Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal of a Partner (Migrant) visa - disputed findings of fact - no reviewable error found.

Prahalapan v Minister for Immigration & Ors [2004] FMCA 731 (3 November 200

Prahalapan v Minister for Immigration & Ors [2004] FMCA 731 (3 November 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRAHALAPAN v MINISTER FOR IMMIGRATION & ORS
[2004] FMCA 731




MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal of a Partner (Migrant) visa - disputed findings of fact - no reviewable error found.




Migration Act 1958 (Cth), ss.481(1), 349

Migration Regulations 1994; Reg. 100.221(2), 100.221(3), 100.221(3(b), 1.03, 1.15A

Coroner's Act 1980 (NSW)

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206

Rahim v Minister for Immigration and Ethnic Affairs (1997( 78 FCR 223

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

S115/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 180 ALR 561

Peacock v Human Rights & Equal Opportunity Commission [2002] FCA 984

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577

First Applicant:
SHASIKALA PRAHALAPAN




First Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Second Respondents:


MR ANDREW CARSON (sitting as the Migration Review Tribunal)

MS REGINA PERTON (in her capacity as Senior Member of the Migration Review Tribunal




File No:


MZ 875 of 2003




Delivered on:


3 November 2004




Delivered at:


Melbourne




Hearing date:


28 June 2004




Judgment of:


Bennett FM




REPRESENTATION

Counsel for the Applicant:


Mr Harding




Counsel for the Respondent:


Ms Moore




Solicitors for the Respondent:


Australian Government Solicitor




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 $4,200.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 875 of 2003

SHASIKALA PRAHALAPAN



First Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





First Respondent

And

MR ANDREW CARSON (sitting as the Migration Review Tribunal) &

MS REGINA PERTON (in her capacity as Senior Member of the Migration Review Tribunal)





Second Respondents


REASONS FOR JUDGMENT

1. Shasikala Prahalapan has made application seeking a review of a decision by the Migration Review Tribunal (the MRT) made on

19 June 2002 whereby it was decided that the applicant is not entitled to a Partner (Migrant) (Class BC) visa.

2. The applicant applied to migrate to Australia by application dated

13 December 2000. Her husband, Nagaratnam Prahalapan, made application to sponsor the applicant on the same date. A delegate of the respondent refused to grant the visa on 30 October 2001. The applicant then applied to the MRT for review of the delegate's decision to refuse to grant a visa. The MRT, as indicated, made a decision on 19 June 2002 affirming the delegate's decision to refuse to grant to the applicant a Partner (Migrant) (Class BC) visa.

3. The proceedings before this court had originally commenced by the applicant filing an affidavit and a draft Order Nisi in the High Court of Australia on 17 July 2002. The grounds of the draft Order Nisi were entirely unparticularised. The affidavit in support of the Order Nisi did not provide any particulars. It simply set out the procedural history of the matter and annexed copies of the delegate's decision and the Tribunal's decision.

4. On 7 February 2003 Justice Hayne remitted the matter to the Federal Court of Australia and ordered that it proceed in that Court as if the steps already taken in the application in the High Court had been taken in the Federal Court. The orders also included that the costs of the application to the date of remission including the costs of the order be according to the scale applicable to proceedings in the High Court and thereafter according to the scale applicable to the Federal Court and thereafter in the discretion of that Court.

5. On 3 June 2003 Justice Marshall made procedural orders for the conduct of the proceeding, including the transfer of the proceeding to this court.

6. On 30 August 2003 the applicant filed an amended application and contentions of fact and law. At the time of preparing these documents the applicant was self represented. The amended application stated the same grounds of review as the Order Nisi, however it included the following particular:

The Tribunal's decision is based on the fact that my spouse died on or about the 8th July 2001; the date of the sponsoring spouse went missing.

It is my submission that the death of the sponsor spouse has not been established in law. That at the date of decision, the Coroner has still to conduct an inquest into the disappearance of the spouse and subsequently there have been no findings made as to the "death" of the sponsor spouse.

It is my submission that I satisfies (sic) the Minister that I would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died.

7. On 17 September 2003 Registrar Efthim ordered that the applicant have leave to file and serve a further amended application and contentions of fact and law, if any, by 28 November 2003. The applicant failed to file contentions of fact and law or any further amended application within the prescribed time. The applicant's contentions of fact and law were handed up to the court and served at the commencement of the hearing this day. The respondent raised no objection.

8. The matter proceeded by way of submissions with Mr Harding, of counsel, appearing for the applicant and Ms Moore, of counsel appearing for the respondent.

Background

9. The background in this matter has been set out in written submissions by the respondent and agreed to by the applicant. It is convenient in dealing with the background to note that the central issue in the case before the MRT was whether the applicant was for the purpose of her application a spouse of her husband, the sponsor, in circumstances where her husband had gone missing on 7 July 2001 and was presumed dead.

10. It is noted that the applicant is a female citizen of Sri Lanka born on

6 October 1966. On 11 February 2000 the applicant married

Mr Nagaratnam Prahalapan in Colombo, Sri Lanka. The marriage was arranged and they had first met on or about 26 January 2000.

11. Mr Prahalapan was born in Sri Lanka on 14 August 1963 and arrived in Australia on 26 February 1992. He became an Australian citizen on

18 June 1997.

12. Five days after the wedding, on 16 February 2000, Mr Prahalapan returned to Australia and the applicant remained in Sri Lanka.

Mr Prahalapan travelled to Sri Lanka on 13 December 2000 and returned to Australia on 12 January 2001.

13. On 14 December 2000 the applicant lodged an application for a Partner (Migrant) (Class BC) visa (spouse visa) with the Department of Immigration and Multicultural Affairs (as it then was) (the Department) [CB 1-14]. The applicant was not in Australia at the time of lodging the application. The visa application recorded

Mr Prahalapan as the applicant's nominator.

14. The applicant had previously, on 22 February 2000, made an application for a Spouse (Provisional) (Class UF) visa, subclass 309 (provisional spouse visa) but it had apparently been refused by the Department in November 2000 because the applicant and

Mr Prahalapan had not been living together for a long enough period of time.

15. On 14 April 2001 the applicant was granted a provisional visa. The respondent concedes that, in the normal course of events, the applicant would have been eligible to be considered for grant of a permanent spouse visa two years after the grant of the provisional visa. However, on 8 July 2001 Mr Prahalapan was apparently washed off rocks into the ocean at Potter Point, Kurnell, Sydney while fishing.

16. The applicant last spoke to her husband on 7 July 2001.

17. A NSW Police Service report dated 10 July 2001 and extracted in the court book stated the following:

This is to confirm that about 4pm on Sunday the 8th of July 2001 Mr Prahalapan NAGARATNAM, dob - 14 August 1963 was washed off rocks into the ocean at Potter Point, Kurnell, Sydney.

A [sic] extensive search was conducted at the time and since without success, Mr NAGARATNAM has not been located as of this date. The search is continuing.

This incident is subject to NSW Police Service Report No E12143879.

18. At the time of his death Mr Prahalapan had been employed as a permanent part-time cook at Lidcombe Catholic Workmen's Club Limited in Lidcombe, New South Wales. According to a letter dated 16 November 2001, his last shift had been on Friday 6 July 2001 however his termination took effect from 10 July 2001.

Mr Prahalapan's annual leave payout of $625.92 was paid to the applicant and was deposited into a Commonwealth Bank account in her name on 27 November 2001.

19. On 15 September 2001 the applicant entered Australia on her provisional spouse visa. This was her first entry to Australia since the grant of the provisional spouse visa. Her mother in law had apparently advised her of her husband's death on or about 8 July 2001. In order to come to Australia, the applicant relinquished her employment as a consultant anaesthetist at a hospital.

20. By way of an undated[1] letter the applicant wrote to the Department and advised it of her husband's death. She wrote, inter alia:

Unfortunately I lost my husband on 8th July 2001. He was washed off in to rocks in the ocean at Potts Point Kernell Sydney.

[...]

Herewith I am enclosing a photocopy of the police report regarding my husbands death...

21. On 22 September 2001 the Department wrote to the applicant in relation to her visa application asking for further information and documentation to assist it in processing her application.

22. On 30 October 2001 a delegate of the respondent refused to grant the applicant a visa. A copy of the delegate's decision record was sent to the applicant by registered mail on the same day. The delegate held that as the applicant had entered Australia after Mr Prahalapan had died she was unable to satisfy the requirements of Reg.100.221(3)(b) and the applicant could not therefore meet the requirements for the grant of the visa.

23. On 2 November 2001 the State Coroner's Court (NSW Attorney General's Department) ("Coroner's Court") wrote to the applicant. According to that letter, attached was a "notice from this Court advising those to whom it may concern, the death of your husband". The notice contained the following statement:

"TO WHOM IT MAY CONCERN

2 November, 2001

Death of Prahalapan NAGARATNAM

Kindly note that the death of Prahalapan Nagaratnam (aged 37 years) and formerly of 3/83 Macquarie Street, Auburn has been reported to the Coroner at this Court.

The Coroner has informed that Mr Nagaratnam died on or about the 8 July 2001 at Potter Point, Sir Joseph Bank Driver, Kurnell."

24. On 8 November 2001 the applicant lodged an application with the Tribunal for a review of the delegate's decision. The applicant stated the reason she thought the Department's decision was incorrect was because she was "not satisfied with the decision made" by it. She stated that she would provide submissions at a later time. The Tribunal acknowledged receipt of the application by letters dated 29 November 2001 and 1 February 2002.

25. On 16 November 2001 Mr Prahalapan's superannuation scheme, Club Plus Superannuation Pty Limited, wrote to the applicant to thank her for "contacting them in relation to the late Prahalapan Nagaratham" and advised her of the total of death benefits payable under his life insurance and its requirements to consider in the process of the release of the funds to the applicant as the sole beneficiary.

26. The Tribunal wrote to the applicant on 16 April 2002 inviting her to appear before it to give evidence and present arguments relating to the issues arising from her application for review. The invitation advised that a hearing would be held on 23 May 2002.

27. On 8 May 2002 the applicant's then legal advisers sent written submissions to the Tribunal. Those appear at CB 55-63 & 53-54. Two statements in support of the application were also provided prior to the hearing.

28. On 16 May 2002 two Form 888 statutory declarations by supporting witnesses were declared by Mr Prahalapan's father and mother. The father's statements referred to Mr Prahalapan as his "late son" and to the applicant as his son's "widow". The mother's statement also referred to Mr Prahalapan as her "late son".

29. On 23 May 2002 the Tribunal held its hearing. The applicant attended and gave oral evidence.

30. On 19 June 2002 the Tribunal delivered its statement of decision and reasons (the Tribunal's decision). These appear at CB 73-78. A copy of the Tribunal's decision was sent to the applicant on 19 June 2002. The Tribunal's decision affirmed the decision of the delegate that the applicant was not entitled to the grant of the spouse visa.

The decision

31. The decision of the respondent's delegate, dated 30 October 2001, rejected the application on the basis of the applicant's ineligibility under Reg.100.221(3). That Regulation requires, in summary, for the applicant to have first entered Australia as the holder of a Subclass 309 (Spouse Provisional) visa (which she did), that she met the requirements of Reg.100.221(2) except that after she entered Australia her husband had died and that she would have continued to be to be the spouse of the sponsoring spouse if the sponsoring spouse had not died.

32. In particular, the delegate reasoned:-

In this case I have looked at all available information before me and I infer that, for the purposes of the Migration legislation, the sponsoring spouse is deceased. I also find that the sponsoring spouse died on or about the 8th July 2001; the date that the sponsoring spouse went missing (as indicated by the NSW Police Report).

Departmental records indicated that the applicant first entered Australia the holder of a subclass 309 visa on 15th September 2001; two months after the sponsoring spouses death. As the applicant first entered Australia after the sponsoring spouse had died she is unable to satisfy the requirements of Reg100.221(3)(b)

Therefore the applicant is unable to satisfy any alternative subclause within regulation 100.221. Therefore the applicant cannot meet the requirements for grant of a subclass 100 visa.

33. As indicated, the applicant lodged an application for a review. She stated that she thought that the Department's decision was incorrect because she was "not satisfied with the decision made" by it. The applicant's migration agent sent a letter to the Tribunal dated 8 May 2002 forwarding a submission which included the contention that the death of the applicant's husband had not been established in law and that as at the date of the submission the Coroner had not conducted an inquest into the disappearance of the spouse and there have been no findings made as to the `death' of the sponsor spouse.

34. Before reaching its decision, it is significant that in its findings the MRT recites the relevant criteria applicable to a visa application of this kind. It is appropriate to set out those findings which in turn provide a reference to the appropriate regulations, as they then were, as follows:-

18. The criteria to be satisfied at time of decision includes the following under clause 100.221:

(1) The applicant meets the requirements of subclause (2), (3) or (4) or (4A).

(2) The applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 309 (Spouse (Provisional)) visa; and

(b) the applicant is the spouse of the sponsoring spouse; and

(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.

(3) The applicant meets the requirements of this subclause if the applicant:

(a) first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa; and

(b) would meet the requirements of subclause (2) except that, after the applicant first entered Australia as the holder of that visa, the sponsoring spouse has died; and

(c) satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring spouse if the sponsoring spouse had not died.

(4) The applicant meets the requirements of this subclause if:

(a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa; and

(b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the sponsoring spouse has ceased; and

(c) after the applicant first entered Australia as the holder of that visa - either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;

has suffered domestic violence committed by the sponsoring spouse;

(ii) the applicant:

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring spouse:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

(4A) The applicant meets the requirements of this subclause:

(a) if the applicant held a Subclass 309 (Spouse (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 visa; and

(b) if the Tribunal:

(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa; or

(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa.

35. Relevantly, Reg.1.15A defined "spouse" as follows:-

(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(a) in a married relationship, as described in subregulation (1A); or

(b) in a de facto relationship, as described in subregulation (2).

(1A)

Persons are in a married relationship if:

(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(b) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent basis.

(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

(ab) a Special Eligibility (Residence) (Class AO) visa; or

(ad) a Partner (Migrant) (Class BC) visa; or

(ae) a Partner (Provisional) (Class UF) visa; or

(af) a Partner (Residence) (Class BS) visa; or

(ag) a Partner (Temporary) (Class UK) visa;

the Minister must have regard to all of the circumstances of the relationship, including, in particular:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one party to the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i) any joint responsibility for care and support of children, if any; and

(ii) the parties' living arrangements; and

(iii) any sharing of responsibility for housework;

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the p ersons plan and undertake joint social activities;

(d) the nature of the persons' commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the person s see the relationship as a long-term one.

36. The Tribunal decided as follows:-

On the evidence provided, including the NSW Police report provided by the visa applicant to the Department and the statements she has provided from the State Coroner's Court, the Tribunal finds that the nominator died on or about 8 July 2001. The tribunal considered the definition of spouse as set out under regulation 1.12A, taking into account each of the considerations set out in regulation 1.15A(3) and finds that with the death of the nominator on or about the 8 July 2001 the visa applicant is not at the time of decision the spouse of the nominator, the evidence of the visa applicant that the last contact with the nominator was on 7 July 2001, is sufficient to establish, in all circumstances of the case and pursuant to regulation 1.15A, that the visa applicant is not as at the date of decision the spouse of the nominator. The tribunal finds, therefore, that the visa applicant does not satisfy subclause 100.221(2)(b) and so does not satisfy 100.221(2). Subclause 100.221(4) does not apply in this case as it is not a situation of domestic violence and the evidence does not support satisfying the requirements of 100.221(4A). Subclause 100.221(3) is also not satisfied in respect to subclause 100.221(3)(b) because of the nominator, who was the sponsoring spouse, died on or about 8 July 2001 whereas the visa applicant entered months after the nominator died. Subclause 100.221(3)(b) is not, therefore, satisfied.

Consequently, the Tribunal finds that the visa applicant does not satisfy 100.221(1) and so fails to meet the at time of decision criteria for a subclass 100 visa.

Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

Issues

37. The applicant's case before me is that the Tribunal's decision depended on the Tribunal's finding that Mr Prahalapan died on 8 July 2001. However, it is contended that the Tribunal had no jurisdiction to inquire into and make findings with respect to Mr Prahalapan's suspected death. Furthermore, that because Mr Prahalapan disappeared in NSW, the law reposes that jurisdiction exclusively in the coroner pursuant to the Coroner's Act 1980 (NSW).

38. I was provided with extracts from the Coroner's Act 1980 (NSW).

I am satisfied that the coroner has jurisdiction to hold inquests into suspected deaths, make findings into the cause or particulars of death and, significantly for this case, make a finding of death and provide the Registrar of Births, Deaths and Marriages with such particulars of death as are known for the purpose of enabling registration of the death. What I am not satisfied of, however, is the applicant's contention that the Tribunal was not competent to make a finding of fact that, for the purpose of the Migration Act, Mr Prahalapan died on

8 July 2001. Alternatively, that the Tribunal in purporting to make a finding of fact that Mr Prahalapan died on 8 July 2001, the Tribunal appropriated the jurisdiction of the NSW Coroner and/or sought to oust the jurisdiction of the Coroner.

39. In almost every case that comes before it, the Tribunal is called upon to make findings of fact. In the process that the applicant requires this court to examine for jurisdictional error, the Tribunal is the arbiter of fact.

40. In this case the Tribunal found on the evidence before it, including the evidence of the applicant, that Mr Prahalapan had died on or about

8 July 2001. The applicant contends that no such finding was open to the Tribunal because there had been no finding by the coroner to that effect. The respondent contends that such a finding was open on the facts even though there had been no coronial inquest and that, having found that the nominator died on 8 July 2001 and there being no dispute that the applicant first entered Australia on 15 September 2001 (2 months after death), there was no possibility of the applicant satisfying the requirements of clause 100.221(3)(b) or any other part of clause 100.221. The respondent contends that the Tribunal's finding as to the fact of death having occurred cannot be overturned on judicial review to this court. I accept the contentions of the respondent.

41. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. It follows, therefore, that the applicant's application for a judicial review of the decision of the Tribunal given on 19 June 2002 fails.

42. If I am wrong, and a finding of death by the coroner and/or a death certificate was a necessary precondition to the Tribunal being satisfied of Mr Prahalapan's death, then the Tribunal would have erred in coming to its decision. It would then flow that I would have to consider exercising my discretion to remit the matter to the Tribunal for further consideration. It is contended by the respondent that would also be open to me to decline to remit the matter on the basis that any remittal would be futile or hopeless.

43. At the hearing on 28 June 2004 I granted leave to the respondent to file supplementary contentions of fact and law in relation to the futility of remitting the matter back to the Tribunal in the applicant was successful in making out a case. Those supplementary contentions were received on 1 July 2004. The applicant's reply to the respondent's supplementary contentions of fact and law were received on 9 July 2004.

44. It is submitted by the respondent that there is a general principle of law that, notwithstanding that a ground for review of an administrative decision maker's decision may be demonstrated, the Court has a discretion to refuse to grant relief if the applicant for review is unable to show there would be any utility in an order directing that the Tribunal carry out the review proceeding again. Any discretion must be exercised judicially and with care.

45. In Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214 Justice Merkel considered whether or not the Court should remit proceeding back to the (then) Immigration review Tribunal. His Honour approved of the decision of Justice Sackville in Rahim v Minister for Immigration and Ethnic Affairs (1997( 78 FCR 223 at 238 that it was a proper exercise of the discretion conferred by s481(1) (as it then existed) in the Migration Act 1958 (Cth) to decline to grant relief and to affirm a decision of the Tribunal, notwithstanding that it has erred in law, if the Tribunal's findings of fact preclude the applicant from satisfying the criteria upon which the fate of the application depends (see too Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ at 384)

46. More recently, in S115/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 180 ALR 561, Justice Finn usefully summarised some of the case law in relation to futility. At [26] His Honour said:

"It can, of course, be a proper exercise of the discretion conferred on this Court by s 481(1) of the Act, to decline to grant relief and to affirm a Tribunal decision notwithstanding an error infecting it, where it would be futile to remit the matter to the Tribunal for reconsideration: Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238. Illustrative of circumstances where the "futility principle" may properly be applied are (i) where notwithstanding the Tribunal's error, the decision arrived at was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1998) 88 FCR 206 at 213-214; see also Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301. But where it is possible for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.

47. Although in Rahim, Nguyen and S115/00A related to s.481(1) (which is no longer in the Migration Act) the principles enunciated in the cases remain apposite. In Nguyen (supra), Justice Merkel noted at 213-214 that even without a provision such as s.481(1) there is a discretion in the Court to decline to grant relief if the administrate body on the remitter would be "bound in law" to arrive at the same decision, as the case that could be put for any other decision was "hopeless". Certainly the principles enunciated in the above cases are not confined to migration cases. They apply to all matters of judicial review (see for example: Peacock v Human Rights & Equal Opportunity Commission [2002] FCA 984 at [29] where the Court adopted referred to Finn J in S115/00A (supra)).

48. It is common ground between the parties that following a coronial inquest a death certificate issued on 23 September 2002 evidencing the date of death of the applicant's husband, Mr Prahalapan, as 8 July 2001.

49. It was submitted by the respondent that the futility of remittal is that the death certificate, "proof in law" that death occurred on 8 July 2001, would be before the Tribunal on remitter.

50. The respondent contends that on the applicant's case the Tribunal would have to find that the nominator, Mr Prahalapan, was dead as at

8 July 2001 being more than 2 months before the applicant entered Australia. That is the same finding that the Tribunal has already made. The respondent contends that, as a result, the applicant would remain unable to satisfy the definition of spouse for the purpose of the Migration Regulations (reg 1.03 and 1.15A) at the time of the (new) decision. It follows, therefore, that the applicant would not be able to meet the criteria of the visa required by Clause 100.221(2) and (3) of the Migration Regulations.

51. The applicant contends that, if I find that the Tribunal has erred,

I should remit the matter for rehearing by the Tribunal on the basis that it is "possible" if not "likely" that the Tribunal will come to a different decision. The applicant contends that the respondent's submissions assumes that on remittal that the Tribunal would be able to take account of developments in the period between its decision and the decision of this court.

52. The only power in the Tribunal is to review the Minister's decision. In so doing it is empowered to exercise all the powers and discretions conferred by the Act on the person who made the decision and any attendant limitations; s.349; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per Gummow J at [115]. The powers and discretions are those referred to in paragraph 6, which prescribes a time at which the Minister and hence the Tribunal must be satisfied or otherwise that the applicant meets the criteria for the spouse visa.

53. The tribunal exercised its powers on 19 June 2002 and affirmed the decision of the delegate. Mr Prahalapan's death certificate was not before the Tribunal. On remittal, the Tribunal has no power to conduct a fresh hearing and decide the matter again on different facts only to reconsider the matter in accordance with law by order of the Court. The determinative date for fact finding is mandated by the regulations to be the date of decision, for these purposes it matters not whether that date is the date of the delegate's or the Tribunal's decision.

54. I do not accept the applicant's contention that, on remittal, the Tribunal has no power to decide the matter again taking into account events since either the delegate's decision (30 October 2001) or the Tribunal's decision (19 June 2002). Those events would include "proof at law" of the nominator's death prior to the applicant's arrival in Australia. As the applicant recognises, the application is brought seeking a constitutional writ. If I was persuaded that the Tribunal's decision was infected by jurisdictional error the effect of that holding is that the decision would be a nullity; it is no decision at all. The Tribunal would then sit to review the delegate's decision. In so doing, the Tribunal would have all of the powers, to invite the attendance of the parties and receive documentary and oral evidence that the Tribunal, constituted on 19 June 2002, possessed. I find that there is no basis for the applicant's contention that the facts to which the Tribunal would have regard in coming to its "decision" would be confined to facts occurring prior to 30 October 2001 or 19 June 2002.

55. I accept the respondent's contentions as to the futility, in practical terms, of remitting this matter to the Tribunal in the event that I had been persuaded that the Tribunal had made an error going to jurisdiction in coming to its decision.

Conclusion

56. In the circumstances, I will dismiss the application.

57. I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Bennett FM

Associate: R.Campbell

Date: 3 November 2004


--------------------------------------------------------------------------------

[1] The delegate's decision and the Tribunal's decision records that the applicant advised the Department of her spouse's death on 22 September 2001.
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia