FEDERAL COURT OF AUSTRALIA

Narang v Minister for Immigration & Multicultural Affairs [2000] FCA 1515

MIGRATION – review of a refusal of a visa – whether the Migration Review Tribunal erred in not compelling a witness to attend and give evidence

Migration Regulations 1994 cl 806.213

Migration Act 1958 (Cth) s 476(1)(a)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 followed

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 followed

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 cited

MAHENDRA PRATAB NARANG v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 426 of 2000

TAMBERLIN J

SYDNEY

27 OCTOBER 2000

THE COURT ORDERS THAT:

The application for review is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Migration Review Tribunal (“the MRT”) given on 5 April 2000 affirming a decision of a Ministerial delegate to refuse the grant of a Family (Residence) (Class AO), Subclass 806 (Family) Visa to the applicant.  The issue as to the reviewability of this decision arises in the following way.  One criterion required to be met for the grant of this visa is cl 806.213 of Part 806 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).  That provision reads:

“806.213         The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

(a)       is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(b)        is usually resident in Australia; and

(c)        has nominated the applicant for the grant of a visa.

Regulation 1.03 defines ‘special need relative’ as:

In relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)       the citizen or resident has a permanent or long-tern need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)       the assistance cannot reasonably be obtained from:

(i)        any other relative of the citizen or resident, being  a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii)        welfare, hospital, nursing or community services in Australia;”

2                     Mr Narang claims that his nominator, Ms Taluja who is his sister, is a “special need relative” within the above definition because Ms Taluja and her children require his emotional and psychological support.

3                     The MRT summarised the effect of the medical material before it as follows:

“The applicant claims that he is a special need relative of his nominator, Ms Abha Taluja.  Ms Taluja is his sister.  He stated in the primary application that the nominator and her children require his psychological and emotional support.  A Clinical Psychologist, Tracey Jarvis, stated in her report dated 25 June 1998 that the nominator had effectively separated from her spouse although they were still living at the same residence.

A letter dated 22 June 1998 from the nominator’s doctor states as follows:

‘My patient, Abha Taluja, states that she feels much better psychologically since her brother is visiting her from India, his name being Mr Mahendra Narang.

‘She feels very comfortable to have a family member around since she finds him very supportive towards her and her children.’

A psychological report dated 25 June 1998, made by a Clinical Psychologist, Tracey Jarvis, states that:

‘…Prior to Mr Narang’s arrival in Australia, Ms Taluja sought support from her family in India by telephone. She said that she had felt very alone at this time and was relieved  when her brother came to Australia to offer support.

‘Psychological testing indicated that Ms Taluja has no signs of depression and, during the interview, she appeared to be calm and without anxiety.  My impression is that she has experienced social isolation and that Mr Narang’s presence and support appears to assist her by alleviating this isolation.’

At the hearing the applicant gave evidence as to the nominator’s health.  The evidence can be summarised as follows:

(a)       His sister works as an assistant chef.  She works five days a week.  She works 7 to 8 hours a day.

(b)       She is now calm and quiet.  She is much better.  He does not know if she is currently seeing the doctor for her psychological health.

(c)        She has not seen the psychologist since November 1998.

(d)       His sister’s husband is now getting along well with his sister.

(e)        His sister’s children are now both grown up. They both attend university.  The son comes home late.

(f)        His sister has bought a new house at Evelyn Street Campsie.  She shifted there about two months ago.  Her husband lives with his sister but not all the time.

(g)       His sister knew about the hearing. He asked her to be available to give evidence by telephone.”

4                     The MRT decision then records the following:

“The Tribunal rang the nominator at the telephone number provided by the applicant.  The nominator did not answer the telephone when called.

The Tribunal granted the applicant one week in which to lodge a statement from the nominator. The nominator was granted leave to present in the statement any evidence she wished to the Tribunal

On 9 February 2000 the applicant’s immigration agent rang the Tribunal and advised that his client had not been able to obtain any further evidence to present to the Tribunal.  The agent further advised that as he was unable to obtain the evidence the Tribunal could now make a decision on the available evidence.  He added that he would not be submitting any further evidence.  No further evidence was submitted.  No requests for an extension of time in which to lodge the evidence were made to the Tribunal.”

5                     The MRT then summaries and evaluates the evidence and concludes that the evidence did not establish that Ms Taluja was a person with a permanent or long-term need for assistance because of a disability, prolonged illness or other serious circumstances affecting her or a member of her family unit.

Basis for review

6                     In paragraphs 22 and 23 the MRT stated that:

“The nominator [Ms Taluja] was not available to give evidence to the Tribunal at the hearing although the applicant [for review] had asked her to be available to give evidence.  The applicant did not lodge any further evidence notwithstanding the Tribunal gave the applicant a week in which to obtain a statement from the nominator.  The inability of the applicant to obtain evidence from the nominator throws serious doubts on the applicant’s evidence that the nominator has an illness.  As the nominator for the applicant, the nominator would have provided evidence of an illness, if she had an illness.

As the Tribunal has found that the medical evidence does not disclose that the nominator has an illness, that the applicant’s description of the nominator’s life-style does not describe a person who has a prolonged illness, and the Tribunal has serious doubts that the nominator has an illness, the Tribunal is not satisfied that the nominator has a prolonged illness.”

7                     Mr Narang submits that the MRT was required, in the circumstances, to compel Ms Taluja to give evidence as to her state of health and as to her need for the assistance of Mr Narang.  He says that she was unwilling to attend the hearing at his request and that the MRT should have therefore summoned her to give evidence because on his submission she would have been able to give relevant evidence in support of his contention.  The MRT was not asked to compel Ms Taluja to attend the hearing or give evidence.  The failure by the MRT to take this initiative of its own motion is said to constitute an error of law because the MRT, so it is said, was under a duty as an inquisitorial review body to ascertain the relevant factual circumstances in order to properly perform its statutory function.

Reasoning

8                     The statutory basis for the review application appears to be s 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”) which provides that an application may be made for review on the ground that “procedures” that were required by the Act or Regulations to be observed in connection with the making of the decision were not observed.  Mr Narang refers to s 353 of the Act which provides:

“353 Tribunal’s way of operating

(1)       The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)       The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits of the case.

9                     Under s 361 an applicant may give the Tribunal written notice that the applicant wishes the Tribunal to obtain oral evidence from a person named in the notice.  By subs 361(3) the MRT must have regard to such notice but it is not required to comply with it.

10                  By subs 363(3) of the Act the presiding member of the MRT in relation to a review may, at its discretion, summon  a person to appear before the MRT to give evidence and produce documents.

11                  The submission based on these provisions and on the inquisitorial nature of the MRT hearings is that there has been a failure to follow a procedure required by the Act or, alternatively, that as a consequence of the inquisitorial nature of the MRT the MRT has failed to perform its statutory function and therefore the MRT decision ought to be set aside.

12                  There are several difficulties with this line of argument.

13                  The first is that the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 held that s 420 of the Act, which is identical to s 353, does not prescribe a “procedure” to be observed by the RRT and that consequently par 476(1)(a) could not apply in respect of a failure to comply with the generalised requirements of s 420 to act according to substantial justice and the merits of the case.  The decision applies with equal force to the performance by the MRT of its functions under the Act in the present case.  In Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854, at par 51, the Full Federal Court, in the context of an alleged failure to inquire, held that failure to afford substantial justice under s 420 did not give rise to a ground for review under s 476.  Therefore, to the extent that the argument is based on the requirements of s 353 of the Act it is not soundly based.

14                  A second difficulty in relation to the asserted obligation to summon the nominator, Ms Taluja, is that the statutory powers of the MRT to summon witnesses and to obtain evidence from parties are framed as powers and not duties.  There is no duty on the MRT to invite or summon a witness to appear.  Under s 361 if an applicant seeks to adduce evidence from a nominated person the applicant is required to give notice to the MRT within seven days after notification of an invitation to the applicant to appear on the MRT hearing.  The notification is to the effect that the applicant wants the MRT to obtain evidence from a particular nominated person.  Section 361 provides that the MRT is not required to comply with the notice.  This is an express negation of duty.  See also subs 362(2) & (3).  Other constraints on the evidence at MRT hearings which limit the evidence which can be adduced are found in ss 366B and 366D which relate to the non-representation of persons appearing before the MRT and the denial of any entitlement to cross-examine.  In the light of these provisions it can be concluded that although the power of the MRT to summon witnesses and obtain evidence from nominated persons is in broad terms there is no statutory duty on the MRT to obtain such evidence. 

15                  A third difficulty is that a breach of natural justice is not a ground of review: see s 476(2)(a).

16                  A final difficulty is that, in the present case, it cannot be said that there has been any “constructive failure to exercise jurisdiction”: cf Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-64.  This is because the MRT did not fail to determine any substantive issue before it which arose from or was raised by the material and evidence before it.  The issue before it was the existence or non-existence of a special need in the applicant’s sister and nominator Ms Taluja.  The fact that the MRT did not compel Ms Taluja to attend before it, to support the case of Mr Narang as to her health and circumstances, does not amount to a failure to determine an issue either constructively or actually.  It is submitted for Mr Narang that the MRT should have drawn an inference that Ms Taluja, who while living in the same house as her husband, was subject to pressure from her husband not to co-operate with the request by Mr Narang.  There is no evidence to this effect.  It is pure speculation and is not a matter open to inference from any material before the MRT.  The MRT is under no duty to engage in and act upon speculation.  The applicant did not raise, as an issue before the MRT, any failure by it to summon Ms Taluja.  He was specifically given further time to lodge evidence from her as to her state of health and relevant circumstances.  He did not do so.  The MRT, in my view, was entitled to take into account the fact that Ms Taluja did not give evidence.  It was open to it to conclude that if Ms Taluja, in fact, had any special need based on permanent or long term illness or other serious circumstances then she would have provided some evidence of it.  It was in her interest to do so on the applicant’s case.  She did not do so.  There is no basis on the evidence in this case for imposing a duty on the MRT to compel her to give evidence apparently against her will in relation to the case sought to be made out by Mr Narang.

17                  For the above reasons, I am of the view that no reviewable error has been disclosed in the reasons of the MRT and accordingly the application by Mr Narang is dismissed with costs.

Associate:

Dated:              27 October 2000