von Kraft v Minister for Immigration and Citizenship [2007] FCA 917

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FEDERAL COURT OF AUSTRALIA

von Kraft v Minister for Immigration

and Citizenship [2007] FCA 917

ANTONINA VON KRAFT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 479 OF 2007

NORTH J

14 MAY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 479 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ANTONINA VON KRAFT

Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	14 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 479 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ANTONINA VON KRAFT

Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE:	NORTH J
DATE:	14 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Before the Court is an appeal from the decision of Barnes FM made on 15 March 2007. The Federal Magistrate dismissed an application for review of a decision of the Migration Review Tribunal dated 5 January 2006. The Tribunal affirmed the decision of a delegate of the then named Minister for Immigration and Multicultural and Indigenous Affairs to cancel the Partner (Provisional) (Class UF) visa held by the appellant, Antonina von Kraft.

2 The appellant is a national of Estonia and two of her children were included in the visa application. The facts relating to the appeal are set out in detail in the decision of the Tribunal. I will not repeat them but simply summarise the important dates and events.

3 The appellant entered Australia on a tourist visa on 14 February 1998. Before the expiry of her tourist visa, she lodged an application for a protection visa. This was refused and on 6 March 2001, the Tribunal affirmed the refusal. The appellant sought ministerial intervention which was refused on 25 June 2001.

4 On 22 July 2001, the appellant married Anthony von Kraft. On 15 August 2001 she left Australia and applied offshore for a Partner (Provisional)(Class UF) visa, Subclass 309 Spouse (Partner – Provisional) on 12 April 2002. The sponsor was the appellant’s husband, Anthony von Kraft. The appellant completed the application for the spouse visa but certain questions were not answered. These were questions 50, 55, 56, 58 and 59, which related to details of the sponsor, his family and previous relationships, and details of the parties’ relationship.

5 Whilst in Estonia, the appellant heard that her husband was seriously ill in Australia and she applied to the Department of Immigration and Multicultural and Indigenous Affairs (the department) for permission to enter Australia. In response, on 25 February 2003 she was granted the Subclass 309 visa. On 7 March 2003, she returned to Australia and found that her husband was living with another woman who was pregnant to him. The appellant was not permitted to stay at her husband’s house and therefore left. On 7 April 2003, her husband’s baby was born.

6 The appellant notified the department of a change of address on 17 April 2003 and of a further change of address on 16 September 2003. On 9 December 2003, the appellant informed the department that her husband had died on 26 August 2003. The death certificate recorded that at the time of his death, he was living in a de facto relationship with Bernadette Gumuwang. On 19 November 2004, after inviting the appellant to comment on possible non-compliance the delegate cancelled the appellant’s visa for failure to comply with s 101 and s 105 of the Migration Act 1958 (Cth) (the Act). Section 101 provides:

A non-citizen must fill in his or her application form in such a way that:

(a) all questions on it are answered; and

(b) no incorrect answers are given.

7 Section 105 provides:

(1) if a non-citizen becomes aware that:

(a) an answer given in his or her application form; or

(b) an answer given in his or her passenger card; or

(d) a response given by him or her under section 107 was incorrect when it was given he or she must as soon as practicable notify an officer in writing of the incorrectness and of the correct answer.

(2) subsection (1) applies despite the grant of any visa.

8 Having found non-compliance, s 109 of the Act provides that the delegate was obliged to consider prescribed circumstances before cancelling the visa. The circumstances are prescribed by reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations) as follows:

2.41 For the purpose of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

(a) the correct information;

(b) the content of the genuine document (if any);

(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d) the circumstances in which the non-compliance occurred;

(e) the present circumstances of the visa holder;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C or Division 3 of Part 2 of the Act;

(g) any other instances on non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

9 After outlining the facts related to the visa cancellation and the relevant legislation, the Tribunal made the finding at [55] - [57] that the appellant had failed to comply with s 101:

The review applicant failed to provide answers to questions 50, 55, 56, 58 and 59 of the visa application, all of which related to details of the sponsor and his family and previous relationships and details of the parties’ relationship. The visa applicant answered all questions in the visa application relating to her own details and details of her own family and previous relationship.

The Department invited the review applicant to comment on her failure to answer question 55, whether the sponsor had previously been married or in a de-facto or interdependent relationship. In her response to the section 102 notice the review applicant stated that her failure to answer question 55 was an oversight.

The Tribunal finds that the review applicant failed to answer question 55 of her visa application and therefore failed to comply with section 101 of the Act.

10 The Tribunal then considered whether the appellant had failed to comply with s 105 and explained that the spouse visa was available to the spouse of a sponsor and set out the definition of spouse in reg 1.15A which states:

1.15 A(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); or

(b)in a de facto relationship, as described in subregulation (2).

(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.

11 The Tribunal made the further finding that the appellant had failed to comply with section 105 at [63], [66] and [67]:

The Tribunal finds that the review applicant became aware on or after 7 March 2003 that the sponsor was living with another woman and that she and the sponsor no longer had a commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal finds that the review applicant became aware on or after 7 March 2003 that her relationship with the sponsor was no longer genuine and continuing. The Tribunal finds that the review applicant became aware on or after 7 March 2003 that she and the sponsor were not living together or were not living separately and apart on a permanent basis. The Tribunal finds that the review applicant became aware in November or December 2003, when she received a copy of the sponsor’s death certificate, that Ms Gumuwang was the sponsor’s de-facto partner at the time of his death.

…

However, when the review applicant’s representative notified the Department on 8 December 2003 of the sponsor’s death and provided a copy of the death certificate as evidence of the review applicant’s change in circumstances, the review applicant was well aware that her relationship with the sponsor had ended prior to his death because she had not lived with him at any time since her arrival in March 2003 and had lost contact with him after May or June 2003, when she lasted visited him at the hospital. The review applicant was also aware, from the information contained in the sponsor’s death certificate, that Ms Gumuwang was the sponsor’s de-facto spouse at the time of his death. The review applicant’s representative falsely advised the Department that the review applicant and her children were living at the sponsor’s address in December 2003. The Tribunal finds that the review applicant’s representative acted on the review applicant’s instructions in preparing the letter to the Department of 8 December 2003.

The Tribunal finds that the review applicant failed to notify the Department that the information provided by the representative on 8 December 2003 was incorrect in relation to the spouse relationship between her and the sponsor prior to his death and the review applicant’s residence.

12 The Tribunal then considered each of the matters prescribed by reg 2.41 as well as the matters raised by the appellant. It gave primary consideration to the potential effect of cancellation on the appellant’s children at [83]:

The Tribunal takes into account the prescribed circumstances in regulation 2.41 as well as the evidence and submissions provided by the review applicant. The Tribunal gives primary consideration to the potential effect of cancellation on the review applicant’s children.

13 In accordance with written policy, the Tribunal weighed the reasons for not cancelling the visa against the reasons for cancelling the visa and concluded at [89] - [92] as follows:

The Tribunal has already found that there are grounds for cancelling the review applicant’s visa on the basis of her non-compliance with sections 101 and 105 of the Act. The Tribunal takes into account the prescribed circumstances in regulation 2.41. The Tribunal finds that the potential effect of the cancellation on the review applicant’s children is a primary consideration. The Tribunal takes into account all of the claims made by the review applicant.

The Tribunal finds that the potential effect of cancellation on the review applicant’s children would not be significant in the circumstances of this case, because they have close family in Estonia, they have not established long term relationships in their new home in Tasmania, and there is no evidence that they would be unable to adapt to life in Estonia on their return to that country.

The Tribunal has already found that the review applicant was aware before the sponsor’s death that her relationship with him had ceased because of his de-facto relationship with Ms Gumuwang and the impending birth of her child. The Tribunal has already found that the review applicant failed to advise the Department about this significant change in her circumstances, although she was aware of her responsibility to do so. The Tribunal has already found that the review applicant instructed her representative to provide false and misleading information the Department on 8 December 2003 in relation to the review applicant’s continuing relationship with the sponsor and her residence at his home. The Tribunal had already found that the review applicant’s continuing denial of any knowledge or responsibility in connection with the grounds for the cancellation of her visa was contrived for the purpose of the review.

The Tribunal finds that the reasons for cancelling the review applicant’s spouse visa outweigh the reasons for not cancelling her visa.

Consequently, the Tribunal affirmed the delegate’s decision.

14 The decision of the Tribunal was provided to the appellant’s agent by letter dated 5 January 2006. On 8 February 2006, the appellant’s migration agent applied under s 351 for ministerial intervention. This application was based on the Tribunal’s affirmation of the delegate’s decision. On 3 August 2006, the Parliamentary secretary to the minister refused to exercise the power of intervention. On 15 August 2006, the appellant filed an application in the Federal Magistrates Court seeking to review both the decision of the Tribunal and the s 351 decision. The grounds of the application were as follows:

(1) I have suffered a denial of natural justice. Member of the Tribunal failed to take into account relevant matters.

(2) Department of Immigration cancelled my visa (legal wife of Anthony von Kraft) and gave priority to de facto partner which is unlawful.

15 The Federal Magistrate concluded that:

· the section 351 decision was not reviewable;

· the appellant had no standing to complain about the grant of a spouse visa to the de facto wife of the husband; and

· the application for review of the Tribunal’s decision was out of time under s 477 of the Act.

16 Section 477 of the Act provides as follows:

(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

(4) The regulations may prescribe the way of notifying a person of a decision fro the purposes of this section.

17 The Federal Magistrate conducted a very thorough examination of the issues arising under this section. Her Honour considered a number of alternative constructions of the section and in particular inquired whether the appellant had actual notice of the decision of the Tribunal and whether the Tribunal had complied with the procedural requirements relating to the provision of the decision. Her Honour found that the appellant was actually notified no later than 8 February 2006, when she applied for ministerial intervention under s 351. The Federal Magistrate also found that the procedural requirements had been met. Consequently, the Federal Magistrate found that the application was made out of time and as she had no power to extend the time in the circumstances, the application was incompetent. Nonetheless, for the sake of completeness, the Federal Magistrate considered the substance of the application.

18 After setting out in detail the reasoning of the Tribunal, the Federal Magistrate expressed the grounds of review and conclusions as follows at [98] - [108]:

The grounds for review in the application to this Court on 15 August 2006 are generally expressed as a claim that the applicant suffered a denial of natural justice in that the Tribunal failed to take into account relevant matters and also take issue (as discussed above) with the Department’s cancellation of the visa and the giving of priority to a de facto partner.

The last of these grounds raises no issue with the Tribunal decision and must be rejected as set out above.

There are no particulars to the ground of denial of procedural fairness. I note that as the application to the Tribunal was made on 24 November 2004, the procedures to be followed by the Tribunal are governed by s.357A (see MIMA v Lay Lat [2006] FCAFC 61).

The applicant filed a number of affidavits, some of which contained material in the nature of submissions as well as submissions of 10 January 2007. Insofar as she provided information to the Court intended to demonstrate that the relationship between herself and her sponsor was genuine (in particular during the applicant’s time in Australia prior to her return to Estonia in 2001), such material does not assist in considering whether the Tribunal fell into jurisdictional error in its decision to cancel the visa. In that respect I note that there is no suggestion by the Tribunal that the applicant’s relationship with her sponsor may not have been a genuine spouse relationship at some time, but rather that by the time of her return to Australia on 7 March 2003 she was no longer the sponsor’s spouse as defined in the Migration Regulations. Such information establishes neither lack of procedural fairness or a failure by the Tribunal to take into account relevant considerations.

In her affidavit of 15 August 2006 the applicant set out at some length her claims about her past circumstances and time in Australia and took issue with the Tribunal’s finding that she was no longer the sponsor’s spouse by the time of her arrival in Australia on 7 March 2003. She reiterated her knowledge and belief that she was in a continuous and exclusive marital relationship. She also addressed at some length the circumstances under Regulation 2.41 relevant to the Tribunal’s consideration of whether to cancel her visa. However insofar as the applicant seeks merits review, merits review is not available in this Court. It has not been established that the Tribunal failed to take any relevant considerations into account in addressing these factors. The applicant’s disagreement with the Tribunal’s factual findings or the weight given to particular matters does not establish jurisdictional error.

In her submissions of 10 January 2007 and oral submissions, in addition to addressing the time limit, the applicant made submissions in relation to jurisdictional error which I have considered in addition to the grounds in the application for review. Insofar as she takes issue with the Department’s action in accepting an application from another person for a spouse visa sponsored by the person who had been the sponsor of Mrs von Kraft that does not establish jurisdictional error by the Tribunal in its decision affirming the cancellation of the spouse visa of the applicant.

The applicant purported to provide a further explanation for her failure to answer all questions in her visa application, but such explanation does not establish error in the Tribunal finding that she failed to comply with s.101 of the Act. The applicant contended that the decision of the Tribunal was “predictable” and claimed that in the hearing her explanation was interrupted by the Tribunal asking twice whether the husband had promised her that they would live together again. There is no transcript of the Tribunal hearing before the Court, and there is nothing in this claim on the material before the Court to establish either actual or apprehended bias. The applicant also claimed that the Tribunal did not take into account any of her explanations. In fact it is apparent from the Tribunal reasons for decision that the Tribunal considered the evidence of the applicant, but was not satisfied that the factors she raised were such that the visa should not be cancelled. Insofar as the applicant endeavoured to put further information before the Court in relation to her personal situation, that is not material that assists in identifying whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.

In these circumstances no denial of procedural fairness (whether consisting of actual or apprehended bias or otherwise) is apparent, whatever the extent of the operation of s.357A of the Act. Nor has it been established that the Tribunal failed to comply with any of the provisions in Division 5 of Part 5 of the Act. In particular, the Tribunal properly (on a number of occasions) gave the applicant particulars of information it considered would be the reason or part of the reason for its decision. It invited her to attend the hearing and give evidence and present arguments relating to the issues arising in relation to the review.

Further, it has not been established that there was a failure to have regard to relevant considerations in a manner constituting jurisdictional error. The applicant’s claim is, in effect, that the Tribunal did not accept her contentions, but her disagreement with the Tribunal’s findings in this respect does not establish jurisdictional error.

There is nothing on the material before the Court to suggest that the procedures required in relation to a cancellation decision were not observed. The Tribunal properly had regard to the applicant’s response to the notice of intention to cancel in addressing whether there was a failure to comply with s.101 or s.105 and then turned to the prescribed circumstances in considering the exercise of its discretion. It gave primary consideration to the potential effect of the cancellation on the applicant’s children. However having done so, it determined that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa and hence affirmed the decision. It has not been established that the Tribunal failed to have regard to considerations made mandatorily relevant under the Act or that it failed to consider any integers of the applicant’s claim.

As no jurisdictional error has been established, even if I am wrong in my conclusion that the application is incompetent, it should, in any event, be dismissed.

19 On 26 March 2007, the appellant filed a notice of appeal in this Court. The grounds are stated as follows:

1 Did not take into account my new evidences and submission

2 More attention puted to the technical matter than to other …

3 Desigion of Magistrate is not investigation but commentary of desigion of MRT.

4 Denial of natural justices

5 Jurisdictional error in desigion of MRT

[sic]

20 In addition, the appellant filed a written submission on 7 May 2007 in which she made the following points:

· Jurisdictional error was committed when the department accepted an application for a spouse visa from the de facto wife of her husband.

· The appellant provided further explanations for not completing all the answers in the application form and for not notifying her changed circumstances following her return from Estonia in March 2003.

· The appellant said that the Tribunal had interrupted her explanations on occasions.

· The appellant said that the Tribunal had failed to take into account some character issues, her contribution to the community, and her children’s contribution.

· The appellant said that the Tribunal did not give primary consideration to the children’s interests.

· The appellant said that she was integrated into the community and simply wants humanity, mercy and goodwill.

21 The appellant was not legally represented at the appeal hearing. It was explained to her that the role of the Court on such appeal was limited. She made oral submissions which covered the following issues:

· The appellant said that the law of Australia required natural justice to be accorded.

· She said that she did not know that she could appeal to the Magistrates Court and that is why she sought Ministerial intervention.

· She said that she had heard of cases in the Magistrates Court which had been filed after six or seven years and therefore contended that she should be able to bring her case in the Magistrates Court.

· She said the Magistrate did not take into account the circumstances concerning why she did not file her application for review in time.

· She said that the failure to complete the application form was just a mistake because her English was not good.

· She pointed out that her husband’s death certificate seemed to record her age erroneously as 51 years at date of marriage when in fact she was around 40 years; a mistake of 11 years.

· The appellant contended that she was made to feel like a criminal for failing to fill in a form and yet the administrative authority of this State was unable to get her age correct on the death certificate.

· The appellant contended that she had, contrary to the conclusion of the Tribunal, made a significant contribution to the community and pointed to a letter from Red Cross indicating that she had been a blood donor. The letter was dated July 2006, after the date of the Tribunal decision.

· The appellant explained that her children know no other life than life in Australia and generally sought to argue that she was a good person and had made significant friends and acquaintances in the community.

22 Whilst what much of the appellant explained to the Court is a very understandable reaction to the circumstances in which she finds herself, the role of the Court is limited to considering whether the Magistrate made errors in assessing whether the Tribunal complied with the lawful requirements of the exercise of its jurisdiction.

23 Although I have given considerable attention to the issues raised by the appellant, this appeal is resolved by reference to the Federal Magistrate’s findings concerning the competence of the application for review. The Federal Magistrate made no error in the application of s 477 and correctly determined that the application for review was incompetent. However, the Federal Magistrate also gave attention to the question whether there was jurisdictional error in the decision of the Tribunal insofar as it considered the substance of the case. In my view the Magistrate was correct in the conclusion that there was no jurisdictional error.

24 Much of the content of the appellant’s submissions to the Court, both written and oral, took issue with the fact-finding of the Tribunal. For instance, the suggestion that the appellant had made a contribution to the community, taken with the other issues raised, was sufficient to outweigh the cancellation of the visa. This was a matter for the Tribunal and no jurisdictional error has been established. Similarly, this Court has no jurisdiction to enter into the fact-finding arena concerning issues such as the appellant’s explanation for not completing the application form and not notifying changes in circumstances. These are matters on which the Tribunal made findings of fact and those findings of fact are not open to challenge on an appeal. Contrary to the appellant’s submissions, the Tribunal did take into account character issues, contribution to the community and the children’s contribution as required by the Regulations and gave primary consideration to the children’s interests as required.

25 The fact that the department had granted a spouse visa to the de facto wife of the appellant’s husband does not constitute jurisdictional error by the Tribunal in its decision to affirm the cancellation of the appellant’s spouse visa. Nor has it been established that the Tribunal denied the appellant natural justice. It is likely that the appellant meant by this ground simply that the Tribunal came to a conclusion different from the one which she desired. Whilst one can understand the strong desire of the appellant to remain in Australia in the very unfortunate series of circumstances which have befallen her, there is no legal basis upon which the Tribunal’s decision to cancel her visa can be challenged.

26 Consequently the appeal must be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 14 May 2007

Counsel for the Appellant:	Appeared in person

Counsel for the Respondent:	Mr M P Cleary

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	14 May 2007

Date of Judgment:	14 May 2007

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