Vu v Minister for Immigration and Anor (No.2)
[2007] FMCA 800
•31 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 800 |
| MIGRATION – Visa – Migration Review Tribunal – review of visa refusal – Subclass 820 – genuine relationship – misleading information in application – review of decision of Migration Review Tribunal affirming a decision that the Applicant is not entitled to the grant of a Partner (Temporary) (Class UK) visa – where jurisdictional error found. PRACTICE & PROCEDURE – Delay – where decision notified on |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.351
Vu v Minister for Immigration & Anor [2006] FMCA 114 referred to.
Lei Wan v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 568 cited in argument.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 138 ALR 353 cited in argument.
Mitco DB Pty Ltd v Chief Executive Officer of Customs (1999) FCA 712 cited in argument.
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited in argument.
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) ALR 162; [2005] HCA 24.
Jones v Dunkel (1959) 101 CLR 298 followed.
| Applicant: | VU ANH TUAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 3133 of 2005 |
| Delivered on: | 31 May 2007 |
| Delivered at: | Sydney |
| Hearing date: | 14 December 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Ray Turner |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3133 of 2005
| VU ANH TUAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal that was made on 15th September 2003. The Tribunal affirmed a decision of the delegate of the Minister finding that the Visa Applicant was not entitled to the grant of a Partner (Temporary) (Class UK) visa.
Background
A brief history of the matter is that the Applicant lodged an application for review on 20th May 2002 seeking review of a decision of the delegate to refuse to grant a visa which had been made on 14th May 2002. The Applicant had entered Australia on another visa in May 1997 and he was granted a further visa in December of that year. That visa expired in March 2000 and he then went on to a bridging visa as a result of his application for this visa.
The Applicant was nominated in connection with the visa application by Ms Nina Tran who is an Australian citizen and has been an Australian citizen since August 1999. The parties claim that they had met in October 1998 and there is no issue about the fact that they were married in Sydney on 18th December 1999. They have provided documentary evidence in support of the application, which included a number of photographs, receipts, tenancy agreements, statutory declarations, telephone bills and other material.
Tribunal’s findings and reasons
The Applicant and the Nominator both attended a hearing of the Tribunal that took place on 18th August 2003 and they both gave evidence. The Tribunal, however, returned an unfavourable decision. Whilst the Tribunal was satisfied that the parties were married in a valid ceremony on 18th December 1999, the Tribunal was not satisfied as to the reliability of the Applicant's evidence as that evidence contradicted that of the Nominator on a number of important points.
The Tribunal was also not satisfied that the statutory declarations of the Applicant and the Nominator about the relationship were also reliable. In addition, the Tribunal was not satisfied that the Nominator, Ms Tran, resided at an address in Acacia Street as she had claimed, but continued to reside at Torrens Street in Canley Heights. The Tribunal formed the view that there was a lack of reliable documentary evidence showing spousal relationship at the time of the application and also that at the time of the application the couple were in a genuine spousal relationship.
The Tribunal was not satisfied that the couple were residing together or that any relationship that they had was mutually exclusive. The Tribunal formed the view that the couple's evidence at the hearing did not indicate that they had a good knowledge of the circumstances of each other. The Tribunal formed an unfavourable view of the Applicant's evidence about his employment and it was so unfavourable that the Tribunal described that evidence as unreliable. The Tribunal also formed the factual conclusion that the documents provided did not make it clear that the parties were actually pooling their financial resources.
Application for judicial review
The Applicant filed his Application for review at this Court on 27th October 2005. An Amended Application was filed in Court on 25th January 2006, the day of the hearing. On 31st January 2006
I dismissed the application. I found that there had been a jurisdictional error but exercised my discretion to deny relief due to the Applicant’s delay in commencing proceedings (Vu v Minister for Immigration & Anor [2006] FMCA 114).
The Applicant appealed. In the Notice of Appeal the Applicant complained that he had been denied procedural fairness because he had not been given notice that the Court intended to exercise its discretion to refuse relief and had not been given an opportunity to make submissions in relation to the exercise of discretion. The First Respondent Minister agreed that the Applicant was not on full notice that the Court might refuse relief on account of his delay in commencing proceedings. Accordingly, the First Respondent consented to orders being made to remit the application to this Court and on 23rd May 2006 Cowdroy J made orders by consent that the appeal be allowed and the orders made on 31st January 2006 were set aside. Thus, the application was remitted to this Court.
It was conceded that there had been a jurisdictional error on the part of the Tribunal. The parties agreed that the only issue for determination by the Court is a reconsideration of the question of delay in the context of exercising the Court’s discretion as to whether to grant relief to the Applicant.
Submissions and evidence
The solicitor for the Applicant, Mr Turner, sought leave to file in Court an affidavit to which he is the deponent, annexing a report from Anita Duffy, a psychologist. Counsel for the First Respondent objected to the affidavit. I am of a view that the affidavit should not be admitted. The correct way for an affidavit containing expert evidence to be submitted is for the affidavit to be from the expert himself or herself, not from the party’s legal adviser.
On the question of delay, Mr Turner submitted that the Migration Review Tribunal did not consider the best interests of the Applicant’s two children, who are Australian citizens. The existence of the two children was made known to the Tribunal. He submitted that the Tribunal did not consider the best interests of the Applicant’s children as it did not determine what the children’s best interests were, which is a necessary pre-condition to any consideration of their best interests (Lei Wan v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 568). If the Tribunal was not to treat the best interests of the children as a primary consideration it was required to inform the Applicant accordingly and provide him an opportunity to comment upon that situation (Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 138 ALR 353).
Mr Turner submitted that because the Tribunal fell into jurisdictional error, the Applicant was entitled to the relief sought. In considering the exercise of the Court’s discretion, he submitted that the Court should take these matters into consideration:
·The best interests of the children of the Applicant are a primary consideration which should weigh heavily in favour of the discretion being exercised in the Applicant’s favour.
·The Tribunal’s decision was made on 25th September 2003.
·On 11th December 2003 the Applicant applied to the Minister to exercise the Minister’s discretion under section 351 of the Migration Act.
·On 16th December 2004 the Minister decided not to exercise her discretion.
·On 27th October 2005 the Applicant applied to this Court for judicial review of the Tribunal decision.
·The attempt by the Applicant to achieve an alternative remedy is a reason for the delay in applying to the Court.
·There is an unexplained delay of less than 12 months in applying to the Court for a review of the Tribunal’s decision (Mitco DB Pty Ltd v Chief Executive Officer of Customs [1999] FCA 712).
Mr Turner referred to a letter from the Applicant’s solicitors dated
11 December 2003[1] to the Minister, requesting the exercise of Ministerial Discretion under s.351 of the Migration Act. He submitted, in answer to a submission by Ms Clegg of counsel for the Minister, that this does not manifest a positive intention not to challenge the Tribunal’s decision. He stated that the letter did answer matters raised in the Migration Review Tribunal decision and that what the Applicant was effectively doing was challenging the Tribunal decision in the wrong forum.
[1] Reproduced at pages 190 to 194 of the Court Book
Counsel for the Minister, Ms Clegg, submitted that the application should be dismissed on account of the Applicant’s delay in commencing proceedings. Despite having been given a clear opportunity to account for his delay, the Applicant had failed to do so.
Relief sought by Applicants in this Court is discretionary (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 the High Court of Australia confirmed the discretionary nature of relief for jurisdictional error. McHugh J stated that relief may be refused if “the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay…or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands”.[2]
[2] (2005) 215 ALR 162 at [79]-[84]
Ms Clegg submitted that in this case a delay of over two years was unwarrantable. In the absence of any evidence giving an explanation for the delay, the Court could infer that a decision was taken by the Applicant in September 2003 not to challenge the decision of the Tribunal in this case and that the Applicant should be held to that decision. Two years, she submitted, was well beyond the realm of acceptable delay. There was no explanation from the Applicant at all. Thus, she submitted, the conduct of the Applicant is inconsistent with the application for relief.
Conclusions
I am satisfied that the Applicant delayed in commencing these proceedings and delay is a ground for refusal to grant relief on a discretionary basis. The decision was made on 15th September 2003 and the Applicants therefore are deemed to have been notified on
22 September 2003. The application was not filed at the Federal Magistrates Court until 27th October 2005. That is a delay of more than two years.
It is clear that a part of the reason for the delay is the decision by the Applicant’s former solicitors to seek the exercise of the Minister’s discretion rather than, apparently, seek judicial review of the decision of the Migration Review Tribunal. The application for the exercise of the Minister’s discretion was made on 11th December 2003 and the Minister decided not to exercise that discretion on 16th December 2004. Thus, there is an explanation of sorts for 53 weeks’ delay.
I am inclined to accept the submission by Mr Turner for the Applicant that this does not indicate an intention to accept the Tribunal decision but a step to challenge the decision in the wrong forum. The letter from the Applicant’s then solicitors includes a section headed “Issues at the Migration Review Tribunal”[3] which can be seen to challenge some of the Tribunal’s findings.
[3] Reproduced at Court Book 192-193
Nevertheless, after the Minister rejected the application for discretion on 16th December 2004, the Applicant took no other steps until he filed his application for judicial review on 27th October 2005, with the aid of his present solicitor. There is no explanation given as to why no application for judicial review was made between 22nd September 2003, when the Applicant was deemed to have been notified, and the submission to the Minister seeking the exercise of s.351 discretion on 11th December 2003. Again, there is no explanation why it took from 16th December 2004 until 27th October 2005 to file an application for judicial review.
Whether or not the Court accepts the application for the exercise of Ministerial discretion as an explanation for part of the delay, there is still no explanation for the balance of the delay, which totals nearly another twelve months. This case is clearly about whether or not the Applicant has explained the delay in commencing proceedings. It is surprising, therefore, that there is no evidence from the Applicant himself about this issue. In the ordinary course of events I would have expected that the Applicant would have set out an explanation in an affidavit, upon which he could have been cross-examined.
As it is, the Applicant has not given any evidence on this issue. It is well established that the unexplained failure by a party to call a witness or tender documents and other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case (Jones v Dunkel (1959) 101 CLR 298). In this case there is a failure by the Applicant to give or provide evidence going to the explanation for the delay.
In my view, the failure by the Applicant to give evidence either orally or by affidavit leaves a significant delay without any explanation. I am satisfied that in the exercise of the Court’s discretion relief should be denied because of the unwarrantable and unexplained delay by the Applicant.
The application will be dismissed and I will consider the question of costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 28 May 2007
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