Uranek v Minister for Immigration & Multicultural & Indigenous [2003] FCAFC 37 | Case summary

THE COURT: 1 The applicant/appellant, Bozena Uranek, is a Dutch citizen who is a permanent resident in this country. She seeks leave for an extension of time in which to appeal to this Court against an order of the primary judge rejecting her application to challenge a "privative clause decision" made by the Administrative Appeals Tribunal ("the Tribunal"). In that decision the Tribunal affirmed the decision of the Minister's delegate to reject an application for a spouse visa by Abdelali Byasse, a Dutch citizen who was born in Morocco ("the visa applicant"). That application was made on the basis of the visa applicant's 1997 "marriage" to Ms Uranek in New Zealand. That marriage was found by the Tribunal to be bigamous, though the participants in it had not, in consequence, committed any criminal offence in this country. 2 The Tribunal's decision was, in substance, that (a) the visa applicant had failed to establish that he was of good character within the meaning of s 501 of the Migration Act 1958 (Cth) ("the Act"); and (b) the discretion to grant the visa notwithstanding such an adverse finding should not be exercised in his favour. In the course of its reasons the Tribunal indicated that it considered that Ms Uranek's status as a permanent resident should be reviewed in light of the evidence before it. 3 The Tribunal's decision was challenged by Ms Uranek on a multiplicity of grounds in an application for judicial review which was taken to have been made under s 39B of the Judiciary Act 1903 (Cth). Ms Uranek represented herself before the primary judge as she has done also before this Court. The primary judge, after adverting both to the various grounds stated in Ms Uranek's application and to the significant number of additional grounds raised in her written submissions, dismissed the application on the following bases: "No legal error is apparent in the Tribunal's approach to the Direction. The applicant seeks a review of the evidence and findings and the Court did not have such a jurisdiction even prior to the recent amendments to the Act. There was no denial of procedural fairness. Indeed, although the applicant requested an interpreter for this hearing, and one was provided, it was apparent that she did not need one. The Tribunal witness could not be located, but their evidence could nevertheless be accepted. There is nothing to indicate bad faith on the part of the Tribunal. Its decision was reached after a careful analysis of the evidence and objective facts. It could not be said to be in any way racially motivated." 4 Ms Uranek now seeks to appeal to this Court. Two of her grounds of appeal (challenging the constitutionality of s 474 of the Migration Act) are now untenable in light of the High Court's decision in S157/2002 v Commonwealth of Australia [2003] HCA 2. The remaining three grounds (i) attributed ten errors to the Tribunal which were not corrected by the primary judge; (ii) challenged the Tribunal's exercise of its discretion not to grant the visa notwithstanding its adverse character finding; and (iii) alleged that the Hickman principles had been satisfied. These various grounds were added to significantly in oral and written submissions.

Background Setting 6 To appreciate both the basis for the Tribunal's decision and the nature of the appeal to this Court it is necessary to refer briefly to a complex web of relationships involving the visa applicant, Ms Uranek and others. 7 The visa applicant's "marriage" to Ms Uranek was his fifth marriage, although the evidence suggested that an earlier marriage to a Ms Le Breton was subsisting at the time. The marriage to Ms Le Breton was regarded by the Tribunal as an important matter. It was her evidence that it was the product of a proposal made to her by the visa applicant which would result in his gaining a right to stay in Australia. He did not intend to live with her. The relationship in fact lasted only days after the marriage ceremony. The visa applicant denied these allegations of a fraudulent scheme. His later marriage to Ms Uranek resulted in the birth in 2000 of one child although there was said to be circumstantial evidence that the visa applicant was also the father of two other children born in 1993 and 1994 respectively. Two children from an earlier marriage were living with his mother in Holland. 8 Ms Uranek had been married on two occasions prior to her marriage with the visa applicant. The second of those marriages was to the visa applicant's brother with whom she had two children. In 1995 she entered into a defacto relationship with a Mr Borg, an Australian citizen. This lasted six months and it was on the basis the Department's acceptance of Ms Uranek's claims to have cohabited with Mr Borg that she was subsequently granted permanent residence. Both Mr Borg and his former defacto partner, a Ms Mattock, made statutory declarations (not pursued by the Department) alleging that the visa applicant and Ms Uranek had been parties to a fraudulent scheme to secure Australian residential rights for Ms Uranek by claiming that she was in a defacto relationship with Mr Borg when she was not. 9 The Tribunal found it to be of considerable significance that Mr Borg and Ms Le Breton gave independent accounts of their dealings with the visa applicant and Ms Uranek which tended to show a continuing defacto relationship between them long before that which both now claim only commenced after their relationships with Borg and Le Breton respectively had ceased. 10 In April 2000, in making an unsuccessful application for a business travel authority to enter Australia, the visa applicant described Ms Uranek as his "sister-in-law". That application was refused on the basis of failure to pass the character test on the grounds of past and present general conduct: Migration Act s 501(6)(c)(ii). That refusal took account of the matters referred to above concerning Ms Le Breton and Mr Borg. The Tribunal's Decision 11 The Tribunal rejected the visa applicant's evidence of his relationship with Ms Le Breton as "implausible and completely unconvincing" and it accepted the documentary evidence of Mr Borg, Ms Le Breton and Ms Mattock notwithstanding that they could not be located to give evidence. 12 The Tribunal reasoned that: "[I]t … [was] highly likely that the two applicants came to Australia seeking a way to acquire residential status. Whether Borg was approached as their first prospective co-conspirator I am unable to say. However, I am satisfied that they conspired with Borg, as he alleges, and that the visa applicant conspired with Le Breton, as she alleges, and that their purpose was to dupe DIMA into according them permanent residency in this country." 13 This, of itself, was said to be sufficient to justify an adverse finding on "the issue of good character". It did, though, have regard to a number of other discrete issues. These were (a) the bigamous marriage in New Zealand, the visa applicant's assertion that the Le Breton marriage had been cancelled not being believed by the Tribunal; and (b) the "sister-in-law" statement made about Ms Uranek in the unsuccessful application made in Los Angeles in 2000 for business travel to Australia. 14 The visa applicant was found not to have satisfied the character test on account of past and present general conduct (s 501(6)(c)(ii)). 15 The Tribunal went on to consider whether, notwithstanding that finding, a discretion should be exercised in his favour. It noted that the primary considerations that required assessment in this were the protection and expectations of the Australian community and the best interests of any child involved in a parental or close relationship with the visa applicant. 16 Of these, the Tribunal indicated: "29. The visa applicant's conduct has been very serious in my opinion. It has involved a concerted attempt to subvert Australian immigration laws over an extended period. Similar conduct could well be repeated if he is admitted to this country - not so much in relation to migration matters perhaps, but more likely in relation to other matters such as welfare assistance and the like. Conduct of the kind giving rise to the adverse character findings cannot in my opinion be seen to be rewarded by achieving its purpose. I believe that in a situation such as the present general deterrence is of prime importance. It is difficult to see any mitigating factors whatsoever. The visa applicant has shown a sustained contempt for the laws of Australia as well as New Zealand. 30. As to the best interests of the children, it is noted that both applicants have Dutch citizenship. The youngest child was born in Australia and has Australian citizenship. However it is clear that Konrad would also be recognised as a Dutch child if he returns to the Netherlands with his parents. The visa applicant also holds Moroccan citizenship. The visa applicant had 2 children by his Moroccan wife and those children now live with his mother in the Netherlands. His Moroccan wife from whom he is now divorced Lives (sic) in France. 31. The visa applicant claims to spend much of his time travelling the world dealing in antiquities. Whilst it is plain that he travels a good deal I entertain considerable doubt as to his activities. 32. The review applicant claims that she is having difficulties looking after the 5 children who live with her in Australia. I can see little or no reason to conclude that the welfare of the children, or any individual child, dictates that a discretion should be exercised allowing the visa applicant to settle in Australia. In my opinion, the best interests of all concerned would best be served by both applicants returning to the Netherlands, re-establishing the children now living in Australia with their half siblings and their broader family group who are now living in the Netherlands. 33. Although she is an Australian permanent resident, I do not regard the review applicant as having a strong connection with Australia, except in a financially dependent sense. She has no relatives in this country and neither she nor the visa applicant has been in paid employment here. The review applicant has spent a good deal of time outside Australia since gaining her permanent resident status. There is no reason to suppose that the visa applicant would find it easy to obtain employment here. In my view a discretion should not be exercised in the visa applicant's favour." The Present Appeal 17 It is convenient to deal with the contentions of Ms Uranek in two parts. The first relates to matters raised in submissions which related in the main to the Tribunal's conduct of the proceeding and which are said to reveal errors not corrected by the trial judge. In referring to them we put to one side any consideration of the actual jurisdiction her Honour had so to do in any event: see S157/2000 v The Commonwealth. 18 Her contentions were that (a) the Tribunal's removal of her children (almost all quite young) from the hearing room violated the requirement in s 365 of the Act that the Tribunal take evidence in public - the children were aged from 1 to 12; (b) the failure to provide an interpreter contravened s 366C; and (c) she was not told that the documentary evidence (particularly of Ms Le Breton) would be in issue or that her relationship with Mr Borg would be relevant and that these failures were in breach of the requirements of s 359A of the Act (which in certain circumstances obliges the Migration Review Tribunal to provide adverse information to applicants). 19 There is no basis for finding that any of the statutory provisions referred to have been contravened. Even if Ms Uranek's children were removed from the hearing room as claimed, this would not have constituted a closing of the hearing and there is no evidence otherwise to suggest that such occurred. The refusal of an interpreter is not necessarily a breach of s 366C. It was open to the Tribunal to conclude that Ms Uranek was "sufficiently proficient in English": s 366C(2). There is no basis for any suggestion that it did not so conclude. The failure to provide information to Ms Uranek did not breach s 359A. That provision does not apply to the Administrative Appeals Tribunal in exercising its jurisdiction in such a matter. Further, it cannot be said that the alleged failure on the Tribunal's part revealed some failure in according procedural fairness to the visa applicant and Ms Uranek. The matters referred to by Ms Uranek were raised by the Tribunal itself at the outset of the hearing by it. 20 Such general criticisms as have been made of the primary judge by Ms Uranek were clearly unfounded and reflected a misconception of the proper role and responsibility of a judge in the conduct of adversarial proceedings even where one party was a litigant in person. This matter need not be enlarged upon. 21 Turning to the written submissions generally, these related in the main to contesting factual findings made by the Tribunal and to disputing the view it took of the visa applicant's credibility. As the primary judge indicated, irrespective of the recent amendments to the Migration Act, this Court (in either its original or its appellate jurisdiction) does not have jurisdiction at large to review the evidence before, and the findings of, the Tribunal. 22 One matter that has been prominently emphasised by Ms Uranek and which warrants separate mention was alleged failure of the Tribunal to treat the interests of her children as a primary consideration. Reliance was placed by her upon the decision of the Full Court in Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568. The particular matters highlighted by Ms Uranek were the Tribunal's failure to refer to the language impediments of the children (it is claimed none of them speak Dutch) and to its apparent failure to consider the interests of each child separately. 23 The totality of the Tribunal's reasons on this matter have been set out above. "The best interests of the child" 24 In August 2001 the Minister for Immigration and Multicultural Affairs gave written directions ("Direction No 21") under s 499 of the Act relating to "Visa Refusal and Cancellation under Section 501" of the Act. Insofar as presently relevant, s 499 provides: "(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. … (2A) A person or body must comply with a direction under subsection (1)." 25 Direction No 21 states explicitly that it applies to members of the Administrative Appeals Tribunal when conducting a review of a decision made under s 501 of the Act. It acknowledges that, in determining to exercise a discretion favourable to an applicant notwithstanding an adverse character finding, the Tribunal has to engage in a balancing process which has due regard to the three designated "primary considerations" but which takes into account "all relevant considerations": see generally on this process AWA v Minister for Immigration and Multicultural and Indigeneous Affairs (2002) 189 ALR 328. The designated primary considerations are: "(a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children." 26 The Direction enlarges individually upon each of these three matters. The "best interests of the child" are explained (inter alia) as follows: "2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17. 2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation. 2.15 In general terms, the child's best interest will be served if the child remains with its parents. … 2.16 When considering the best interests of the child, decision-makers should have regard to the following: (a) the nature of the relationship between the child and the non-citizen; (b) the duration of the relationship including the number and length of any separations and reason/s for the separation; … (c) the age of the child; (d) whether the child is an Australian citizen or permanent resident; (e) the likely effect that any separation from the non-citizen would have on the child; (f) the impact of the non-citizen's prior conduct on the child; (g) the time (if any) that the child has spent in Australia; (h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia; (i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; …" 27 It is clear both from the Tribunal's own reasons (see especially [2] and from the transcript references referred to by Ms Uranek in her written submissions) that there was a significant body of evidence before the Tribunal that bore upon (a) the visa applicant's relationship with his children; (b) their academic prowess; and (c) the ages, citizenship, etc of the children both of Ms Uranek and of the visa applicant. 28 It is equally clear from the Tribunal's own reasons that its treatment of the "best interests" consideration was recorded at a fairly high level of generality. It expressly abjured direct reference to the terms of the Direction or to the stipulated considerations of which regard should be had. So, for example, the youngest child apart, there is no separate personalised consideration recorded of the circumstances, etc of any of the children. The reasons, though, do state that neither "the welfare of the children, or any individual child", dictated that the discretion should be exercised in the visa applicant's favour. While the reasons positively conclude that the best interests of all concerned (including, seemingly, the visa applicant and Ms Uranek) would best be served by a return to the Netherlands, no explicit mention is made of the factors that might have been balanced (eg language difficulties, etc) in arriving at that conclusion. 29 Some criticism can be made of the Tribunal's statement of reasons as such. That it is less than illuminating of the detail of the Tribunal's reasoning process is not a per se ground of invalidity under the Act. Whatever the effect of s 501G(4): see W157/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1536 and, on appeal [2002] FCAFC 281 at [27]; a bare failure to provide an adequate reasons statement would not constitute a jurisdictional error permitting challenge to the anterior decision which the statement purported to explain: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. 30 The Tribunal was aware that it was bound to comply with Direction No 21. Acknowledging that the best interests of the children was a primary consideration to be assessed, it professed to make such an assessment in circumstances where the relevant parental and close relationships were complex. Given (a) the material that was put in evidence before the Tribunal and which was acknowledged by it and (b) the assessment that it did make, it cannot be said that it actually failed to comply with the requirement of the direction. Whatever the shortcomings of the statement of reasons, a case has not been made out that the Tribunal did not do what Direction No 21 required such that it possibly (in light of the apparently mandatory requirement of s 499(2A)) committed a jurisdictional error which would permit judicial review: S157/2000 v The Commonwealth. 31 Further, it cannot be said that the reasons given in relation to the exercise of the Tribunal's discretion demonstrate that some other error of a jurisdictional character was committed in the attempt to give effect to Direction No 21: cf Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281. We agree in this with the primary judge. 32 In the result no judicially reviewable error has been disclosed. This ground of appeal has not been made out. Conclusion 33 As has been noted earlier, the appellant's Notice of Appeal and submissions have traversed a variety of matters most of which relate to the accuracy or correctness of fact findings. Little purpose would be served in dealing seriatim with the matters Ms Uranek has raised. Whatever her criticisms of the Tribunal's decisions, Ms Uranek's appeal does not disclose error of a kind that could lead to its decision being characterised otherwise than as a privative clause decision. 34 The orders of the Court are that leave to appeal be granted but that the appeal be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Uranek v Minister for Immigration & Multicultural & Indigenous

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