Konteh v Minister for Immigration and Multicultural Affairs

The proceedings below 29 Mr Konteh challenged the decision by seeking review in the High Court under s 75(v) of the Constitution. The grounds identified in the summons filed in the High Court on 21 March 2005 were as follows: "1. The Defendant failed to accord the Plaintiff procedural fairness by its failure to have regard to relevant documents and its failure to provide reasonable opportunity to respond to adverse material. 2. The Plaintiff is and was at all times entitled to a spouse visa in Australia having fulfilled the criteria contained in the Migration Act since he was married to an Australian citizen and had a child who was born in Australia and is also an Australian citizen. The marital relationship was genuine and continuing to the exclusion of others at the relevant time. 3. The marital relationship subsequently broke down due to domestic violence. 4. In February 2003 the Plaintiff entered into a defacto relationship with an Australian citizen and that relationship is still genuine and continuing to the exclusion of others. 5. The Plaintiff is currently held in detention and unable to pursue his rights to access and custody of his only child Joshua Dean Tenney, an Australian citizen." 30 The proceeding was remitted to this Court and was heard by the primary judge. Two other applications were made, one to the Family Court for access to Joshua, a second directly to this Court in relation to his detention. Neither of the two further applications is relevant. 31 Two affidavits were filed in support of the application before this Court, one of Mr Konteh and one of Ms Nikolopoulos. The appeal was conducted on the basis that these affidavits were before the primary judge at the hearing. There was no oral evidence or cross-examination. 32 The affidavit of Mr Konteh referred to the contents of his statutory declaration put to the Department in 2003 and swore to its truth. He stated that at the time of making the affidavits he and Ms Nikolopoulos lived together. The affidavit explained why his statutory declaration had been provided to the Department. "9. My evidence simply is that I consider Connie to be my de-facto wife and we continue to maintain a meaningful relationship and have done so since 2003 when we so notified the Department by way of Statutory Declaration. The purpose of supplying the said Statutory Declaration was to substitute Ms Tenney [sic: Ms Nikolopoulos] as the nominator instead of Ishmael's former wife Ms Barbara Tenney. Further I did offer and did reasonably expect the Department to call me to follow up my Statutory Declaration, of which they never did. 10. I did put an application for a spouse visa in 1998 and in 2003 it was intended that Connie was to be my new nominator. I can also confirm that once these proceedings have been fully determined that both Connie and myself do intend to get married and that this has always been the case since we first met." [emphasis added] 33 Before turning to the approach of the primary judge, it is appropriate, given some of the arguments put forward on appeal, to say something about the events up to October 2004. Some six years had passed since Mr Konteh made his application. If Mr Konteh had stated that he had thought from the letter of 24 June 2003 and any other relevant circumstances that the only issue to which he needed henceforth to give consideration was his character, no doubt questions would have arisen about the content of the advice, if any, he had received from his solicitor and about what he had been told by the Departmental officer in 1998 when he attended the interview (as to which see [8] above). But he did not say that he had been misled in this fashion. Rather, he said that what was intended (presumably by him) was to substitute Ms Nikolopoulos for Ms Tenney as the nominator. Mr Konteh did not say in his affidavit how he came to that intention, and whether the formation of that intention was affected by any legal advice. Also, he did not state that he had thought that he could substitute nominators by the material in the statutory declaration because of something the Department had told him. Mr Konteh, from the terms of his own affidavit, can be taken to have understood the significance of the end of his relationship with Ms Tenney, his nominator, and can be taken to have thought that he had appropriately dealt with the substitution of a new nominator. 34 Mr Konteh filed submissions in this Court in support of his application for Constitutional writs. He was self-represented. On 13 and 14 March 2006, submissions were filed in substantially identical form. There were a mixture of assertion of historical fact and submission. Mr Konteh's complaints can be seen in the following paragraphs: "It is these two statutory declarations (as stated above) that the Applicant relies upon in respect of these proceedings. It is the applicants position that at the time that these two statutory declarations were submitted to the Department that was taken by the Applicant to be advising the Department of his change of circumstance. On reading of the wording these two statutory declarations it is quite clear that the Applicant was nothing up front [sic] and made the admissions both voluntarily and of his own free will. The applicant submits that to date he cannot find anywhere either within the Migration Act and or the relevant Regulations of any relevant procedure to advise of a change of circumstance such as a change in nominator as is the case in this case. … Thus ultimately the question as the Applicant sees it is simply did the Applicant take reasonable steps to advise of his change of circumstance to the Department and did the Department act properly on those change of circumstances. … In dealing with the second part of the question it is the Applicants respectful position that the Department did had [sic] options, the first could have been to continue with the existing application and substitute the nominators. Alternatively as the applicant could been allowed to withdraw his original application and lodge an amended application taking into account the new circumstances that were provided within the statutory declarations application, and this would in the Applicants view be permissible as a final decision had not been taken and for all intense in purposes [sic] the Applicant would find it hard to see how a withdrawn application could be viewed to be a second application. Further there is nothing that the Applicant could find within the Migration Act and or the associated regulations that could prevent the applicant from withdrawing his first application and submitting a second application Further more there is absolutely no evidence that the Department gave any consideration to the applicants change of circumstance and this was despite that the Applicants new nominator offered herself to the Department for any interview." [emphasis added] 35 An important aspect of these submissions was an asserted failure of the decision-maker to accord Mr Konteh procedural fairness - that the Department should have treated what Mr Konteh put to it as a substitution of nominators or should have allowed Mr Konteh to withdraw his application and renominate Ms Nikolopoulos as nominator. Embedded in these complaints is the proposition that the delegate was obliged in law not to decide Mr Konteh's application without warning Mr Konteh of the flaw in his application. Again, it is to be noted that Mr Konteh's submission was not that he had been misled into thinking that the only issue relevant to be considered was his character or criminal record. 36 Mr Konteh filed further submissions on the day of the hearing of his application. These were submissions in reply to those filed by the Minister. They covered three issues. Relevantly, the second was as follows: "(b) The Applicants lack of clarity (as the Respondent sees it) that he was seeking to nominate his new partner Ms Connie Nikolopoulos for the purposes of continuing his application for a Spouse Visa." 37 The submissions dealing with this topic were to the following effect (continuing to use the third person as Mr Konteh did sometimes when referring to himself in writing): "As stated in the original submissions filed in the is Court on 13/14 March 2006, the Applicant swore an statutory application to the effect that he had commenced a new relationship with a Ms Nikolopoulos on 6 August 2003, and this was also followed with a corroborating with a statutory declaration from the applicants partner. Interestingly his then lawyer countersigned the Applicant's statutory declaration and the Applicant respectfully submits that the purpose in submitting this statutory declaration amongst other things was that he was intending to continue with his spouse visa application albeit with a new nominator. The Department in receipt of this information was duty bound to inform the Applicant of the correct method he should abide by and further could have given him an opportunity to withdraw his application and submit a fresh application. It should be borne in mind that there is nowhere that the Applicant can see where there is a procedure for the Applicant to have followed to submit a change of circumstance in this case the nominator. Further the Applicant notes the Respondents submission that the Applicant was ably represented at the time and the Applicant carries that on and suggest that the Applicants statutory declaration was in fact counter signed by his own lawyer which seemingly suggests that this was the advice that the Applicant was asked to follow by his then lawyer. Thus the question for this Court ultimately decide firstly do the statutory declarations sufficiently infer that the Applicant was in fact in a new relationship and further were the Applicants actions reasonable having regard that there is now here [sic] to be found a proper procedure for advising the department of a change of circumstance. If the answer is affirmative to both questions then it stand to logic that the Department failed to give further and proper consideration to all the material before it and further and therefore is said to be in jurisdictional error. Particularly in light of the supporting statutory declaration of the Applicants partner." [emphasis added] 38 These submissions make clear that the case put to the primary judge was that the delegate should have recognised that some application for the substitution of nominator was being made and that in the circumstances was obliged not to decide adversely to Mr Konteh without telling him of the flaw in the application. 39 No additional relevant oral submissions were made by Mr Konteh. 40 The primary judge dismissed the application. First, his Honour rejected the submission that it was open to the delegate to substitute, informally, the nominator. Secondly, his Honour accepted the submission of the Minister that Mr Konteh was represented by competent solicitors and that if he wanted to substitute Ms Nikolopoulos for Ms Tenney, he should have withdrawn his application. Thirdly, his Honour accepted that it was not the delegate's obligation to refrain from deciding the application and warn of the defects in the application, in particular in the light of the duty in s 47 of the Migration Act. Fourthly, in part dependent on the first point made by his Honour that it was not open to the delegate informally to substitute nominators, his Honour rejected the submission that there was no evidence that the delegate had not considered his change of circumstances. Fifthly, his Honour rejected a submission that Mr Konteh did not have to demonstrate some Family Law proceedings for the purposes of sub-clause 820.211(3). Sixthly, his Honour rejected a submission based on the International Convention on the Rights of the Child.

Appeal 41 A notice of appeal was filed, apparently drafted by Mr Konteh. It contained three grounds of appeal, as follows: "1. That the learned Justice Conti respectfully erred in his reasoning that there was evidence that the Department did in-fact give consideration to the Applicant's change of circumstance, to say the Applicant's affidavit dated 6 August 2003, and further the affidavit of the Applicant's purported new nominator, Ms Nikolopoulos dated the same date. 2 That the learned Justice Conti respectfully erred in his reasoning when determining that the Applicant was ably represented by experienced Migration Agents and as such the effect of the Applicants affidavit of the 6 August 2003 and the Applicants purported new nominator Ms Nikolopoulos' affidavit of the same date (6 August 2003) did not have the effect of the Department been notified that the Applicant was in a meaningful relationship with a purported new nominator, Miss Nikolopoulos. 3. That the learned Justice Conti respectfully erred where in his reasoning he determined there was no legal principle on the Department to so advise the Applicant of the correct procedure on which he should adhere in particular where the Department was in possession of the relevant affidavits to the effect that there was an obvious change in circumstance." 42 The third ground in the notice of appeal clearly expressed the substance of Mr Konteh's complaint as reflected by all the material put to the Court - that the delegate, as a matter of law, was required not to decide the application and to advise Mr Konteh of the correct procedure in circumstances where the change of circumstances made the need for that correct procedure obvious. 43 On the appeal, Mr Konteh was represented by Mr Leeming SC and Mr Thomas of counsel. An amended notice of appeal was filed in Court. It had been drawn with counsels' assistance. It stated the grounds of appeal as follows: "1. The primary judge erred in failing to find that the Minister's delegate did not accord procedural fairness to the applicant, thereby resulting in jurisdictional error. 2. The primary judge erred in failing to find that the Minister's delegate did not comply with s 57 of the Act, thereby resulting in jurisdictional error. 44 The respondent Minister opposed leave to amend the notice of appeal on the grounds of prejudice. At the hearing of the appeal, the Court indicated that the question of what could be raised under the amended notice of appeal would be dealt with in these reasons. Argument took place on this basis. 45 One issue was mistakenly the subject of some submissions by the Minister, and later corrected. Section 51A of the Migration Act had no relevance to the appeal, the visa application having been lodged on 23 June 1998. 46 Leaving aside the question of the form of relief, the issues that were argued on appeal were: (a) whether as developed in argument, Mr Konteh should have leave to rely upon the assertion of a denial of procedural fairness in paragraph 1 of the amended notice of appeal; (b) if so, whether that assertion or any other way of putting the procedural fairness argument was made out; and (c) whether, there was a failure to comply with s 57 of the Migration Act (there being no objection to paragraph 2 of the amended notice of appeal). 47 Before dealing with these issues, it is necessary to note that there was no ground of appeal complaining about the primary judge's conclusion that it was not open to the delegate to substitute, informally, nominators. Further, no ground of appeal sought to argue that if informal substitution were possible, the delegate erred by failing to deal with all the issues presented by the material on file for consideration. Nevertheless, it is appropriate to observe, first, that there does not appear to be a provision in the Act or the Regulations for one nominating spouse to be substituted for another in respect of an application for a visa of the class applied for here by Mr Konteh. It is clear that the requirements that must be met in respect of a spouse at the time of the application and at the time of a decision on such application do not permit consideration to be given to a different spouse. Secondly, the criteria permitted by sub-clause 820.221(3) were addressed by Mr Konteh and dismissed by him as inappropriate to his circumstances. This is clear from the terms of paragraphs 13 and 14 of his statutory declaration made 6 August 2003, as to which see [26] above. Thirdly, whilst it would have been open to Mr Konteh to withdraw his application for a subclass 820 - spouse visa with Ms Tenney as his nominating spouse and to substitute a fresh application for a like visa with Ms Nikolopoulos as his nominating spouse, the facts deposed to in the statutory declarations made 6 August 2003 demonstrated that, had Ms Nikolopoulos been put forward at that time as the nominating spouse, the criteria to be satisfied at the time of the application would not have been met. As at 6 August 2003 it could not be said of Mr Konteh and Ms Nikolopoulos that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was genuine and continuing and that they lived together or did not live separately and apart on a permanent basis. As Mr Konteh declared in his statutory declaration of 6 August 2003 'Connie lives with her [3] children [aged 5, 6 and 7] and her parents'. He was in the habit of 'seeing' Ms Nikolopoulos either late at night or during the day. He said that during the time since he met Ms Nikolopoulos he was able to find a place to live rather than living in a squat. In her statutory declaration made 6 August 2003, Ms Nikolopoulos declared that she had been in a romantic relationship with Mr Konteh since February 2003, that she and Mr Konteh 'get on really well', that about a month before the declaration was made Mr Konteh and herself discussed buying a property together to live in and that they had looked together at properties in Strathfield to buy. The circumstances were such that if Mr Konteh had withdrawn his then current application for a visa and at the same time lodged a fresh application, with Ms Nikolopoulos as his nominating spouse, the circumstances were not such as to satisfy the relevant criterion in paragraph 820.211 of Schedule 2 to the Regulations as to Ms Nikolopoulos being Mr Konteh's spouse. 48 It is convenient to deal with issues (a) and (b) referred to at [46] together as they are intertwined.

Procedural Fairness 49 The submissions in writing of Mr Leeming criticised the primary judge's reasons in a number of respects. Essentially the criticism was that the primary judge "did not address the real complaint" which was identified in his written submission as follows: "the Department had told Mr Konteh to respond to an exercise of the s 501A power, where the only issue was character; the Department had not told him that other issues were relevant, and that it was going to revisit the matter explored in detail and resolved favourably to him by Ms Yake in 1999, which would lead to the need for him to address additional issues and/or reframe his application." 50 This led to an approach, it was submitted, that lacked candour and was unfair. The submission on this issue concluded as follows: "The primary judge did not address the gravamen of Mr Konteh's complaint - that he was not given an opportunity to respond to the new basis in which the Minister's delegate now proposed to refuse his application." 51 This apparent unitary basis of the asserted lack of procedural fairness must be viewed in the light of counsel's oral submissions and other documents handed up on appeal. Mr Potts, who appeared for the Minister, submitted, correctly, that there were two strands of the procedural fairness argument interwoven in Mr Leeming's various submissions. Mr Potts identified these two strands as follows: "(a) The delegate failed to warn the appellant that the decision might be made on grounds other than character, and give the appellant an opportunity to respond. (b) There was a breach of procedural fairness by the Minister's delegate determining Mr Konteh's application without first advising him that she was not treating his application as one in which Ms Nikolopoulos had been substituted for Ms Tenney as his nominator." 52 Mr Potts illuminated the two strands of argument by reference to the submissions made by Mr Leeming. Mr Potts indicated that, insofar as the first way of putting the matter under ground 1 of the amended notice of appeal was pressed, objection was taken on the ground of prejudice. No opposition was taken to the second way of putting the matter under ground 1. 53 In our view, Mr Potts was justified in his complaint about the first way of putting the procedural fairness complaint. Before the primary judge, there was no complaint whatsoever by Mr Konteh that he had not understood anything but character to be in issue. Nor was there any evidence from the solicitor who assisted him with his application. To the contrary, his sworn evidence, and all his submissions, were to the effect that he was aware of what might be referred to as the "nominator issue" and that he thought that he had validly substituted nominators. His complaint was that the delegate did not tell him that there was a procedural flaw in his application and that he had not adequately attended to the "nominator issue". 54 If Mr Konteh had put to the primary judge that he had been led to believe that only character was in issue, it would plainly have been necessary to cross-examine him on his affidavit that he thought that he had substituted the nominator. In these circumstances, it would be wrong to permit the appellant now to argue that the way the Department had conducted itself had led Mr Konteh to think that only his character was in issue, thereby depriving him of the opportunity to be heard on, and to deal with, the other criteria necessary for a successful visa application. Mr Konteh, though lacking legal assistance in the conduct of the hearing before the primary judge, was a man who wrote clear and articulate submissions. He should not now be permitted to raise an argument on appeal which plainly could have led to the trial taking a different course: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at 438-440 [34]-[39] and the cases there cited and discussed. 55 Was then Mr Konteh denied procedural fairness by the delegate determining the issue without first advising him that she was not treating his application as one in which Ms Nikolopoulos had been substituted for Ms Tenney? 56 In our view, the answer to that is, 'no'. Mr Konteh was advised by a solicitor. It was not the Department's obligation to advise and assist Mr Konteh in the best way of making his application. There was no request by the solicitor to treat Ms Nikolopoulos as a new nominator. As we have said, the information provided in August 2003 was not sufficient to permit Ms Nikolopoulos to be considered a sponsoring spouse at that time. There was no suggestion in the material that any officer of the Department had led Mr Konteh to believe that he had effected a substitution of nominators. We see no basis for a legal obligation upon the Minister (breach of which would sound in a lack of procedural fairness and thus jurisdictional error) to warn any applicant of any apparent flaw in his application so that steps might be taken to correct or supplement the application. No doubt, in any given circumstances, what an officer has said in any given case may raise an obligation to speak. But in such cases the obligation will arise from the specific facts as a manifestation of the duty to act fairly. 57 Mr Konteh may have thought that his application was in order. It was not. We see no legal basis requiring the delegate to inform him of its defect. Fairness did not require it. There was no denial of procedural fairness. 58 Thus, we would permit the amended notice of appeal filed in Court to be relied upon, but not so as to permit Mr Konteh to argue that the delegate failed to warn Mr Konteh that the decision might be made on grounds other than character. 59 Ground 1 of the amended notice of appeal should be dismissed.

Section 57 of the Migration Act 60 Section 57 of the Migration Act is a provision requiring the Minister (or as here, a delegate) to provide certain information to an applicant for a visa. Section 57 is in like terms to s 424A of the Migration Act which sets out a similar obligation upon the Refugee Review Tribunal, and s 359A in respect of the Migration Review Tribunal. Section 57 is in the following terms: "(1)In this section, relevant informationmeans information (other than non‑disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for refusing to grant a visa; and (b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and (c) was not given by the applicant for the purpose of the application. (2) Subject to subsection (3), the Minister must: (a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and (c) invite the applicant to comment on it. (3) This section does not apply in relation to an application for a visa unless: (a) the visa can be granted when the applicant is in the migration zone; and (b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa." 61 The "relevant information" for the purpose of the operation of s 57 was put in at least two ways by Mr Leeming. First, it was put that the relevant information was that Mr Konteh was no longer in a relationship with his nominator, Ms Tenney. Secondly, it was put that the relevant information was the fact that the Department was not treating his documentation put forward in August 2003 as a withdrawal of the existing application and the submission of a new application with a new nominating spouse and the fact that the delegate was taking a technical view and insisting that Mr Konteh was to be bound by the original application and not treating the material as an amendment. 62 In our view, the second way of characterising what happened as information is both artificial and of no assistance to Mr Konteh. The information so expressed was not the reason or a part of the reason for refusing the visa. It may or may not adequately describe the approach of the delegate, but it does not describe the reason or part of the reason for refusing the visa. The reason for refusing the visa was the information that Mr Konteh and Ms Tenney were no longer married (as defined) so that sub-clause 820.211(2) was not satisfied and the information that Mr Konteh had not made any application to the Family Court so that sub-clause 820.211(3) was not satisfied. 63 The first way of describing the information was legitimate. The Minister accepted that, so characterised, there was information for the purposes of s 57, subject to the satisfaction of s 57(1)(c). The information was undoubtedly given to the Department by the applicant. The question is, however, whether it was given "for the purpose of the application"? 64 The information was provided by Mr Konteh (through his solicitor's letter and attachments) in answer to the notice of intention to consider refusing a visa under s 501A sent to Mr Konteh on 24 June 2003. 65 Section 501(1) is in the following terms: "(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test." (It may be assumed that Mr Konteh failed the character test by reason of his criminal record.) 66 The AAT had reviewed the earlier decision favourably to Mr Konteh. 67 Section 501A gave the Minister power to set aside the decision of the AAT and to refuse to grant Mr Konteh a visa. Section 501A(1), (2), (5) and (7) are in the following terms: "(1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision (the original decision): (c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person; whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test. (2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if: (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest. … (5) The power under subsection (2) or (3) may only be exercised by the Minister personally. … (7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7." [emphasis in original] 68 It was argued by Mr Konteh that the information was not given for the purpose of the application, but, separately, for the purpose of persuading the Minister not to exercise the power under s 501A. 69 The power that might be exercised under s 501A is to set aside the original decision (here the second decision of the AAT) and to refuse to grant a visa. Those matters are part of dealing with the application for the visa. What Mr Konteh was seeking to do was to persuade the Minister not to set aside the AAT decision and not to refuse a visa made on his application. The information was being supplied directly for the purposes of his application for a visa. That, it seems to us, falls squarely within s 57(1)(c). 70 Therefore, s 57 does not avail Mr Konteh. Thus ground 2 of the amended notice of appeal should be dismissed. 71 For these reasons, the appeal, to the extent that leave should be given to rely upon the amended notice of appeal, fails and should be dismissed with costs. 72 Mr Leeming and Mr Thomas appeared pursuant to a request under Order 80 of the Federal Court Rules. The Court is grateful not only for the quality of the assistance provided by them (and by Mr Potts) but also for the willingness of Mr Leeming and Mr Thomas to appear under Order 80. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Allsop, Jacobson & Graham.

Associate: Dated: 14 February 2007 Counsel for the Appellant: Mr M J Leeming SC and Mr D F C Thomas

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 15 and 30 November 2006