Davis v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|1991-11-29|Before: O'Loughlin J, Dowsett J

Background 1 On 9 August 2000, the applicant applied for a Partner (Temporary) (Class UK) visa pursuant to the Migration Act 1958 (Cth) (the "Act"). The application was refused by a delegate of the respondent (the "Minister"). The applicant applied to the Migration Review Tribunal (the "Tribunal") for review of that decision but was unsuccessful. This is an application for review of the decision of the Tribunal.

The issue 2 In order to qualify for grant of the visa, the applicant had to satisfy certain criteria as at the date of application. Such criteria are set out in cl 820.211 of Schedule 2 to the Regulations. Of particular relevance is subcl 820.211(2) which provides: 'An applicant meets the requirements of this subclause if: (a) the applicant is the spouse of a person who: (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (ii) ...' 3 Regulation 1.15A provides: (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); ... (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. ... ' 4 The relevant question is whether, at the date of application, the applicant satisfied the requirements of par 1.15A(1A)(b).

Available grounds OF REVIEW 5 It is common ground that the Tribunal's decision was a privative cause decision for the purposes of s 474 of the Act. Judicial review of the decision is therefore restricted in the way explained by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In his outline of argument on behalf of the Minister, counsel identified the following grounds of review as available: (a) that the decision exceeded constitutional limits; (b) that the decision was not a bona fide attempt to exercise the power; (c) that the decision did not relate to the subject matter of the legislation; (d) that the decision was made in breach of an inviolable statutory limit or condition upon the power which, as a matter of construction and notwithstanding section 474 of the Act, must be observed for the effective exercise of that power; (e) that there was a constructive failure to exercise the jurisdiction; or (f) that the decision was made in breach of the requirements of procedural fairness where the circumstances were such that notwithstanding section 474, procedural fairness was a necessary precondition to the valid making of the decision. 6 I do not understand the applicant to challenge this statement of principle. I am content to adopt it for the purposes of this decision.

The facts 7 The applicant first arrived in Australia in October 1999. At that time, she had been estranged from her two children for over 20 years. They had emigrated to Australia with their father and his then de facto wife, Ms Beckert. Although Ms Beckert is now separated from the children's father, it seems that she remains close to them. At some time prior to October 1999 she went to Germany and located the applicant. As a result the applicant visited Australia in October 1999. Shortly after her arrival she met George Gilbert Davis, an Australian citizen of Aboriginal extraction, who was a friend of the Beckert family. He was then aged 75 years. The applicant claims that a close relationship developed between her and Mr Davis. She returned to Germany on 31 October 1999. They maintained contact by telephone and, some time prior to 26 November 1999, agreed to marry. The applicant returned to Australia on 10 May 2000. She and Mr Davis married about six weeks later, on 23 June 2000. Mr Davis was then 76 years of age and the applicant, 44. 8 At some stage the applicant and Ms Beckert fell out. On 5 July 2002 Mr Davis informed the migration authorities that he no longer wished to be the applicant's sponsor in connection with her visa application. On 13 July 2002, he left the house which they were occupying and did not return. On 15 July 2002 the migration authorities informed the applicant that they had information which suggested that her relationship with Mr Davis had ended. On 22 July the applicant wrote to Mr Davis, asking him to return to her. On 12 August she took out a protection order against him. On 27 September 2002 he died. 9 Although the relationship clearly ended no later than July 2002, the applicant may, in some circumstances, still be entitled to a visa, provided that as at the date of her application she satisfied the requirements of Regulation 1.15A for the purposes of subclause 820.211. In determining that question, events after the application may be taken into account. As O'Loughlin J observed in Bretag v Immigration Review Tribunal (unreported, O'Loughlin J, 29 November 1991): 'It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr. Bretag and the applicant and between Mr. Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE - 7 February 1990. But the evidence of the subsequent history is only relevant so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined": Minister Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J.' 10 The Tribunal considered numerous factual matters and concluded that '... the genuine and continuing nature of the relationship, as at the time of application, has not been demonstrated.'

Relevant provisions 11 Part 5 of the Act deals with the review of decisions. Division 5 of Part 5 deals with the conduct of such reviews. Section 357A is of particular importance. It provides: '(1) This division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.' 12 I will return to that section at a later stage. 13 Section 359A of the Act provides: '(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 when 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.' There is apparently no subsection 359A(3). 14 Section 379A prescribes a number of methods for delivering a document to a person for the purposes of the Act. However s 359A is concerned expressly with information rather than documents. Perhaps ss 359A and 379A, together, require that the Tribunal reduce to writing the information identified in s 359A and supply the outcome to the applicant by one of the methods identified in s 379A. I will assume such an effect for present purposes. Paragraph 359A(4)(c) speaks of "non-disclosable information". That term is defined in s 5 as follows: 'non-disclosable information means information or matter: (a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would: (i) prejudice the security, defence or international relations of Australia; or (ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or (c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence; and includes any document containing, or any record of, such information or matter.' 15 Section 362A provides: (1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review. (2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information. (3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).' 16 The statement contemplated by s 368(1) is, in effect, a written statement recording the Tribunal's reasons for its decision. It may be that subs 362A(3) is intended to prescribe a time limit after which the Tribunal need not provide material. 17 Finally, s 375A provides: (1) This section applies to a document or information if the Minister: (a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and (b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal. (2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies: (a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.' 18 This section should be construed in the light of ss 375 and 376. The Minister may certify, pursuant to s 375, that the disclosure of particular documents or information would be contrary to the public interest because of possible prejudice to security, defence or international relations or because it would involve disclosure of the deliberations of Cabinet or a Cabinet committee. Such material will not be provided to the Tribunal. Subparagraphs (a)(i) and (ii) of the definition of "non-disclosable information" would seem to include this material which would therefore be exempted by par 359A(4)(c) from the operation of s 359A. 19 Pursuant to s 376 the Minister may certify that disclosure will be contrary to the public interest for a reason (other than a reason set out in s 375) which 'could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed ...'. Such material would presumably also fall within par (b) of the definition of "non-disclosable information" and therefore be exempted by par 359A(4)(c) from the operation of s 359A. In the case of such a certificate the Tribunal may disclose the relevant material to the applicant or to other persons giving evidence. 20 Section 375A authorizes the Minister to certify that material should not be disclosed, other than to the Tribunal, upon the ground that such disclosure would be contrary to the public interest for any reason other than one of the reasons set out in s 375. In the event of such a certificate being issued, the Tribunal is obliged to do everything necessary to ensure that neither the documents containing the information, nor the information is disclosed to any person other than a member of the Tribunal constituted for the purposes of the review in question. The Tribunal has no discretion in the matter. Such material may, in some cases, also fall within par (b) or (c) of the definition of "non-disclosable information" and therefore be exempted by par 359A(4)(d) from the operation of s 359A, depending upon the Minister's reason for issuing the certificate. However the Minister may conceivably act upon a basis which does not fall within those paragraphs. In that case, par 359A(4)(c) would not exempt the material from the operation of s 359A. 21 It is curious that material which is the subject of a certificate under s 375A is not expressly excluded from the operation of s 359A. Nonetheless, the obligation to maintain secrecy imposed upon the Tribunal by s 375A is so specific that the obligation imposed by s 359A must give way to it. This would, in my opinion, be so, even in the absence of s 357A. However that section puts the matter beyond doubt. The obligation conferred upon the Tribunal by s 362A must similarly yield to that imposed by s 375A.

The Withheld material 22 Prior to the hearing in the Tribunal, the applicant applied pursuant to the Freedom of Information Act 1982 (Cth) (the "FOI Act") for information held in the Minister's department concerning her visa application. Much information was provided, but certain material (the "withheld material") was withheld, apparently for reasons appropriate to a claim for exemption under the FOI Act. (See AB 24-26.) Thereafter, a delegate of the Minister issued a certificate pursuant to s 375A. It related to all of the documents withheld from disclosure under the FOI Act and some documents which had been disclosed. It certified that disclosure, other than to the Migration Review Tribunal, of any matter or information in the identified documents: '... would be contrary to the public interest because: · All the documentation and information was received by the Department in confidence. There is an expectation that the source of the information remain confidential and there is a mutual understanding between the suppliers of the information and this agency that a relationship of confidentiality exists. · All the documentation and information was also deemed exempt from release to the review applicant under the Freedom of Information Act. The document or information referred to in the paragraph above must only be disclosed to the Migration Review Tribunal.' 23 On 18 July 2003 the applicant wrote to the Migration Review Tribunal as follows: 'I have been advised that under s 362A migration act that the Tribunal is to supply access and copies of any written material produced to the Tribunal for the purposes of the review. Please confirm that the material supplied under cover of your letter 25th of March 2003 is in fact the whole of the material that the tribunal intends to supply under s 362A. I have been further advised that under s 359A the Tribunal must provide particulars under any information that the Tribunal would consider as supporting the delicates [sic] decision. I now ask that those particulars be supplied to me in writing at least seven days prior to the hearing.' 24 It seems that on 24 July 2003 the applicant had a conversation with an officer of the Tribunal. The officer prepared a diary note of the conversation as follows: 'The applicant called me back. I addressed the matters raised in her letter. The information provided under Access to documents was what she requested. If she wants further information, she can request it. The applicant asked about 359A. I explained that if there is adverse information which might lead to an unfavourable decision which she has not provided (other information), then the Tribunal will invited her comment on it. At this point, there is no information that falls into that category and so there is no need to invite her comment. I then went on to her request for the Tribunal to take evidence from 3 people at hearing and her request for a formal summons to be issued for them. I explained to the applicant that it is the Member's decision whether he will hear from the people and whether he considers it necessary to summons them. I asked if she knows the people - she does. I said it is easier if they just appear. The applicant considers it necessary for them to be summonsed so they come. I told her I would forward the request to the Member.' 25 On the same day (24 July 2003), the applicant wrote to the Tribunal as follows: 'I refer to my letter of 18th July and telephone conversation of 24th of July. I note that you advice that I further request is required for access to any material not previously supplied. This letter is to formally request access to (and copies of) all material held by the Tribunal or the Department of Immigration relevant to my matter that have not previously been supplied.'

The Applicant's grounds of review 26 The applicant advances six grounds for review of the Tribunal's decision, identified in the applicant's written submissions as:

· effect of the Migration Legislation Amendment (Procedural Fairness) Act 2002; and

Jurisdictional Error 27 Under this heading the applicant asserts that the Tribunal's failure to: '(a) carry out its own assessment as to which documents might support the decision under review is a failure to exercise its jurisdiction and statutory function leading to the Tribunal acting outside its jurisdiction. (b) independently consider whether the withheld documents were in fact non-disclosable documents was a breach of the rules of Natural Justice leading to jurisdictional error.' 28 Whatever the merits of these criticisms in other circumstances, they can have no force in face of the fact that all of the withheld material was withheld pursuant to a certificate under s 375A. The Tribunal was not at liberty to disclose either the documents or the information contained in them. As I have observed above, the obligation imposed by s 375A inevitably displaced any obligation which the Tribunal may have had pursuant to s 357A or s 362A. The Tribunal had no discretion to go behind the Minister's certificate. There is nothing in this ground.

Use of Withheld Documents 29 The applicant complains that the certificate under s 375A is signed by an officer of the department rather than by the Minister. It is not asserted that the Minister lacked the power to delegate the relevant function. It is rather submitted that the applicant ought to have been given the certificate at such a time as to allow her to make inquiries as to its validity prior to the Tribunal's decision. There is no statutory obligation to disclose the existence of the certificate to the applicant. In some cases disclosure may involve no adverse consequences. In others, disclosure may seriously undermine the confidentiality which s 375A was designed to protect. The existence of the certificate, by itself or coupled with questions asked by the Tribunal or matters raised by the Tribunal, may, in effect, disclose the confidential material. Given that the Tribunal may not override the certificate, no point would be served by disclosing its existence. In any event there is no reason to doubt that the delegation was lawful or effective. By the time of the hearing before me, the applicant, I infer, had access to the certificate and therefore an opportunity to discover any irregularity. None has been suggested. There is nothing in this point. 30 The applicant also submits that: 'As the Reasons for Decision of the Tribunal do not record that the certificate contained a statement under section 374A(2)(b) of the Migration Act to the effect that the information must only be disclosed to the Tribunal, it must be assumed that the certificate in fact contained no such statement. It therefore follows that the provisions of section 376 of the Migration Act apply.' 31 There is no rational justification for such an assumption. It is clear that the certificate was issued under s 375A and that it provided that the relevant material should be disclosed only to the Tribunal. There was no certificate under s 376 and therefore s 376 did not apply. The submission has no substance. 32 In any event, it seems that the applicant had a reasonable understanding of the relevant information contained in the withheld material. In particular, she seems to have understood that it concerned her relationship with her husband, his status as her sponsor for the purposes of her visa application, and that at least one of the persons who had supported her application for a visa had withdrawn such support. When interviewed by a departmental officer in connection with her original application she was questioned about these matters. There is no reason to believe that she had anything further to add in explanation of them.

Reliance on Withdrawn Statements of Support 33 The applicant notes from the Tribunal's reasons that two persons had withdrawn statements, in the form of statutory declarations, previously made in support of her visa application. She asserts that she should have been told which statements had been withdrawn and the means by which they were withdrawn. There is no suggestion that any such request was made to the Tribunal at the hearing. As I have observed, she was aware that at least one former supporter had withdrawn his or her support. In any event, her complaint seems to go only to the weight attributable to the statutory declarations and to the subsequent withdrawals. This suggests an assumption by the applicant that she could discredit the withdrawals and so rely on the presumably favourable contents of the original statements. Experience suggests that it is most unlikely that any credit would be given to the withdrawn statements. This complaint raises no valid basis for attacking the Tribunal's decision. In any event, this material seems to have been the subject of the s 375A certificate.

Error of Law 34 Under this heading the applicant raises two matters. The first is the extent of the Tribunal's compliance with the requirements of s 368 of the Act. The Tribunal provided a written statement setting out its decision and reasons, together with findings on material questions of fact. It referred to the material on which the findings of fact were based. The applicant points to subreg 1.15A(3), which requires the Minister to address certain aspects in deciding whether or not two persons are in a married relationship. She submits that the Tribunal was obliged to treat these matters as "mandatory considerations" and that it follows that the Tribunal should have recorded its findings of fact concerning them. The applicant asserts that with respect to a number of these matters, the Tribunal set out aspects of the evidence but had not 'adequately indicated its findings' and had done so 'without clarifying if the Tribunal does in fact accept these applicant's claims'. I have quoted certain extracts from the applicant's submissions which are typical of this aspect of her criticisms of the decision. 35 Although subreg 1.15A(3) requires that the Minister 'have regard to all the circumstances of the relationship including' the various matters specified, it does not require that the Tribunal make specific findings concerning any of those matters. To the extent that the material dealt with these matters, the Tribunal appears to have considered them and recorded substantial amounts of the relevant material in its reasons. There is no obligation upon a tribunal of fact to make findings as to whether it accepts or rejects every allegation made in the course of evidence. In some cases allegations may be so fundamental to the ultimate matter for determination that findings concerning them will be essential. In most cases, however, individual facts will be of less significance than the overall effect of the evidence. It may, in those circumstances, be unnecessary to make possibly hurtful, damaging or embarrassing findings of fact which are not necessary to the ultimate decision. That is not to say that the Tribunal should avoid making decisions for fear of offending parties or their witnesses. At the end of the day the questions for determination in the present case were whether the Tribunal was satisfied that:

· the applicant and Mr Davis, as at the date of application for a visa, had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

36 Both questions required an assessment of the subjective state of mind of each party to the marriage. The Tribunal clearly addressed that issue and explained its decision by reference to the evidence. It was obliged to do no more. 37 The second criticism under this heading concerns the terms of subreg 1.15A(5) which provides: 'If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.' 38 The applicant and Mr Davis had been living together for more than six months at the relevant time. The Tribunal was aware of the evidentiary significance of this fact and referred to it expressly in its reasons. See par 39. However that provision did not fetter the power of the Tribunal to determine the weight to be given to other evidence. Even in the absence of a provision such as subreg 1.15A(5), it would obviously be necessary to give great weight to the fact that the parties had lived together for a substantial period of time prior to the application. There is no reason to believe that the Tribunal did not do so. There is nothing in this point.

Effect of the Migration Legislation Amendment (Procedural Fairness) Act 2002 39 The submissions made under this heading are designed to demonstrate that the relevant legislation did not deprive an applicant of the right to judicial review of the decision. As much was conceded on behalf of the Minister.

Apparent Bias 40 At par 50 of the reasons, the Tribunal noted that the applicant had 'initiated marriage with a man very much older than herself and from a very different culture'. The applicant submits that the Tribunal was: '... making a value judgment based upon the Tribunal's perception of social norms rather than a genuine assessment of the facts. It suggests that the Tribunal has not considered the matter with an open mind. Such a statement would lead a reasonable person to conclude that the Tribunal has prejudged the matter based on age and cultural considerations.' 41 The Tribunal's observation no doubt touches on two sensitive areas. Comments concerning interracial marriages sometimes disclose racial prejudice or may be mistakenly thought to do so. The word "culture" is sometimes a euphemism for "race". The question of marriage between people of widely different ages is also sensitive. That these issues may be sensitive is not a reason for avoiding a discussion of them when it is appropriate to the decision-making process. However great care should be taken in so doing. I am not satisfied that these factors were irrelevant to the discharge of the Tribunal's duty to resolve this matter. For a person to marry at age 76 is itself a little unusual, although by no means unknown. An age differential of 32 years is also somewhat unusual, although again not unknown. It is also not unknown for a younger party to enter into a marriage with an older party for reasons of personal advantage extrinsic to those which usually motivate marriage as a lifetime union between a man and a woman to the exclusion of all others. In those circumstances it was appropriate for the Tribunal to have regard to the age differential, although as I say, it was a matter to be considered with some care. 42 Similar considerations may arise in the case of an inter-cultural or inter-racial marriage. The applicant and Mr Davis were from very different backgrounds and had not known each other for very long. The applicant, in particular, was apparently committing herself to a future which was quite different from her past experiences. It may be that the Tribunal had in mind the difficulties which a person who has lived all her life in Europe might face in coming to Australia, particularly rural Australia, as well as the differences between European and Aboriginal cultures. In any event, I am unpersuaded that this aspect of the relationship was irrelevant to an assessment of the parties' commitment to the marriage. It would certainly be inappropriate to pre-judge that commitment having regard to age and race differences, particularly as they are not matters specified in subreg 1.15A(3). However the passage under consideration occurs in a passage which also refers to the circumstances in which the parties came to marry and events which occurred thereafter. I do not think that any fair-minded observer, appreciating the possible relevance of these matters, would consider that the Tribunal had pre-judged the matter. There is nothing in this criticism. 43 The application must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 1 June 2004 Counsel for the Applicant: Ms G Brown

Solicitor for the Respondent: Blake Dawson Waldron

Migration Act 1958(Cth)s 5, 357A, 359A, 362A, 368, 375, 375A, 376, 379A, 474

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