FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1527

MIGRATION – temporary spouse visa – allegation of domestic violence – Migration Review Tribunal accepted police report that allegations of rape and assault not substantiated and were made so applicant could remain in Australia – comment sought from applicant on these conclusions – report not shown to applicant – whether applicant given particulars of information relied on – whether denial of natural justice

Migration Act 1958 (Cth) ss 359A, 474

Migration Regulations 1994 (Cth) reg 1.15A, Sch 2 items 820.21, 820.221

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 – cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [4], [277], [638] – [648] – followed

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 at [24] – [27] – referred to

NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049 at [35] – referred to

Kioa v West (1985) 159 CLR 550 at 584 – 585 – considered

HE XIU LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1090 of 2001

GRAY J

10 DECEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

The nature of the proceeding

1                     This is an application for remedies pursuant to s 39B of the Judiciary Act 1903 (Cth) with respect to a decision of the Migration Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, who is now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, “the Minister”), the respondent to this proceeding.  The delegate decided that the applicant was not entitled to the visa she sought under the Migration Act 1958 (Cth) (“the Migration Act”).

2                     The applicant is a citizen of the People’s Republic of China.  On 1 August 1998, she entered Australia with a visa of the kind described as a Business (Short Stay) visa, subclass 456.  On 22 February 1999, she went through a ceremony of marriage with a man called Li Wang, who is an Australian citizen.  Both of the parties to the marriage had been married and divorced previously.  Three days later, on 25 February 1999, the applicant lodged an application for visas of two kinds, a General (Residence) (Class AS) visa and an Extended Eligibility (Temporary) (Class TK) visa.  In normal circumstances, a visa of the former kind
can only be granted two years after a visa of the latter kind, so that there is an opportunity to test whether the relationship on which the temporary visa has been granted is continuing.

3                     On 10 January 2001, the delegate of the Minister refused to grant the applicant a temporary visa.  The applicant applied for review by the Tribunal of that decision.  On 17 September 2001, the Tribunal published in writing its decision and its reasons for decision.  Its decision was to affirm the decision under review, finding that the visa applicant was not entitled to the grant of an Extended Eligibility (Temporary) (Class TK) visa subclass 820.  It is that decision of the Tribunal that is the subject of this proceeding. 

4                     On 11 October 2001, the applicant filed her application in this Court.  The hand-written statement of her grounds in that application echoed provisions of s 476 of the Migration Act as that section stood prior to 2 October 2001.  Similarly, the relief sought made express reference to s 481 of the Migration Act as that provision stood prior to that date.  On that date, however, the Migration Act had been substantially amended, particularly in relation to the jurisdiction of this Court to deal with decisions of the Tribunal and the Refugee Review Tribunal. 

5                     Pursuant to O 80 of the Federal Court Rules, the applicant was referred to counsel for advice and for the drawing of any necessary documents if thought fit.  In consequence, on 27 March 2002, she filed an amended application.  After a further referral pursuant to O 80, so that the applicant could be represented by counsel, I heard the case on 11 September 2002.  Although counsel for the applicant conceded that, in the current state of the law, the applicant could not succeed, I reserved judgment, for reasons that will appear below.

The legislation

6                     The criteria applicable to someone applying for a visa of the kind sought by the applicant were found in Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”), under the heading “Subclass 820 Spouse”.  Item 820.21 was headed “Criteria to be satisfied at time of application”.  Its provisions relevant to the present case were:

“820.211         (1)        The applicant:

                        …

                        (b)        meets the requirements of subclause (2) …

                        (2)        An applicant meets the requirements of this subclause
                                    if:

                        (a)        the applicant is the spouse of a person who:

                                    (i)         is an Australian citizen …

                        (c)        the applicant is nominated by that Australian citizen”.

7                     Item 820.22 was headed “Criteria to be satisfied at time of decision”.  The criteria relevant to the present case were:

“820.221         (1)        In the case of an applicant referred to in subclause
                        820.211 (2), … the applicant either:

                        (a)        continues to meet the requirements of the applicable
                                    subclause; or

                        (b)        meets the requirements of subclause … (3).

                        …

                        (3)        An applicant meets the requirements of this subclause
                                    if:

                        (a)        the applicant would continue to meet the requirements
                                    of subclause 820.211 (2) … except that the relationship
                                    between the applicant and the nominating spouse has
                                    ceased; and

                        (b)        either or both of the following circumstances applies:

                                    (i)         either or both of the following:

                                                (A)       the applicant;

                                                …

                                                has suffered domestic violence committed by the
                                                nominating spouse”.

8                     Regulation 1.15A of the Migration Regulations contains a definition of the word “spouse”, which the Tribunal was obliged to apply for the purposes of determining whether the applicant met the criteria in items 820.211(2)(a).  For relevant purposes, the definition is as follows:

“(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.

…

(3)       In forming an opinion whether 2 persons are in a married relationship
            … in relation to an application for:

            (aa)      an Extended Eligibility (Temporary) (Class TK) visa; …

            the Minister must have regard to all of the circumstances of the
            relationship, including, in particular:

            (a)        the financial aspects of the relationship, including:

                        (i)         any joint ownership of real estate or other major assets;
                                    and

                        (ii)        any joint liabilities; and

                        (iii)       the extent of any pooling of financial resources,
                                    especially in relation to major financial commitments;
                                    and

                        (iv)       whether one party to the relationship owes any legal
                                    obligation in respect of the other; and

                        (v)        the basis of any sharing of day-to-day household
                                    expenses;

            (b)        the nature of the household, including:

                        (i)         any joint responsibility for care and support of
                                    children, if any; and

                        (ii)        the parties’ living arrangements; and

                        (iii)       any sharing of responsibility for housework;

            (c)        the social aspects of the relationship, including:

                        (i)         whether the persons represent themselves to other
                                    people as being married or in a de facto relationship
                                    with each other;

                        (ii)        the opinion of the persons’ friends and acquaintances
                                    about the nature of the relationship; and

                        (iii)       any basis on which the persons plan and undertake
                                    joint social activities;

            (d)        the nature of the persons’ commitment to each other,
                        including:

                        (i)         the duration of the relationship; and

                        (ii)        the length of time during which the persons have lived
                                    together; and

                        (iii)       the degree of companionship and emotional support
                                    that the persons draw from each other; and

                        (iv)       whether the persons see the relationship as a long-term
                                    one.”

9                     Section 359A of the Migration Act relevantly 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.

…

(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.”

10                  The term “non-disclosable information” is defined in s 5(1) of the Migration Act.  In part, that definition deals with information or matter the disclosure of which would, in the Minister’s opinion, be contrary to the national interest because it would prejudice the security, defence or international relations of Australia or involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.  That part of the definition does not appear to be relevant to the present case.  The other two paragraphs of the definition refer to information or matter:

“(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”.

The facts

11                  As I have said, the applicant and the nominating spouse went through a ceremony of marriage on 22 February 1999.  The Tribunal had before it information from the file of the Department of Immigration and Multicultural Affairs (“the Department”) indicating that the following events occurred:

·     In a letter to the Department dated 8 May 1999, the nominating spouse withdrew his nomination of the applicant.

·     On 14 May 1999, the delegate wrote to the applicant advising her that he had received information that the relationship was no longer continuing and inviting her to provide further information within twenty-eight days.

·     On 21 May 1999, a male friend of the applicant advised the delegate by telephone that the applicant’s marriage had ended when the nominating spouse left the matrimonial home.

·     On the same day the applicant visited the Department and stated that she and the nominator had separated temporarily as a result of pressure placed upon the relationship by the nominator’s son, but they had reconciled and were living together again at an address in Ashwood.

·     On 9 June 1999, in an interview with the delegate, the applicant stated that the relationship had broken down irretrievably due to domestic violence.

·     On 15 June 1999, the delegate received information from two persons that the applicant was residing in a women’s refuge and that she had obtained an interim intervention order at the Dandenong Magistrates Court on 9 June 1999.

·     A complaint and summons, apparently filed in the Magistrates Court on 24 June 1999, stated that the parties had separated ten days previously, that the nominator had been physically and verbally abusive to the applicant since February 1999, and that the nominator assaulted the applicant on 4 June 1999, causing bruising.

·     On 5 July 1999 a further intervention order was granted after a hearing.

·     On 6 July 1999, the nominator advised the delegate that the visa applicant had refused to live with him and that he withdrew his nomination because he believed that the visa applicant had only married him to obtain permanent residence.  He said he was shocked by the intervention order and denied ever living with the applicant or assaulting any person.

·     On 21 July 1999, the nominator filed an appeal against the intervention order.  The appeal did not proceed because the nominator was unable to effect service of process on the applicant, because he did not know her address.

12                  The reasons of the Tribunal reveal that, on 8 June 2000, the delegate received a report from a Senior Detective Searle of the Victoria Police, stating that allegations of rape and assault made by the applicant against the nominator had been investigated but were not substantiated and that Senior Detective Searle had no doubt that the claims were made so that the applicant could remain in Australia.  The delegate received a copy of what the Tribunal described as the “police brief” in the matter, including a statement from Senior Constable Ashton.  That statement described a visit to the Clayton Police Station on 5 June 1999 by an Asian woman, accompanied by an Asian man, alleging that she had been assaulted and injured by her husband over the previous few days.  Senior Constable Ashton said that he could see no sign of injuries.  The woman refused to make a statement and said that she did not want her husband charged.  She asked if the police would contact her husband and “threaten” him.  At no time did she allege that she had been a victim of a rape.  A week or two later, the man who had attended with the woman again attended at the Clayton Police Station and spoke to Senior Constable Ashton.  He said that he wanted no involvement in anything that had been discussed with the woman as she had not told the truth on her previous visit to the police station and was unreliable.  He contacted Senior Constable Ashton about a week later to repeat what he had said and stated that the woman was “crazy”.  Also in the “police brief” were medical reports in relation to the applicant, which did not make any reference to sexual assault. 

13                  As a result of the decision of the delegate of the Minister, the applicant became aware of the existence of the report from Senior Detective Searle.  The applicant wrote to the Department on 19 January 2001, seeking access to all documents in the file kept by the Department in relation to her, pursuant to the Freedom of Information Act 1982 (Cth).  In a letter dated 24 February 2001, an officer of the Department referred to 193 folios in the Department’s file.  That officer released the file to the applicant, with some exemptions.  Exemptions were claimed in respect of nine folios on the ground that the documents in them contained information about persons other than those identified in the request and disclosure without their consent would involve the unreasonable disclosure of personal information about those persons.  The letter made it clear that four of those folios contained police reports made after interviews with other persons and advised the applicant that, if she wanted copies of those reports, she would need to contact the police directly herself.  Exemption was also claimed for two folios on the ground that they may disclose the identity of a confidential source of information in relation to the enforcement or administration of the law.

14                  The result was that the applicant had available to her some of the documents that the Department had from the Victoria Police.  Because numbers were used to identify the folios, it was difficult at the hearing of this proceeding to identify exactly which of those documents the applicant had.  The documents that were included in the court book for the purposes of the hearing included a number of documents apparently emanating from the Victoria Police.  A letter from the Victoria Police to the Department and the attached report of Senior Detective Searle were not included in the court book.  They are described in the index to the court book as “FOI exempt”.  Various other documents from the “brief of evidence from Victoria Police” are included in the court book.  It is reasonable to conclude that they are documents made available to the applicant with the letter of 24 February 2001.  They consist of: a three-page “Summary of Charges”; a list of witnesses; a list of exhibits; a four-page statement of the applicant dated 6 July 1999; a further one-page statement of the applicant dated 7 July 1999; a statement of Senior Constable Ashton dated 6 September 1999; a statement of Senior Constable Darryl Tillack dated 28 September 1999; a medical report of Dr HK Ng dated 10 July 1999; a statement of Dr Vytautas Antanaitis dated 4 November 1999; medical records from the Summerhill Medical Centre; and a statement of Senior Detective Searle dated 6 September 1999.  This last-mentioned document concerned events on 25 August 1999, when the nominator was taken into police custody and interviewed.

15                  By letter dated 23 March 2001, the applicant requested an internal review of the decision to withhold documents from her.  This was refused by letter dated 9 April 2001, on a number of grounds.  It is unnecessary to canvass those grounds in this proceeding.  No doubt in consequence of the refusal of the request for application to the Department’s file, on 10 April 2001, the applicant lodged with the Victoria Police an application for access to documents under the Freedom of Information Act 1982 (Vic).

16                  On 6 July 2001, the Tribunal wrote to the applicant, seeking comment, pursuant to s 359A of the Migration Act, on information the Tribunal had which it considered would be the reason, or a part of the reason, for affirming the decision of the delegate.  The information on which comment was sought was specified as follows:

“The Tribunal has information from Victoria Police that the visa applicant’s allegations of rape and assault against the nominator were not substantiated and were made for the purpose of obtaining permanent residence in Australia.”

17                  In response to that request, the Immigrant Women’s Domestic Violence Service Inc wrote to the Tribunal a letter a little over four pages in length, dated 30 July 2001.  The letter referred to the application to the Victoria Police and stated that the applicant had been told that the document could not be located and that she had to wait until after 6 August 2001 when Senior Detective Searle would return to duty.  It continued:

“Ms Li is very upset about the finding of the police report, as she cannot recall that any conversation between her and Senior Detective Searle ever took place.  She believes that the police do not have the right to make such judgement about her.  She is currently in the process of making complaint to the Police Ethical Standards Department and the State Ombudsman.

I urge the Tribunal to consider the police information carefully, as police are not the competent persons who can assess the spouse applicant is [sic] in a domestic violence situation under the Migration regulation.

As Ms Li cannot access the police record at this stage, she cannot make any further comments to defend herself.”

Attached to that letter were various documents relating to aspects of the applicant’s case.  It appears that the applicant did not succeed in obtaining from the Victoria Police a copy of the report of Senior Detective Searle.

18                  Also before the Tribunal (and the delegate) were documents provided by the applicant in response to an inquiry from the delegate seeking information about the relationship.  They included one rent receipt in joint names for May 1999 at an address in Clayton, one telephone account in joint names at the same address dated 11 May 1999, a bank statement in joint names with eight transactions between 3 February 1999 and 7 June 1999, two rent receipts for the period 17 January to 16 March 1999 (one of which was in the nominator’s name only and the second for an address in Ashwood in joint names) and several letters from people claiming to know the circumstances of the relationship. 

19                  On 24 August 2001, the Tribunal conducted a hearing.  It heard oral evidence from the applicant, a psychologist, a domestic violence worker at the Women’s Refuge at which the applicant was living and another witness.

The Tribunal’s reasons

20                  The Tribunal found that the marriage between the applicant and the nominator ceased in May or June 1999 and was therefore not continuing at the time of decision.  Because of the intervention order, made by the Dandenong Magistrates Court on 5 July 1999, the Tribunal regarded itself as obliged to find that the visa applicant was the victim of domestic violence, applying reg 1.23(1)(d) of the Migration Regulations.  The applicant therefore satisfied item 820.221(3) in Sch 2 to the Migration Regulations.  The Tribunal was plainly unhappy at being compelled to this result.  Having expressed the finding, it proceeded to consider whether the visa applicant and the nominator were in a genuine spousal relationship at the time of the application for a visa, applying the test in reg 1.15A.  Before it proceeded to consider this, the Tribunal said:

“When considering all the circumstances of the relationship at the time of application, assessing the credibility of the evidence submitted on the visa applicant’s behalf and the weight to be given to various aspects of that evidence, the Tribunal is entitled to take into account all of the evidence before it.  This includes the police report and the evidence provided in support of the nominator.”

21                  The Tribunal found that the visa applicant and the nominator were married on 22 February 1999 and that the marriage was recognised as valid for the purposes of the Migration Act.  It examined the few items of evidence that existed as to the financial aspects of the relationship and found that there was no evidence that the parties had organised their affairs together and that they shared assets and liabilities.  It then examined the nature of the household.  It found that the visa applicant and the nominator resided together between 3 May 1999 and the day the nominator left the home at Springvale, within two weeks of the move to that home.  Otherwise, the Tribunal said:

“The Tribunal cannot be satisfied that the visa applicant lived with the nominator prior to May 1999 because there is insufficient credible evidence to support such a finding.  The nominator stated that the visa applicant was reluctant to live with him even after the marriage, and the Tribunal finds that, while the visa applicant may have stayed with the nominator from time to time, she did not formally reside with him until May 1999.”

22                  On the social aspects of the relationship, the Tribunal referred to the fact that neither a person who provided a statutory declaration about the relationship, nor that declarant’s wife, who gave evidence at the hearing, provided any evidence of social contact with the parties after the marriage.  The Tribunal found that there was no independent evidence that the parties presented themselves socially as a couple after the marriage.  Referring to the absence of evidence of the parties combining their financial affairs, to the brief period of cohabitation in May 1999, and to the applicant’s statement that the nominator tried to hide his marriage from his ex-wife and son, the Tribunal found that there was evidence of a lack of commitment by the nominator to his marriage to the applicant.

23                  The Tribunal then turned its attention to the domestic violence issue again.  It referred to a “full investigation” of the allegations of serious sexual assault undertaken by Victoria Police, to a number of inconsistencies in the applicant’s account of events reported by Senior Detective Searle, the absence of any complaint of sexual assault when the applicant first spoke to the police, the absence of any medical evidence to support her account of sexual assault and to the allegations by the person who accompanied her to the police station that she had been lying.  The Tribunal referred to a statement of Senior Detective Searle that she doubted the validity of the applicant’s allegations and concluded that the applicant had made them against the nominator in order to remain in Australia.  It referred to the absence of evidence of complaints of violence to the applicant’s friends.  The Tribunal was critical of the evidence of the psychologist, describing it as lacking in objective analysis.  It attached no weight to the opinion of the domestic violence officer because of an admission by her that all women attending the refuge were believed uncritically.  It gave little weight to the applicant’s reported symptoms of post-traumatic stress disorder, depression and anxiety, which it said could easily have been fabricated for the benefit of a well-intentioned and uncritical support network.

24                  The Tribunal continued:

“The Tribunal finds that the visa applicant’s allegations of sexual and violent assault against the nominator were not made until after the withdrawal of the nomination by her sponsor, and that her main concern was for police to ‘threaten’ the nominator, presumably with the aim of encouraging the nominator to reinstate his sponsorship of the visa applicant.  The Tribunal finds that the various accounts given by the visa applicant were inconsistent and deliberately inflammatory.  The Tribunal notes the evidence of Ms Schmidt that the visa applicant stated she was ‘tortured’ by being chained, beaten and sexually assaulted by the nominator.  This account appears not to have been given by the visa applicant to any other person.  The Tribunal finds that if such dramatic events had taken place the visa applicant would have recounted them to police and others involved in her case.

The Tribunal gives considerable weight to the expertise and opinion of S/D Searle and takes particular note of the statement to police by Jack Lin that the visa applicant was lying about the allegations.  In all the circumstances the Tribunal finds that the visa applicant fabricated the allegations of domestic violence against the nominator solely for the purpose of obtaining permanent residence.  Having found that the visa applicant was prepared to make a false report of allegations of serious sexual assault, the Tribunal finds that the visa applicant is not a person whose credibility can be relied upon.  The Tribunal finds that the visa applicant gave contradictory evidence in relation to the date of the nominator’s marriage proposal (October vs December).  The Tribunal also finds that the visa applicant was unable to provide adequate independent evidence that she lived with the nominator for any but a brief period immediately before the breakdown of the marriage, did not provide any evidence of joint financial arrangements, did not provide any independent evidence of the social aspects of the relationship after the marriage and did not provide convincing evidence of the nature of the parties’ commitment to each other.”

25                  The Tribunal concluded that the applicant did not satisfy the definition of spouse in reg 1.15A and was not the spouse of the nominator at the time of application.  For this reason, she did not satisfy the criterion in item 820.211 at the time of application.  It was therefore unnecessary for the Tribunal to determine whether she satisfied the criteria to be satisfied at the time of decision.  She did not meet essential criteria for the grant of the visa she sought. 

The applicant’s case

26                  In her amended application, the applicant alleged a denial of natural justice on the part of the Tribunal in relying on the evidence of Senior Detective Searle.  She also alleged that the Tribunal wrongly concluded that it did not need to decide whether the applicant was the victim of domestic violence at the time of the decision and, in breach of s 359A of the Migration Act, failed to provide to the applicant the report from Senior Detective Searle upon which it relied.

27                  These grounds were expanded by a statement of contentions of fact and law, filed at the same time as the amended application.  The applicant alleged that, because she had not been shown the report of Senior Detective Searle, even at the Tribunal hearing, it was not possible for her to say whether the summary of it in the Tribunal’s letter of 6 July 2001 was correct.  The reference in the Tribunal’s reasons to giving weight to the expertise and opinion of Senior Detective Searle suggested that there was something in the statement that the applicant was not shown and the applicant had no opportunity to contest the opinion of Senior Detective Searle, to know what the basis of it was or to assess the experience and competence of Senior Detective Searle to give such an opinion.  Although in the submission on her behalf, dated 30 July 2001, the applicant had put in issue the competence of the police to make judgements about genuineness, she was never told that the report was being received as an expert report and was never given an opportunity to test its reasoning, the expertise of Senior Detective Searle or her conclusions.  Thus, there was a denial of natural justice and also a breach of s 359A of the Migration Act.  The adverse view the Tribunal took as to the applicant’s credit was based largely, if not entirely, on the domestic violence issue and so the failure to give the applicant a fair opportunity to contest the report of Senior Detective Searle affected the result of the proceeding.  As a result, the applicant contended, there was a constructive failure of the Tribunal to exercise jurisdiction.

The effect of the privative clause

28                  There was no dispute that the decision of the Tribunal is a privative clause decision, as defined in s 5(1) and s 474(2) of the Migration Act.  It is therefore subject to the provisions of s 474(1), by which it is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 

29                  The scope of s 474(1) by reference to the principles stated in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 was tested in a Full Court of five judges, which gave judgment on 15 August 2002 in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.  At the outset of the hearing in the present case, counsel for the applicant conceded that, in the light of the judgments of the majority of that Full Court, s 474(1) operated to preclude the applicant from succeeding on the ground of natural justice.  See NAAV at [638] – [648] per von Doussa J, with whom Black CJ expressed agreement at [4] and Beaumont J expressed agreement at [277].  This view of the effect of NAAV has subsequently been stated in SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 at [24] – [27] and NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049 at [35].  There can be little doubt that the concession was made properly. 

30                  Counsel for the applicant drew attention to the fact that the question of the correctness of NAAV was likely to be settled by a forthcoming judgment of the High Court of Australia.  He suggested that it would be appropriate for me to delay the delivery of judgment in the present case until such time as the law becomes settled finally.  There may be cases in which it is appropriate to await the delivery of a reserved judgment of another court, or of a Full Court of this Court, in order to be certain that justice can be done.  In the present case, however, as appears below, I am not satisfied that the applicant has made out her case that there was a denial of natural justice.  As she has failed to make out the ground she claims would justify success, despite s 474, there is no point in delaying the result.

Natural justice

31                  The requirement of procedural fairness that a person whose rights are likely to be affected by a decision must be given a fair opportunity to know, and to meet, the nature of the case against him or her before the decision is made is a flexible requirement.  Its precise content in any case will depend upon the circumstances of that case, particularly the legal regime under which the decision-maker is functioning.  As Mason J said in Kioa v West (1985) 159 CLR 550 at 584 – 585:

“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.  In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [(1963) 113 CLR 475 at 503 – 504], Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’.  What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting:  Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 552 – 553]; National Companies and
Securities Commission v. News Corporation Ltd. [(1984) 156 CLR 296 at 311, 319 – 321].

In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.  The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations”.

In this respect, the question of the content of the obligation to afford natural justice cannot be divorced from the statutory procedures under which the Tribunal was required to operate, particularly, in the present case, s 359A of the Migration Act.

32                  No argument was directed to the question whether the report of Senior Detective Searle did, or might, fall within the definition of “non-disclosable matter” in s 5(1) of the Migration Act, and therefore be excluded from the disclosure requirements in s 359A.  The possibility that such a view would be taken cannot be ignored.  The fact that the applicant was unable to obtain access to the report of Senior Detective Searle from the Department, and has not been able to obtain access to it from the Victoria Police, suggests that public interest privilege or confidentiality might be an issue.  It would be a strange result if the Tribunal, not being bound by s 359A to provide information to a person as part of the process required by that section, should then be required by the principles of natural justice to undermine s 359A by showing the document containing the information to the applicant at the hearing.

33                  It should be noted that the obligation imposed by s 359A was to give “particulars” of the relevant information, not the information itself.  It is often the case that the obligation to afford procedural fairness will be satisfied by the provision of a summary of material, rather than the provision of the whole of the material itself. 

34                  The question whether s 359A was complied with is answered without difficulty in the present case, even if the assumption be made that the actual report of Senior Detective Searle did not fall within the definition of “non-disclosable information” in s 5(1) of the Migration Act, and was not therefore excluded from being provided to the applicant by s 359A(4).  There can be little doubt that the letter of 6 July 2001 brought to the applicant’s attention sufficiently the substance of the allegation against her.  It gave her a proper opportunity to contest the proposition that her allegations of rape and assault against the nominator were not substantiated and were made for the purpose of obtaining permanent residence in Australia.  By the letter of 30 July 2001, the applicant in fact took the opportunity to place material before the Tribunal contesting that issue.  She was not handicapped in so doing by not having access to the precise text of Senior Detective Searle’s report. 

35                  It was the applicant, by the writer of the letter of 30 July 2001, who put in issue the question of the “right”, and the competence, of the police to make judgements of the kind that she had been informed they had made.  The Tribunal’s reference to “expertise” in its reasons for decision appears to have been its finding on these issues.  The Tribunal was obviously aware that the applicant did not have the report itself, and of the particulars given to her.  In the circumstances, it should not be assumed that the Tribunal relied on facts in the report, relating to the expertise of Senior Detective Searle, that it ought to have communicated to the applicant.  The requirement to give “particulars” of information did not extend to telling the applicant the basis on which the Tribunal might have thought that Senior Detective Searle had “expertise”. 

36                  If there was no infringement of s 359A, it is difficult to see that the ordinary requirements of natural justice, which constitute an implied fetter on the exercise of decision-making functions, could be any wider in the particular case.

Conclusion

37                  For these reasons, the applicant is unable to make out the ground on which her case rests.  It was open to the Tribunal to make the finding it made about the falsity of the applicant’s allegations of sexual assault.  It may be that a different view might have been taken by a Tribunal more sensitive to considerations such as the reluctance of women to raise details of sexual assaults because of embarrassment to them, and the propensity of people from some countries to shrink from involvement with police and other authorities.  Those matters are matters of fact-finding, which is the function of the Tribunal.  The Court cannot set aside the Tribunal’s finding because a different view of the facts might have been taken.

38                  Once it is recognised that it was open to the Tribunal to make the finding that it made on the falsity of the applicant’s allegations, it must also be recognised that it was open to the Tribunal to use that finding in relation to the credit of the applicant in its approach to the case generally.  It was the Tribunal’s view of the applicant’s credit that led it to examine so thoroughly the other items of evidence available.  It found those items wanting in a number of respects in which, on the view of the Tribunal, evidence should have been forthcoming to substantiate the genuineness of the applicant’s marriage to the nominator.  The Tribunal’s ultimate conclusion was based on its examination of all of the material. 

39                  It is therefore necessary for me to dismiss the application, not only because of s 474 of the Migration Act, but because the applicant has failed to establish that the Tribunal made any relevant error.  Having been unsuccessful, the applicant should be ordered to pay the Minister’s costs of the proceeding, in accordance with the ordinary rule that costs follow the event.

Associate:

Dated:              10 December 2002