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MIGRATION - Partner temporary visa - whether Migration Review Tribunal complied with s.359A of the Migration Act - role of Court in dealing with practical outcome.

Chandra v Minister for Immigration [2004] FMCA 694 (13 September 2004)

Chandra v Minister for Immigration [2004] FMCA 694 (13 September 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHANDRA v MINISTER FOR IMMIGRATION
[2004] FMCA 694



MIGRATION - Partner temporary visa - whether Migration Review Tribunal complied with s.359A of the Migration Act - role of Court in dealing with practical outcome.



Judiciary Act 1903, s.39B

Migration Act 1958, ss.359A, 424A

Family Law Act 1975

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

Baig v Minister for Immigration and Multicultural Affairs (2002) FCA 380

Applicant:
ANISH PRAKASH CHANDRA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MLG 1118 of 2003



Delivered on:


13 September 2004



Delivered at:


Melbourne



Hearing Date:


24 August 2004



Judgment of:


McInnis FM



REPRESENTATION

Counsel for the Applicant:


Mr E Heerey



Solicitors for the Applicant:


Ravi James & Associates



Counsel for the Respondent:


Mr C Fairfield



Solicitors for the Respondent:


Clayton Utz


ORDERS

(1) That the decision of the MRT dated 25 October 2002 is declared void.

(2) The matter be referred to the respondent for further consideration according to law by a differently constituted MRT.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MLG 1118 of 2003

ANISH PRAKASH CHANDRA


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The application before the court was originally filed on 6 November 2002 in the High Court of Australia seeking an order nisi and the application sought an order nisi in relation to a decision of the Migration Review Tribunal (MRT) dated 25 October 2002. On 7 February 2003 the matter was remitted to the Federal Court of Australia and on 23 June 2003 that court made orders requiring the applicant to file and serve an amended application together with any further affidavit material and outline of submissions. On 28 August 2003 the Federal Court ordered the time for filing and serving of any amended application be extended.

2. The matter was ultimately transferred to the Federal Magistrates Court and at the hearing of the application the applicant relied upon the amended application for prohibition, certiorari, mandamus declaration and injunction pursuant to s.39B of the Judiciary Act 1903, having filed that amended application on 19 September 2003. It was directed during the course of the hearing that the applicant be permitted to rely upon applicant's contentions of fact and law filed 9 December 2003 and applicant's contentions in reply filed in court on 24 August 2004. Those contentions filed on behalf of the applicant were taken to become particulars subjoined to grounds 2 and 3 of the amended application.

3. Ground 1 of the amended application, which I shall refer to presently, was not strongly pressed by the applicant, although not abandoned. The grounds may briefly be stated as follows:

"1. The Tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision in failing to take account of relevant material, consideration, questions or issues.

2. The Tribunal erred in interpreting or applying the applicable law and thereby fell into jurisdictional error and acted without jurisdiction in its making of the decision.

3. The Tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision in denying natural justice, or procedural fairness to the applicant."

4. It is noted that in support of each of those grounds particulars were provided. A significant issue which was evident from the appeal book concerns an issue of domestic violence as alleged by the applicant.

A further significant issue arose on the contentions as to the application of s.359A of the Migration Act 1958 (the Act) and Common Law which in general terms was relied upon both in terms of compliance with the provision and the obligation of the respondent to afford procedural fairness to the applicant.

5. In brief terms, it should be noted that those issues were relevant to this application in circumstances where it is common ground that the applicant had made application for a partner temporary class UK visa subclass 820 on 18 December 2000. In that application the applicant was nominated by a Ms Alison Ruth Godfrey (the nominator) who at all material times was an Australian citizen. It is not disputed that the applicant and the nominator had married in Melbourne on 12 December 2000. In support of the application the applicant had provided certain documents which it should be inferred had been obtained either by him or the nominator. In particular, it is noted in the court book that a certificate of marriage was provided which appears at page 27 of the court book and the nominator provided a certified copy of an entry in the records of the general register office of her birth and it is noted that that entry from the register was obtained, or at least sealed by the office of the register, on 27 September 2000.

6. Other material was provided including the applicant's birth certificate and passport. In support of the application the applicant had completed the appropriate form and attached to it statutory declarations in respect of the application to remain permanently in Australia on spouse or interdependency grounds.

7. The MRT in its decision affirmed a decision under review of a delegate of the first respondent that the applicant was not entitled to the grant of the relevant visa. The delegate had refused the application on 8 February 2002. It is perhaps useful in the context of the submissions made by both parties to briefly deal with some of the material which was before the delegate and before the MRT. The reason for setting out the content of that material will become evident when considering the submissions made both by the applicant and the respondent in this application.

8. It is sufficient for the present purposes to note, however, that the main thrust of the submissions made for and on behalf of the applicant concerned what could be regarded as alleged noncompliance by the MRT with s.359A of the Act. That section provides as follows:

"Applicant must be given certain information

(1) Subject to subsection (2), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information."

9. It is also noted in the course of considering decisions relevant to this issue that a similar provision, namely, s.424A of the Act, has been the subject of consideration in various court decisions. It is claimed by the applicant that a significant piece of information was not provided to the applicant but which was subsequently relied upon in a finding against the applicant and the applicant thereby was not given an opportunity to address those issues and, it is asserted, attend the hearing. There is no dispute that the applicant did not attend the hearing of the MRT.

10. By way of background, it is further noted that the applicant is a male national of Fiji born on 8 November 1976. As indicated, he applied for permanent residence on the basis of his marriage to an Australian citizen on 18 December 2000. It is relevant to consider further the documentary material relied upon by the applicant. He relied upon the application and in that application he completes the relevant details, including reference to his residential address, and otherwise verifying the date of marriage and the fact that he was not previously married and provides details of his partner.

11. The application further provides for a declaration by the nominator which I note was duly completed on 18 December 2000. The declaration by the nominator in part provides the following warning:

Warning: under the Migration Act 1958 there are penalties for deliberately giving false or misleading information.

* I declare that the information supplied on this application is complete, correct and up to date in every detail.

* I declare that the information given by my partner is complete and correct to the best of my knowledge.

* I agree to attend an interview, if requested by the Department of Immigration and Multicultural Affairs, in relation to my partner's application.

* I will inform the Department of Immigration and Multicultural Affairs in writing if I withdraw any support from my partner before this application is finalised.

12. As indicated, the nominator's signature appears on the declaration. In further support of that declaration, as indicated earlier, are two statutory declarations. Those two statutory declarations refer to the relationship between the applicant and the nominator. They refer to family get-togethers between the parties and the commitment of the applicant and the nominator to live their lives together.

13. In addition, it is noted that the nominator had also provided a statutory declaration. I am satisfied that statutory declaration was accompanied by a document entitled `History of Relationship' which is a two-page document and at the end provides the name of the nominator, although I note it is not signed by the nominator. Nevertheless, it would appear in folio order to be produced to the respondent at or about the time of the statutory declaration of the nominator. It is also noted that at the same time the applicant further provided a statutory declaration. Both the declaration of the nominator and the applicant were declared on 28 December 2000.

14. It is relevant to set out the contents of the statutory declaration of the nominator which, omitting formal parts, provides:

"This statement is made from my own knowledge and understanding. I met Anish Prakash Chandra on the 14th May, 2000 at the Prince Mark Hotel in Dandenong, where he was playing pool at the amusement centre when I first saw him. Our conversation began from that time and we became good friends with each other since then.

We started trusting each other and sharing our secrets. We got along well with each other and our friendship became stronger and turned into a relationship.

Then we decided to live together and moved into the flat at Peter Court.

Then we got married on the 12th of December 2000. My husband Anish Prakash is a Fijian citizen and temporarily resides here in Australia, whereas I am an Australian citizen and reside here permanently.

I would like to sponsor my husband to stay in Australia permanently so that we can continue to live together and fulfil the dreams that we have seen together. I am very happy and satisfied with the way of life we are living as a couple here in Australia.

Again, I make this declaration conscientiously believing the same to be true and by virtue of the provisions of an Act of the Commonwealth of Australia rendering persons making false declarations punishable for wilful and corrupt perjury."

(Court Book p.30)

15. The nominator's statutory declaration has been duly declared and completed.

16. In the document entitled `History of Relationship' details are given by the nominator as to the background of the relationship and when the parties met. It is sufficient for present purposes to refer to part of that document as follows:

"I went inside the house and I couldn't sleep that night because I was feeling so happy and I couldn't believe that dreams could come true so fast. I was very happy about our relationship and I was looking forward to the future. From that day onwards we shared a very special bond amongst us and every day it became even more special. It was very hard to stay apart but we had to cope with the situation. We had a lot of patience and due to that we managed to stay apart for so long. Then we decided to live together. We got an apartment in Dandenong and we moved into it and started living together as a couple."

On 12 December 2000 we got married and life with Anish has been great. Every day I wake up with a smile and peace of mind knowing that I have a straight direction with him. I feel so lucky to have someone like Anish as he has brought so many changes in my life and I want nothing more than to live with him and spend the rest of my life with him ...

17. In the applicant's statutory declaration declared on 28 December 2000 he refers to the meeting with the nominator and otherwise states that the relationship "became stronger with time and we came to a stage where we decided to live together as a couple".

18. It is crucial in this case to refer to and set out in full a letter purportedly signed by the nominator handwritten and dated 15 November 2001. The precise details of that letter, including its date and contents, at no stage were provided to the applicant. I am satisfied on the material before me that at no stage were the contents of that letter properly communicated to the applicant. The significance of the finding I make in relation to that issue will become self-evident, although it relies upon the content of the delegate's decision and further relies upon the MRT decision. Neither set out in full the contents of the letter and neither set out in full key elements of the letter. The letter provides as follows:

"15/11/2001

I, Alison Ruth Godfrey born 18-12-63 am writing this statement to withdraw any support or sponsorship of Anish Prakash Chandra. I no longer wish to support or sponsor him and never did but I was unaware that I had done so, as he made me sign many forms.

Although I married him it was under duress and out of fear, as he had made threats against myself and my family. As I was the only Australian female working with many Fijians, I feared the threats would be carried out.

The marridge (sic) was never consummated and I never lived with him at any time. I was given the opportunity to leave Melbourne when friends rang and told me they would pay for my airfare back to Queensland and I had no hesitation in doing so.

I left Melbourne on the 13th of August 2001 and in the past four months have begun to realise my mistake and to find a solution for my problems as I have put in an annulment form.

Since finding myself in this situation I have suffered severe anxiety and stress as I fear for my safety and that of my family, as Anish's constant phone calls are disturbing."

19. It is clear from the date of that letter that it was received by the department of the respondent prior to the date of the delegate's decision.

20. It should also be noted that correspondence from the department to the applicant had at one point clearly alerted the applicant to the prospect that the material then before the department would not accord with the Migration Regulations sufficiently to make a favourable determination of his application. That much was made clear in a letter dated 19 November 2001 (court book page 37) from the department to the applicant. The applicant then provided statutory declarations from himself and two others referring to domestic violence by the nominator. It is not necessary for me to refer in detail to the contents of those declarations, although it is noted in passing that in addition to the applicant's statutory declaration and two further declarations by persons referred to respectively as a family minister/counsellor and a psychologist, that the applicant appears to have made a complaint and summons for an intervention order in the Magistrates Court at Dandenong by application filed 20 December 2003 seeking an intervention order against the nominator. In that application the complainant states:

The parties married in December 2000 and separated in May 2001.

21. It is relevant to further set out extracts from the delegate's decision record (court book page 49). The decision of the delegate, as indicated earlier, was made on 8 February 2002. The delegate in her decision states in relation to the issue of "Time of Application Criteria" the following:

The application was made on 18 December 2000 in addition to the form 887, the applicant also submitted a marriage certificate, a statement outlining a history of the relationship and documents which supported the claim that the applicant and nominator reside together. However, there is no evidence on file, which outlines the social aspects of applicant and nominator's relationship.

On 25 October 2001, the applicant was sent a letter requesting that he and the nominator attend the office for an interview. This letter was returned to the Department unclaimed. The applicant was contacted on 14 November 2001 and at this time he stated inter alia that:

* He was still in a spousal relationship with the nominator.

* The nominator had travelled to Queensland to visit friends.

* The nominator had been in Queensland for a number of months.

* That he was unable to provide contact details for the nominator at the time of the call but would do so at a latter date.

Contact was then made with the nominator who stated the following:

* That she met the applicant at her place of employment.

* That she had been pressured into marrying the applicant.

* That the applicant had threatened to harm both her and her family if she did not marry him.

* That she has never lived with the applicant.

* That the applicant had contacted her, after 14 November 2001, requesting that she advise the Department that the relationship was genuine and ongoing.

On 19 November 2001 the nominator formally notified the Department of her verbal advice and withdraws her support for the application.

On 19 November 2001 the applicant is advised that the nominator has withdrawn her support for his application. In response the applicant notifies the Department that his relationship with the nominator ended due to domestic violence.

It is now difficult to make a finding as to the nature of the relationship between the applicant and nominator at the time of application. This is especially so given that:

* The relationship has now ceased.

* Very few cohabitation documents were presented with the initial application.

* No documents of a personal nature, ie photographs, were presented with the application.

* The nature of the claims and counter-claims made since the relationship ended.

* The applicant and nominator were never interviewed as part of the application.

Nevertheless, I consider that it is highly probable that the relationship between the applicant and nominator was contrived for the sole purpose of facilitating the grant of a permanent visa to the applicant. In reaching this decision I give weight to the statements made by the applicant on 15 November 200. In particular to his claim at this time that he was still in an ongoing relationship with the nominator but that she had gone inter state on a holiday. If as he now alleges the relationship had ended due to domestic violence or any other reasons, I can see no reason why he would not have advised me of this. I consider his willingness to even on this occasion mislead or misinform an officer to be strong evidence that he is a person without credibility and willing to go to some lengths to achieve permanent stay in Australia.

In addition, I can find no reason why the nominator would not be truthful when I contacted her. The fact that she left the state and travelled to Queensland to remove herself from the path of the applicant also suggests that her account of the circumstances leading to the end of the relationship is a more accurate reflection of events. If as the applicant alleges, it was the nominator who inflicted the domestic violence on him, I would suggest that she would have no reason to flee the state. However, the facts are that it is the nominator who has fled the state while the applicant continues to reside at the same and in all probability working in the workplace where he met the nominator."

(Court Book p.49)

22. The delegate then considers issues of domestic violence and otherwise refers to the unsatisfactory nature of the statutory declarations relied upon by the applicant in relation to that matter.

23. It is noteworthy that in the delegate's decision record the letter purportedly from the nominator has not been referred to specifically. There is reference to the nominator formally notifying the department of her verbal advice but doing so on 19 November 2001. There is no reference to her letter dated 15 November 2001, even though it is noted that there is reference to statements made by the applicant on "15 November 2001". Further, it seems to me that the reference to the statements by the nominator when contact was made with her was a reference to statements made by telephone rather than in the letter. It will be apparent by a simple cross-referencing of the two documents, namely, the bullet points in the delegate's record of decision and the contents of the nominator's letter dated 15 November 2001, that a number of matters are not included in the delegate's summary.

24. The summary, I conclude, is a summary based upon what the nominator allegedly told the delegate rather than what appears in the letter. For example, the delegate in the record of decision does not refer to the assertion by the nominator that she was "unaware that I had done so" in relation to her sponsorship, nor is there any reference to her being made by the applicant to "sign many forms". There is no mention of the marriage never having been consummated, even though there is reference to the nominator claiming she had never lived with the applicant. There is, further, no reference to the nominator putting in what is described as an annulment form. There is, further, no reference to the nominator indicating that she had "left Melbourne on 13 August 2001".

25. It is also relevant to, by way of comparison, further set out the findings of the MRT. It is not in dispute that in its findings the MRT has correctly identified the crucial issue; namely, the necessity to assess whether at the time of the application the visa applicant was the spouse of the nominator. It is useful to set out the following relevant paragraphs from the findings of the MRT:

"22. It is therefore necessary to assess whether at the time of application the visa applicant was the spouse of the nominator. The visa applicant and the nominator were married to each other in Melbourne on 12 December 2000 and a copy of their marriage certificate was lodged with the visa application. At the time of application the visa applicant and the nominator were married to each other under a marriage that is recognised as valid for the purposes of the Act. The Tribunal therefor must now consider whether the visa applicant was the `spouse' of the nominator at the time of application and continues to be the `spouse' of the nominator at the time of decision.

23. The definition of `spouse' is contained in Regulation 1.15A(1):

1.15A(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

(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) they live together; or

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

24. Regulation 1.15A contains the test for determining whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.

25. There is little evidence that the parties had combined their assets and liabilities at the time of application. There is no evidence about the nature of the household or the nature of the persons' commitment to each other. The parties have been separated since 13 August 2001. The only evidence that the parties presented themselves as husband and wife to family and friends is provided by two statutory declarations from a friend and a cousin of the visa applicant.

26. The nominator told the delegate that since the marriage she has never resided with the visa applicant and that the marriage has not been consummated. The visa applicant has declined to respond to the section 359A letter and has therefore lost any opportunity to provide oral evidence to the Tribunal. The Tribunal must base its decision on the very limited evidence before it. Applying the test in Nassouh, the Tribunal finds that at the time of application the applicants did not have a mutual commitment to a share life as husband and wife to the exclusion of all others, and that the relationship between then was not genuine and continuing. The Tribunal is unable to find that they did not live separately and apart on a permanent basis.

27. The Tribunal finds that at the time of application the visa applicant was not a spouse of an Australian citizen as defined in subregulation 1.15A and therefore the visa applicant fails to satisfy subclause 820.211(2). Accordingly the visa applicant has failed to satisfy clause 820.211 at time of application. As the visa applicant has failed to satisfy an essential criterion for the grant of a subclass 820 visa, it is not necessary to consider any other criteria.

CONCLUSION

28. Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Partner (Temporary) (Class UK) visa."

(Insert paragraphs 19 through to 28 inclusive)

26. It is noted that in those findings the MRT does not refer to or recite verbatim the correspondence of the nominator dated 15 November 2001. No reference is made to the suggestion that the nominator was unaware of what she had done and that the applicant had made her sign many forms. There is, further, no reference to the nominator having put in an annulment form. It is clear, however, that unlike the delegate, the MRT does refer to being told that the marriage had not been consummated. It is perhaps interesting to note that the MRT states that:

The nominator told the delegate that since the marriage she had never resided with the visa applicant and that the marriage has not been consummated.

27. The delegate does not refer to that fact, although it is referred to in the correspondence.

28. The applicant has submitted that in this matter section 359A requires the MRT to give to the applicant particulars of any information that the MRT consider would be the reason or part of the reason for affirming the decision that is under review, ensure that the applicant understands why it is relevant to the review and invite the applicant to comment on it.

29. I have already set out the contents of s.359A of the Act and it is relevant and appropriate that I now incorporate in this judgment the full text of what is described as the 359A letter from the MRT to the applicant. The letter provides the following:

1/7/2002

I am writing about your application to the tribunal for review of a decision on a partner (temporary)(class UK) visa.

The Migration Act 1958 (the Act) contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review, applicants to respond to material before the tribunal as well as limits on further opportunities if there is a failure to provide comments within a specified period.

Section 359A of the act states that the tribunal must explain, and invite comment on, 'particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.'

You are invited to comment, in writing, on the following information:

* The evidence before the tribunal would appear to establish that your relationship with the nominator has ended, the nominator has withdrawn her nomination in your favour and the regulation 1.23 about statutory declarations do not appear to conform with regulation 1.26;

* The nominator has withdrawn her nomination;

* Abhay Anand Awastish, who provided a statutory declaration, does not appear to be a competent person pursuant to regulations 1.26 and 1.21;

* The statutory declaration provided by Edwin 'Eddie' Kleynhans does not appear to comply with regulation 1.26 because it did not state in his opinion the visa applicant has suffered relevant domestic violence within the meaning of paragraph 1.23(2)(b) of the regulations.

The above information does not include information that you gave the tribunal for the purpose of the application, or information that, under the act, is non-disclosable.

Your written comments should be provided within 28 calendar days of the date of notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation to comment seven working days after the date of this letter. Please note that 'working days' do not include weekends or public holidays.

If you are unable to provide comments within this period you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The tribunal will consider any requests for an extension carefully, and advise you, in writing, whether an extension of time has been granted.

If you make comments, the tribunal will consider your comments carefully. If the tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the tribunal.

If the tribunal does not receive any comments within the period allowed, it may, under section 359C of the act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the tribunal.

Please telephone me if you have any questions ...

30. It is common ground that the applicant did not appear before the tribunal or provide any further information in response to that letter, nor did the applicant seek any extension of time which may have been sought in response to that letter. The next item of correspondence appears to be a letter dated 18 October 2002 advising the applicant the decision would be handed down on 25 October 2002.

31. A number of observations can be immediately made in relation to the material both before the delegate and the MRT, together with the issues now sought to be agitated on behalf of the applicant. It is clear to me that on a proper reading of paragraphs 25 and 26 of the MRT decision that it has made findings that are clearly relevant to the application. It has significantly made findings on the following issues:

a) that there is little evidence that the parties had combined their assets and liabilities at the time of application;

b) there is no evidence about the nature of the household or the nature of the person's commitment to each other;

c) that the parties had been separated since 13 August 2001;

d) that the nominator told the delegate that since the marriage she had never resided with the visa applicant;

e) that the nominator told the delegate that the marriage has not been consummated.

32. It is perhaps of some concern that a finding has been made that the parties separated since 13 August 2001 when in reality the only information where that date has been referred to is the letter of the nominator dated 15 November 2001 where she states, "I left Melbourne on 13 August 2001..." That is not the same as saying the parties separated on that day and it is difficult to understand how that conclusion could have been reached, although it may not matter in the context of judicial review.

33. It is, however, a finding based upon, in part, information set out in that letter. Likewise, I conclude that the finding that "the marriage has not been consummated" has as its sole source the letter dated 15 November 2001. In finding both that the marriage has not been consummated and further finding, as set out in that letter, that the nominator has "never lived" with the visa applicant, it is clear to me that that is a crucial finding in assessing whether at the time of the application the visa applicant was the spouse of the nominator.

34. Another part of the crucial information also set out in the letter dated 15 November 2001 is the suggestion that the nominator had put in a "annulment form". I take that to mean an application to annul marriage pursuant to the Family Law Act 1975. That is indeed a most significant and serious step to take and is taken upon certain grounds, and part of the material often relied upon in applications of that kind is that the parties were forced into marriage, that they never resided with each other and/or the marriage was not consummated.

35. It is submitted on behalf of the applicant in the context of that background that the information set out in the letter dated 15 November 2001 ought properly have been information of a kind which in the discharge of its duties pursuant to s.359A of the Act the MRT should have given to the applicant, or in the alternative, should further have ensured, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and to then invite the applicant to comment on it.

36. In my view, the section 359A letter from the MRT to the applicant does not in any form set out in clear terms that information ultimately relied upon by the MRT in reaching its findings set out in paragraphs 24 and 25 of its decision. In fact, the section 359A letter provides, at least in the first bullet point set out above, some confusing information about noncompliance with regulations, and, leaving aside grammatical errors, can only serve to at least distract the applicant from what became the threshold issue of whether or not at the time of the application the visa applicant was the spouse of the nominator.

37. Whilst reference has been made on two occasions in the section 359A letter to the assertion that "the nominator has withdrawn her nomination", that is not the same as indicating to the applicant that there is a letter received by the MRT and the delegate suggesting that the marriage was never consummated, that the parties had never lived together, and further, that in the circumstances the nominator was unaware that she had sponsored the applicant. Further, no reference is made to what is an integral and important piece of information, whether it became part of the reasons by inference or otherwise, that the nominator had put in an annulment form.

38. To understand the true purpose of s.359A it is useful to set out the requirements of that section and indeed further useful to include in this decision an extract from the Full Court of the Federal Court of Australia decision in the matter of VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 186 (15 August 2003) per Kenny J as follows:

"47 Item 3 of Pt 1 of Sch 3 of the Migration Legislation Amendment Act (No. 1) 1998 (Cth) introduced s 424A, as well as a new s 424 and ss 424B and 424C into the Act, with effect from 1 June 1999. The Explanatory Memoranda accompanying the Bill described these provisions as "... a code of procedure which the Tribunal is to follow in conducting its review". In the Second Reading Speech, the Minister noted that the Bill "includes certain safeguards for applicants by introducing a code of procedure ... which is similar to that already applying to decisions made by the department. This code includes such matters as the giving of a prescribed notice of the timing for a hearing, and a requirement that applicants be given access to, and time to comment on, adverse material relevant to them": House of Representatives, 2 December 1998, at p 1123. (Although not significant for present purposes, I note that the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 repealed subs 424A(2) and inserted a new subsection.)"

39. Whilst referring to s.424A the comments in relation to that section are apposite to the principles to be applied, in my view, to s.359A. Further reference was made during the course of submissions by counsel for the applicant to the decision of Kirby J in the matter of Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

40. In the same case reference was made to the decision of McHugh J where His Honour states the following at page 122:

"102. But the fair hearing doctrine also requires that the Tribunal should not mislead an applicant concerning the evidence that should be led or that will be taken into account. Here the second Tribunal effectively told the prosecutor that it would take into account the material in the four statements. It did not do so. And the prosecutor has sworn that, but for being misled, he would have elaborated on the material at the hearing. He was therefore denied the opportunity to put his whole case to the Tribunal. In that respect, he was denied a fair hearing.

The breach of the fair hearing rule did not affect the Tribunal's decision

103. Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission [130] when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial." Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome"[131]. In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it."

41. In the present case it was submitted that the applicant was denied the opportunity to examine and consider the contrary allegations made by the nominator and to then attend the hearing and deal with that adverse evidence, whether by way of further evidence and/or submissions. Further reliance was placed upon by the observations of Gray J in Baig v Minister for Immigration and Multicultural Affairs (2002) FCA 380 and in particular paragraph 35 where His Honour made the following comments on the undisclosed item of adverse information:

"35 It is clear that the absence of a by-election was not the only ground on which the Tribunal rejected the applicant's story. As I have said, it did so for a number of reasons based on the applicant's credibility, inconsistencies in his evidence and its view of the implausibility of his story. It must be accepted, however, that the only hard evidence on which the Tribunal relied to refute an element of the applicant's case was the Agence France Presse items. The Tribunal relied on the absence of any record of a by-election in any of the material it searched. It was entitled to rely on the absence of material, but it is necessary to recognise that such reliance carries only so much weight as the competence of the searches allows. An absence of evidence is not itself hard evidence. In the Agence France Presse items, the Tribunal believed it had specific evidence that there was not, on 15 April 1997, a by-election for a National Assembly constituency close to the applicant's home. If it had given the applicant an opportunity to comment on the Agence France Presse material, it is possible that the applicant might have been able to point out that the second item left open the possibility that the by-election he claimed to have participated in had taken place. The Tribunal might then have taken a more benevolent view of the applicant's credibility if it had found in his favour on this issue. In turn, that view might have affected the view that the Tribunal took on the applicant's credibility in other respects. Whether it would have been sufficient to turn around the Tribunal's adverse opinion of the applicant and his story is another question. The applicant still had considerable ground to make up even if the Tribunal had accepted that he had campaigned in a by-election for the National Assembly that took place on 15 April 1997. The ultimate result is not, however, one for this Court to determine. This Court is not a trier of fact when exercising its jurisdiction to hear applications for judicial review of decisions of the Tribunal. I am left with the real possibility that the failure of the Tribunal to observe a procedure it was required to observe denied the applicant a successful outcome of his application. The proper course is to set aside the decision of the Tribunal and return the matter to the Tribunal, differently constituted, for reconsideration."

42. In my view, there is a great difficulty in the court having found that the contents of the letter dated 15 November 2001 provide information of a kind that ought to be provided to the applicant pursuant to s.359A to then embark upon its own fact-finding mission to determine whether there is any practical effect, as submitted by the respondent, or indeed to be dismissive of the noncompliance of s.359A on the basis that the applicant had already been provided, both in the delegate's decision and in other material, with a clear indication of the threshold issue to be considered by the MRT. To suggest that there is no practical unfairness would be to invite the court to embark upon its own fact-finding mission as to what might or might not have been the further material which could have been provided by the applicant in these circumstances.

43. In my view, it is inappropriate for the court to speculate as to what might have been provided, save and except to at least indicate that the evidence and the material provided by the nominator may well have been subject to challenge in a number of respects crucial to the outcome of this application. None the least of those elements includes the lodging of an annulment application, the suggestion that the parties never lived together, and, perhaps more significantly, a matter never raised specifically in the delegate's material, the suggestion that the marriage was never consummated.

44. Those matters, in my view, may have led to a different outcome and I do not accept in an application of this kind that it is appropriate for the court to speculate on what might be other facts found. I otherwise adopt and apply the reasoning of his Honour Kirby J in the decision of Aala to which I have referred and further adopt and apply those decisions otherwise relied upon by the respondent in a consideration of the issues before this court.

45. It is clear in applying the authorities to which reference has been made by the applicant that the material in this case does provide information of a kind which, in my view, ought to have been provided by the tribunal to the applicant. It is further clear, in my view, that as a consequence of a failure to provide that information there has not only been a breach of s.359A of the Migration Act, but I am satisfied that that conduct of itself provides a further basis upon which the court can find that there has been a denial of procedural fairness and/or natural justice of a kind that would encourage the court to conclude that there has been jurisdictional error. It would follow, therefore, that the decision of the MRT should be declared void and the matter remitted to a differently constituted MRT for further consideration according to law.

46. I should add that in a matter of this kind it should be noted that there is a reason for the introduction of s.359A. It is not, as suggested by the respondent, appropriate for this court to embark upon what might be described as a constructive knowledge exercise whereby an analysis of the delegate's decision combined with other material may lead the court to conclude that the applicant had knowledge of the matters ultimately the subject of decision and reliance by the MRT in its decision of a kind set out in the material in the letter dated 15 November 2001.

47. It is appropriate, and I accept the submission on behalf of the applicant, that this court does not analyse the decision of the MRT in such fine detail as to result in an artificial process. The reasoning set out in paragraphs 25 and 26 of the MRT reasons should be read in context.

I do not accept, as submitted by the respondent, that the findings and the matters relied upon as set out in paragraph 25 with the other matters in paragraph 26 merely being subject to categorisation as observations. In my view, that is an artificial analysis and I accept that both paragraphs form, and properly form, part of the reasons and decision of the MRT and include and rely upon facts and information then before the MRT, which in compliance with s.359A of the Act and indeed in discharge of its duties to afford natural justice to the applicant should have been provided to the applicant prior to determination of this matter.

48. Accordingly the orders of the Court will be as follows:-

1. That the decision of the MRT dated 25 October 2002 is declared void.

2. The matter be referred to the respondent for further consideration according to law by a differently constituted MRT.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 13 September 2004
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