FEDERAL COURT OF AUSTRALIA

Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265

MIGRATION – serious error of fact made by Immigration Review Tribunal – ground of review established pursuant to s 476(1)(a) Migration Act 1958 (Cth) – absence of specific findings of fact by Tribunal – whether Tribunal judged the applicant’s claim by reference to imputed, rather than individual, characteristics or values

Migration Act 1958 (Cth), ss 360, 368, 476(1)(a)

NOEMY DEL CARMEN IRAHETA SANCHEZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1067 OF 1998

JUDGE:          SACKVILLE J

DATE:            18 MARCH 1999

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.      The decision of the Immigration Review Tribunal (“IRT”) be set aside.

2.      The matter be remitted to a differently constituted IRT to be determined according to law.

3.      The respondent pay the applicant’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     When this matter was called on this morning, I was advised by the solicitor acting for the Minister that it was proposed that consent orders be made setting aside the decision of the Immigration Review Tribunal (“IRT”) and remitting the matter to a differently constituted IRT to be determined according to law.

2                     I asked the solicitor appearing for the Minister what the ground of review was that would enable me to make such an order.  Her answer was that the IRT had made a serious error of fact.  That error was that the IRT had wrongly assumed that certain correspondence in the form of letters and cards relating to the claims of the applicant, dated only from March 1996.  The significance of this, as far as the IRT was concerned, appears to have been that the correspondence was taken to have dated from a time after the relevant events had taken place and that therefore the material was considered to be unhelpful to the applicant’s case.

3                     When I asked the Minister’s representative on what basis the intervention of the Court was justified, her response, in essence, was that the IRT’s serious error of fact made it appropriate that  the matter be remitted to the IRT for further consideration.  I took the view that, since the Migration Act 1958 (Cth) (“Migration Act”) does not provide a ground of review for errors of fact, I should ask the Minister to consider whether there was an error of law or other ground of review that could justify the orders that were to be made by consent.  To that end, the matter was stood over until 2.15pm today.  At that time, Mr Lloyd of counsel appeared on behalf of the Minister.  The applicant continued to appear unrepresented.

4                     Mr Lloyd has identified the ground of review as being that the IRT, by its mistaken assumption that there were no documents dating from prior to March 1996, had failed to comply with the requirements of s 360 of the Migration Act.  This section requires the IRT to give the applicant the opportunity to appear before it, to give evidence and to present arguments relating to the issues arising in relation to the decision under review.

5                     Mr Lloyd said that the Minister accepted that the IRT, by wrongly assuming that the correspondence dated only from March 1996, and by not having regard to or not receiving correspondence from prior to that date, had not been in a position to give the applicant a real opportunity to appear before it to give evidence and to present arguments on her own behalf.  I am inclined to think that what has happened in this case can be characterised in this way.  An alternative is to infer, as seems reasonably obvious, that the IRT drew adverse inferences from the correspondence, but did not give the applicant an opportunity to argue against that course.

6                     Having regard to the concessions made by counsel for the Minister, I am prepared to accept that a ground of review has been made out under s 476(1)(a) of the Migration Act and that, accordingly, I have power to set aside the decision of the IRT and to make the other orders that have been put forward by consent.

7                     Although the Minister has consented, in the manner I have described, to the making of orders setting aside the decision of the IRT, I think it appropriate to make some brief remarks about the IRT’s reasons for decision.

8                     One of the tasks of the IRT is, of course, to make findings of fact on material issues.  The IRT expressed (at 21) the view that

“the evidence given in this application is contradictory, often unbelievable and in some cases verges on flippancy".

Moreover, the IRT found (at 21)

“that some of the evidence was contrived for the purposes of the application”, and "[o]verall, the Tribunal is unable to accept the accounts given to it by either party".

In particular, the IRT (at 22) was

"unable to be satisfied that the Visa Applicant and his spouse are in a genuine and continuing marital relationship and that they have a mutual commitment to a shared life together".

9                     While the IRT plainly formed an unfavourable view of the credibility of the review applicant and the visa applicant, it is not clear what specific findings of fact the IRT intended to make about the account of events given by the applicants.  For example, the IRT seems to have accepted that the review applicant travelled to Pakistan on or about 16 July 1995 and remained with the visa applicant and his family for some weeks.  However, it is not entirely clear whether the IRT did accept the substance of the applicant's account of events in Pakistan, or whether it thought that some aspects were "contrived".  Similarly, the IRT (at 12) records the applicant's claim to have been married in a ceremony performed in Pakistan by a Mullah on 12 August 1995, at a ceremony attended by relatives and friends.  No finding seems to have been made by the IRT as to whether this ceremony took place and, if so, whether it was intended by both parties simply to be a sham.  This would seem to be a matter of some considerable importance to the applicant's case.

10                 The absence of specific findings of fact seems to be related to the approach taken by the IRT to the fact-finding process.  The IRT records, at considerable length, questions asked of each of the applicants and their responses to those questions.  However, the reasons do not set out the events in more or less chronological order.  There is, of course, no set or prescribed form for the presentation of reasons.  However, the provisions of s 368 of the Migration Act must be met, including the requirement that the IRT set out its findings on material questions of fact and to refer to the evidence on which those findings were based.  Unless some attempt is made by the IRT to set out the factual claims made by the applicants and the findings on the key elements of those claims, there is a risk that the statutory requirements will not be complied with.

11                  I cannot let this case pass without remarking on one other aspect of the IRT’s reasoning.  The IRT records that the applicants claimed that, within a week of the review applicant's arrival in Pakistan, they became involved in a sexual relationship.  The IRT also records that it "expressed its surprise as to the rapidity of the development of the relationship".  The IRT asked the visa applicant why, given that he was a Muslim, he had become involved in a sexual relationship with the review applicant.  Similarly, the review applicant was asked how she had managed to carry on a sexual relationship with the visa applicant "in a Muslim household, given the Muslim attitude to sex before marriage".

12                  In a case of this kind, it is doubtless necessary to ask what would otherwise be regarded as intrusive questions about the personal relationship between the applicants.  I appreciate also, as Mr Lloyd pointed out, that I have not seen the full transcript of proceedings before the IRT.  Nonetheless, it seems clear enough from the IRT’s reasons that part of the questioning pursued by the IRT seems to have been predicated on a set of assumptions about "the Muslim attitude to sex before marriage", the validity of which is neither explained nor by any means apparent.  If the same question were asked of other applicants but with, say, the words “Christian”, “Jewish” or “Hindu” substituted for Muslim, the difficulties inherent in the line of questioning would perhaps become clearer.  The applicants are of course liable to have their claims tested in an appropriate way, but care needs to be taken to ensure that their claims are not judged by reference to imputed, rather than individual, characteristics or values.

13                  I should make one other point.  There is a finding made by the IRT concerning the paternity of the review applicant’s younger daughter.  The IRT also says that this finding, which must have been very distressing to the applicant, was not material to its decision.  It is a little difficult to see why it was necessary to make such a finding when the IRT did not regard it as material to its decision. 

14                  None of what I have said is intended to suggest a view as to the merits of the applicant’s claims.  That is a matter for the IRT acting in accordance with the legislation. 

15                  I propose to make orders in accordance with the short minutes of order.  Accordingly, I order that the decision of the IRT, made on 11 September 1998, be set aside.  The matter is to be remitted to a differently constituted IRT to be determined according to law.  Further, the respondent is to pay the applicant’s costs of the proceedings.

Associate:

Dated:              18 March 1999