Ying v Minister for Immigration
[2015] FCCA 1089
•30 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YING & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1089 |
| Catchwords: MIGRATION – Judicial review of a decision of the Migration Review Tribunal affirming a decision of a Delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) or a Partner (Residence) (Class BS) visa – no jurisdictional error disclosed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.01 Migration Act 1958 (Cth), ss.5CB, 359A, 359B, 379C & 494C Migration Regulations 1994 (Cth), regs.1.09A & 4.17; cls.820.221 & 801.221 |
| Minister for Immigration and Border Protection v Pandey [2014] FCA 640 Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 77 Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 |
| First Applicant: | TAM SIN YING |
| Second Applicant: | TAM MUHAMMAD FAIZ SHU TUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 181 of 2014 |
| Judgment of: | Judge Simpson |
| Hearing date: | 5 September 2014 |
| Date of Last Submission: | 5 September 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 30 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G Finlayson for Greg Finlayson Lawyers |
| Solicitors for the Respondents: | Mr P D'Assumpcao for the Australian Government Solicitors |
ORDERS
The Application filed 23 May 2014, and the Amended Application filed 25 August 2014, are dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 181 of 2014
| TAM SIN YING |
First Applicant
| TAM MUHAMMAD FAIZ SHU TUNG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant is the mother of the Second Applicant. They are Chinese nationals. The First Applicant (“the Applicant”) was born on 3 March 1979 and the Second Applicant on 23 July 2002.
The Applicant seeks a visa that would allow her and her child to live in Australia. The Applicant has nominated Mr Geoffrey Munn (“Mr Munn”), an Australian citizen born on 16 August 1927, as her sponsor. The Applicant says that Mr Munn is her de facto partner.
The Applicant seek judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 24 April 2014. The Tribunal affirmed a decision of the Delegate of the First Respondent not to grant the First Applicant either a Partner (Temporary)(Class UK) or a Partner (Residence)(Class BS) visa (“the visa”).
The Delegate
The Applicant lodged an application for the visa on 10 July 2012 with her young son as Secondary Applicant on the application. Refusal of the visa to the Applicant will mean that the Second Applicant’s application will not succeed.
On 26 September 2012, an officer of the Minister’s Department conducted an onsite visit to interview the Applicant and Mr Munn. The officer concluded that the Applicant’s de facto relationship with Mr Munn was not genuine.
On 22 March 2013, the Delegate refused the application on the ground that the Applicant did not satisfy the relevant criteria, specifically cl.820.221 and cl.801.221 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal
On or about 15 April 2013, the Applicant applied for review of the Delegate’s decision by the Tribunal. By letter dated 13 December 2013, the Tribunal invited the Applicant to appear before it to give evidence and present arguments. That letter expressly invited the Applicant to provide information required by reg.1.09A(3).
The Applicant appeared before the Tribunal on 6 February 2014 and provided further documents at the hearing. The hearing was adjourned and, on 7 February 2014, the Tribunal wrote to the Applicant and requested additional information relevant to the criteria in reg.1.09A, including, “A medical report for Mr Munn stating the existence of any medical conditions and the treatment being given”. The Tribunal also advised the Applicant that it intended to summon Mr Munn’s daughter, Ms Lynette Beeby, to give evidence at the resumed hearing.
On 12 March 2014, the Applicant wrote to the Tribunal and provided some of the requested documents. The Applicant also informed the Tribunal that she:
“… could not provide her partner’s medical report ‘to this hearing’ as ‘my partner’s medical nurse said that she need to have an referral letter from the relevant Department before she can disclose my partner’s medical report. However I still never have this referral letter.” [sic]
On 18 March 2014, Ms Beeby wrote to the Tribunal and provided information including a letter from Dr Andrea Prior. That letter relevantly expressed concerns about Mr Munn’s memory and ability to make decisions.
On 20 March 2014, the Applicant wrote to the Tribunal and provided further documents including a Binding Financial Agreement between the Applicant and Mr Munn.
The Applicant, Ms Beeby and Mr Munn appeared before the Tribunal on 20 March 2014. The Tribunal’s decision record noted that the information from Dr Prior and evidence given by Mr Munn at the hearing was, “Put to Ms Tam under s.359A of the Migration Act 1958 (Cth) after the hearing” and she was advised that, “These matters would come to her in writing and that she would have 28 days to respond”.
On 26 March 2014, the Tribunal wrote to the Applicant and invited her to comment on or respond to information, specifically the evidence given by Ms Beeby and the medical report from Dr Prior referred to above. In relation to the medical report, the letter further stated, “You said a medical report could not be provided for Mr Munn as requested because the nurse told you there needs to be a medical referral from the Department”.
The Tribunal granted the Applicant until 22 April 2014 to provide further information and noted that if the Applicant required an extension of time, the request for an extension must be received by the Tribunal before 22 April 2014 as must the reasons why an extension of time is sought.
On 17 April 2014, the Applicant’s representative emailed the Tribunal and advised that he had recently been instructed and requested a three week extension. In support of this request, he said, “Given my existing work commitments, I am unable to meet the 22 April 2014 deadline.” Nonetheless, on 22 April 2014, the Applicant’s representative wrote to the Tribunal and provided additional information.
Earlier, however, by letter dated 17 April 2014, the Applicant provided the Tribunal with a detailed response to the Tribunal’s invitation to comment and provide information.
On 22 April 2014, the Tribunal wrote to the Tribunal’s representative and advised that his request for an extension of time was not granted.
On 23 April 2014, Ms Beeby provided additional material to the Tribunal, including a report of Dr Colin Field, Registered Psychologist, in relation to Mr Munn.
On 24 April 2014, the Tribunal affirmed the decision under review.
On 23 May 2014, the Applicant filed an application in this Court for judicial review of the Tribunal’s decision.
The Tribunal’s decision
Under the heading ‘Consideration’, the Tribunal noted that the issue before it was whether the Applicant was the de facto partner of Mr Munn as defined in s.5CB of the Migration Act 1958 (“the Act”).
The Tribunal set out the oral evidence given by Ms Beeby. It noted that Ms Beeby’s evidence, the information from Dr Prior, and the evidence of Mr Munn at the hearing, were all put to the Applicant for comment under s.359A of the Act (“the s.359A letter”).
In relation to the Applicant’s representative’s request on 17 April 2014 for an extension of time to provide further information in response to the s.359A letter, the Tribunal noted in its reasons[1]:
“Ms Tam was advised at the hearing that these matters [the s.359 matters] would come to her in writing and that she would have 28 days to respond. The s.359A letter was issued six days after the hearing.The date the response was due, a solicitor contacted the Tribunal stating he had been appointed as a representative and seeking an extension of time to respond.
The Tribunal considers Ms Tam was aware of the timeframes in which she needed to respond and had been advised orally at the hearing and in writing after the hearing of the timeframe. It was open to her to seek advice or representation … including after each of the hearings held by the Tribunal and before the response was due. In these circumstances the Tribunal declined to provide her with additional time to respond.
Ms Tam submitted a statement with photographs of the property at Aldinga Beach and a copy of the Binding Financial Agreement. Her representative provided an updated copy of her statement and a copy of the Binding Financial Agreement. In his email the representative asks that it is taken into account that Mr Munn received independent financial advice …
In the last sentence of her original statement and in the introduction of the revised statement, Ms Tam states that she experiences violence from Mr Munn due to this age. Ms Tam had not made any allegation of violence before this point in time. To make a valid claim of family violence, she would have to meet the requirements in relation to claims for family violence. She has not done so and the Tribunal does not have a valid claim of family violence before it.”
[1] See paras [10] – [13].
The Tribunal then summarised the evidence given by Mr Munn and the information set out in the report of Dr Prior.
The Tribunal next provided the reasons for refusing to grant the Applicant further time to obtain a medical report in relation to Mr Munn. It said:
“Ms Tam was asked at the first hearing to provide a medical report for Mr Munn. This was re-iterated in the hearing invitation for the second hearing which asked Ms Tam to provide a medical report for Mr Munn stating any medical conditions he has and the treatment for any medical conditions. Ms Tam failed to do so, and said she was told by a nurse that a referral would have to come from the Department. In her written submissions, Ms Tam said that she would need more time to provide a medical report. The Tribunal considers she has had ample time to do so.”
The Tribunal found that Mr Munn had problems with his memory and had an inability to manage his own health, safety or welfare and was vulnerable to suggestion from others.
The Tribunal then considered whether the Applicant was, at the time the visa application was made, and at the time of the decision, the de facto partner of Mr Munn. In this regard, the Tribunal considered, and applied, the factors set out in reg.1.09A(3). It concluded that the Applicant was not in a de facto relationship and affirmed the decision under review.
Hearing before this Court
Having filed her Application for judicial review on 23 May 2014, the Applicant filed an Amended Application on 25 August 2015.
The grounds for review in the Amended Application are as follows:
“1.(not persued). [sic]
2.The Tribunal refused to extend the time for the applicants to provide responsive evidence to the Tribunal’s letter of 26th March 2014.
3.(not persued).[sic]
4.The Tribunal did not allow the respondent [sic] the prescribed period of 28 days to respond to its letter of 26th March 2014 and denied the applicants the right to be heard in the terms mandated by the Migration Act.
5.Impugned the appearance of impartiality of its jurisdiction in that:
(a)It received material from Ms Lyn Beeby after the closure of the period of time it stated would be allowed [sic] the applicant, that material was highly prejudicial to the applicants, and yet the tribunal did not provide the applicant any opportunity to respond to that further material.
(b)While not publishing its decision publicly, it nevertheless disclosed the decision for the use of Ms Lyn Beeby who was subsequently able to use the decision to seek orders before the Guardianship Board and the Magistrates Court of South Australia.
Particulars
1.The Tribunal stated at the hearing that the applicants [a]re [sic] to be allowed 28 days to send comments and respond under s359A.
2.On 28th March 2014 the Applicants received the 359A letter which was issued by the Tribunal member and in the letter it stated that the written comments or response by the applicant should be received at the Tribunal by 22nd April 2014.
3.The Applicant requested that the extension of time to be given from the Tribunal to provide that there was [sic] further evidence and a serious issue to be tried which related to the family violence claim by the applicants which related to the family violence alleged committed by the applicants’ [sic] partner to the applicant’s child and the applicant stated that the request for extension of time for the related evidence and the medical report can be sent for the Tribunal’s consideration in the 359A letter.
4.In fact the applicants were only allowed to have 24 calendar days to send the 359A letter including the 4 week days’ public holidays from 28th March 2014 to 22nd April 2014 and which is not the 28 days that the Tribunal said would be given to the applicant to provide the evidence resulting in the applicants did not have enough time to provide the relevant evidence the medical report to send it for consideration which is related to the decision making made by the tribunal due to the Tribunal member refusing to grant the applicant an extension of time on 22nd April 2014. [sic]
5.Nevertheless, the tribunal received further material (being the material at item 24 of the Court Book) on 23rd April 2014 from Lyn Beeby which was of a character to unfairly colour the reasoning of the Tribunal without granting the applicants an opportunity to respond in circumstances where that material (in particular the report of Colin Field) was relevant to the comments sought in the letter to Ms Tam of 26th March 2014.
6.Also the Tribunal decision was provided to Lyn Beeby in a manner which permitted her to use it in the guardianship tribunal and Adelaide Magistrates Court, while not publicly publishing the decision.”
The only grounds that remain to be addressed are grounds 2, 4 and 5. I will deal with them in that order.
Ground two
Ground two of the review complains that the Tribunal refused to extend the time for the Applicants to provide responsive evidence to the Tribunal’s letter of 26 March 2014. This ground might more properly be expressed as an allegation that the decision not to extend time under s.359B(4) was unreasonable.
Section 359B(2) provides that if an invitation under s.359A is for the Applicant to give information, comments or responses otherwise than at an interview, that the Applicant be given a period specified in the invitation, the period being a prescribed period. At the relevant time in this case, reg.4.17(4) specified that the prescribed period commenced on the day when the person received the invitation and, relevantly in this case, ends at the end of 14 days after the person receives the invitation.
In the present case, there is no dispute that the letter was dispatched by pre-paid post. The Applicant was therefore taken to have received the letter seven working days after the date of the document[2]. In the present case, the Applicant was taken to have received the letter on 4 April 2014 with the prescribed period therefore ending on Friday 18 April 2014. To the Applicant’s benefit, the Tribunal’s letter specified a period ending on Tuesday 22 April 2014 which exceeded the prescribed period by 4 days. It is however, well established that merely because the invitation did not comply with s.359B(2) does not amount to a jurisdictional error. It is to be noted that while the invitation specified the period for the response, the Tribunal may extend the period for a response under s.359B(4) but it is not obliged to do so.
[2] See s.379C(4).
In my opinion, the Tribunal’s decision not to grant the Applicant an extension of time to respond to the s.359A letter, did not result in a jurisdictional error. In a letter from the Applicant dated 17 April 2014 and received by the Tribunal on 22 April 2014, the Applicant provided a detailed response. In her letter, she stated, “I am the Applicant in the above matter and (as) such have personal knowledge of the matters here in deposed … I believe the same to be true.” She went on to address the two key topics mentioned in the s.359A letter. She also sought an extension of time to provide relevant evidence about, “family violence”. But the question of family violence was not the subject of the s.359A letter. Therefore, even before the representative was involved, the Applicant was afforded a proper opportunity to respond to the s.359A letter. She took up that opportunity. There was no practical injustice in that respect. Further, as the Tribunal recorded in its reasons:
“Ms Tam was advised at the hearing that these matters would come to her in writing, and that she would have 28 days to respond. The s.359A letter was issued six days after the hearing. On the date that the response was due, a solicitor contacted the Tribunal stating that he had been appointed as representative and was seeking an extension of time to respond.
The Tribunal considers Ms Tam was aware of the time frames in which she needed to respond and had been advised orally at hearing and in writing after the hearing of the time frame. It was open to her to seek advice or representation at any stage, including after each of the hearings held by the Tribunal and before the response was due. In these circumstances, the Tribunal declined to provide her with additional time to respond.”
In light of this, it cannot be said that the Tribunal’s decision to refuse time did not meet the legal standard of reasonableness. She was clearly put on notice both at the hearing, and in the s.359A letter, of the matters in issue. It was plainly open to the Tribunal to conclude that she had been given ample opportunity to respond, and/or to obtain representation before the period expired. The Tribunal’s decision did not fall outside of the range of possible or acceptable outcomes. Nor can the Tribunal’s decision be described as arbitrary, capricious, lacking in common sense or plainly unjust.[3]
[3] See Minister for Immigration and Border Protection v Pandey [2014] FCA 640 per Whigney J.
Finally, the Tribunal considered the Applicant’s submission on 17 April 2014 and the request to provide more evidence about family violence. On the latter topic, the Tribunal said:
“In the last sentence of her original statement and in the introduction to the revised statement, Ms Tam states that she experiences violence from Mr Munn due to his age. Ms Tam had not made any allegation of violence before this point in time. To make a valid claim of family violence, she would have to meet the requirements in relation to claims for family violence. She has not done so, and the Tribunal does not have a valid claim of family violence before it.”
The family violence claim was a ‘time of application’ criteria and therefore had to be satisfied at the time that the application was made. The Tribunal was therefore not obliged to consider the domestic violence provisions of cl.820. It was plainly open to the Tribunal to make its decision without extending the time for further evidence.
Ground two is without merit.
Ground four
This ground asserts that the Tribunal did not allow the Applicant the prescribed period of 28 days to respond to its letter of 26 March 2014. By reason of s.379C(4), the Applicant is taken to have received the document on 4 April 2014. The prescribed period ended on Friday 18 April 2014.
The Applicant says that she received the letter on 28 March 2014. As was said by Spender, Kiefel and Dowsett JJ in the case of Xie v Minister for Immigration and Multicultural and Indigenous Affairs[4] in relation to s.494C of the Act[5], their Honours said:
[4] [2005] FCAFC172.
[5] A section with a provision somewhat similar in effect to the section that we are here concerned with.
“(C)ounsel for the appellant submitted only that given the appellant’s claim that he had not received the notification until 1 September, the deeming provision contained in s 494C did not operate. That argument must fail. Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document …’. Nothing in the section suggests that this is merely a rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in s 53 of the Migration Act, but now repealed. It provided that in certain circumstances, an applicant was to be taken to have received a notification ‘even if it was not received’. At [17], O’Connor and Mansfield JJ observed:
‘… the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.’
The wording of s 494C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69], observed;
‘The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.
We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.”
Accordingly, the Applicant’s contention that the Tribunal’s letter created a legitimate expectation is wholly misconceived. Further, I note that the Applicant had been provided with more time to respond than was prescribed by reg.4.17. In the circumstances, I do not believe that it can be said that an injustice was done to the Applicant such that the Applicant lost an opportunity to advance her case.
In my opinion, no jurisdictional error is revealed. Ground four is without any merit.
Ground five
It is extremely difficult to work out from the text in the Amended Grounds of Review and the submissions put, what it is that the Applicant is complaining of. In arguendo, counsel for the Applicant said, inter alia:
“… the obvious source of the material which has found its way into the Tribunal’s finding is that provided by Ms Beeby and it is very likely to have been the material which is on the Tribunal file which has found its way there. Once your Honour can establish that, then your Honour can be comfortable that there has been a lack of procedural fairness afforded to the Applicant, because its material on which she would wish to be heard and she would wish to present (submissions). It carries, we say, far enough into a ground of apprehended bias when your Honour considers that the Applicant has been refused an extension of time within which to provide more material. The latest on which she was permitted to provide material was, I think, 22 April (2014). That was the date in the letter. But nevertheless this material from Ms Beeby has been received after the date at which the applicant was permitted to provide further material to the Tribunal. So, two things, highly prejudicial, provided after the period from which the applicant was permitted to provide the material. This is the nub of the matter your Honour and I think once people look at that and see the circumstances, they can say that – both that my client hasn’t been heard, but there could be an apprehension that she has been treated in an unbalanced manner by virtue of not being afforded that extension of time in circumstances when the other material had got in. I think that’s the essence of my submissions.”
These submissions and the terms of ground 5 had me to believe that the Applicant is alleging apprehended bias.
If bias, or even apprehended bias is being alleged, then this would be a very serious allegation. Bias is something that needs to be clearly alleged and proven. The Applicant here does neither.
It is understood that the Applicant does not press ground 5(b) or Particular 6 to the Amended Application. What remains is a claim that the Tribunal’s decision record is indicative of pre-judgment because there was material before it which was not put to the Applicant for comment. The nature of the material and the Tribunal’s reasons indicate that none of that material was relied on by the Tribunal to make its decision that the Applicant was not Mr Munn’s de facto partner.
In my opinion, the material does not suggest a denial of procedural fairness or apprehended bias. No jurisdictional error is revealed. Ground four is without merit and should be dismissed.
As no jurisdictional error has been revealed, the Amended Application of 25 August 2014 should be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 30 April 2015
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