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MIGRATION - Review of decision of Migration Review Tribunal affirming delegate's refusal of an Other Family (Residence) visa - no reviewable error found.

Guan v Minister for Immigration [2004] FMCA 827 (18 November 2004)

Guan v Minister for Immigration [2004] FMCA 827 (18 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GUAN v MINISTER FOR IMMIGRATION
[2004] FMCA 827




MIGRATION - Review of decision of Migration Review Tribunal affirming delegate's refusal of an Other Family (Residence) visa - no reviewable error found.




Migration Act 1958 (Cth), ss.359(2), 474, 474(1), 474(2), 474(3), 359, 359B(1), 379A(4), 359C(1)

Judiciary Act 1903, s.39B

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Regulations 1994, Sch. 1, Part 838, reg. 1.03, 1.05A

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Ping & Ling v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225

Kioa v West (1985) 159 CLR 550

Stead v SGIC (1986) 161 CLR 141

Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82

Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Commissioner for Superannuation v Scott (1987) 12 ALD 38; 71 ALR 40

Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690

Karimi v Minister for Immigration and Multicultural Affairs [2002] FCA 211

Abeysinghe v Minister for Immigration & Multicultural Affairs [2002] FCA 511

X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319

Applicant:
ZHAO AN GUAN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 242 of 2003




Delivered on:


18 November 2004




Delivered at:


Melbourne




Hearing date:


30 June 2004




Judgment of:


Bennett FM




REPRESENTATION

Solicitor for the Applicant


Mr Cheung




Counsel for the Respondent:


Mr Heerey




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) That the Application be dismissed.

(2) That the applicant to pay the respondent's costs of and incidental to the application fixed at $6,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 242 of 2003

ZHAO AN GUAN



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for judicial review, pursuant to s.39B of the Judiciary Act 1903, of the decision of the Migration Review Tribunal dated 12 February 2003 affirming the decision of the respondent's delegate made on 24 June 2002 finding that the applicant is not entitled to the grant of an Other Family (Residence) (Class BU) visa, subclass 838.

2. Mr Cheung, solicitor, appeared for the applicant. Mr Heerey, of counsel, appeared for the respondent.

3. The application was filed on 12 March 2003. The time within which contentions of fact and law could be filed was extended on 31 March 2004 in the following terms:-

a) The applicant to file and serve contentions of fact and law on or before 20 April 2004;

b) The respondent to file and serve contentions of fact and law on or before 4 May 2004.

4. No contentions were filed on behalf of the applicant. However, before me the applicant adopted much of the content of the contentions of fact and law which were relied upon by the respondent and filed on 13 May 2004.

5. The applicant is a 70 year-old male citizen of China. On 27 May 2000, the applicant entered Australia on a visitor (class TN) visa, valid for six months, on the basis of being an aged dependant of his son, Yao Jun Guan ("the nominator"). The nominator has been an Australian citizen since 1997 and resident in Australia since 1988. The applicant is widowed and has three adult daughters living in China.

6. On 19 July 2000 the applicant applied in Australia for an aged dependent relative (class BU) visa on the basis of being an aged dependent relative of the nominator. The applicant provided various documentation in support of that application, including telephone records and translated bank records.

7. As indicated, that visa application was refused by a delegate of the respondent on 24 June 2002. On 18 July 2002 the applicant appealed that decision to the Migration Review Tribunal ("the Tribunal").

8. On 19 August 2002, the Tribunal sent the applicant a letter under s.359(2) of the Migration Act 1958 (Cth) ("the Act") inviting the applicant to provide further information within 28 days on issues relating to the applicant's alleged dependency on the nominator. Pursuant to a request from the applicant that deadline was extended to 21 November 2002. The applicant provided banking deposit records and translated versions of his daughter's unemployment cards.

9. The applicant attended a hearing before the Tribunal on 5 December 2002. The Tribunal provided an interpreter at the hearing. The applicant provided a letter, in English, to the Tribunal dated

6 December 2002.

10. The applicant provided a further letter in Chinese which was received by the Tribunal on 13 December 2002. By letter dated 19 December 2002, the Tribunal requested that the applicant provide a certified translation of the Chinese letter by 2 January 2003. The Tribunal received no response from the applicant to its 19 December 2002 letter. On 3 January 2003 the Tribunal wrote again to the applicant and granted him a further extension of time to provide a translation by

19 January 2003.

11. The Tribunal received nothing further from the applicant. On

12 February 2003 the Tribunal made the decision now under review. That decision affirmed the delegate's decision not to grant the visa sought.

12. On 12 March 2003 the applicant made the present application to this court to review the Tribunal's decision. The applicant's application to this court does not specify any claimed grounds of review save that an accompanying affidavit of the applicant states:

"1. I'm not agree with MRT's decision, because they didn't read the evidence carefully and the Cantonese interpreter is not read the Chinese properly.

2. I'm truly and soley depend on [my] son."

13. As a proceeding filed after 2 October 2001, the present case is governed by the provisions of the Migration Act 1958 (Cth) ("the Act") as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

14. Pursuant to s.474(2) and (3) of the Act, the Tribunal's decision is a "privative clause decision" for the purposes of the Act. As a privative clause decision, the Tribunal's decision of the delegate is subject to s.474(1) of the Act, which provides that a privative clause decision:

"(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

15. In Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2, the High Court held that s.474 is constitutionally valid. The High Court then considered how s.474 ought to be reconciled with the rest of the Act, and stated that s.474 of the Act does not protect decisions involving jurisdictional error, see: Plaintiff S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [83]. I accept that, unless some jurisdictional error, which may include a breach of natural justice or procedural fairness, is found in the Tribunal's decision, no question arises as to whether Plaintiff S157 denies the operation of s.474 of the Act to the Tribunal's decision as a privative clause decision. It is the applicant's case, before me, that there was jurisdictional error.

16. I accept the respondent's contention that, in analysing the Tribunal's decision for any error, one must begin with the fundamental principle that this court does not have jurisdiction to review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Tribunal, not the court, is the sole arbiter of fact whose function is to assess the credibility of the evidence and make findings of fact based on that assessment.

17. It was submitted on behalf of the respondent, and I accept, that it is well established that a decision maker does not err in failing to take into account a relevant consideration unless it was a consideration he was bound to take into account. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Ping & Ling v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225. Moreover, ignoring relevant material, unless caused by an error of law, is of no legal significance. In any case, the concern of the law is with "practical injustice", not mere technicalities. I accept that only a "manifest" or "serious" error would amount to a jurisdictional error. Plaintiff S157 at [12], [13] and [18] per Gleeson CJ and at [160] per Callinan J.

18. It was the contention of the respondent, which I accept, that natural justice requires the Tribunal to give an applicant an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made. Kioa v West (1985) 159 CLR 550 per Brennan J at 629. However, a court may decline to grant relief for a breach of this rule if the breach could have had no bearing on the outcome. Stead v SGIC (1986) 161 CLR 141 at 145, Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82 at 122. This may apply in cases where it is not clear what, if anything, an applicant could have done with the information which had not been provided to him. Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 at 500-1. It is always necessary for an applicant to show, at the very least, that the decision may have been different if the error had not occurred. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384.

19. It was further submitted on behalf of the respondent, and I accept that, breach the rules of procedural fairness may constitute a jurisdictional error. However, it does not automatically follow that such a jurisdictional error will disable the protection of the privative clause under s.474. Each case needs to be considered on its merits, bearing in mind that the privative clause needs to be given due weight in the process of statutory reconciliation. Plaintiff S157 at [33] per Gleeson CJ, see also at [69] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The proper approach is to consider whether it was a purpose of the legislation that such an error should render the decision invalid. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ.

20. I turn to the requirements to be satisfied for the grant of a visa for an aged dependant relative of an Australian citizen. The requirements are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 ("the Regulations"). Relevantly, those criteria included the criteria that the applicant was an "aged dependent relative" of the nominator as at the date of application (cl 838.212) and as at the date of decision

(cl 838.221).

21. Regulation 1.03 of the Regulations defines "aged dependent relative" as a relative who:

"(a) has never married, or is widowed, divorced or formally separated from his or her spouse; and

(b) has been dependent on that person [the Nominator] for a reasonable period, and remains so dependent; and

(c) is old enough to be granted an age pension under the Social Security Act 1991."

22. The applicant:-

a) satisfied (a) as a widower;

b) satisfied (c) because the relevant qualifying age is 65 years.

Accordingly, the decision of the Tribunal turned on whether, at the time of application and decision, the applicant had been "dependent" upon the nominator for a reasonable period, and remains so "dependent".

23. Under reg.1.05A of the Regulations, the term "dependent" is defined as follows:

"(1) . . . a person (the first person) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions."

24. The Tribunal correctly identified this legislative definition of "dependent". The Tribunal correctly noted the Full Federal Court decision of Commissioner for Superannuation v Scott (1987) 12 ALD 38; 71 ALR 408 as authority for the approach that "wholly or substantially" must be construed by considering "wholly" and "substantially" together, not in isolation, so as to connote "in the main" and "essentially", per Fisher and Spender JJ at 71 ALR 413. The Tribunal also correctly noted the Full Federal Court decision of Minister for Immigration & Multicultural Affairs v Graovac [1999] FCA 1690 as authority for the proposition that whether a person is dependent on another person is a question of fact to be considered in the light of all the relevant circumstances of each case, per Einfeld J at [2] and per Branson and Hely JJ at [16].

25. The Tribunal noted the policy guidelines set out in the document

PAM 3, which stated, inter alia, that the onus of proof of dependency is on the applicant, including by way of documented evidence that funds have been sent on a regular basis over a reasonable period. The policy states that a "reasonable period" is taken to be 3 years, however it remains open to a decision-maker to accept dependency of a lesser period.

26. The Tribunal noted the following inconsistencies and shortcoming in the applicant's case:

a) The applicant's evidence that the nominator remitted funds to him in China through the bank and through persons going to China. However, whereas the nominator stated that he posted cash to the applicant. In this respect the applicant contends that the Tribunal did not seek to clarify the apparent or perceived inconsistency in circumstances where the Tribunal had a duty to do so.

b) The lack of satisfactory independent evidence that the nominator had been remitting funds to the applicant in China. In this respect the applicant contends that the Tribunal ought to have, but did not, seek to verify the actual facts of the situation and the Tribunal's failure to do so constitutes a jurisdictional error. It was also contended that the applicant and/or the nominator should have been, but were not, provided with an opportunity to explain themselves in detail or to clarify the applicant's position.

c) That the applicant has a pension which was not disclosed until the hearing. The applicant made no contention to the contrary before me.

d) That the translated bank records do not indicate the capital amounts invested, and the applicant's evidence indicated that the applicant had substantial savings and investments of his own, inherited from his parents. The applicant contends that this evidentiary point is very significant.

c) That the nominator did not deny that the applicant had funds of his own, and did not state that the applicant's funds were insufficient, but stated that the applicant likes to save money. The applicant's contention is that the interpreter bungled the evidence.

e) That the applicant was provided with food and accommodation during the time he stayed with the nominator, however the provision of such support to a visiting parent is not necessarily indicative of a need for support. The applicant made no contrary contention before me.

27. As indicated, the Tribunal provided an interpreter for the applicant at the Tribunal hearing. Before me, the applicant through his representative, submitted that the interpreter provided by the Tribunal in order to receive the applicant's oral evidence, was incompetent. It was put that the effect of the incompetent translation of the applicant's evidence was that the applicant was not accurately heard or received by the Tribunal. The applicant's representative addressed me as follows:-

"there is all a misunderstanding, you see. I will explain as we go along. The interpreter was bungling everything. Apparently, he was trying to object to the interpretation of the interpreter on the day, but the Tribunal member did not take note of that sort of thing and allowed the interpreter to proceed. I have had many occasions - encountered interprets at the tribunal being totally irresponsible as well, so I can understand the position of the applicant today when he tells me that the interpreter was mucking up everything for him. In fact, whatever he was saying was not translated verbatim to the member and that has distorted the actual facts for consideration by the tribunal member."

28. The respondent contended that, in the above circumstances, the Tribunal decided that it was not satisfied that the applicant is wholly or substantially reliant on the nominator for financial support to meet his basic needs for food, clothing and shelter. The Tribunal was not satisfied that the applicant's reliance on the nominator was greater than the reliance on his own resources. On this basis the Tribunal found that at the time of application and decision the applicant was not "dependent" on the nominator so as to meet the criteria of clauses 838.212 and 838.221.

29. The respondent contended that this conclusion was plainly open to the Tribunal on the evidence before it, and it is beyond the jurisdiction of this Court to reconsider the merits of that decision of fact. The contention of the applicant to the contrary was the Tribunal fell into error in the sense that it relied "on facts which that were interpreted to the tribunal [by the incompetent interpreter] which were totally wrong and totally out of whack with what was actually happening, the actual facts of the matter".

30. The difficulty with the applicant's case is that there was no expert or other evidence before me to support the contention that the interpreter provided for the applicant was incompetent. It was a contention that was made by the applicant without notice to the respondent. I am advised that proceedings before the Tribunal are recorded. Had the respondent been on notice, through the applicant having filed contentions of fact in time (or at all), the respondent may have examined the transcript and with the services of an appropriately qualified person, have been able to concede or rebut the applicant's claim. As the matter proceeded before me, the applicant did not request an adjournment.

31. In the absence of any evidence being adduced as to the failure of the interpreter to accurately translate the proceedings before the Tribunal,

I am not prepared to assume or find that there was such an error in the process.

32. The applicant further contended that the Tribunal fell into error because it failed to alert the applicant to the numerous perceived inconsistencies in his evidence with the effect that the applicant was deprived of an opportunity to respond. In the running of this case,

I invited counsel for the respondent to provide supplementary submissions in relation to questions of proof. Mr Heerey did so and they were filed on 21 July 2004. Those supplementary submissions directly meet the applicant's claim in this regard.

33. In summary I accept that it is incumbent upon the applicant to present his own case. As was observed by the Full Federal Court in

Karimi v Minister for Immigration and Multicultural Affairs [2002] FCA 211, at paragraph 21:-

"It was for the appellant to put his claims and his evidence before the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510, 576 [187]. It is the Tribunal's decision on those claims and that material which is the subject of review by the Court.

34. In Abeysinghe v Minister for Immigration & Multicultural Affairs [2002] FCA 511 at [20] the Full Federal Court (Ryan, Carr and Conti JJ) observed further:

"The appellant also argued that the Tribunal should have informed him if it had any concerns about adequacy of his answers to questions which it considered to relate to a critical matter going to credit. The authorities show that there is no such requirement on the Tribunal's part - see Abebe v The Commonwealth (1999) 197 CLR 510 at [197] and [295], Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (per Fox J) and 513 (per Neaves J); Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [50] to [54]; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [95]."

35. I do not accept that the Tribunal was under any obligation to highlight any inconsistencies which it identified for the purpose of seeking clarification or an explanation. It follows that I do not accept that the Tribunal erred in this regard.

36. As indicated, on 13 December 2002 the Tribunal received an unsolicited letter from the applicant written in Chinese. By its letter dated 19 December 2002, the Tribunal requested that the applicant provide a certified translation of the Chinese letter by 2 January 2003. By its letter of 3 January 2002, that deadline was extended to

19 January 2003. The Tribunal received no response. Accordingly, the Tribunal proceeded to make its decision without considering the substance of the applicant's letter written in Chinese.

37. The applicant's case is that the Tribunal fell into error in that it failed "to take steps to advise [the applicant] of the gravity of the situation". The "situation" being the applicant's failure to respond to the Tribunal's request for a translation of the subsequent letter.

38. The respondent contends that the Tribunal was entitled to proceed in this way, and did not fall into error, for the following reasons:

a) The Tribunal's request for a certified translation of the Chinese letter was made consistently with the Tribunal's obligations under ss.359, 359B(1) and 379A(4) of the Act.

b) Under s.359C(1), if a person is invited under s.359 to give additional information and does not give the information before the relevant deadline, the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

c) In light of these provisions, it was open to the Tribunal to request such a certified translation from the applicant within a specified time and thereby to confine the evidence from the applicant which the Tribunal was obliged to consider (X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 per Gray J at [21] and per Moore J at [51] and [53]).

d) The applicant had failed to explain the relevance of the evidence contained in the Chinese letter.

e) The applicant had previously provided statements in English, and certified English translations of Chinese documents, and there was thus ample information before the Tribunal for it to form the opinion that the applicant had available to him the assistance that he needed to forward a translated copy of an unsolicited document that he wished to place before the Tribunal.

I agree with the observations and the contentions of the applicant in this regard.

39. For the above reasons, I find that there is no apparent error, let alone jurisdictional error, on the part of the Tribunal. It follows that the applicant's claim for review falls at the first hurdle and it is unnecessary to consider whether there is any error by the Tribunal of a type which ought to deny the Tribunal's decision protection from review as a privative clause decision, under s.474 of the Act.

40. I will dismiss the application with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Bennett FM

Associate: R. Campbell

Date: 18 November 2004
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