FEDERAL COURT OF AUSTRALIA

SZPZH v Minister for Immigration and Citizenship [2011] FCA 960

THE COURT ORDERS THAT:

1.    The appeal be dismissed

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This appeal concerns a mother and daughter. The daughter, who is an Australian citizen, is the appellant and the review applicant. She is the daughter of the applicant for a tourist visa subclass 676. The daughter is sometimes referred to as the review applicant and the mother as the visa applicant.

2    The Migration Review Tribunal (“the Tribunal”) found that the mother, the visa applicant, applied for a Tourist (Class TR) visa on 6 July 2010. The delegate decided to refuse to grant the visa on 16 September 2010 on the basis that the visa applicant did not satisfy cl 676.211 and cl 676.221(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) because the delegate was not satisfied that the visa applicant’s intention only to visit Australia was genuine. The emphasis is on the word “visit”.

3    The daughter applied to the Tribunal on 21 October 2010 for review of the delegate’s decision. The Tribunal found that the delegate’s decision was an “MRT-reviewable decision” under s 338(7) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal found that the review applicant, the daughter, had made a valid application for review under s 347 of the Act.

4    Clause 676.211 required that the visa applicant satisfy the Minister that at the time of application the visa applicant’s expressed intention only to visit Australia was genuine:

676.21 Criteria to be satisfied at time of application

676.211 The applicant satisfies the Minister that the applicant’s expressed intention to only visit Australia is genuine.

5    The Tribunal identified the issue as to whether it was satisfied that the visa applicant’s intention to only visit Australia was genuine as required by cl 676.211.

6    The Migration Review Tribunal considered the visa applicant’s circumstances and accepted that the presence in Zimbabwe of the visa applicant’s family, including her husband who is blind and requires her help, as well as her children and grandchildren, formed a strong incentive for the visa applicant to return to Zimbabwe.

7    The Tribunal also referred to a number of other considerations including the contents of a letter from the Royal Prince Alfred Hospital dated 3 November 2010 and presented to the Tribunal by the review applicant concerning her health, her support in Australia and how her children would manage if she needed further treatment and said:

[37]    These considerations cause a very significant concern to the Tribunal because they suggest that the visa applicant’s intention may be to remain in Australia and to assist her daughter with the care of the children and her physical and mental health. … Evidence before the Tribunal indicates that the review applicant’s health remains poor. She has recently been diagnosed with cervical cancer and may require treatment and further hospitalisation. Contrary to her oral evidence to the Tribunal, the statement from the Senior Area Counsellor and the Senior Staff Specialist at RPA Hospital indicate that she did not receive adequate assistance in the past. The Tribunal is concerned that these matters might outweigh, for the visa applicant, her other obligations in Zimbabwe and will provide a strong incentive for the visa applicant to remain in Australia, at least on a temporary basis, to care for her daughter and grandchildren.

…

[40]    The Tribunal considers that the visa applicant has considerable incentive to return to Zimbabwe, including the care of her husband, children and grandchildren, as well as her farm. However, the Tribunal also considers that she may have a much stronger incentive, and perhaps a need, to remain in Australia to provide the care and support to her daughter and grandchildren in Australia.

[41]    Having considered the totality of the visa applicants’ (sic) circumstances, the Tribunal is not satisfied that the visa applicant’s intention only to visit Australia is genuine. The Tribunal reaches this conclusion while having regard to the visa applicant’s circumstances and factors set out above. The Tribunal is not satisfied that the visa applicant meets the requirements of cl.676.211.

8    The decision of the Federal Magistrate was given on 2 June 2011. The grounds of the amended application in the Federal Magistrates Court were set out at [16] of the decision in that court and were as follows:

1.    The second respondent breached their requirement under s. 360(1) of the Migration Act 1958 (‘the Act’) in failing to invite the visa applicant to attend a hearing, and thus failing to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”, being directly in contravention of the act.

2.    Alternatively, should the first ground fail, the second respondent failed to afford the visa applicant procedural fairness in making adverse findings in relation to the visa applicant’s intentions without affording the visa applicant the opportunity to give evidence.

3.    The second respondent impermissibly took into consideration the visa applicant’s intentions beyond the life of the visa.

4.    The second respondent made their decision that ‘the visa applicant does not satisfy the requirements of cl.676.211’ of sh2 of the Migration Regulations 1994, being criteria to be satisfied at time of application (cl.676.211 of sch.2 of the Regulations), and in doing so improperly taking into consideration circumstances of the review and visa applicants that arose subsequent to the making of the visa application, and were therefore not available at the time of application.

9    The notice of appeal to this Court, omitting particulars, specifies the following grounds of appeal:

1.    The Federal Magistrate failed to properly apply the law in relation to the application before it.

2.    The second respondent breached their requirement under s.360(1) of the Migration Act 1958 (“the Act”) in failing to invite the visa applicant to attend a hearing, thus failing to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relating to the decision under review”, being directly in contravention of the act.

3.    Alternatively, should the first ground fail, the second respondent failed to afford the visa applicant procedural fairness in making adverse findings in relation to the visa applicant’s intentions without affording the visa applicant the opportunity to give evidence.

4.    The second respondent impermissibly took into consideration the visa applicant’s intentions beyond the life of the visa.

5.    The second respondent made their decision that ‘the visa applicant does not satisfy the requirements of cl.676.211’ of sh2 of the Migration Regulations 1994, being criteria to be satisfied at time of application (cl.676.211 of sch2 of the Regulations), and in doing so improperly taking into consideration circumstances of the review and visa applicants that arose subsequent to the making of the visa application, and were therefore not available at the time of application.

10    Apart from the addition of ground 1 which stands or falls with the balance of the grounds, the grounds of appeal in this Court are substantially the same as the grounds before the Federal Magistrates Court.

Ground 2

11    Ground 2 centres upon s 360 of the Act which provides as follows:

360(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments related to the issues arising in relation to the decision under review.

…

12    The Federal Magistrate dealt with this matter by construing “the applicant” in s 360 to be the applicant for review. I agree. The conclusion follows from the terms of s 347(2)(c) which depends here on s 338(7). Section 347(2) states clearly that an application for review may only be made by, relevantly, the relative in s 338(7), here the daughter/appellant. I note that the Tribunal’s duty flows from s 348(1), read here with s 338(7) to which I have already referred.

13    So far as the appellant relied on s 366, that section confers a discretion on the Tribunal to allow an appearance by the applicant or the giving of evidence by the applicant or any other person to be by telephone or closed-circuit television or any other means of communication. It does not change or affect the meaning of “the applicant” in s 360. It is s 360 which imposes the relevant duty on the Tribunal.

14    It appears that the appellant accepts the general operation of these provisions but submits that in the circumstances of the case the Tribunal was obliged:

    specifically to address issues of inconsistency in the evidence of the daughter;

    the only way that could be done was to allow to the review applicant daughter the opportunity to call the mother as a witness; and

    the failure to do so was a failure to exercise the Tribunal’s jurisdiction. Reference is made to s 359AA and to s 359A.

15    In my view this submission may well not fall within ground two of the notice of appeal. However, dealing with it on its merits, I do not accept the premise that the Tribunal was required to raise specifically inconsistencies in evidence with the appellant at a hearing. Inconsistencies such as the Tribunal referred to in this case are not 'information' within the meaning of the relevant provisions: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (“SZGUR”) at 598 [9]. I note also that s 359(4)(b) provides that information does not include information that the appellant gave for the purpose of the application. The letter from the Royal Prince Alfred Hospital falls within that category.

16    To the extent it is submitted by the appellant that although the appellant made the application for review, the visa applicant was in fact the applicant in the 'substantive review proceedings' I reject that submission as either inconsistent with the statutory language or as covered by what I have said immediately above.

17    The appellant relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [28], [32] and [33] but I do not see those statements as relevant to the present issue, except to the extent that I have already considered them by reference to SZGUR.

Ground Three

18    This is a procedural fairness ground.

19    The reasoning of the Federal Magistrate was as follows:

[38]    … On the basis that the Tribunal, in relevant circumstances, is required by s.360 to invite the review applicant to a hearing, but is required by no other provision of div.5 of pt.5 to invite anyone else, it must be concluded from the text of the Act and the administrative framework which it has erected for the conduct of Tribunal reviews that it provides a right of appearance before the Tribunal to review applicants only. The Act has displaced whatever presumption may have existed that the visa applicant had a right to be heard by the Tribunal.

[39]    Consequently, even though the visa applicant’s rights were undoubtedly going to be affected by the Tribunal’s review, no provision in div.5 of pt.5 provided her with a right to appear before the Tribunal or obliged the Tribunal to permit her to appear before it. Section 357A(3) did not operate to alter this situation.

20    The ground is centred on the Tribunal’s obligations towards the visa applicant but Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. In my view this ground fails, essentially for the reasons given by the Federal Magistrate. Indeed it is closely related to Ground 2.

21    As developed in submissions before me it was said that s 347 is limited to setting out procedural steps that must be taken to apply for a review but there is nothing contained within it that suggests that it is intended to affect the substantive rights as to the manner in which the visa applicant was entitled to have the adverse decision reviewed. The submission that the visa applicant remained the applicant in the review proceeding and she should have been dealt with in accordance with Division 5 of Part 5, including compliance with s 360, appears to be directly related to this point.

22    However, the right of merits review of an administrative decision is entirely statutory. This was a major point of the Commonwealth Administrative Review Committee, Parliamentary Paper No. 144 (1971) known as the Kerr Committee Report, see for example at [17].

23    In the present statutory context, the Act confers a right to such review of only some decisions. Part 5 of the Act deals with the review of decisions by the Tribunal. Any right of review is conferred only by that Part and that right is limited, including by specifying the persons by whom an application may be made: s 347(2). That limit is one of the limits on the Tribunal’s jurisdiction: see s 347 and s 348(1). It is not permissible to reason that s 338 limits or qualifies only the present appellant’s appeal rights because that argument assumes that the visa applicant had a right of appeal at large.

24    The appellant’s reference to Coco v The Queen (1994) 179 CLR 427 (“Coco”) at 437 is inapposite. That case was dealing with fundamental common law rights and their displacement by statute. As I have said, if there is a right to appeal on the merits from an administrative decision that right must be found in a statute. To start from Coco principles would be to invert the exercise.

25    This ground also fails.

Ground 4

26    The essence of this ground is that the Tribunal was prohibited, in its statutory task, from taking into account the visa applicant’s intentions beyond the life of the visa.

27    The Federal Magistrate considered this argument and rejected it as follows:

[47]    To take into account matters such as the visa applicant’s intentions for the period after the expiry of such subclass 676 Tourist visa as she might be granted did not involve the Tribunal in considering irrelevant considerations but in weighing the evidence which was necessary for it to decide whether the applicant met the relevant criterion for the grant of the visa she sought. That question was whether, on the evidence, the Tribunal was satisfied that at the time of application the visa applicant’s intention to “only visit” Australia was genuine. In answering that question, the Tribunal was entitled to consider the intentions of the visa applicant for the period following expiry of such Tourist visa as she might have been granted.

28    I agree. None of the matters referred to in this ground of appeal show that the Tribunal asked itself the wrong question or took into account prohibited considerations. In argument before me it did not seem that this ground was in terms pressed or pressed strongly. This ground fails.

Ground 5

29    This ground appears to be closely related to Ground 4.

30    The essence of the ground is that the Tribunal made an error of law when taking the new medical diagnosis and potential deterioration of the review applicant’s health into consideration when considering whether criteria at time of application had been satisfied.

31    The Federal Magistrate dealt with this matter as follows:

[51]    …The Tribunal decision was based on its appreciation of the visa applicant’s intentions as at the time she made the application for a tourist visa. …

[53]    …The Tribunal referred to the recent information to underline its concern that the motivation for the visa applicant’s proposed travel to Australia was always the applicant’s circumstances. The recent deterioration in the applicant’s health served only to emphasis (sic) the chronic nature of her situation, a situation which already existed at the time the visa was sought.

[54]    Consequently, I do not find that the Tribunal applied time of decision considerations to a time of application criterion or that it mistakenly referred to the time of application criterion, meaning to refer to the time of decision criterion. I find that the Tribunal assessed the visa applicant’s intentions as at the time of application and tested them against cl.676.221.

32    I agree.

33    In submissions before me, the only issue raised under this ground was that the Tribunal should not have considered “hypothetical future developments” in determining whether the visa applicant’s expressed intention to only visit Australia was genuine.

34    This ground was supported primarily by reference to two pages of the appeal book. The pages consisted of transcript of the hearing before the Tribunal. In my view is not permissible to found a submission as to irrelevant considerations being taken into account by a Tribunal which gives reasons for its decision solely by reference to the transcript rather than by reference to the reasons for decision of the Tribunal.

35    Further, I am not persuaded that the matter referred to at [37] and [40] of the Tribunal’s reasons, being potential further deterioration in the appellant’s health, was legally irrelevant to the criterion under consideration in that it could be relevant to the visa applicant’s expressed intention concerning her length of stay in Australia. Thus the potential for further deterioration in the appellant’s health was not a matter that the Tribunal was prohibited from taking into account in making its decision: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.

36    I note also that these matters now said to be legally irrelevant were matters relied on by the appellant in the administrative process and tested by the Tribunal.

37    An overall submission was put that the Tribunal cannot deal with a person’s intention, that is, the visa applicant’s intention here, without hearing from them. I do not accept this as a factual matter. More importantly, put at this level of generality in my view this submission cannot stand with the statutory structure and provisions to which I have referred, for example, s 360 and following.

38    This ground also fails.

Ground 1

39    It follows that Ground 1 fails in that I find there was no error in the judgment of the Federal Magistrates Court.

Conclusion

40    As each ground of appeal in the notice of appeal fails, the appeal is dismissed with costs.

Associate:

Dated:    26 August 2011