Von Kraft v Minister for Immigration

Case •

[2007] FMCA 244

•

15 March 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VON KRAFT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 244
MIGRATION – Application to review decision of Migration Review Tribunal – whether out of time – whether actual notification to applicant required under s.477 of the Migration Act – whether Tribunal must comply with statutory notification requirements – whether lack of procedural fairness or failure to have regard to relevant considerations.
Migration Act 1958 (Cth), ss.99, 101, 105, 107, 109, 351, 357, 368, 379G, 476, 477, 478
Judiciary Act 1903 (Cth), s.39B
Commonwealth of Australia Constitution Act 1901 (Cth) s.75
Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395
Egounova v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49
Kolotau v Minister for Immigration & Multicultural Affairs [2002] FCA 1145
Le v Minister for Immigration and Citizenship [2007] FCAFC 20
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
NADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 4
Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379
Saleem v Migration Review Tribunal [2004] FCA 234
Sunrise Auto Limited v Deputy Commissioner of Taxation (1995) 61 FCR 446
SZFLM v Minister for Immigration & Citizenship [2007 FMCA 1
SZIVA vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1494
VAEA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 271
WACBv Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190
Applicant: ANTONINA VON KRAFT
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG2263 of 2006
Judgment of: Barnes FM
Hearing dates: 18 December 2006, 19 January 2007
Delivered at: Sydney
Delivered on: 15 March 2007

REPRESENTATION

Applicant: In person
Counsel for the Respondents: Mr J. Smith
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2263 of 2006

ANTONINA  VON KRAFT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application filed on 15 August 2006 seeking review of a decision of the Migration Review Tribunal (the Tribunal) handed down on 5 January 2006 affirming a decision of a delegate of the first respondent to cancel the Partner (Provisional) (Class UF) visa held by the applicant. The applicant also seeks review of a decision of the Parliamentary Secretary to the first respondent which is said to have been made on 3 August 2006 and notified on 8 August 2006 under s.351 of the Migration Act 1958 (Cth). The applicant sought an extension of the time for making the application to this Court under s.477(2) of the Migration Act.

  2. The grounds of review are as follows:

    1. I suffered a denial of natural justice.  Member of the Tribunal failed to take into account relevant matters.  

    2. Department of Immigration cancelled my visa (legal wife of Anthony von Kraft) and gave priority to de facto partner which is unlawful. 

  3. The first respondent opposed the application on the basis that this Court did not have jurisdiction to consider it or to make the orders sought by the applicant and hence the application was incompetent, and that there was in any event, no jurisdictional error.  Each of the parties was given an opportunity to make submissions in relation to the issue of jurisdiction, the extension of time application and the substantive grounds of review. 

  4. The applicant relied on her application of 15 August 2006, affidavits filed on 15 August 2006, 16 August 2006 and 11 September 2006 and written submissions filed on 10 January 2007.  The affidavit filed by the applicant on 15 August 2006 included material in the nature of submissions.  The affidavit filed on 16 August 2006 addressed the application for an extension of time.  The affidavit of 11 September 2006 annexed material in support of the applicant’s claim to have had a genuine relationship with her late husband who had been her sponsor in relation to the partner visa granted to her on 25 February 2003.   

  5. The first respondent relied on an amended response filed on 10 November 2006, written submissions filed on 18 December 2006, an affidavit of Patricia Helen Brakha filed on 4 January 2007, an affidavit of Andrea Maree Mansour filed on 18 January 2007 and supplementary submissions filed on 22 December 2006. 

  6. In written submissions of 18 December 2006 the first respondent contended that the material before the Court established that the applicant was actually notified of the decision of the Tribunal by at least 8 February 2006, being the date on which her migration agent wrote to the Minister requesting that the Minister exercise her power under s.351 of the Migration Act to substitute a more favourable decision for the decision of the Tribunal. On that basis it was submitted that the application of 15 August 2006 to this Court for a review of the Tribunal decision was outside the time limit in the Migration Act, given that s.477(1) provides that any application to this Court for review of the Tribunal’s decision has to be made within 28 days of the date of actual notification of the decision and that the power to extend that period by up to 56 days applies only if an application for an extension is made within 84 days of the date of actual notification (s.477(2)). It was contended that as the applicant had not sought review on or before 8 March 2006 or an extension of time on or before 3 May 2006 the Court could not make an order allowing the applicant to make the application for review (see s.477(3)). Hence it was submitted that the application was incompetent and the Court had no jurisdiction in relation to the Tribunal decision and that the application ought to be dismissed.

  7. In oral submissions counsel for the first respondent advised the Court that the decision of Smith FM in SZIVA vMIMIA [2006] FMCA 1494 had come to his attention shortly before he came to Court. In that case, in considering the operation of the time limits in s.477, his Honour found that the concept of “actual (as opposed to deemed) notification” of the decision in s.477 of the Act required not only actual receipt by the applicant of notice of the Tribunal decision (and not simply receipt by an agent) (at [41]) but also compliance with the technical requirements of the Migration Act in relation to notification of a decision by the Tribunal (at [23] – [28]) as well as identification of a date when a “technically sufficient” or “formally correct” notification had also resulted in “actual” notification (at [28] and [30]).

  8. As this decision had not been brought to the prior attention of the applicant and in light of issues in relation to the operation of the formal notification provisions of the Migration Act that arose during the hearing, the hearing was adjourned. Each of the parties was given the opportunity to file further submissions. The respondent was given leave to file an affidavit in relation to the time of dispatch of the Tribunal’s letter of notification of decision.

  9. On 19 January 2007 the hearing continued on the basis that each of the parties addressed the Court on all issues, including jurisdiction of the Court in relation to the Tribunal decision, whether there was any jurisdictional error by the Tribunal and as to whether the Court could review the decision not to substitute a more favourable decision under s.351 of the Act or any other decision referred to in the application of 15 August 2006.

Review of section 351 decision

  1. It is convenient to deal first with that part of the application that relates to the decision of the Honourable Andrew Robb, the Parliamentary Secretary to the Minister for Immigration made on 3 August 2006 and notified to the applicant on 8 August 2006.  That decision was a decision that the Parliamentary Secretary had decided not to exercise power to substitute for the Tribunal decision a decision more favourable to Mrs von Kraft and her dependents. 

  2. It is apparent from the application filed on 15 August 2006 that the applicant sought review of this decision as well as of the Tribunal decision. I note first that if the Court was able to deal with such a matter, section 477 would not preclude the application for review as it was filed on 15 August 2006.

  3. Section 351 of the Act relevantly provides:

    Minister may substitute more favourable decision

    (1)  If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

    …

    (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

  4. Insofar as the applicant seeks review of the decision of Mr Robb not to exercise the power under s.351, such application cannot succeed. As contended for by the first respondent, s.351(7) makes it clear that there is no duty on the Minister (or Mr Robb as delegate of the Minister) to consider whether to exercise the power of the Minister to substitute a more favourable decision under s.351, whether he or she is requested to do so or in any other circumstances.

  5. This view has been adopted by the Federal Court in a number of cases.  Hely J stated in Kolotau v MIMA [2002] FCA 1145 at [8], that apart from the application of the (now repealed) s.476(2) of the Migration Act, such an application was “bound to fail by reason of the provision of s.351(7) of the Migration Act. [R]elief cannot be available under s.39B of the [Judiciary Act 1903 (Cth)] by reason of the Minister’s failure to consider a matter which the Migration Act specifically says that he is not obliged to consider”.  (Also see Applicant NAGM of 2002 v MIMIA [2002] FCAFC 395 at [9]; NADU v MIMIA [2003] FCA 4 at [9] and [11] per Branson J; and VAEA v MIMIA [2003] FCA 271). As Branson J found in Egounova v MIMIA [2004] FCA 49 at [14] in relation to s.417(7) (the equivalent in relation to decisions of the Refugee Review Tribunal) subsection (7) clearly states that subsection (1) “creates only a power and no duty as far as the Minister is concerned”  even to consider whether to exercise the power. 

  6. The relief sought can only be granted where there is a duty that has not been fulfilled. Section 39B of the Judiciary Act 1903 vests jurisdiction in the Federal Court in terms identical to that vested in the High Court by s.75(v) of the Constitution (although now see s.476A of the Migration Act). Subject to specified exceptions, s.476 of the Migration Act confers on this Court the same jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution. Hence, consistent with the approach taken by the Federal Court in relation to its jurisdiction, relief cannot be available under s.476 by reason of failure of the Minister or the Minister’s delegate to consider a matter which the Migration Act specifically says that he or she is not obliged to consider.

  7. Hence the application for review of the decision of the Parliamentary Secretary not to exercise the power under s.351 cannot succeed.

Priority to de facto partner issue

  1. Another aspect of the application for review that can be dealt with as a preliminary matter is the applicant’s complaint in relation to the fact that the Department cancelled her visa and, as she puts it, gave “priority” to a de facto partner. Insofar as this takes issue with the grant of a spouse visa to another person, this does not relate to the Tribunal decision in issue. No decision of the Department to grant a partner visa to a person other than the applicant based on a relationship with the applicant’s late husband is before the Court for review. Indeed, s.478 of the Migration Act 1958 (Cth) provides that an application to this Court in relation to a migration decision may only be made by the Minister, the Secretary and, if the decision concerned is made on review, the applicant in the review by the relevant Tribunal; or in any other case, the person who is the subject of the migration decision or a person prescribed by the Regulations.

  2. It has not been established that Mrs von Kraft was the applicant in a Tribunal review in relation to any decision other than the decision to cancel her visa.  Nor has it been established that she was the ‘subject’ of any other migration decision or that there is any relevant prescription by the regulations.  The applicant has no standing to seek review in this Court of any such decision made by the Department (or the Tribunal if there was such a Tribunal decision) in relation to a visa granted to some other person.

Jurisdiction – Section 477 time limits

  1. That leaves for consideration the application for review of the decision of the Tribunal reviewing the decision of a delegate of the first respondent to affirm the decision to cancel Mrs von Kraft’s partner visa. This Court has jurisdiction in relation to such applications, but s.477 of the Migration Act imposes time limits and there is an initial issue as to whether the application to this Court of 15 August 2006 is out of time. If it is, the Court has no jurisdiction to determine whether the Tribunal has made a jurisdictional error.

  2. Section 477 of the Migration Act is as follows:

    (1)  An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

    (2)  The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

    (a)  an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

    (b)  the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

    (3)  Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

    (4)  The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

  3. The first respondent contended that the applicant received actual notification of the Tribunal decision of 5 January 2006 (the date on which it was handed down, see s.368B(4) of the Migration Act) by February 2006 (specifically, no later than 8 February 2006 the date of her letter to the Minister requesting the exercise of the s.351 power) so that her application to this Court of 15 August 2006 was outside the time limit in s.477(1) of the Migration Act. It was also contended that her application for an extension of time was outside the s.477(2) time limit of 84 days from the date of actual notification of the decision. Hence it was submitted that the application was incompetent and the Court had no jurisdiction to consider it or to make the orders sought by Mrs von Kraft.

  4. First, while the application of 15 August 2006 states that the applicant was notified of the decision on 8 August 2006, I am satisfied that this does not refer to the Tribunal decision, but rather to the decision of the Parliamentary Secretary in relation to the application for exercise of the Minister’s power under s.351 of the Migration Act.

  5. As submitted for the first respondent this is clear from the fact that the application refers to two decision-makers (the Tribunal and Mr Robb), the description of 3 August 2006 as the date of the decision, the reference to the decision being made under s.351 and the fact that the applicant sought an extension of time within which to bring the application. It was also confirmed by Mrs von Kraft in cross-examination.

  6. Hence it is necessary to determine first when the applicant received actual notification of the Tribunal decision of 5 January 2006 and then whether that takes her outside the time limits in s.477(1) and (2). The first issue requires a considering of the concept “actual (as opposed to deemed) notification of the decision” in s.477(1).

  7. As mentioned above, in SZIVA Federal Magistrate Smith was of the view that actual communication to an applicant was required for the time limit in s.477 to apply (even if an applicant had requested that communication be with an agent) (see [31] – [42]). The first respondent did not take issue with this aspect of SZIVA but, as discussed, contended that actual notification had been received by Mrs von Kraft, the person seeking judicial review, in February 2006.

  8. The first respondent did submit that insofar as Federal Magistrate Smith held that the technical notification provisions of the Act (in particular provisions such as s.368B) had to be complied with by the Tribunal before the time limits in s.477 applied, his Honour was wrong, but also that, in any event, the Tribunal did comply with the formal notification requirements of the Act including s.368B.

Actual notification

  1. The first issue is whether, and if so when, Mrs von Kraft received actual notification of the Tribunal decision. 

  2. It was submitted for the first respondent that in cross-examination Mrs von Kraft gave frank evidence that she had personally received the Tribunal decision in February 2006. 

  3. It is relevant to have regard to the material before the Court, including a copy of a Tribunal letter dated 22 December 2005 addressed to Mrs Irina Simonian at Wintergate Solicitors as the authorised recipient for the applicant advising the applicant that the Tribunal had made a decision on her case and inviting her to the handing down of the decision on 5 January 2006.  There is no suggestion that the applicant (or her authorised recipient) attended the handing down. 

  4. Based on the affidavit evidence of Patricia Helen Bakha and Andrea Maree Mansour,  I am satisfied that on 5 January 2006 the Tribunal sent a letter dated 5 January 2006 to Mrs Simonian by pre-paid post enclosing a copy of the Tribunal reasons for decision.  That letter recorded that the correspondence was sent to Mrs Simonian as authorised recipient for Mrs von Kraft. 

  5. Mrs von Kraft annexed to her affidavit of 15 August 2006 a copy of the Tribunal decision bearing the date 5 January 2006 (the date on which the decision is handed down). 

  6. In cross-examination, when shown a copy of her affidavit and the annexed decision of the Migration Review Tribunal, the applicant confirmed that it was a copy of a document she had received from the Tribunal.  She was asked if she recalled exactly when she received that document she stated:  “I can’t remember exactly, but it was at the beginning of the year 2006”.  When shown a copy of the letter dated 5 January 2006 addressed to Mrs Simonian which stated that it enclosed a copy of the Tribunal decision, the applicant confirmed that Ms Simonian was at that time her migration agent.  Asked if she had received a copy of that letter at about the same time she received a copy of the decision annexed to her affidavit, she replied “I don’t think they came at the same time, it seems to me they came at a different time”.  However she confirmed that she did receive a copy of that letter.  When asked if “It would be fair to say that you received both that letter and the decision of record of the Tribunal at least by early February [in 2006]” she replied “Most probably yes but I’m pretty sure, I’m quite sure that in February I got both of them.”  She then agreed that she recalled taking those documents to another migration agent so that he could provide her with assistance to write to the Minister for Immigration. 

  1. Mrs von Kraft also explained that the reference in her application to this Court to a decision of 3 August 2006 was a reference to “the Minister’s decision” (that is the letter from the office of the Parliamentary Secretary indicating that the Parliamentary Secretary had decided not to exercise the power under s.351 of the Act to substitute a more favourable decision for the decision of the Tribunal). Mrs von Kraft confirmed that she received notice of that letter on 8 August 2006. When again asked if she had received the Migration Review Tribunal’s decision in February of 2006 she responded “yes”.

  2. Despite these clear and unequivocal statements under oath that are consistent with the applicant’s written submissions of 10 January 2007, in oral submissions on 19 January 2007 the applicant told the Court that she was not sure if she had received a copy of the letter headed Statement of Decision in the documents before the Court (that is, the letter of 5 January 2006) because she did not recall that she had seen it and because having looked at her files at home she did not have that letter. She then claimed (in submissions) that she received what she described as the “original papers of decision of MRT” much later by electronic mail after her new migration agent had applied to the Minister under s.351 of the Act and that she had not seen the letter headed “Statement of Decision”.

  3. The applicant also claimed that she did not know that she might have to apply for review of the decision to the Court or of the time limits.  She claimed that she became aware of her rights to apply to the Court in August 2006 when she received an answer from the Minister for Immigration and read a text book which informed her of her right of review in the Federal Magistrates Court. 

  4. These submissions are in conflict with the applicant’s evidence.  On the basis of the applicant’s clear evidence on oath I am satisfied that she received a copy of the decision and letter of 5 January 2006 by the end of February 2006. 

  5. I note in that respect that the statutory requirement is notification of “the decision”.  Federal Magistrate Smith suggested in SZIVA (at [46]) that s.477 “requires the Court to investigate the date when the applicant to the Court personally received notification of the decision and any accompanying statements.”  His Honour contemplated that such notification would encompass an explanation by an agent and would not necessarily require actual physical possession of such documents, provided the relevant documents had passed into “the possession and control” of the applicant and that the requirement would be satisfied whether or not the applicant had “actual subjective comprehension of the effect of the decision and of the contents of any accompanying notices and statement of reasons.”  

  6. Mrs von Kraft’s evidence in cross-examination was that she had received “both” the letter of 5 January 2006 addressed to Mrs Simonian and a copy of the Tribunal decision.  Importantly, while she was not sure that these arrived at the same time, after confirming that she was “pretty sure, I’m quite sure that in February I got both of them” she agreed that she recalled taking “those documents” to another migration agent so that he could assist her to write to the Minister for Immigration. I am satisfied that the letter to the Minister to which she referred was the letter from Friedman Lurie Singh D’Angelo of 8 February 2006 which enclosed a copy of the Tribunal decision and requested that the Minister exercised the power under s.351 of the Act.

  7. On the evidence before the Court I am satisfied on the balance of probabilities that the applicant had received actual notification by the end of February 2006 (that is on or before 28 February 2006) of both the Tribunal’s decision and of the letter of 5 January 2006 enclosing its adverse decision and reasons.  This is so whether or not Mrs von Kraft understood the effect of the decision or the content of the letter of 5 January 2006 (SZIVA at [47]).

Compliance with notification provisions of the Migration Act

  1. If, as submitted for the first respondent, all that s.477 is concerned with is actual notification to the applicant of the Tribunal decision (contrary to what was held by Smith FM in SZIVA) then the fact of actual notification by 28 February 2006 would mean that the application filed on 15 August 2006 was out of time, being not only outside the 28 days of the actual notification of the decision to the applicant (s.477(1) but also outside the 84 days from the actual notification of the decision to the applicant within which an application for an extension of time must be made under s.477(2).

  2. Federal Magistrate Smith found that s.477 of the Act requires not only actual notification of the decision but also compliance by the Tribunal with the notification provisions of the Migration Act (also see SZFLM v MIAC [2007] FMCA 1 at [23] in which Driver FM expressed the same view). I am not persuaded that Smith FM was “clearly wrong”. On the contrary, I agree that time does not begin to run for the purposes of the statutory provisions imposing time limits on applications for review by the Court unless there has been compliance with such provisions (see WACB v MIMIA (2004) 210 ALR 190 at [29] – [37] per Gleeson CJ, McHugh, Gummow and Heydon JJ).

  3. I am not persuaded by the submissions for the first respondent that the approach in SZIVA gives no force to the requirement of “actual” notification in s.477. Actual notification of the applicant is required. The fact that s.477 does not (unlike provisions such as s.500(B) of the Act) refer to notification “in accordance with” or “under” s.368B of the Act (which imposes obligations on the Tribunal in relation to the method and circumstances of notification) reflects the fact that compliance with the statutory obligations is not sufficient. The restrictive time limits in s.477 will not begin to run unless and until there has also been actual notification to the applicant of the Tribunal decision. In that respect I note that no Regulations have been prescribed for the purposes of s.477 (see s.477(4)).

  4. In the context of a provision that imposes a time limit on applications for judicial review which cannot be extended in circumstances outside the limited provision in s.477(2), the fact that this interpretation means that the time would not begin to run in relation to an applicant who had actually received a decision sent by a method that did not comply with the technical requirements of the Migration Act does not persuade me that the approach of Smith FM is clearly wrong. Indeed, as discussed in SZIVAv MIMIA at [26] to [28], such an interpretation of s.477 is consistent with the approach taken by the High Court in WACBv MIMIA (2004) 210 ALR 190 in relation to an earlier version of a statutory time limit for review of migration decisions by the Federal Court (albeit the Act has been amended since that time). Similarly, I consider that such a construction is consistent with the structure and historical development of the Migration Act (see WACB at [36] per Gleeson CJ, McHugh, Gummow and Heydon JJ). As Smith FM stated in SZIVA at [27], in light of the decision of the High Court in WACB it should be assumed that such interpretation was in the mind of the legislature when it again used the term “notification” in s.477 (see SZIVA at [27] and cases cited therein).

  5. The first respondent contended that the construction adopted in SZIVA cannot be said to be consistent with the intention to have matters dealt with quickly, efficiently and fairly.  This ‘intention’ is expressed as an objective in relation to the review by the Tribunal (see s.353 which requires the Tribunal to pursue the objective of review that is “fair, just, economical, informal and quick”).  What is in issue however is the operation of time limits in relation to applications for judicial review.  While such time limits are no doubt intended to ensure that such proceedings are commenced promptly, that objective is not inconsistent with the satisfaction of notification provisions under the Act before the time limits on initiation of judicial review proceedings start to run.  The requirement of efficiency has to be understood in the context of a provision which imposes a strict time limit which gives the Court no power to extend the period (even if the Court is satisfied it is in the interests of the administration of justice to do so) if the application for an extension of time is not made within 84 days of the actual notification of the decision. 

  6. In any event, I am satisfied for the reasons given below that the Tribunal complied with the applicable notification provisions in the Migration Act.

  7. It is necessary to consider whether the notification of the decision to the applicant for judicial review has complied with all the essential requirements attaching under the scheme of the Migration Act and Regulations to a notification of the type of decision sought to be reviewed. Division 6 of Part 5 of the Migration Act deals with decisions of the Migration Review Tribunal. Division 8A deals with the giving and receiving of review documents. These provisions mirror comparable provisions applicable to the Refugee Review Tribunal as considered in SZIVA. 

  8. The Tribunal has an obligation under s.368 to prepare a written statement that complies with that section. There is no suggestion that it failed to do so in this case. What is in issue is whether there was compliance with s.368B of the Act (in particular s.368B(6)) which imposes certain obligations on the Tribunal if the applicant is not present at the handing down of the decision (as to which see s.368A). Section 368B(6) is as follows:

    The Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 368(1).  The copy must be given to the applicant:

    (a)     within 14 days of the day on which the decision is handed down; and

    (b)     by one of the methods specified in s.379A.

  9. I note that under s.368C(2) if a representative of the applicant is notified of the decision under subsection 368B(6) the applicant is taken to be ‘notified’ of the decision on the day on which the representative is so notified.  However, consistent with the approach of Smith FM in SZIVA, while this deemed notification provision would meet the formal requirements of the Act, in addition actual notification to the applicant is required under s.477. What is in issue for present purposes is whether the Tribunal “gave” the applicant a copy of the statement prepared under s.368(1) and whether this occurred within the requisite 14 days and by one of the methods specified in s.379A.

  10. The first issue is whether the requirement of “giving the applicant” a copy of the statement prepared under s.368(1) was met. It is relevant to note that in the application to the Tribunal for review of the decision to cancel her visa the applicant indicated that she wished to have a representative to assist her and to receive all correspondence in relation to the application. Thus, if the Tribunal gave any document to the named representative as authorised recipient, it would be taken to have given such document to the applicant under s.379G(2). Indeed, as the applicant had nominated an authorised recipient, in accordance with s.379G(1) the Tribunal “must give the authorised recipient, instead of the applicant any document that it would otherwise have given to the applicant” to satisfy the formal notification provisions of the Act. 

  11. The applicant gave written notice to the Tribunal that she wished to be assisted by Douglas Taylor.  She authorised him to receive correspondence in respect of the application for review.  At that time Mr Taylor worked for a firm of solicitors called “McCallum Lawyers”.  The firm’s address was given in the application for review as the address for correspondence. 

  12. On 24 February 2005 Mr Taylor wrote to the Tribunal from a new firm, Wintergate Solicitors, indicating that that firm now acted for the applicant and requesting that all future correspondence be addressed to “our office”.  That letter contained a post office box address and a street address for the firm.  On 7 March 2005 Mr Taylor again wrote to the Tribunal, apparently in response to a telephone call request for completion of a registered migration agent form.  The letter confirmed that Mr Taylor was a solicitor but not a migration agent.  The form was completed with details of Mr Taylor as solicitor, including the name of Wintergate Solicitors as the organisation and the post office box address for the firm as well as telephone and facsimile details.  On 13 July 2005 the Tribunal received an undated notification from the applicant of her change of residential address and a confirmation that her solicitor was Mr Taylor.  She provided the postal address for Wintergate Solicitors and Mr Taylor’s telephone contact number. 

  13. The Tribunal communicated with the applicant by sending correspondence to Mr Taylor as authorised recipient at the post office box address of Wintergate Solicitors.  In particular, it sent an invitation to comment on information under s.359A of the Act to that address and an invitation to the Tribunal hearing. 

  14. On 7 October 2005 the Tribunal wrote to a Mr O’Sullivan, a barrister at law, advising him that he would not be permitted to assist the review applicant at her hearing as he was not a registered migration agent.  The letter advised that a copy of that letter had been sent to the review applicant’s migration agent and to the review applicant.  The letter indicated that copies had been sent to Mr Taylor at the post office box number for Wintergate Solicitors and to Mrs von Kraft’s home address. 

  15. By letter dated 18 October 2005 Mrs Irina Simonian wrote to the Tribunal on the letterhead of Wintergate Solicitors (which letterhead contained both the post office box number and a street address for Wintergate Solicitors) enclosing a completed appointment of a migration agent form signed by the applicant on 10 September 2005, indicating that she had appointed Ms Simonian as her migration agent and had authorised her to receive written communication in relation to all matters.  By this form the applicant also authorised the Department to discuss her case with Mr Taylor, should Ms Simonian be unavailable or cease to practice.  The form requested certain details about the migration agent including the business, company or organisation name.  In response the applicant advised “Wintergate Solicitors”.  In response to a question about the postal address the applicant provided the street address for Wintergate Solicitors. 

  16. From that time on the Tribunal corresponded with Mrs von Kraft by letters sent to Ms Simonian, Wintergate Solicitors, PO Box 421, Parramatta NSW 2124, the post office box address on the letter from Mrs Simonian dated 18 October 2005. The Tribunal sent the invitation to comment on information to Ms Simonian at that address. Ms Simonian responded on Wintergate Solicitors letterhead that contained only the post office box address and not the street address. A further invitation to comment was sent to Ms Simonian at the same address on 9 December 2005. Ms Simonian responded on letterhead of Wintergate Solicitors which contained both the post office box address and the street address. On 22 December 2005 the Tribunal wrote to Ms Simonian care of Wintergate Solicitors at the post office box address inviting her to the handing down of the decision on 5 January 2006 and on 5 January 2006 it wrote to Ms Simonian at Wintergate Solicitors at the post office box address as authorised recipient enclosing a copy of the Tribunal’s statement of the decision prepared under s.368(1) and advising the applicant of the availability of judicial review and of the 28 day time limit.

  17. A question arises as to whether the Tribunal met its obligation to give Ms von Kraft a copy of the statement of decision by giving it to Ms Simonian or whether it was necessary for the Tribunal to give the statement to Mr Taylor instead or in addition, as Mr Taylor had been nominated by the applicant in connection with the review application as her representative and authorised recipient. 

  18. Section 379G(1) of the Act relevantly provides that if a person applies for review of an MRT reviewable decision and

    … the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;..

    then the Tribunal must give the authorised recipient, instead of the applicant, any document that would otherwise be given to the applicant. In this case the applicant clearly gave the Tribunal written notice of the name and address of Mr Taylor in connection with her review application and authorised him to do things including receiving documents in connection with the review. However s.379G(3) provides that the applicant may vary or withdraw the notice under s.379G(1)(b) at any time, although the applicant must not vary the notice so that any more than one person becomes the applicant’s authorised recipient. Mrs von Kraft signed a notice of appointment of migration agent (albeit on a Departmental form) on 10 September 2005 in which she authorised Ms Simonian to act on her behalf and receive written communications in relation to all matters.

  19. It is clear from the appointment of a migration agent form signed by the applicant on 10 September 2005 and sent to the Tribunal under cover of a letter of 18 October 2005 that the applicant in effect varied the notice given in the application for review by substituting a different authorised recipient (see Le v MIAC [2007] FCAFC 20 at [21]). She authorised Ms Simonian to act on her behalf thereafter and to receive written communication in relation to all matters. Written notice of this fact was given to the Tribunal by Ms Simonian as the applicant’s agent. This constituted notice to the Tribunal of the name and address of applicant’s substituted authorised recipient.

  20. The Migration Act does not require the Tribunal to send documents to more than one person. Section 379G(1) refers to authorisation of “another person” and “the authorised recipient”. While the applicant may revoke or vary the notice, she cannot do so so that any more than one person becomes the authorised recipient (s.379G(3)). Under s.379G(2) if the Tribunal gives a document to the authorised recipient it is taken to have given it to the applicant. The notice of appointment of Ms Simonian as migration agent had the effect of replacing Mr Taylor with Ms Simonian as the authorised recipient for the purposes of dealing with the Migration Review Tribunal, so that the Tribunal could give Ms Simonian any document that it would otherwise have given to the applicant. I am satisfied that the Tribunal was obliged under s.379G(1) to give documents to the applicant by sending them to Ms Simonian, rather than to Mr Taylor. In these circumstances the provision of contact details for Mr Taylor (as provided for in the form) did not amount to a s.379G(1) authorisation or a continuation of his role as authorised recipient. Moreover these provisions mean that the Tribunal would meet its obligation under s.368B(6) to give a copy of the statement under s.368(1) to the applicant by giving it to Mrs Simonian instead of to the applicant itself. It is an “unequivocal requirement” of s.379G(1) that the Tribunal “must” give a document to the authorised recipient instead of to the applicant (Le at [24]).

  21. Hence, the next issue is whether the Tribunal letter of 5 January 2006 sent to Ms Simonian was given to her in accordance with the requirements of s.368B(6). Section 368B(6)(a) requires the Tribunal to notify the applicant of the decision by giving the applicant a copy of the statement prepared under s.368(1) within 14 days after the day on which the decision was handed down. That is to be done under s.368(6)(b) by one of the methods specified in s.379A.

  1. Section 379A sets out methods for the Tribunal to give a document to a person.  In this instance the only relevant provision is s.379A(4) which provides that a method consists of an officer of the Tribunal:

    dating the document, and then dispatching it:

    (a)     within three working days (in the place of dispatch) of the date of the document; and

    (b)     by prepaid post or by other prepaid means; and

    (c) to

    (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or

    (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.

  2. In this instance I am satisfied on the basis of the affidavit evidence before me as to dispatch by the Tribunal, that the letter of 5 January 2006 was dispatched by prepaid post within three working days of the date of the document. 

  3. The only issue that arises is whether it was sent to the correct address. If it was, the Tribunal would have met its statutory obligations under s.368B(6) to give a copy of the statement to the applicant (by giving it to the authorised recipient under s.379G within 14 days after the handing down on 5 January 2006).

  4. In this case the letter of 5 January 2006 was addressed to Ms Simonian as follows:  Mrs Irina Simonian, Wintergate Solicitors, PO Box 421, Parramatta 2124.  An issue arises because in the notice of appointment of migration agent completed by the applicant on 10 September 2005 she provided the migration agent’s name, the business or company or organisation name “Wintergate Solicitors” and, in response to the question “Postal address” the address: Suite 11, 10 O’Connell Street, Parramatta NSW, 2124.  The expression postal address is not used in s.379A. 

  5. The issue is whether the letter sent to the post office box address (and not to the street address) was sent to the last address for service or the last business address provided to the Tribunal by the recipient (Ms Simonian as authorised recipient for the applicant) “in connection with the review”.  As set out above, the letter of Ms Simonian enclosing the form of appointment of migration agent was on the letterhead of Wintergate Solicitors which provided both the post office box address and the street address.  The Tribunal communicated with Ms Simonian by writing to her at the post office box address.  Her response to the s.359A letter was on letterhead which contained only the post office box address for Wintergate Solicitors, although a subsequent letter was on letterhead that contained both the post office address and the street address.  I note that Mr Taylor, the original authorised recipient, had worked for another firm and when he moved to Wintergate Solicitors he wrote to the Tribunal on letterhead containing both the post office box and street addresses.  The Tribunal responded to him care of Wintergate Solicitors at the post office box address. In other words each agent used the post office box address and the Tribunal consistently sent correspondence to the nominated migration agent care of the nominated organisation at the post office box address which appeared on all of the correspondence from the relevant recipient.  The only reason why there is an issue is because on the appointment of migration agent form, the postal address was given as Suite 11, 10 O’Connell Street, Parramatta.

  6. There is no definition of “address for service” in the Migration Act. The form of application for review to the Tribunal asked the applicant for his or her residential address and the “organisation” and “address” of any representative (and for an address for correspondence if the applicant wishes the Tribunal to send documents to an address other than the first residential address advised). It also informed the applicant that if the applicant had nominated a representative all correspondence would be sent to that person. The form for appointment of a migration agent required the applicant to provide the organisation name and the “postal address” of the migration agent.

  7. Counsel for the first respondent contended that, consistent with the approach taken by the Full Court of the Federal Court in Sunrise Auto Limited v Deputy Commissioner of Taxation (1995) 61 FCR 446 at 455, in its ordinary meaning an “address for service” may be described as the place at which a person may be reached for the purpose of making formal delivery of documents in connection with a review and that consistent with the Macquarie Dictionary definition of provide (“to furnish or supply with something”) such an address had to be an address furnished or supplied by the authorised recipient.

  8. Sunrise Auto concerned regulations made under the Income Tax Assessment Act 1936 in relation to service of a notice by leaving it at the recipient’s “address for service”.  The Full Court considered the dictionary meaning of address for service in a context where there was no definition in the relevant Act or regulations of the notion.  The Court found (at [32]) that, consistent with the dictionary definition, in its ordinary meaning an address for service “may be described for the purposes of legislation in issue as the place at which a person may be reached for the purpose of making formal delivery of a notice of assessment”. 

  9. The applicant provided the postal address of her migration agent as requested in the appointment of a migration agent form.  However, s.379A(4) refers to an address provided to the Tribunal by the “recipient” in connection with the review.  The Act does not require that a document be given (or dispatched) to the authorised recipient at the address contained in the appointment of migration agent form completed by the applicant.  (See Le at [26] in relation to s.494D, the equivalent of s.379G). The authorised recipient (who was the recipient for the purposes of s.379A) provided the Tribunal with both her post office box address and a street address. The authorised recipient used the post office box address in each of the letters of correspondence with the Tribunal. The fact that the authorised recipient also at times used a letterhead that included a street address does not change the fact that the post office box address was provided by her to the Tribunal in each of her written communications, including the letter accompanying the form of appointment of a migration agent completed by the applicant. I am satisfied that the post office box address may be described as the place at which the person in question (Ms Simonian) may be reached for the purpose of making formal delivery of documents in connection with the review and hence as her “address for service”. That is so even if the street address were to be regarded as the “business address”. In these circumstances I am satisfied that by dispatching by prepaid post the letter of 5 January 2006 to the post office box address provided by Ms Simonian on her correspondence the Tribunal complied with s.379A(4)(c)(i) and hence s.368B(6)(b) was satisfied. Thus the Tribunal met the notification requirements of the Migration Act.

  10. In addition, as indicated above, the applicant was actually notified of the Tribunal decision no later than 28 February 2006. She did not apply to the Court within 84 days of that date. Hence she did not apply within the time prescribed by s.477(1) or within the time within which an extension of time may be ordered under s.477(2).

  11. The applicant addressed the Court at some length on her circumstances and why the Court should exercise a discretion to extend the time for compliance. However, in the face of the strict provisions of s.477(1) and (2), the Court does not have the power to extend the time for the application whatever the circumstances of the applicant. The application is out of time insofar as it relates to the Tribunal’s decision.

  12. This is sufficient to dispose of the case.  I note that this is so whether one takes the approach contended for by the first respondent (that the only issue is actual notification to the applicant) or if one also takes into account, as I consider it appropriate to do consistent with the approach taken by Smith FM in SZIVA, whether there has been compliance with the procedural requirements of the Migration Act 1958 by the Tribunal. 

  13. On this basis, as the application to review the decision of the Refugee Review Tribunal handed down on 5 January 2006 is out of time it is incompetent.  If an application is incompetent the Court has no jurisdiction to entertain the application for review of the Tribunal decision or to determine whether or not there is jurisdictional error in the Tribunal decision.  This conclusion means that the applicant would be deprived of the opportunity to have her concerns about the Tribunal decision addressed by the Court because the application was not filed within the inflexible time limits enacted in relation to applications for judicial review of decisions of the Tribunal to this Court (see WACB v MIMIA (2004) 210 ALR 190 at [110]). However as the legislation is drafted, the Court has no discretion to extend the time for compliance with the time limits.

Substantive issues

  1. However, the question of jurisdiction is not without difficulty. The applicant did not have legal representation. In all the circumstances, in case I am wrong in relation to the operation of s.477 of the Migration Act and the Court has jurisdiction, I have considered the substantive grounds for review of the Tribunal decision.

  2. The Tribunal decision in issue was a decision to affirm a decision of a delegate of the first respondent to cancel the Partner (Provisional) (Class UF) visa held by Mrs von Kraft.  Visas held by her two children were also cancelled, but the Tribunal found that it was not able to review the cancellation of the children’s visas under s.140(1), there being no provision for merits review of such a consequential cancellation (see Rani v MIMA (1997) 80 FCR 379) although, as the Tribunal pointed out, if the cancellation of Mrs von Kraft’s visa was set aside, the effect would be that the visas would be treated as if they were never cancelled.

  3. In its reasons for decision the Tribunal outlined the evidence before it in the Departmental and Tribunal files and provided to it in connection with the application for review, including by way of response to invitations to comment on information under s.359A of the Act and the evidence given by Mrs von Kraft at the Tribunal hearing.  I note in that respect that after the Tribunal hearing the Tribunal wrote to Mrs von Kraft pursuant to s.359A of the Act on two occasions in relation to a number of issues.  Its reasons for decision recorded the response from the applicant and her representative. 

  4. In its reasons for decision the Tribunal observed that the delegate of the first respondent had issued a notice under s.107 of the Act to Mrs von Kraft in relation to possible non-compliance with ss.101 and 105 of the Act. Section 101 provides that a non-citizen must fill in his or her application form in such a way that all questions on it are answered and no incorrect answers are given. Section 105 is to the effect that if a non-citizen becomes aware that an answer given in his or her application form or passenger card, or information given under s.104 about the form or card, or a response given to a s.107 notice was incorrect when given, he or she must, as soon as practicable, notify a Department officer in writing of the “incorrectness” and of the correct answer.

  5. Mrs von Kraft was granted a spouse Class UF visa on 25 February 2003 on the basis that she was the spouse of her sponsor, Mr von Kraft, whom she had married in Australia on 22 July 2001. The Tribunal recorded that Mrs von Kraft had first arrived in Australia in February 1998 as the holder of a tourist visa and had subsequently applied (unsuccessfully) for a protection visa, Tribunal review and Ministerial intervention. She left Australia on 15 August 2001. At the time of the Class UF visa application (12 April 2002) she was outside Australia. She returned to Australia as the holder of the Class UF visa on 7 March 2003. The visa was cancelled on 19 November 2004 pursuant to s.109 of the Act on the basis that Mrs von Kraft had not complied with ss.101 and 105 of the Act. In its decision of 5 January 2006 the Tribunal addressed the grounds for cancellation outlined in the s.107 notice (see Saleem v MRT [2004] FCA 234). It found that Mrs von Kraft had failed to provide answers to five questions in her visa application (questions 50, 55, 56, 58 and 59) all of which related to details of a sponsor, his family and previous relationships and details of the parties’ relationship. It observed that the applicant had answered all questions in the application relating to her own details, her family and previous relationships.

  6. It noted that in response to an invitation from the Department to comment on her failure to answer question 55 as to whether the sponsor had previously been married or in a de facto or interdependent relationship, the applicant had stated in her response to the s.107 notice that her failure to answer question 55 was an oversight. The Tribunal found on this basis that Mrs von Kraft had failed to answer question 55 of her visa application and therefore failed to comply with s.101 of the Migration Act.

  7. The Tribunal then turned to consider whether there was a failure to comply with s.105 in light of the basis of Mrs von Kraft’s application for the visa and events that had occurred since that time. It observed that the visa application had been lodged on 12 April 2002 on the basis that Mrs von Kraft claimed to be the sponsor’s spouse as defined in Regulation 1.15A of the Migration Regulations. It referred to a provision in policy that a person maintaining polygamous marital relationships (such as concurrent ongoing de jure marital relationships or an on going de jure marital relationship concurrent with a de facto marital relationship) could not satisfy the requirement of Regulation 1.15A(1)(a)(b)(i) that the persons “have a mutual commitment to a shared life as husband and wife to the exclusion of all others”.

  8. The Tribunal referred to the fact that the Department had invited Mrs von Kraft to comment on her failure to notify the Department that at the time of her return to Australia on 7 March 2003 the sponsor was involved in a relationship with another woman.  It referred to the applicant’s response that she was not aware of the sponsor’s other relationship until she arrived in Australia, that she had not been informed by him that he was living in a de facto relationship with the other woman, that she continued to receive financial support from him and believed she and the sponsor would cohabit again.

  9. The Tribunal also recorded that Mrs von Kraft had advised it that she had been told by the sponsor on 7 March 2003 that he did not want her to stay in the house because he had become involved with another woman who was heavily pregnant at that time (the sponsor being named as the father of the baby born on 7 April 2003).  It also recorded that Mrs von Kraft stated she was confident that the presence of the other woman was only a “temporary setback” to her relationship with the sponsor and that he told her they would be able to sort out the relationship after the baby was born.  However the Tribunal also recorded that the applicant stated that she did not live with the sponsor at any time after her arrival on 7 March 2003, that she lost contact with him from May or June 2003 and did not speak with him again before he died on 28 August 2003.  The Tribunal recorded that the sponsor’s death certificate named Mrs von Kraft as the second partner of three and listed the other woman as his de facto partner at the time of his death.  Mrs von Kraft obtained a copy of his death certificate in November or December 2003.

  10. On this basis the Tribunal found that Mrs von Kraft became aware on or after 7 March 2003 that the sponsor was living with another woman and that she and the sponsor “no longer had a commitment to a shared life as husband and wife to the exclusion of all others” and became aware that her relationship with the sponsor was no longer “genuine and continuing”.  It also found that she became aware on or after 7 March 2003 that she and the sponsor were not (sic) living separately and apart on a permanent basis.  It also found that she became aware in November or December 2003 when she received a copy of the sponsor’s death certificate that the other named woman was the sponsor’s de facto partner at the time of his death. 

  11. The Tribunal had regard to s.99 of the Act which provides that any information that a non-citizen gives or causes to be given or is given on his or her behalf to the Minister or Tribunal is taken for the purposes of sections (including ss.101(b) and 105) to be an answer to a question in the non-citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise.

  12. The Tribunal accepted that there was no evidence before it that Mrs von Kraft was aware of the sponsor’s relationship with the other woman at the time she completed the visa application, which was lodged while she was overseas.  However it found that at the time her representative notified the Department on 8 November 2003 of the sponsor’s death and provided a copy of the death certificate she was well aware that her relationship with the sponsor had ended prior to his death because she had not lived with him at any time since her arrival in March 2003 and had lost contact with him after May or June 2003.  The Tribunal found that the applicant was also aware from information in the death certificate that another named person was the sponsor’s de facto spouse at the time of his death.  It found that Mrs von Kraft’s representative falsely advised the Department that the review applicant and her children were living at the sponsor’s address in December 2003.  The Tribunal found that her representative acted on her instructions “in preparing the letter to the Department of 8 December 2003.”

  13. On this basis the Tribunal found that Mrs von Kraft had failed to notify the Department that the information provided by the representative on 8 December 2003 was incorrect in relation to the spouse relationship between her and the sponsor prior to his death and in relation to her residence. It found that she failed to comply with ss.101 and 105 of the Migration Act.

  14. The Tribunal then had regard to the prescribed circumstances in Regulation 2.41 of the Act as required under s.109(1)(c) in deciding whether Mrs von Kraft’s visa should be cancelled. It found that the “correct information” was that on or before 7 March 2003 the sponsor began a de facto relationship with the other named woman, that therefore he and Mrs von Kraft no longer had a mutual commitment to a shared life as husband and wife to the “exclusion of all other”, that the relationship between them was no longer genuine and continuing and they no longer lived together or did not live separately and apart on a permanent basis so that Mrs von Kraft was no longer a “spouse” as defined in the Migration Regulations by the time of her arrival in Australia on 7 March 2003.

  15. The Tribunal also addressed the circumstances surrounding the non-compliance, finding, despite some evidence that a friend had visited the sponsor’s home in February 2003, that it could not be satisfied of Mrs von Kraft’s knowledge prior to her arrival in Australia on 7 March 2003.  However it found that it was undisputed that on that date she became aware of the presence of the other woman in the sponsor’s home, that that woman was pregnant and that the sponsor appeared to be accepting responsibility for her care during the pregnancy and had decided that that person’s needs were of a greater priority than the needs of Mrs von Kraft and her children at that time. 

  16. The Tribunal found that, even if it accepted that Mrs von Kraft appeared to be optimistic about the resumption of her relationship with the sponsor thereafter, it did not accept that she could genuinely have sustained that belief in the light of subsequent events (the Tribunal referred to the fact that she was prevented by the other woman from visiting the sponsor at his home or maintaining contact with him by phone after she lost contact with him in May or June 2003 having visited him in hospital when he was terminally ill), that her bank records indicated that she transferred her registered address from the sponsor’s home to a new home elsewhere sometime between 1 February 2003 and 30 April 2003 which indicated that she viewed the other address as her permanent address from that time, having accepted that she would not be able to live at the sponsor’s home.

  1. The Tribunal found that Mrs von Kraft was aware before the sponsor’s death on 26 August 2003 that her relationship with him had ceased and also that she was aware of her obligation to notify the Department of any change in circumstances, because she had advised of her change of address on two occasions and had instructed her representatives to notify the Department about the sponsor’s death.  It found that she failed to notify the Department that her relationship had ceased and instructed her representative to provide false and misleading information to the Department on 8 December 2003. 

  2. The Tribunal addressed Mrs von Kraft’s current circumstances, noting that she had lived with the children (who are not children of the relationship and are not Australian citizens or permanent residents) in Sydney until they relocated to Tasmania in July 2005.  It had regard to the fact that the children arrived in Australia aged six and seven and attended primary school in Sydney and Tasmania and were aged nine and ten at the time of the Tribunal decision.  It also had regard to the applicant’s claims that the children had learned English and settled into Australian life, adapted to the culture and established relationships.  It noted however that Mrs von Kraft and her children moved to a different State in July 2005 and had only recently begun to establish relationships in that community.  It also had regard to Mrs von Kraft’s indication that she had no partner and no extended family in Tasmania, although she stated she had friends in that State and that her two older children and extended family lived in Estonia. 

  3. As to Mrs von Kraft’s subsequent behaviour, the Tribunal observed that she had continued to deny that her relationship with the sponsor was not genuine and continuing at the date of his death and that she became aware of the end of that relationship prior to instructing her representative to advise the Department of her change in circumstances on 8 December 2003.  However the Tribunal did not accept her claims in this regard and found that her evidence was contrived for the purposes of the review.

  4. The Tribunal then addressed the question of whether there was any other non-compliance, finding that the applicant had failed to provide answers to five questions in the visa application relating to details of the sponsor, his family and previous relationships and the parties’ relationship. It rejected her claim that these omissions were due to poor English language skills or a simple oversight. It noted that she was able to answer all questions relating to her own details and details of her own family and previous relationships and found that her failure to answer additional questions not included in the Department’s s.107 notice were further evidence of her non-compliance with s.101 of the Act.

  5. It also found that the false and misleading information provided by the representative on 8 December 2003 was, by virtue of s.99 of the Act, taken to be an incorrect answer in the visa application and a further breach of s.101 of the Act.

  6. The Tribunal also referred to the time since the non-compliance, the absence of evidence of breach of Australian law by the applicant other than in connection with the cancellation of the spouse visa.  Under the heading ‘contribution to the community’ it outlined the fact that the applicant had worked in Australia and was raising two children but that there was no other evidence of her contribution to the community.

  7. The Tribunal then referred to policy in relation to the primary and secondary considerations when making a decision to cancel under s.109 of the Act. It gave primary consideration to the potential effect of cancellation on Mrs von Kraft’s children. It had regard to the fact that the children had been resident in Australia for nearly three years which was a significant portion of their young lives and that they had completed a significant portion of their schooling in English in Australia. It referred to the fact that they had recently relocated to Tasmania where Mrs von Kraft had no family. It found that they had not had an opportunity to establish long-term relationships in Tasmania, that Mrs von Kraft was not involved in a new spouse relationship in Australia and that the children would not be affected by the loss of a parental figure if they returned to Estonia. It had regard to evidence that the children had close family in Estonia including two older siblings and a maternal grandmother but that their father was deceased. It found the main effect on the children if they returned to Estonia was that they would be unable to benefit from the educational and employment opportunities in Australia, but found that on the evidence before it that it was not apparent that they would suffer any emotional harm or deprivation if unable to remain in Australia in the absence of long-term relationships in their new location. It also found no evidence that they were no longer able to speak Estonian or would be unable to adapt to Estonian culture if they returned, finding the existence of close family in Estonia would enable them to become reacquainted with the local language and culture more rapidly than if they had no such family or friends. It also found no evidence to suggest that the children would not be able to adapt to the Estonian education system on their return.

  8. The Tribunal found that the potential effect of cancellation on the children would not be significant in the circumstances of this case.  It reiterated that it had already found that Mrs von Kraft was aware before the sponsor’s death that her relationship with him had ceased because of his de facto relationship with another woman and the impending birth of her child and that she had failed to advise the Department about this significant change in her circumstances despite being aware of her responsibility to do so.  It referred to the false and misleading information of 8 December 2003 and its finding that the applicant’s continued denial of any knowledge or responsibility in connection with the grounds for cancellation of the visa was contrived for the purposes of the review.  The Tribunal found that the reasons for cancelling the spouse visa outweighed the reasons for not cancelling the visa and hence found in all the circumstances that Mrs von Kraft’s Subclass 309 visa should be cancelled. 

  9. The grounds for review in the application to this Court on 15 August 2006 are generally expressed as a claim that the applicant suffered a denial of natural justice in that the Tribunal failed to take into account relevant matters and also take issue (as discussed above) with the Department’s cancellation of the visa and the giving of priority to a de facto partner. 

  10. The last of these grounds raises no issue with the Tribunal decision and must be rejected as set out above.

  11. There are no particulars to the ground of denial of procedural fairness. I note that as the application to the Tribunal was made on 24 November 2004, the procedures to be followed by the Tribunal are governed by s.357A (see MIMA v Lay Lat [2006] FCAFC 61).

  12. The applicant filed a number of affidavits, some of which contained material in the nature of submissions as well as submissions of 10 January 2007.  Insofar as she provided information to the Court intended to demonstrate that the relationship between herself and her sponsor was genuine (in particular during the applicant’s time in Australia prior to her return to Estonia in 2001), such material does not assist in considering whether the Tribunal fell into jurisdictional error in its decision to cancel the visa.  In that respect I note that there is no suggestion by the Tribunal that the applicant’s relationship with her sponsor may not have been a genuine spouse relationship at some time, but rather that by the time of her return to Australia on 7 March 2003 she was no longer the sponsor’s spouse as defined in the Migration Regulations.  Such information establishes neither lack of procedural fairness or a failure by the Tribunal to take into account relevant considerations.

  13. In her affidavit of 15 August 2006 the applicant set out at some length her claims about her past circumstances and time in Australia and took issue with the Tribunal’s finding that she was no longer the sponsor’s spouse by the time of her arrival in Australia on 7 March 2003.  She reiterated her knowledge and belief that she was in a continuous and exclusive marital relationship.  She also addressed at some length the circumstances under Regulation 2.41 relevant to the Tribunal’s consideration of whether to cancel her visa.  However insofar as the applicant seeks merits review, merits review is not available in this Court.  It has not been established that the Tribunal failed to take any relevant considerations into account in addressing these factors.  The applicant’s disagreement with the Tribunal’s factual findings or the weight given to particular matters does not establish jurisdictional error. 

  14. In her submissions of 10 January 2007 and oral submissions, in addition to addressing the time limit, the applicant made submissions in relation to jurisdictional error which I have considered in addition to the grounds in the application for review.  Insofar as she takes issue with the Department’s action in accepting an application from another person for a spouse visa sponsored by the person who had been the sponsor of Mrs von Kraft that does not establish jurisdictional error by the Tribunal in its decision affirming the cancellation of the spouse visa of the applicant. 

  15. The applicant purported to provide a further explanation for her failure to answer all questions in her visa application, but such explanation does not establish error in the Tribunal finding that she failed to comply with s.101 of the Act. The applicant contended that the decision of the Tribunal was “predictable” and claimed that in the hearing her explanation was interrupted by the Tribunal asking twice whether the husband had promised her that they would live together again. There is no transcript of the Tribunal hearing before the Court, and there is nothing in this claim on the material before the Court to establish either actual or apprehended bias. The applicant also claimed that the Tribunal did not take into account any of her explanations. In fact it is apparent from the Tribunal reasons for decision that the Tribunal considered the evidence of the applicant, but was not satisfied that the factors she raised were such that the visa should not be cancelled. Insofar as the applicant endeavoured to put further information before the Court in relation to her personal situation, that is not material that assists in identifying whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.

  16. In these circumstances no denial of procedural fairness (whether consisting of actual or apprehended bias or otherwise) is apparent, whatever the extent of the operation of s.357A of the Act. Nor has it been established that the Tribunal failed to comply with any of the provisions in Division 5 of Part 5 of the Act. In particular, the Tribunal properly (on a number of occasions) gave the applicant particulars of information it considered would be the reason or part of the reason for its decision. It invited her to attend the hearing and give evidence and present arguments relating to the issues arising in relation to the review.

  17. Further, it has not been established that there was a failure to have regard to relevant considerations in a manner constituting jurisdictional error.  The applicant’s claim is, in effect, that the Tribunal did not accept her contentions, but her disagreement with the Tribunal’s findings in this respect does not establish jurisdictional error. 

  18. There is nothing on the material before the Court to suggest that the procedures required in relation to a cancellation decision were not observed. The Tribunal properly had regard to the applicant’s response to the notice of intention to cancel in addressing whether there was a failure to comply with s.101 or s.105 and then turned to the prescribed circumstances in considering the exercise of its discretion. It gave primary consideration to the potential effect of the cancellation on the applicant’s children. However having done so, it determined that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa and hence affirmed the decision. It has not been established that the Tribunal failed to have regard to considerations made mandatorily relevant under the Act or that it failed to consider any integers of the applicant’s claim.

  19. As no jurisdictional error has been established, even if I am wrong in my conclusion that the application is incompetent, it should, in any event, be dismissed. 

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  15 March 2007

CORRECTIONS

  1. Catchwords – delete “Refugee” insert “Migration”

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Cases Citing This Decision

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SZRVF v Minister for Immigration [2013] FCCA 764