Vo v Minister for Immigration & Anor
[2007] FMCA 767
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 767 |
| MIGRATION – Partner (Provisional) (Class UF) visa – whether review applicant living in de facto relationship with another man – whether Regulation 1.15A is valid – whether duty to enquire under ss.359, 359B and 363 of Migration Act – no jurisdictional error – application dismissed. |
| Migration Act 1958 Marriage Act 1961 |
| Le & Ors v Minister for Immigration & Anor [2007] FMCA 427 Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1308 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 |
| Applicant: | TRAN VO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1189 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 26 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F.L. Krohn |
| Solicitors for the Applicant: | Koenig & Simons |
| Counsel for the First Respondent: | Ms S.A. Burchell |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1189 of 2006
| TRAN VO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application Mrs Tran Vo ("the Review Applicant") seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 18 August 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant a Partner (Provisional) (Class UF) visa ("the partner visa") to Mr Minh Tang Vo ("the Visa Applicant").
The Review Applicant is an Australian citizen. She was born on 1 July 1983. On 23 January 2003 the Visa Applicant and the Review Applicant were married and registered their marriage in Vietnam.
On 26 June 2003 the Visa Applicant lodged with the First Respondent's Department an application to migrate to Australia on spouse grounds (Court Book pp.1‑75). In particular he applied for a Partner (Provisional) (Class UF) visa, subclass 309 (Spouse Provisional). The Review Applicant sponsored the Visa Applicant.
On 28 October 2003 the Visa Applicant attended an interview with a delegate of the First Respondent. On 10 November 2004 the First Respondent's Department conducted simultaneous home visits at an address in Union Street, Sunshine ("the Sunshine address") and an address at Ballarat Road, Footscray ("the Footscray address").
A delegate of the First Respondent refused to grant the visa to the Visa Applicant. The Review Applicant sought review of the delegate's decision on 20 December 2004. That application for review of the delegate's decision was made by the Review Applicant as sponsor of the Visa Applicant's application.
On 14 February 2006 the Tribunal wrote to the Review Applicant's representative and requested that she provide additional information about the circumstances of her relationship with the Visa Applicant (Court Book pp.146-149). That letter did not appear to be directed to specific details but rather the Tribunal simply stated in part the following:
“In reviewing your case, the Tribunal must assess whether you and your partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and whether the relationship between you and your partner is genuine and continuing. The Tribunal invites you to provide further information that is relevant to these issues. …”
The Tribunal then in its letter attached a sheet of what it describes as:
“… examples of the type of evidence you can provide.”
By letter dated 15 March 2006 (Court Book p.158) the Review Applicant's legal advisers responded to the Tribunal request for additional information. Material was provided, including an additional statement, letters, phone accounts, together with what are described as miscellaneous cards and receipts. The material provided, including the statement, referred to the Review Applicant visiting the Visa Applicant in Vietnam. The covering letter specifically stated:
“We believe all of the enclosed evidence along with the fact that the husband has visited her husband in Vietnam on five occasions is considerable evidence in illustrating the couples commitment to each other” (sic)
(Court Book p.158)Presumably that paragraph is meant to refer to "the Review Applicant" visiting her husband in Vietnam.
In any event, the Tribunal, pursuant to s.359A of the Migration Act 1958 ("the Migration Act") forwarded a letter to the Review Applicant dated 25 May 2006 (Court Book pp.178‑179). In its s.359A letter the Tribunal invited the Review Applicant to comment on information which the Tribunal considered would be a reason or part of a reason for affirming the decision under review.
That letter raised what has become a significant and central issue in this application, namely whether the Review Applicant was living in a de facto relationship with another man, namely Mr Van Bao Nguyen ("Mr Nguyen"). The s.359A letter relevantly states:
“In your application for review, you stated that you were not living in a de facto relationship with Mr Van Bao Nguyen and informed the Tribunal that Mr Van Bao Nguyen had been granted a Spouse visa. You claimed that you were ‘only staying at my friend’s house because my landlord wanted me out for 4 months to repair the house I was renting. I am in a genuine marriage with my husband in Vietnam’. You then accused the Department of having a ‘conspiracy theory based on all people I have had contact with called ‘Nguyen’ is absurd”.
This information is contradicted by your various admissions to officers of the Department during a ‘home visit’ conducted by them at … Union Street, Sunshine Victoria on 10 November 2004. This ‘home visit’ uncovered indications of a spouse relationship between you and Van Bao Nguyen.
Accordingly, you are invited to comment, in writing on the following information you admitted to the Department officers in answer to their questions on 10 November 2004:
· You were living with Mr Van Bao Nguyen in a de facto spouse relationship for at least 2 years at two separate addresses while sponsoring and married to Mr Minh Tang Vo, the visa applicant.
· You did not know whether the father of your child was Van Bao Nguyen or Mr Pham and you did not want to know.
· You wished to have a relationship with the visa applicant but were not sure whether it would happen and at the same time you said that you were sponsoring him so that he could help his family.
· You had told your son that his father was Mr Van Bao Nguyen so he could have a father figure.
· Your cousin Chi got married to a man called Bao who is the same person as your de facto partner and who has also sponsored her for migration to Australia.
· Your cousin has never lived with Bao unless their relationship was behind your back.
· Mr Van Bao Nguyen resides at … Union Street, Sunshine Victoria with you and your son.
This information is adverse to you because, if true, it is an admission by you to officers of the Department that your Spouse visa application at the time of lodgement was possibly bogus and that you were not have been living in an exclusive relationship with your husband, Minh Tang Vo. Therefore, you may not be living in a genuine spouse relationship with your husband, the visa applicant as is required by Regulation 1.15A of the Migration Regulations at the time of application. This information if true, further indicates you are aware of activities by other parties which may be fraudulent and which may be aimed at corrupting the Government’s migration program and which may be an abuse of the Migration Regulations.”
In response to the s.359A letter the Review Applicant advises she forwarded two letters dated 19 June 2006 (Court Book p.180) and 28 July 2006 (Court Book p.188). In a letter dated 19 June 2006 the Review Applicant's representatives state on her behalf that she denied that she was "ever living in a de facto relationship" with Mr Nguyen. She denied Mr Nguyen was the father of her child.
The Review Applicant otherwise claimed, through her agents, that she is in a genuine and ongoing relationship with the Visa Applicant. She denies ever telling her child that Mr Nguyen was his father or because of her "good relationship" with Mr Nguyen "she has allowed him to assume a father role figure in the child's life". In the letter dated 28 July 2006 the Review Applicant's representatives claimed to have misunderstood their client's instructions concerning the father of her child and then relevantly state:
“… Our client advises that the father of her child was in fact Pham Van Cuong, and we apologise for any misunderstanding in that regard.”
(Court Book p.188)
The previous letter had stated that the Review Applicant did not know who the father of her child was but believed it was "a prior boyfriend" and otherwise denied that Mr Nguyen was the father of the child.
On 31 July 2006 the Tribunal conducted a hearing. The Review Applicant and the Visa Applicant were represented and gave evidence. Seven other witnesses, being friends and family of the Review Applicant, also gave evidence.
The Tribunal decision
The Tribunal considered the Review Applicant's claim that she was the spouse of the Visa Applicant within the meaning of Regulation 1.15A of the Migration Regulations, which relevantly provides:
“Migration Regulation 1.15A
Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b)in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B)do not live separately and apart on a permanent basis.
…
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) ...
(ae) a Partner (Provisional) (Class UF) visa; or
(af) …
(ag) …
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.
(4)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.”
A key issue, as indicated earlier in this judgment was the question of whether the Review Applicant was living in a de facto spousal relationship with Mr Nguyen.
In its findings the Tribunal accepted that the Review Applicant and the Visa Applicant married on 23 January 2003 and that the marriage was registered in Vietnam. The Tribunal noted that there was no evidence before it to raise "any issue as to the validity of the marriage for the purposes of the Marriage Act”. It accordingly found that at the time of application for the visa and at the time of its decision the Visa Applicant and Review Applicant were married to each other under a marriage recognised as valid for the purpose of the Migration Act. They therefore satisfy the requirements of Regulation 1.15A(1A)(a) for a married relationship.
The Tribunal then proceeded to consider the question of whether the relationship is genuine and continuing and for that purpose reviewed the matters set out in subregulation 1.15A(3) of the Regulations. Relevantly, it stated as follows:
“The Tribunal is satisfied that the parties at the time of application and at time of decision the visa applicant and review applicant did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is not genuine and continuing. They, therefore, do not satisfy the requirements of rr.1.15A(1A)(b)(i) and 1.15A(1A)(b)(ii) for a married relationship r.1.15A(2)(c)(i) and 1.15A(2)(c)(ii) for a de facto relationship.
The Tribunal finds that the visa applicant and review applicant did not live together at the time of the visa application and continue not to do so. The Tribunal finds that the visa applicant and review applicant lived in different countries at the time of application and decision, but is nevertheless satisfied that they did and do live separately and apart on a permanent basis. Accordingly, they do not satisfy the requirements of r.1.15A(1A)(b)(iii) for a married relationship 1.15A(2)(c)(iii) for a de facto relationship.
CONCLUSION
The Tribunal is not satisfied that at the date of the visa application, the visa applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that their relationship was genuine and continuing. The Tribunal is also satisfied that at that time the review applicant and the visa applicant were living together separately and apart on a permanent basis. The Tribunal is, therefore, not satisfied that at the time of application the visa applicant was the review applicant’s spouse within the meaning of r.1.15A of the Regulations. Thus the visa applicant does not satisfy cl.309.211 and cannot be granted a Subclass 309 visa.”
As a consequence of those findings the Tribunal proceeded to affirm the delegate's decision not to grant the Visa Applicant a provisional spouse visa.
I do note in passing that the Tribunal Decision which appears in the Court Book seems to repeat a paragraph under the heading “Conclusion”. In fact there are two “Conclusion” headings and the decision of the Tribunal reproduced in the Court Book at one point refers to “page 10 of 10” (Court Book p.212) whereas earlier refers to “page 10 of 11” (Court Book p.211). Nothing turns however on these inaccuracies.
Grounds of application
The Review Applicant relied upon an application filed 25 September 2006 and further sought to claim jurisdictional error on the ground that the Tribunal took into account in its assessment of the application Regulation 1.15A, which it was claimed is partly or wholly invalid insofar as it purports to impose an additional requirement to a valid marriage for the existence of a spousal relationship. The court permitted the Review Applicant to rely upon this additional ground.
However, for reasons stated by this court is Le & Ors v Minister for Immigration & Anor [2007] FMCA 427 (Le) at [117] and [118] I am not satisfied that Regulation 1.15A is invalid. I am not persuaded to alter my view simply as a result of reference in this instance to s.12 of the Migration Act as it does no more than refer to the Marriage Act 1961; hence I do propose dealing with this additional ground any further in this judgment.
The grounds originally set out in the application in brief summary are:
1.Failure to have regard to relevant considerations:
(a) Findings by other Tribunal that the alleged "other man" was in a genuine spouse relationship with another woman;
(b) Difficulties in interpreting at the home visit;
(c)Which 30% of the officers' claims were those admitted by the applicant?
2.Failure to exercise powers required by law - Duty to inquire under sections 359, 359B and 363 of the Act.
Ground 1 - Failure to have regard to relevant considerations
Applicant's submissions
It was submitted for and on behalf of the Review Applicant that her commitment and that of the Visa Applicant to the relationship is made relevant by Regulation 1.15A(1A)(b)(i) and (ii) which respectively require that "they have a mutual commitment to a shared life as husband and wife to the exclusion of all others" and "the relationship between them is genuine and continuing".
It was noted the Tribunal found that the Review Applicant was living in a de facto spousal relationship with Mr Nguyen, as alleged by officers of the First Respondent's Department, and relevantly found as follows:
“… that the scenario elaborated by the Department officers following the 'home visit' is based on her (the Review Applicant's) own admission to them and their observations ... the scenario elaborated by the officers … is the correct state of the sponsor's (the Visa Applicant's) household
(Court Book p.209)
It was argued, however, that the Tribunal failed to have regard to the fact that a differently‑constituted Tribunal had considered and found Mr Nguyen was living in a genuine and committed relationship as the spouse of another woman.
Accordingly, it was argued this was a decisive matter and that the Tribunal in the present case attached great weight to the Department officers' views and may also have attached great weight to the previous Tribunal's findings. If the present Tribunal had considered the previous Tribunal's findings, then it was argued the current decision may have been different.
Reference was made to the interpreting of the home visit. It is noted that the details of the home visit, which appear in the Court Book (pp.109‑113) relate to the relationship as between Mr Nguyen and another Visa Applicant, namely Ms Ngoc Que Chi Nguyen. The home visit, as recorded earlier in this judgment, appears to have occurred on or about 10 November 2004.
Reference was made to the details concerning the home visit and it was asserted that the Tribunal in the present case, as a result of correspondence forwarded by the Review Applicant's lawyers, became aware that another Tribunal had granted to Ms Ngoc Que Chi Nguyen a visa. So much is evidence from the correspondence of the Review Applicant's representatives dated 7 August 2006 (Court Book pp.193‑194) where the author states:
“We point out that Van Bao Nguyen's case has previously been before the Tribunal where a number of witnesses gave evidence on his behalf attesting to the fact that he was in a genuine and ongoing relationship with his wife at that time and not with our client.”
The reference to Mr Van Bao Nguyen is a reference to Mr Nguyen; and the relationship claimed to be a genuine and ongoing relationship with his wife is a reference to Ms Ngoc Que Chi Nguyen.
A further issue was raised concerning what claimed to be difficulties in interpreting at the home visit, which was relied upon. Again, in correspondence from the Review Applicant's representatives to the Tribunal dated 7 August 2006, reference is made to this issue in the following terms:
“We believe that the non usage of the Vietnamese Interpreter may have led to our client's responses being misinterpreted.”
(Court Book p.194).
That reference appears to be a reference to the home visit record, and answers given by the Review Applicant that she simply wanted to help the Visa Applicant migrate to Australia and that she did not deny a suggestion by the Departmental officers that she was in a relationship with Mr Nguyen, and other significant allegations.
Criticism was made in the Departmental officers' record indicating to her that what she was doing "is against the law as she is not in a genuine spousal relationship with Mr Vo". Criticism was also made of the Department officer indicating in the report that he "suggested to her that she could withdraw the sponsorship and avoid getting herself into more trouble".
The record then reveals, according to the author, that the Review Applicant "said she would like to do the right thing and would like to speak to Mr Vo before she does anything" (Court Book p.111). It was argued that this was erroneous information by a Departmental officer and underlined the desirability of the Tribunal having regard to the previous Tribunal's finding concerning the genuineness of the spousal relationship between Mr Nguyen and Ngoc Que Chi Nguyen. As I understand it, it also made the issue of the use of an interpreter more critical.
A further issue was raised concerning what is described as "30% of the officers' claim" as admitted by the Review Applicant. This issue arose in the context of the hearing where the Tribunal records as part of its summary of evidence the following:
“The sponsor was asked by the Tribunal about her statement in 2004 to the Department where she agreed with the 2 officers present at the ‘home visit’ that she had been party to a bogus Spouse visa application as outlined in the Tribunal invitation pursuant to s.359A of the Act. The Tribunal asked her whether she thought the officers were lying especially as the initial 2 officers were joined by a further two officers later in the visit. The sponsor said that about 30% of the report was correct.”
(Court Book p.206).
It was submitted that the Tribunal was in error in failing to consider and determine which "30%" of the officers' claims had been admitted by the Review Applicant. Accordingly, this again demonstrated a failure to have regard to a relevant consideration.
First Respondent's submissions
It was noted during the course of submissions that there was no evidence that the Review Applicant had tendered the findings of the earlier Tribunal to the current Tribunal. It was then submitted by the First Respondent that, "Even if the applicant had tendered the findings of the other Tribunal, at the highest it would amount to evidence". It was submitted that there was no obligation on the part of the current Tribunal to have regard to a previous Tribunal in 2004, albeit that it found that Mr Nguyen was in a genuine and committed relationship as the spouse of Ngoc Que Chi Nguyen.
The First Respondent submitted that the findings of another independent Tribunal is not a relevant consideration that the current Tribunal would be obliged to take into account. The current Tribunal's findings in fact were findings reasonably open to it on the material before it and the mere fact that there was another Tribunal decision involving Mr Nguyen should not alter the reasoning process of the Tribunal.
In relation to the question of the non‑use of a Vietnamese interpreter, it was noted that at its highest the assertion made by the Review Applicant's representatives was that this "may have led to their client's responses being misinterpreted”. It was submitted by the First Respondent that the Tribunal was confronted with a claim of misinterpretation in what could be described as equivocal or permissive terms.
Further, in any event it was submitted that the Review Applicant's solicitors appeared to have been appointed to act on or around 23 December 2005 and provided written submissions as well as represented the Review Applicant at the hearing. Any complaints concerning the non‑use of a Vietnamese interpreter during the home visit could have been raised during the course of the hearing. It was further submitted that there was no affidavit material or declarations provided demonstrating examples of difficulties that arose in translation or any matters of significance for the Review Applicant's claims arising from the non‑use of an interpreter.
It was further submitted that any argument about possible misinterpretation is not material the Tribunal was bound to consider but rather was a question for the Tribunal to consider to determine the weight to be accorded to the evidence of the home visit.
Reasoning
In my view, this ground should fail.
Whilst it can be readily appreciated that the Review Applicant may be concerned that another Tribunal had made a finding of the existence of a genuine spousal relationship between Mr Nguyen and another woman, that does not become a relevant matter for the current Tribunal to take into account. The current Tribunal must act independently and, as part of its fact‑finding mission, make an assessment of the relevant facts and material before it at the time of its decision.
I do not regard an earlier Tribunal decision, albeit related to at least one of the relevant parties in the present application, as being a matter which is relevant for the Tribunal to take into account. If a Tribunal were to take into account the conclusions of another, differently‑constituted Tribunal dealing with another application, albeit including reference to a key player in the application which it undertook to review, then the Tribunal undertaking the current review, in my view, would appear to be taking into account an irrelevant matter.
The mere fact that another Tribunal, no doubt based upon material then before it, reached a conclusion which appears to be inconsistent with the conclusion reached by the current Tribunal, does not mean that the current Tribunal has failed to discharge its duties correctly. The current Tribunal must assess the facts based on the material before it and not be unduly influenced by a conclusion of another Tribunal dealing with another application, even if there is some overlap of the facts.
I further accept, as submitted by the First Respondent, that in any event the findings by the current Tribunal were findings reasonably open to it free of jurisdictional error. The earlier decision of the Tribunal, even if somehow considered relevant, do not in any way detract from the conclusion reached by the current Tribunal almost two years later. I do not accept that the findings of the earlier independent Tribunal in these circumstances could be regarded as a relevant consideration which the current Tribunal is obliged to take into account.
Further, I am not satisfied that there is any issue squarely raised concerning the lack of an interpreter during the course of the home visit. If there was any substance to the claim, then I have little doubt that particulars could be given of the errors made and/or any misunderstanding arising from the record of the home visit.
The mere suggestion that responses "may have" been misinterpreted is insufficient, in my view, to demonstrate that the current Tribunal had erred by relying upon the record of the home visit produced by the department officers. It is clear that in any event a record of the home visit was a matter within the knowledge of the Review Applicant and her advisers and ample opportunity was given for submissions to be made concerning that record both at the hearing and by written submissions.
In my view, there is no error arising out of the claimed lack of use of a Vietnamese interpreter by the Departmental officers.
A proper reading of the Tribunal decision reveals that the reference to the Review Applicant claiming that about 30% of the Departmental report of the home visit was correct is simply an example of the Tribunal reciting a response from the Review Applicant; it is not for the Tribunal to then identify which part of the home visit report was correct but rather for the Review Applicant, when given an opportunity to do so, to identify those parts which are claimed to be incorrect. The Review Applicant had the opportunity to take issue with specific passages from the home visit report and did not do so.
I accept, as submitted by the First Respondent, that it was for the Review Applicant to put forward her evidence as to which part of the report was correct and which part incorrect. The Tribunal, in my view, was entitled to make an assessment concerning the report and make appropriate and relevant findings.
I cannot see any error arising from the manner in which the Tribunal dealt with the claim by the Review Applicant that about "30% of the report was correct".
It follows that ground 1 should fail.
Ground 2 - Failure to exercise powers required by law - Duty to inquire under ss.359, 359B and 363 of the Act
Applicant's submissions
It was submitted by the Review Applicant that the Tribunal had power to conduct inquiries to obtain information or cause inquiries to be made by the secretary of the First Respondent's Department. It failed to exercise those powers and in particular criticism was made concerning the alleged difficulties of communication by the Review Applicant during the home visit and the question of which "30%" of the officers' reports the Review Applicant meant to indicate she accepted and which allegations she claimed were untrue. It was argued this was a serious matter which went to the credit of the Review Applicant and was ultimately determinative of the decision.
It was acknowledged that it is for the Tribunal to determine whether it exercised the powers in a particular case (see Hong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1308).
Reference was also made to a decision in this court in Le referred to earlier in this judgment, where this court relevantly stated:
“87.In my view the theoretical opportunity for the Tribunal to pursue further enquiries whilst perhaps desirable does not necessarily lead to a conclusion that failure to do so constitutes an error.
88.Whilst the Tribunal may have the opportunity to pursue enquiries from Departmental officers whose conduct has been attacked, it does not mean in every case that a failure to make those enquiries will constitute a breach of ss.359 and 363 of the Migration Act. I accept that there is no general duty to make further enquiries.”
First Respondent's submissions
It was submitted by the First Respondent that the evidence of the individual case had to be supplied by the Review Applicant herself in as much detail as is necessary to enable the Tribunal to make findings of fact. The Tribunal, it was submitted, is not required to make out the Review Applicant's case for her (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169‑170).
In the present case it was submitted that, although the Tribunal in particular circumstances may undertake an investigation beyond the limits of a claim, there is nothing in the present case to indicate that it was bound to do so (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62‑63 per Merkel J). Again it was submitted it was a matter for the Review Applicant to provide further information concerning which part of the officers' evidence were regarded as correct and which part regarded as incorrect.
Reasoning
In my view, this ground should fail. The authorities to which reference has been made clearly indicate that there is no obligation on the part of the Tribunal to make further inquiries pursuant to the relevant provisions of the Migration Act. In the present case I accept the First Respondent's submissions that there is no basis upon which the court can conclude that the Tribunal in this instance had an obligation to make further inquiries. It was clearly a matter for the Review Applicant to identify and/or challenge material set out in the home visit report which the Review Applicant regarded as inaccurate or incorrect.
I note in passing that Counsel for the Review Applicant referred to a decision of French J in Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 where in that case the court stated:
“30.There may be cases in which a decision maker who unreasonably fails to ascertain relevant facts known to be readily available will be taken to have exercised the decision‑making power improperly. …”
However, in the present case, as indicated, I am not satisfied that the Tribunal has failed to discharge any obligation it had to pursue specifically the issue arising from the Review Applicant's claim that "about 30% of the report was correct" from the Departmental officers.
Accordingly, this ground should fail.
Conclusion
For the reasons given, it follows that the application should be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 May 2007
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