates from both Australian and Indonesian authorities, evidence as to the termination of the first applicant’s relationship with the second applicant’s mother and certificates relating to custody arrangements for the second applicant. In late 2002, the first applicant made enquiries with the Department about his visa application at the time of arranging a student visa for his son. No further material was provided for almost two years. (I note that a police clearance certificate was provided in August 2004).
On 4 February 2003, an officer of the Department again wrote to the first applicant seeking the outstanding material including an Indonesian Police Check and custody documents relating to the second applicant. That letter also indicated that as no documents had been received, the Department proposed to make a decision within 14 days.
On 5 June 2003, an officer of the Department again wrote to the first applicant requesting evidence of the custody arrangements for the second applicant. No evidence was provided.
On 29 August 2003, a delegate of the Minister refused to grant the first applicant a visa. The delegate’s decision was based on a number of grounds including the failure to provide sufficient information as to the custody arrangements for the second applicant.
Ground 2 contentions
It was contended for the applicants that the Tribunal fell into jurisdictional error in the exercise of its discretion under s.359C of the Act.
On 28 January 2004 the Tribunal sent a letter of invitation pursuant to s.359C to the applicant requesting three pieces of information within 28 days. The letter stated:
Section 359(2) of the Migration Act allows the Tribunal to invite a person to give it additional information that is relevant to the review of a decision.
Accordingly, the Tribunal now invites you to provide the following additional information:
·You have a son who you claim is dependent on you. Despite a number of requests by the Department you have failed to provide evidence that you have custody of this boy. This evidence is required to assist the Tribunal in its consideration of whether you have “daily care and control” of your son. Please refer to policy guidelines attached. In addition, please provide a statutory declaration from Ms Jeanet Cuicy Kuhon stating that she agrees to your son migrating to Australia with you; and
·Indonesian police check.
You are invited to provide the requested information, in writing, within 28 calendar days of the date of notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation 7 working days after the date of this letter. Please note that ‘working days’ do not include weekends or public holidays.
If you are unable to provide the requested information within this period, you may request in writing that you be allowed time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.
If the Tribunal does not receive the requested information within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain the information. In addition you will not be entitled to appear before the Tribunal.
On 27 February 2004 the applicant requested an extension of time to obtain the information the Tribunal requested. The relevant letter stated:
We are currently preparing our submission but are still waiting from two documents from Indonesia namely the Police clearance and Statutory Declaration from Ms. Kuhon.
Our client had to get his finger prints verified and sent to Indonesia to obtain the police clearance certificate. Our client expects to get the certificate in another 3 weeks time. Our client is also having difficulty locating his former spouse because our client has been separated for more than 8 years.
Due to the delay in getting the above documents, we would like to respectfully request that the Tribunal may perhaps provide us with an extension of one month to lodge our submission.
On 9 March 2004 the Tribunal wrote to the applicant granting an extension of time to 15 April 2004. It also stated that:
If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal.
On 29 April 2004 the first applicant (through his migration agent) faxed to the Tribunal one piece of the information and indicated that steps were being taken to obtain a second of the three pieces of information requested. According to the Tribunal records these documents were received on 12 May 2004. The Tribunal then proceeded to make a decision on the review without taking any further action to obtain the additional information.
It was contended for the applicants that the Tribunal decision in relation to the exercise of its discretion under s.359C indicates that the Tribunal believed that it did not have a discretion, that it had, accordingly, misconstrued s.359C and thus failed to make a decision in relation to the exercise of its discretion.
Findings Ground 1: The care and control issue
The Tribunal correctly noted and set out clause 806.213 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). It was aware that at the time of application for the grant of the subclass 806 visa the first applicant was required to be a “remaining relative” of another person who had validly nominated the first applicant for the grant of the visa. The Tribunal considered the term “remaining relative” defined in regulation 1.15 of the Regulations. The applicable definition is:
(1)An Applicant for a visa is a “remaining relative” of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the Applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the Applicant; and
(b) the other person is usually resident in Australia; and
(c)if the Applicant or the Applicant’s spouse (if any) has an overseas near relative:
(i)the Applicant and the Applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and
(ii)neither the Applicant nor the Applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the Application; and
(d)the Applicant and the Applicant’s spouse (if any) together have not more than 3 overseas near relatives; and
(e)if the Applicant is a child who:
(i)has not turned 18; and
(ii)has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas –
at the time of making the Application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2)In this regulation:
Overseas near relative, in relation to an Applicant, means a person who is:
(a)a parent, brother, sister, step-parent, step-brother or step-sister of the Applicant or of the Applicant’s spouse (if any); and
(b)a child (including a step-child) of the Applicant or of the Applicant’s spouse (if any), being a child who:
(i)has turned 18 and is not a dependent child of the Applicant or of the Applicant’s spouse (if any); or
(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the Applicant or of the Applicant’s spouse (if any) –
other than a relative of that kind who:
(c)is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen; and
(d)is usually resident in Australia.
(3)For the purposes of paragraphs 1 (c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.
The Tribunal considered whether at the time of application the first applicant was a remaining relative as prescribed by clause 806.213 and was validly nominated by a person who satisfies the requirements of clause 806.213. In making its assessment of this requirement the Tribunal had regard to both legislation and to the considerations set out under departmental policy.
The Tribunal found that the first applicant was nominated at the time of application by his brother (the nominator) who for the purposes of clause 806.213 was an Australian citizen and settled as defined in regulation 1.03 as a lawful resident of Australia for a reasonable period of time.
The Tribunal went on to consider the definition of remaining relative in regulation 1.15. In its decision the Tribunal set out all of the requirements in that regulation. It considered regulation 1.15(1)(a) and found that the first applicant met that requirement. In relation to regulation 1.15(1)(b) the Tribunal found that at the time of application and the time of decision the nominator was usually resident in Australia. In relation to the third requirement the Tribunal considered the definition of “overseas near relative” in regulation 1.15(3).
It considered the first applicant’s claims that at the time of application he was not in a spousal relationship. It also considered the first applicant’s claim that he had a child from a previous relationship, included in his visa application. In assessing whether the second applicant met the definition of “overseas near relative”, the Tribunal had regard to whether the second applicant was “wholly or substantially” in the daily care and control of the first applicant. It relied upon policy in its assessment of the term “daily care and control” and at paragraph [36] of its decision it set out the relevant policy. Viz:
15.5 Minor children and daily care and control
‘Care and control’ itself relates to those rights and powers concerning the day-to-day upbringing of a child. A parent with the care and control of a child has the power to make ordinary decision concerning, for example, how the child shall go to school, the food the child shall eat, the time the child shall go to bed, discipline the clubs to join and the sports to play.
Care & Control and custody
Although ‘care and control’ and custody are quite separate concepts, officers may generally accept that ‘substantial care and control’, in effect, requires the parent concerned to have ‘custody rights’ over the child i.e. generally, a child is incapable of being ‘in the daily care and control’ of a parent (in this case, the visa 115/835 applicant) unless in the parent’s custody.
If only custody rights have been given
It is open to officers to more closely examine claims that a minor child is already substantially in the parent’s daily care and control (and, it follows, is not an overseas near relative) if the parent has only been given custody rights over the child. This is because formal (or informal) transfer of custody does not, in itself, mean that the child is ‘wholly or substantially in the daily care and control’ of the new custodial parent.
Daily care and control
Officers should also note that ‘daily care and control’ can be delegated without compromising rights of the parent. It is not necessary for children to reside with their parents in order to be under the parents’ daily care and control. This allows children at boarding school, for example, to be considered to be within the daily care and control of their parents.
Testing claims
As a matter of policy, the “test” to be applied is whether the parent (visa 115/835 applicant) exercises at least some care and control over the child, taking into account
·whether money has been provided to assist in maintaining child and parent;
·whether there is regular contact between child and parent;
·whether they visit each other;
·whether there is any consultation in daily matters affecting the child (health, discipline, school etc);
·whether the parent gives advice on education, religion and other longer-term issues.
If none of these requirements can be met, the parent is not regarded as having ‘daily care and control’. Even if some or most of these requirements are met, it is still open to officers not to accept (i.e. without further documentary proof) the applicant’s statements (and/or any documentation submitted with the visa application) that the child is substantially in their daily care and control. If the decision maker is not satisfied, the onus of proof rests with the applicant.
The Tribunal found that the second applicant had been in Australia since June 1997 save for a fortnight in April 1998 when he travelled out of Australia with the first applicant’s mother.
The Tribunal also found that the first applicant had not provided evidence of any orders in relation to the custodial arrangements for the second applicant. It accepted that although a custodial order may not be indicative that the second applicant was in fact wholly or substantially in the first applicant’s daily care and control, it would be a strong indicator that this was the case. Moreover, it considered the impact of clause 806.225 which states:
The Minister is satisfied that the grant of the visa to the applicant would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the applicant or a dependent child of the applicant.
The Tribunal had regard to the statutory declaration of the second applicant’s mother which was faxed to the Tribunal on 29 April 2004 and stamped as being received on 12 May 2004 (which was outside of the extended timeframe given by the Tribunal on 9 March 2004). The contents of the declaration indicated that the second applicant’s mother consented to him remaining permanently in Australia and consented to the second applicant being in the care and control of the first applicant. The Tribunal found that the contents of that declaration did not “without more” discharge the evidentiary burden of the first applicant to satisfy the Tribunal that the second applicant was in fact wholly or substantially in the daily care and control of the first applicant. In other words “without more” in this context meant that the Tribunal was not satisfied that the statutory declaration was of itself sufficient to satisfy the Tribunal that the second applicant was wholly or substantially in the daily care and control of the first applicant without further corroborating evidence.
It is apparent that the Tribunal was aware of the first applicant’s claim the he had legal custody of the second applicant. The letter of invitation sent by the Tribunal on 28 January 2004 is a strong indication that it was aware of this claim. Moreover, the Tribunal in its reasons for decision set out the in great detail the position of the delegate in requesting the same information. At paragraphs [11]-[23] the Tribunal said:
On 4 March 1999, the primary visa applicant was sent a letter requesting further information within a specified time. The information requested was a Form 80, medical examination for both visa applicants, original Indonesian and Australian police certificates, the birth certificates of the nominator and statutory declaration regarding the breakdown of his de facto and custody arrangements.
A Form 80, statutory declaration regarding previous relationships and nominator’s birth certificate were provided. The nominator’s birth certificate states that Kim Hoen Oey is the nominator’s stepmother, and that he “had been legally adopted from” 19 October 1966. The father’s name is Mr Hok Lai Ong. A certified copy of the nominator’s passport has also been provided. In the primary visa applicant’s statutory declaration regarding his previous spouse relationships it appears that he has referred to 2 prior relationships. The first is “with former spouse, named, Go (So) Lee Giem” and the second reference is to “the mother to my son Oscar Chandram named, Jeanet Ceicy Kuhon”. He concludes by stating that he is awaiting written consent by the secondary visa applicant’s mother regarding custody.
On 12 March 1999, the primary visa applicant applied for permission to work while holding a bridging visa. The nominator has included a statement that the review applicant is living with him.
On 2 August 1999, the primary visa applicant forwarded an Australian police certificate dated 20 April 1999.
On 11 April 2001, a further request for documentation was sent to the primary visa applicant. The following was requested: separation certificate of spouse, birth certificates and/or custody documents of dependents, medical checks for visa applicants, original Indonesian police check and Assurance of Support form 28.
The primary visa applicant attended the Department offices to arrange a student visa for the secondary visa applicant on
23 December 2002. At the same time, he enquired about their subclass 806 visa application and was advised that he would be contacted.
On 4 February 2003, a final letter for the outstanding information was sent to the primary visa applicant. The letter requested: evidence of separation from spouse; custody document of son; medicals for both parties; police clearance for Indonesia and Assurance of support. The documentation was required within 28 days of the letter and stated that a decision would be made in 14 days.
An assurance of support form by the nominator was lodged with evidence of income in the form of bank statements. The Department sent a letter on 11 March 2003 to the nominator returning his back statements and requesting his Income Tax Assessment for the past 2 financial years or a statement from his accountant detailing net income per week. A fax dated 18 March 2003 from the nominator was received informing the Department that a statement from his accountant would be provided.
A statement from the nominator’s accountants was provided on the same day.
On 8 April 2003, the primary visa applicant provided the following documentation:
·A statutory declaration declaring that he is not currently in a relationship and has no intention “to proceed any relationship to anybody”;
·National police certificates from the Queensland Police Service;
·The original copy of the Certificate from the Civil Records Office of Jakarta (with new translation) regarding the registration by the primary visa applicant. This certificate records the primary visa applicant. This certificate records the primary visa applicant as the secondary visa applicant’s father.
Medical checks were provided by the primary visa applicant which shows that he attended HAS in April 2003 but due to further tests conducted, was not cleared until 1 July 2003. There is a note in the Departmental file that the secondary visa applicant has undertaken his medicals but they have been kept on his student file.
The delegate states that the visas were not granted on the basis that she was unable to conclude that the primary visa applicant meets the definition of “remaining relative” at the time of decision. She decided that he had not “responded with the correct documents in a timely manner” and this did not meet clause 806.213. Further, as an Indonesian police certificate had not been provided to date, she was unable to determine if he met clause 806.223, particularly item 4005 regarding character checking. Lastly, the delegate decided that as the primary visa applicant had not provided evidence of custody of secondary visa applicant, clause 806.225 was not met.
The visa applicant stated when lodging the applications for review that the documents had been obtained and would be submitted.
The question of whether the statutory declaration of the second applicant’s mother was sufficient to satisfy the Tribunal is a question of fact for the Tribunal and its conclusion is one which clearly was open to it. There is no doubt that the Tribunal was aware of all the information on the file including the statutory declaration of the second applicant’s mother and the fact that the first applicant attended the Department with the second applicant to arrange a student visa application. The Tribunal was clearly looking for more substantial documentation. It was quite proper for it to do so.
The student visa application file
On 10 December 2003 a differently constituted Tribunal at Brisbane refused the second applicant a subclass 571 student visa. By that decision the Tribunal affirmed the decision of the delegate not to grant the student visa. No formal orders from Indonesia gave permission for the second applicant to travel to or remain in Australia and no Australian child order was in force.
It was contended for the applicants that the letter of 19 September 2003 was misleading. As noted above there were two letters. The first was the letter to the Secretary of the Department and the second was to the first applicant. The letter to the Department requested all documents and information relevant to the decision and any written arguments to the Migration Review Tribunal in Sydney. In that letter the Tribunal provided details for the review application which included the reference number being Q99/0538, the first applicant’s name and date of birth and the date the application was lodged. On the same date the Tribunal sent a letter to the first applicant indicating that it had requested copies of all documents that related to his application. It also indicated that it was open to the applicant to provide any documents or written arguments he wished the Tribunal to consider and which he had not already provided to the Tribunal or the Department.
I am satisfied that these letters are requests in similar terms. In any event the first applicant has not established that the Tribunal’s letters in fact misled him (See VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [51]). In fact, the first applicant deposes in his affidavit sworn on 2 March 2005:
“because of my depression, I did not respond to the communications from my migration agent and I did not provide some of the information sought. This is the reason why I did not provide the above information concerning the fact that Oscar is wholly and substantially in my daily care and control”.
This in my view is a strong indication that the first applicant was aware the there had been a request made to him and the words quoted are positive evidence that he was not mislead by the Tribunal.
The applicants contended that the Tribunal should have made inquiries with the Tribunal in Brisbane in relation to the student visa file. It is agreed between the parties that the Tribunal knew of its existence. However, the Tribunal was under no duty to inquire. It was open to the applicants to provide material to support their claims (See Abebe v Commonwealth (1999) 197 CLR 510 at [187], per Gummow and Hayne JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441 at [33]-[40]) but it was not up to the Tribunal to go beyond this unless there are circumstances of an exceptional or special character (See Azzi v Minister for Immigration and Indigenous Affairs [2002] FCA 24 at [102], [1134]-[114], per Allsop J; W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 407 at [61]; M159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 426 at [20]-[21], per Weinberg J; SBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 16 at [10]; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [170], per Wilcox J).
I have considered Prasad (supra) and have also had the benefit of looking at the student visa file. I shall now consider the notion that failure to inquire was unreasonable. I have regard to the comments enunciated by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at [230] when he stated:
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere, [and that] to prove a case of that kind would require something overwhelming.
The general rule is that Wednesbury unreasonableness only applies in discretionary cases. There is therefore a question as to its applicability in the present case because the question of whether an applicant is entitled to a visa is not discretionary. However, in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002; A [2003] HCA 30 there appears to be a view that an analogous principle not being Wednesbury unreasonableness applies in relation to fact finding. In other words there is scope for a Court to find that a Tribunal’s fact finding was unreasonable. Having regard to that principle within the circumstances of this case it is clear that the first applicant has merely restated the same claims as those contained in his visa application namely that he had legal custody of the second applicant. The Tribunal made its decision on the same grounds as the delegate, namely that the applicant failed to satisfy public interest criteria 4017 which states:
The Minister is satisfied of one of the following: the law of the applicant’s home country permits the removal of the applicant. Each person who can lawfully determine where the applicant is to live consents to the grant of the visa. The grant of the visa would be consistent with any Australian child order in force in relation to the applicant.
I note the absence of the information required by the Tribunal on the student visa file and that it is the same information that was absent from the first applicant’s visa application. The Tribunal required something more from the first applicant to establish that the second applicant was properly in Australia and properly in his care and control.
In my view this is not a case where it could be said that there was any unreasonableness on the part of the Tribunal in its fact finding process including its failure to obtain the student visa file in circumstances where the first applicant had been repeatedly asked to provide information relevant to the Tribunal’s determination over a period of five years. This is not a case in which there are exceptional or special circumstances which obliged the Tribunal to make enquiries in order to obtain the student visa file. Further, the student file material is merely a restatement of the material in the first applicant’s visa application.
It does not contain the documentary evidence the Tribunal had repeatedly requested. The first applicant could have taken the opportunity afforded to him by the Tribunal to obtain further relevant information to support his visa application and provide it to the Tribunal.
Accordingly, as no jurisdictional error has been established the applicant’s contentions in relation to ground one must fail.
Findings Ground 2: Section 359C issue
The Tribunal found that as the first applicant failed to provide it with all the requested documents pursuant to the letter of invitation dated
28 January 2004 within the specified time the Tribunal would proceed to make a decision on the review without taking any further action. It is apparent on the face of the letter that the Tribunal clearly understood that it had discretion, its powers were expressed in discretionary terms.
Section 359(2) of the Act expressly provides that the Tribunal may invite an applicant to provide additional information. The letter of
28 January 2004 constitutes such an invitation. Moreover, ss.359 and 359A allow the Tribunal to ask for additional information or to comment on adverse information. Section 359B provides mechanisms as to how that is to be done and allows the invitation to give information to be made either in writing or at interview. There is also a power to extend time in s.359B(4) (which the Tribunal did in its letter of 9 March 2004). It was contented for the applicants that if the matter were remitted back to the Tribunal it would be open to the Tribunal to extend time for compliance and then consider the matter again. Clearly, if the decision were quashed it would be up to the new Tribunal to decide what information it required together with the procedure it would adopt. The question is what was done by the current Tribunal. In that regard I note s.359B(4) which states:
If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
The term “if a person is to respond” indicates that the period has not yet expired and so the Tribunal has power to extend time whilst the person is within the time period allowed for response to the original request. Once that period has passed the precondition is no longer available. The person is no longer invited to respond “within
a prescribed period”. The prescribed period had lapsed and with it the power to extend the time had lapsed.
Section 359C is activated when a person fails to give additional information or comments. It is clear that if a request is made and the person fails to respond within the time as in this case, the Tribunal may make a decision on the review without any further action.
Under s.360(1) of the Act there is a duty to invite an applicant to a hearing. Subsection (2) says that that duty to invite does not apply if paragraph (c) subsection 359C(1) applies to the applicant. Consequently, if the Tribunal invites an applicant to give additional information and the applicant does not give the information within the time period he looses his right to appear and the Tribunal may make a decision without taking any further action. Section 360(3) of the Act states:
If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 363A is also relevant. That section states:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have the power to permit the person to do that thing, or to be assisted or represented by another person.
As the applicant failed to comply with ss.359C(1) and (2) he not only lost his right to a hearing but ‘the Tribunal was empowered under s.359C(1) to make a decision without taking any further action to obtain the additional information’ (See ABC World Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 934 at [37], per Barnes FM). It is clear on the face of the record that this is precisely what the Tribunal did. There was no misunderstanding by the Tribunal of its powers. Accordingly, the applicants have not established jurisdictional error and this second contention must fail.
As no jurisdictional error has been established in relation to either ground the application is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 5 August 2005
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