FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241

MIGRATION – alleged breach of s 359A of Migration Act – whether information within exemption in sub‑s (4)(b) – information applicant gave for purposes of application – meaning of “gave”.

Held: a copy of the delegate’s decision attached by an applicant to an application for review is information the applicant “gave to the Tribunal for the purpose of the application” within s 359A(4)(b).

Migration Act 1958 (Cth), ss 358, 359, 359A(4)(b)

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 cited

SZDPY v Minister for Immigration and Indigenous Affairs [2006] FCA 627 cited

SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 cited

VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 cited

NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 followed

M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 cited

VWBF v Minister for Immigration and Citizenship (2006)154FCR 302 cited

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 cited

MINISTER FOR IMMIGRATION AND CITIZENSHIP v CHAMNAM YOU AND MIGRATION REVIEW TRIBUNAL

VID 672 OF 2007

SUNDBERG J

6 MARCH 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders of the Federal Magistrates Court be set aside and in lieu thereof it be ordered that the application for review be dismissed with costs.

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

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

REASONS FOR JUDGMENT

BACKGROUND

1                     This is an appeal from a decision of a Federal Magistrate quashing a decision of the Migration Review Tribunal affirming a decision of a delegate of the appellant refusing to grant a Partner (Migrant) (Class BC) visa to the first respondent (the respondent). Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is heard by a single judge.

2                     The respondent is a citizen of Cambodia who first entered Australia on 25 May 2003 as the holder of a Spouse (Provisional) subclass 309 visa. On 20 December 2002 she married Mr Makara Heng, an Australian citizen, at a ceremony in Cambodia.

3                     On 26 February 2003 the respondent applied for her partner visa. This request was refused by the delegate on the ground that the respondent did not satisfy clause 100.221 of Schedule 2 of the Migration Regulations 1994, namely that she was in a spousal relationship with Mr Heng (her sponsor). It appears that a significant reason for this refusal arose from a visit by Departmental officers to the respondent’s home early in February 2006. The officers noted that Mr Heng was absent from the house at the time of the visit. While in the house they telephoned him and asked for his whereabouts. Mr Heng attempted to mislead the officers by insisting that he was at home with his wife, unaware that the officers were in fact calling from that very house. Upon further inspection of the house, the officers made a number of observations which led them to conclude that Mr Heng did not reside with the respondent. The delegate’s decision states:

Ms You obliged the case officers by showing them through the house.  The case officers did not sight sufficient evidence to indicate that Mr Heng was also residing there.  The evidence sighted, however, was consistent with Ms You’s statement that she resides at the house with her aunt’s family (consisting of her aunt, uncle and their two children).

4                     The delegate’s suspicion that Mr Heng did not reside at the respondent’s address was supported by the abovementioned telephone conversation with Mr Heng.

MIGRATION REVIEW TRIBUNAL

5                     On 15 March 2006 the respondent applied to the Tribunal for review of the delegate’s decision. The respondent and Mr Heng gave oral evidence and produced a number of documents in support of their claim to be in a spousal relationship.

6                     The Tribunal dealt with the evidence and documents at pages 7 and 8 as follows:

The Tribunal gave weight to the fact that there was a paucity of evidence.  While the Tribunal accepts that both the visa applicant and the sponsor may not be well educated and may not be able to communicate well they are required to produce basic evidence to support the assertion of a genuine spousal relationship, especially in view of the adverse material associated with the home visit. The evidence produced [to] the Tribunal was very recent, and was not in itself substantial or convincing. For example while there was a joint bank account opened, it was only opened in May 2005, there was an opening balance of $20, no activity and a closing balance of $15.00 on 29 July 2005. The situation in regard to the motor vehicle was also puzzling, as an apparently poor couple were able to pay cash for a car, spending something in the area of $17,000. The visa applicant indicated that the money had come from Cambodia, but the details of this were not made clear. The Centrelink correspondence does not provide evidence of a spousal relationship. The existence of joint names on the rental agreement was not in itself evidence that they cohabit at that address. There was no supporting evidence, statements from friends, family or neighbours to indicate that they were living at that address. The photographic evidence was very limited and only showed four situations with the couple. There was no substantial evidence of social activity. It was hard to ascertain a strong feeling of commitment between the couple.

7                     The Tribunal affirmed the delegate’s decision on the ground that it was not satisfied the respondent and Mr Heng had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship was genuine and continuing.

FEDERAL MAGISTRATES COURT

8                     On 16 August 2006 the respondent sought judicial review in the Federal Magistrates Court. One of the grounds of review was that the Tribunal breached s 359A of the Migration Act 1958 (Cth) (the Act) in failing to advise her in writing that a reason for the decision would arise from the home visit.

9                     The Magistrate noted that information to be disclosed pursuant to s 359A of the Act ought to include all information forming part of the reason for decision, not just the central reason (citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (SZEEU)). Having found that the home visit formed a significant part of the reason for the Tribunal’s decision, his Honour held that the Tribunal was obliged to disclose its concerns in a s 359A letter. Failure to do so was found to amount to jurisdictional error. The Magistrate said at [27]:

In this case it appears to me that a fair reading of Section G of the application form is that its purpose is to identify the particular decision that the applicant is challenging. It would not be said that this indicates that the applicant was relying upon the information about the home visit simply because she was seeking to appeal from the decision of the delegate. The decision of the delegate was attached for the purpose of identifying it as a decision to be appealed from, not to rely upon the evidence referred to in it. The whole purpose of the application form is to challenge the very decision the Minister says the applicant should be taken to be relying upon.

The Magistrate rejected the other grounds of review.

SECTION 359a

10                  So far as presently relevant s 359A(1)(a) requires the Tribunal to

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 ….

By sub‑s (4)(b) the section “does not apply to information … that the applicant gave for the purpose of the application”.

GROUNDS OF APPEAL

11                  The notice of appeal challenges the Magistrate’s decision on the grounds that his Honour erred in:

(a)           failing to find that s 359A(4)(b) of the Act applies to all information included in the delegate’s decision because the respondent gave that information to the Tribunal for the purpose of her application to the Tribunal;

(b)          concluding that the respondent did not “give” the information contained within the delegate’s decision to the Tribunal as she did not rely upon it; and

(c)           finding that the Tribunal was required to comply with s 359A in relation to information concerning the home visit, “because the information was relied on by the delegate, and s 359A has no application to information that was integral to the decision under review”.

First and second grounds

12                  These grounds can be considered together. In order to understand them, it should be recorded that the Application for Review Form to be completed by an applicant contains Section G which is headed Decision to be reviewed. The respondent was required to tick one of two boxes, the first of which was “I have attached a copy of the DIMIA decision and covering letter”. This box was ticked. The covering letter informed the respondent that her application had been refused, and that the reasons for decision are contained in the attached decision record. The decision record contained details of the home visit.

13                  Information provided to the Tribunal by someone other than the applicant has been treated as having been given by the applicant for the purposes of an application where it has been adopted by him or her. See SZEEU (2006) 150 FCR at [91] and SZDPY v Minister for Immigration and Indigenous Affairs [2006] FCA 627 at [36] (SZDPY). Similarly, it has been held that an applicant can incorporate material by reference so that it becomes part of the information given by him or her for the purpose of the application. See for example SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 and VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271.

14                  The Magistrate referred to some of these authorities before announcing his conclusion set out at [9]. They may explain his Honour’s reference to whether the respondent relied on the home visit material.

15                  The word used in s 359A(4)(b) is “gave” not “relied on”. The “adoption” and “incorporation” cases ultimately proceed on the basis that because the applicant invited the Tribunal to take particular material into account, he or she can be taken to have given it to the Tribunal. See, for example, M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], SZEEU (2006) 150 FCR at [91] and [179] and NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [51] (NBKT).

16                  The present case is not one of incorporation or adoption. The respondent attached the delegate’s decision (containing the home visit material) to his application to the Tribunal. Cf SZDPY [2006] FCA at [36]. Doubtless the respondent did not rely on the home visit material in the delegate’s decision. Nevertheless he “gave” the Tribunal the delegate’s decision and thus gave it the information contained in the delegate’s reasons. An applicant’s purpose or intention that the Tribunal take some information into account may explain why information not directly given to it is taken to have been given to it by him or her. Resort to an applicant’s purpose or intention has no application to a case such as the present where information is physically handed over. Adoption or incorporation cases cannot justify reading down the word “gave” so that it means “relied on”.

17                  Assistance in understanding the meaning of the expression “information … that the applicant gave for the purpose of the application” in s 359A(4)(b) is found in the two preceding sections. Section 358(1) provides:

An applicant for review by the Tribunal may give the Tribunal:

(a)          a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b)          written arguments relating to the issues arising in relation to the decision under review.

18                  Section 359 provides in part:

(1)               In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)               Without limiting subsection (1), the Tribunal may invite a person to give additional information.

19                  Section 358(1)(a) relates to information “the applicant wishes the Tribunal to consider”. That will usually be information the applicant thinks will advance his or her case. Section 359(2) on the other hand is not confined to such information. An applicant who has given the Tribunal a written statement under s 358(1)(a) may be invited to give additional information under s 359(1) or (2). That information, if supplied, will not necessarily be information the applicant thinks will assist his or her case. The Tribunal may seek to elicit information particularising some general assertions made in the information supplied under s 358(1)(a). The response may be that the applicant is unable to provide those particulars or the response may simply not contain adequate particularisation. Thus the response may not advance the applicant’s case. But it is nevertheless information the applicant has given to the Tribunal. Similarly with s 347(1)(a), which provides that any application for review must “be made in  the approved form”. The form may require the applicant to provide information on which he or she does not wish to rely. Any such information provided in the form is nevertheless given to the Tribunal.

20                  Information need not be “volunteered” in order to be “given” for the purposes of s 359A(4)(b). It can be given in response to a question from the Tribunal rather than propounded by an applicant ab initio. In VWBF v Minister for Immigration and Citizenship (2006)154FCR 302 at [48]‑[50] Heerey J said:

48.              For no apparent reason, almost all the discussion of s 424A(3)(b) in the cases proceeds on the basis that the provision uses the word ‘provide’. The subsection in fact uses the verb ‘to give’, which simply conveys the notion of delivering or handing over (Shorter Oxford English Dictionary). If this matter were free from authority, there would be much to be said for the view that an applicant ‘gave’ information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered. Either way, the information is conveyed from applicant to Tribunal. If we were to read or hear ‘At the trial, A gave information about fact X to the court’, we would take that as equally comprehending the possibility of A giving evidence about X in chief, or in cross-examination, or in answer to a question from the judge.

49.              Likewise, if an applicant says to the Tribunal ‘What I said in my visa application is true’ and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application.

50.              Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision‑maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.

21                  In NBKT (2006) 156 FCR at [53] the Full Court approved the above passage. Justice Heerey’s reference to earlier authority (“free from authority”) is to NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 (NAZY), which was put forward by the unsuccessful appellant in NBKT as authority for the proposition that information must be put to the Tribunal “in chief”, rather than being elicited by the Tribunal’s own questions, in order to fall within the exemption in sub‑s (4)(b). The Full Court rejected this proposition at [61] and said at [52] that NAZY was a special case and did not support a proposition of such generality.

22                  The word “information” in s 359A(4)(b) is thus not confined to information the applicant thinks will advance his or her case, or information upon which the applicant relies in support of the application. If what is given to the Tribunal is information, it is covered by s 359A(4)(b).

23                  After the Magistrate had reserved his decision the respondent filed a supplementary submission drawing attention to the existence of an undated file note headed Record of Home Visit prepared by the officers who conducted the visit (the Record). The Magistrate described the Record as “more expansive” than the material in the delegate’s decision. His Honour said at [25]:

Whilst there is no specific evidence as to whether or not the Tribunal member had regard to this document, it was part of the file referred to in the decision. Whether it is part of the reasons for the conclusions reached by the Tribunal is unclear. There is a clear inference that the Tribunal member had regard to this material, as the Tribunal member formed the view that the sponsor was attempting to mislead departmental officers, whereas the delegate had taken the view that there was only a misunderstanding in the telephone conversation.

24                  The second and third sentences of the passage quoted at [29] do not sit happily together. At one and the same time it is unclear whether the file note was part of the Tribunal’s reasons, though there is a clear inference that it was. In any event, the reason the Magistrate gives for drawing the inference, if that is what he did, is unsound. There is nothing in the file note that could have led the Tribunal to conclude that the sponsor was attempting to mislead the officers. Indeed, in the respondent’s written submissions before the Magistrate it is conceded that “The record does not purport to reach a conclusion on this latter aspect” (ie whether the sponsor was attempting to mislead the officers). Accordingly I do not draw the inference the Magistrate may have drawn.

25                  If the Magistrate drew the inference, his Honour did not make anything of it. That is to say, his Honour decided the case (as appears at [9]) simply on the basis that the attachment of the delegate’s decision to the form did not show that the appellant was relying on the information about the home visit contained in it. There is no finding of breach of s 359A on the basis of the file note.

26                  On the assumption that the Magistrate did draw the inference, and that it was properly drawn, the respondent contends that even if the appellant succeeds on the first and second grounds of appeal there has been a breach of s 359A because the Tribunal did not bring the file note to her attention. This must be rejected. The information that would be the reason, or a part of the reason, for affirming the decision under review, namely the home visit, had been given to the Tribunal by the respondent. The information in the file note was the same information as that contained in the delegate’s decision, though somewhat amplified. The file note is not itself a reason or a separate issue.

27                  The first and second grounds of appeal are made out. It is not necessary to deal with the third. The appeal is allowed. The order of the Magistrates Court is set aside and in lieu thereof it is ordered that the application for review be dismissed with costs.

Associate:

Dated:         6 March 2008