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Federal Court of Australia - Full Court Decisions |
Last Updated: 15 February 2007
FEDERAL COURT OF AUSTRALIA
Konteh v Minister for Immigration and Multicultural Affairs [2007] FCAFC 12
MIGRATION – Spouse visa – application refused
– nominating spouse and applicant no longer living together – no
failure to accord
procedural fairness by dealing with the application without
advising applicant of the defect in his application – information
given by
applicant containing details of marital status being for purpose of persuading
Minister not to exercise power under s 501A
of the Migration Act was
information "for the purpose of the application" for s 57(1)(c) of the
Migration Act
Migration Act 1958 ss 57, 501 and
501A
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117
FCR 424 referred to
ISHMAEL
SHERIFF KONTEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS
NSD 1023 OF 2006
ALLSOP, JACOBSON & GRAHAM
JJ
14 FEBRUARY 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. Leave be granted to the appellant to rely upon the Amended Notice of Appeal filed in Court on 15 November 2006, but not so as to permit the appellant to argue that the respondent’s delegate failed to warn the appellant that a decision on the appellant’s visa application might be made on grounds other than character.
2. The appeal be dismissed.
3. The appellant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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ISHMAEL SHERIFF KONTEH
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS
Respondent |
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JUDGES:
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ALLSOP, JACOBSON & GRAHAM JJ
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DATE:
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14 FEBRUARY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT
The Facts
1 Mr Konteh is a British citizen who was born in 1966. In 1986, Mr Konteh formed a relationship with an Australian citizen who was then residing in England, a Ms Barbara Tenney. On 12 November 1987, Joshua Tenney was born. He is Mr Konteh’s son. Joshua was born in Australia after Mr Konteh and Ms Tenney had separated and after Ms Tenney had returned to Australia. Mr Konteh remained in England. Thereafter for ten years, Ms Tenney and Mr Konteh corresponded and sent each other photographs. During this period from 1987 to the mid-1990s, Mr Konteh served various gaol sentences in England. He began a small business in 1994. After saving money, he came to Australia in May 1997, at the invitation of Ms Tenney. He stayed with Ms Tenney and Joshua for two months and they became very close. He returned to England, with a view to returning to Australia to visit on a regular basis. On 25 March 1998, he returned to Australia on a three month visitor’s visa. He stayed with Ms Tenney and Joshua.
2 Ms Tenney and Mr Konteh decided to marry and decided that Mr Konteh should apply for permanent residency status. They married on 30 May 1998 in Australia. On 23 June 1998, Mr Konteh lodged an application to remain permanently in Australia. The application was made on the foundation of the spousal relationship between Mr Konteh and Ms Tenney. Ms Tenney was the sponsor for the visa. Mr Konteh disclosed the fact of a criminal record in the application. The application contained a statutory declaration in which Mr Konteh declared that he would inform the Department of any material changes to his circumstances while his application was being considered. The form also contained an undertaking to tell the Department if the marriage ended in divorce or separation before the application was decided.
3 In late 1998, Mr Konteh provided the Department with a copy of his prosecution and conviction history in England. Mr Konteh had a criminal record commencing in 1987. The convictions were for various offences, including assault, dishonesty, possession of cannabis, other apparently minor drug offences and criminal damage.
4 At this point, it is necessary to appreciate the terms of the regulations and eligibility criteria for the visa applied for. The relevant visa, a spouse visa sub-class 820, had various criteria that were to be satisfied at different times. One criterion was that at the date of application and at the date of decision the applicant and the sponsoring spouse were required to be in a married relationship within the meaning of "spouse" in regulation 1.15A. If at the time of the decision the applicant and the sponsoring spouse were no longer married an applicant in Mr Konteh’s position (domestic violence not being a relevant consideration) needed to show under sub-clause 820.221(3)(b)(ii) of Schedule 2 to the Migration Regulations that he or she:
"(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the nominating spouse:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
5 Thus, essential to the success of Mr Konteh’s application was his spousal relationship with Ms Tenney. If that relationship broke down to the point of separation or divorce, it was necessary for the success of his application, that Mr Konteh have some right in relation to Joshua of the kind set out above.
6 On 9 December 1998, Ms Tenney wrote to the Department stating that she and Joshua had left the family residence due to emotional cruelty and physical violence inflicted by Mr Konteh. The letter stated that Joshua did not want to see Mr Konteh again and was afraid of him. The letter attached a doctor’s report attesting to injuries that Ms Tenney said had been suffered by her and that were caused by an assault by Mr Konteh.
7 Meanwhile, on the day before, 8 December 1998, an officer of the Department wrote to Mr Konteh requesting that Mr Konteh and Ms Tenney attend an interview.
8 On 23 December 1998, Mr Konteh (alone) attended an interview with the Department. He and Ms Tenney remained separated. The note of the meeting made by the Departmental officer recorded the following:
"I then asked the applicant if he and the nominator were still living together as husband and wife. He said NO. He said were separated he said two weeks ago, and I had seemed to know that already.
I then mentioned him [sic] that the nominator telephoned me on 18 December a couple days after he called. I told him that the nominator said that he had left message in her message bank and asked her to come to the interview with him today. I told him that the nominator said on 18 December that her relationship with him was over. I advised the applicant that the nominator would, if she choses so, to [sic] withdraw her support from the application as well, but this information had not come through yet.
The applicant then asked what other options he was left for him to stay in Australia permanently. I pointed out to him the relevant subclause of Reg 820 which refers to the custody of or access to an Australian citizen child of that relationship and provided him also with information leaflets also referring to info re onshore visa categories.
Applicant claimed that he was still living at the nominator’s apartment and would like to seek Legal Aid’s assistance to fight for a joint custody or access rights to his child, and asked what would be his chances to obtain one. I said to him that I would not have any idea as this would be entirely up to the Magistrate of the Family Law Court however I would assume that the Magistrate would certainly look into his relationship with the child since his birth and his contribution to the child’s upbringing to date. He then asked if I could provide him with contact number for Legal Aid. I asked him to call 013 Directory Assistance for Legal Aid Office and make an appointment to see them as soon as possible and advise me by 4 January 1999. I advised the applicant that I would like to know which Legal Aid Office and Officer he has been to (the name and ph number of the Legal Aid Officer) by 4 January 1999. I also explained to him about his option to withdraw his application by that date, if he wanted to.
I then explained to the applicant that, even if he succeeds to obtain a joint custody order, his penal certificate from the UK was unclear and hence he was invited to provide his comments, in writing, if he wished the Department to give consideration of his application under waiver provision of the public interest criteria. I also supplied him with the copy of his penal certificate from UK as he said he did not keep the copy.
I advised the applicant that I would expect him to hear from him by 4th January 1999 with regard to his action for custody matters, and his written statement. I stressed to him that if choses not to pursue with custody matters and withdraws his application there would be no need for him to supply DIMA with a statement regarding his unclear penal certificate, but if he fails to contact DIMA by cob on 4th January 1999 his application will be decided based on the information held in his file.
Applicant then asked how long he would be allowed to remain in Australia after the decision I explained him of his review rights, if any, or his departure within 28 days or 35 days from the date of the decision respectively. He then asked the meaning of "deportation’ and its impact on his future entries to A/a. I advised him to contact the Compliance Section of our department about it as I had very little knowledge of the current procedures. He said he would do it if it becomes necessary."
[emphasis added]
9 At least three things were apparent from this meeting. First, the Departmental officer made clear the possibility (as must have been obvious anyway) that Ms Tenney might withdraw her support from the application. Secondly, the significance and consequences of the breakdown of the marriage were discussed in the context of the terms of clause 820 of the regulations; and the relevance of a Family Law Act application concerning custody or access was the subject of discussion. Thirdly, Mr Konteh was told that he could withdraw this application.
10 On 31 December 1998, Ms Tenney sent a letter to the Department confirming the separation.
11 In late January 1999, Ms Tenney informed the Department by further letter that she and Joshua had returned to the family residence and that she and Mr Konteh "[had] reconciled and are attempting to work through our differences".
12 Mr Konteh and Ms Tenney attended interviews on 7 April 1999 with an officer of the Department. The interviews were conducted separately. From the record of the interviews, it can be seen that the officer directed her attention to the relationship between Mr Konteh and Ms Tenney and Mr Konteh’s criminal record. The officer concluded that she was satisfied that "the claimed marital relationship between them is both genuine and continuing".
13 A little over a week later, on 14 April 1999, Ms Tenney swore a statutory declaration about their relationship in terms that made clear the genuineness of the relationship and the importance of Mr Konteh’s presence to their son, Joshua.
14 On 8 February 2000 Mr Konteh’s visa application was refused. Mr Konteh was found to have failed the character test under s 501 of the Migration Act 1958 (Cth) by reason of his criminal record.
15 Mr Konteh sought review of that decision in the Administrative Appeals Tribunal (the "AAT"). The AAT affirmed the decision. An appeal to the Federal Court by Mr Konteh was allowed by consent. The matter was remitted to the AAT. After a two day hearing, the AAT member, the Hon RNJ Purvis QC, set aside the decision under review and remitted the matter with a direction that the s 501 discretion be exercised in Mr Konteh’s favour. This second decision of the AAT was dated 18 April 2002.
16 Over a year later, on 24 June 2003, Mr Konteh was sent a letter by an officer of the Department in the "NSW Character Section". The letter was headed:
"NOTICE OF INTENTION TO CONSIDER REFUSING A VISA UNDER SUBSECTION 501A OF THE MIGRATION ACT 1958"
17 The letter commenced as follows:
"The Administrative Appeals’ Tribunal (AAT) decision N2000/1599 of 18 April 2002 is noted. However, I advise that the Minister may set aside the AAT’s decision under section 501A of the Migration Act 1958 (the Act) and refuse to grant a visa. The relevant provision is:
• Subparagraph 501A(2)(a)
I have attached the full text of section 501 and 501A for your information.
Before the Minister considers whether to refuse your visa under subsection 501A(2)(a), you are provided with an opportunity to comment. The Department will then prepare a submission for the Minister to decide whether he suspects that you do not pass the character test (as defined by section 501). The Minister will also decide whether or not you satisfy him that you pass the character test or not, and decide whether refusal of a visa is in the national interest. Matters to be taken into account include the following:
• your past and present criminal conduct and
• your past and present general conduct
The following details are provided."
The letter then went on to detail Mr Konteh’s criminal record in England and the offences that he had committed in Australia since 1999. (Most of these were related to driving motor vehicles, including dangerous driving and driving whilst unlicensed or disqualified. However, there were also convictions for common assault.)
18 Under the heading "General Conduct", the letter then stated the following:
"Information before the department indicates that your wife obtained an Apprehended Domestic Violence order against you. Further information from the NSW Police Service indicates that you have come to the attention of police on other occasions including 11 September 1999 when you were cautioned about having knives and 20 March 2000 when you were spoken to about assault allegations made by another individual."
19 The above letter dealt only with what might be referred to as character issues for the purposes of ss 501 and 501A of the Migration Act (the terms of which are discussed below) and did not advert in any way to the satisfaction of the other criteria in respect of the visa applied for. In this regard, however, it should be noted that no further information had been given by Mr Konteh to the Department since 1999, though (as is discussed below) he and Ms Tenney had separated by August or September 2002. At this point, it should also be noted that, notwithstanding the view of the AAT that the relevant discretion should be exercised in Mr Konteh’s favour, the Minister had power (to be exercised personally, and not by delegation), in effect, to over-ride the views of the AAT and refuse a visa on the ground that he did fail the character test.
20 By 18 July 2003, Mr Konteh had retained a firm of solicitors to act for him. The solicitor who wrote to the Department on Mr Konteh’s behalf on this date was a migration agent and a solicitor with an accredited specialisation in immigration law. This was evident from the letter of the solicitor to the Department. Thus, from this time, the officers of the Department dealing with the matter were entitled to assume that Mr Konteh had competent legal advice available to him.
21 On 22 July 2003, the solicitor sought further time in which to deal with the notice. Some further time was given.
22 By letter of 4 August 2003, Mr Konteh’s solicitor requested an interview for Mr Konteh with the officers concerned. The letter stated:
"The reason for this is Mr Konteh is articulate and expresses himself well and it is submitted that an interview would be an excellent opportunity for DIMIA to be able to make a fully informed decision on whether Mr Konteh’s application for a Spouse Visa should be refused on character grounds."
23 This request was refused by letter of the same day which stated:
"The Notice sent to Mr Konteh specified that any comments or information provided be made in writing. Mr Konteh has been given a reasonable opportunity to respond to the invitation. I do not think it necessary that Mr Konteh be interviewed in lieu of providing a written response. In the circumstances, I require Mr Konteh to provide any information or comments in writing. I note that the final date for a response is close of business Thursday 7 August 2003. If no written comments are received by that date, a submission will be prepared based on the information held."
24 By letter dated 7 August 2003, Mr Konteh’s solicitor provided the Department with:
(a) ten accompanying documents, including a statutory declaration from Mr Konteh, a statutory declaration from a Ms Constantina Nikolopoulos (to whom Mr Konteh referred as "Connie") a report from a clinical psychologist and various statements attesting to Mr Konteh’s character and work;
(b) a summary of relevant facts; and
(c) submissions on various aspects of Mr Konteh’s position.
25 There was no discussion in the letter of the solicitor of the breakdown of the marriage of Mr Konteh and Ms Tenney that was apparent from a reading of the accompanying material. There was no request in the letter for the substitution or change of the nominating spouse, were that permissible; nor was there a request to treat the application as withdrawn and replaced by one for which Ms Nikolopoulos was the sponsor. The letter did not direct itself to the satisfaction of the other criteria for the grant of the visa. The totality of the letter was directed to the issue of Mr Konteh’s convictions, character and close ties with the Australian community.
26 Though the solicitor’s letter does not deal with it, the enclosures supplied to the Department provide information about Mr Konteh’s current personal position. In his statutory declaration, the making of which was witnessed by his solicitor, Mr Konteh stated that he and Ms Tenney were separated and had been separated for over a year (that is since August or September 2002), that he had not seen his son, Joshua, for over a year and did not know where Joshua was living. After some explanation of some of the offences in Australia, he said the following about Joshua:
"I have not seen Joshua for about the last 12 months. I did not do anything about a Family Court order to see my son because I thought Barbara would try to have me deported from Australia if I did anything to try and see my son. Based on this belief I then thought I would never see my son again and therefore that would defeat the purpose of applying for orders.
I do not know where Joshua lives or where he goes to school. I have been told by my solicitor that she has been informed by DIMIA that Barbara does not want me to contact her."
Mr Konteh also described his current relationship with Ms Nikolopoulos, as follows:
"About six months ago I met Constantina Nikolopoulos (‘Connie’). Connie was born in Australia on 12.3.1965 and of Greek background. When I met Connie in February 2003 she had been separated for about a year from her husband. Connie has custody of her three children aged 5, 6 and 7. Connie lives with her children and her parents. She manages a fish and chip shop in Strathfield. I usually see Connie late at night during the week and the weekends. Before when we worked different hours we saw each other more often during the day.
When I was working at the carwash in Strathfield earlier this year I met a guy who was a born again Christian called George Gabriel. We got talking and I went to 2 or 3 church meetings in I think Baulkham Hills and another in Darling Harbour. I felt a calling but I do not subscribe to a particular religion or church. I have started to realise that there is more out there apart from ‘me’ and that I have to deal with issue from the past before I can move on. I would say that I have gained and continue to gain a spiritual awareness but I would not call it a religious awareness. I do not take life for granted anymore. During this time I have met Connie, obtained good employment and found a place to live (with my dog) rather than living in a squat."
27 The statutory declaration of Ms Nikolopoulos dealt in detail with her relationship with Mr Konteh. They had met in September 2002. Their relationship began in February 2003. They had considered buying a property together. From the statutory declarations, it is clear that they did not live together. Ms Nikolopoulos also attested to Mr Konteh’s character and work habits.
28 There the matter rested for over a year. On 6 October 2004, a decision was made to refuse Mr Konteh’s application. It was not a decision made personally by the Minister under s 501A. Rather, it was a decision by a delegate of the Minister based on the fact that Mr Konteh had not lived in a marital relationship with Ms Tenney, his nominator, since 2002 and therefore that he failed to meet the criterion in sub-clause 820.211(2). Further the delegate was of the view that sub-clause 820.211(3) was also not satisfied.
The proceedings below
29 Mr Konteh challenged the decision by seeking review in the High Court under s 75(v) of the Constitution. The grounds identified in the summons filed in the High Court on 21 March 2005 were as follows:
"1. The Defendant failed to accord the Plaintiff procedural fairness by its failure to have regard to relevant documents and its failure to provide reasonable opportunity to respond to adverse material.
2. The Plaintiff is and was at all times entitled to a spouse visa in Australia having fulfilled the criteria contained in the Migration Act since he was married to an Australian citizen and had a child who was born in Australia and is also an Australian citizen. The marital relationship was genuine and continuing to the exclusion of others at the relevant time.
3. The marital relationship subsequently broke down due to domestic violence.
4. In February 2003 the Plaintiff entered into a defacto relationship with an Australian citizen and that relationship is still genuine and continuing to the exclusion of others.
5. The Plaintiff is currently held in detention and unable to pursue his rights to access and custody of his only child Joshua Dean Tenney, an Australian citizen."
30 The proceeding was remitted to this Court and was heard by the primary judge. Two other applications were made, one to the Family Court for access to Joshua, a second directly to this Court in relation to his detention. Neither of the two further applications is relevant.
31 Two affidavits were filed in support of the application before this Court, one of Mr Konteh and one of Ms Nikolopoulos. The appeal was conducted on the basis that these affidavits were before the primary judge at the hearing. There was no oral evidence or cross-examination.
32 The affidavit of Mr Konteh referred to the contents of his statutory declaration put to the Department in 2003 and swore to its truth. He stated that at the time of making the affidavits he and Ms Nikolopoulos lived together. The affidavit explained why his statutory declaration had been provided to the Department.
"9. My evidence simply is that I consider Connie to be my de-facto wife and we continue to maintain a meaningful relationship and have done so since 2003 when we so notified the Department by way of Statutory Declaration. The purpose of supplying the said Statutory Declaration was to substitute Ms Tenney [sic: Ms Nikolopoulos] as the nominator instead of Ishmael’s former wife Ms Barbara Tenney. Further I did offer and did reasonably expect the Department to call me to follow up my Statutory Declaration, of which they never did.
10. I did put an application for a spouse visa in 1998 and in 2003 it was intended that Connie was to be my new nominator. I can also confirm that once these proceedings have been fully determined that both Connie and myself do intend to get married and that this has always been the case since we first met."
[emphasis added]
33 Before turning to the approach of the primary judge, it is appropriate, given some of the arguments put forward on appeal, to say something about the events up to October 2004. Some six years had passed since Mr Konteh made his application. If Mr Konteh had stated that he had thought from the letter of 24 June 2003 and any other relevant circumstances that the only issue to which he needed henceforth to give consideration was his character, no doubt questions would have arisen about the content of the advice, if any, he had received from his solicitor and about what he had been told by the Departmental officer in 1998 when he attended the interview (as to which see [8] above). But he did not say that he had been misled in this fashion. Rather, he said that what was intended (presumably by him) was to substitute Ms Nikolopoulos for Ms Tenney as the nominator. Mr Konteh did not say in his affidavit how he came to that intention, and whether the formation of that intention was affected by any legal advice. Also, he did not state that he had thought that he could substitute nominators by the material in the statutory declaration because of something the Department had told him. Mr Konteh, from the terms of his own affidavit, can be taken to have understood the significance of the end of his relationship with Ms Tenney, his nominator, and can be taken to have thought that he had appropriately dealt with the substitution of a new nominator.
34 Mr Konteh filed submissions in this Court in support of his application for Constitutional writs. He was self-represented. On 13 and 14 March 2006, submissions were filed in substantially identical form. There were a mixture of assertion of historical fact and submission. Mr Konteh’s complaints can be seen in the following paragraphs:
"It is these two statutory declarations (as stated above) that the Applicant relies upon in respect of these proceedings. It is the applicants position that at the time that these two statutory declarations were submitted to the Department that was taken by the Applicant to be advising the Department of his change of circumstance. On reading of the wording these two statutory declarations it is quite clear that the Applicant was nothing up front [sic] and made the admissions both voluntarily and of his own free will.
The applicant submits that to date he cannot find anywhere either within the Migration Act and or the relevant Regulations of any relevant procedure to advise of a change of circumstance such as a change in nominator as is the case in this case.
...
Thus ultimately the question as the Applicant sees it is simply did the Applicant take reasonable steps to advise of his change of circumstance to the Department and did the Department act properly on those change of circumstances.
...
In dealing with the second part of the question it is the Applicants respectful position that the Department did had [sic] options, the first could have been to continue with the existing application and substitute the nominators. Alternatively as the applicant could been allowed to withdraw his original application and lodge an amended application taking into account the new circumstances that were provided within the statutory declarations application, and this would in the Applicants view be permissible as a final decision had not been taken and for all intense in purposes [sic] the Applicant would find it hard to see how a withdrawn application could be viewed to be a second application. Further there is nothing that the Applicant could find within the Migration Act and or the associated regulations that could prevent the applicant from withdrawing his first application and submitting a second application
Further more there is absolutely no evidence that the Department gave any consideration to the applicants change of circumstance and this was despite that the Applicants new nominator offered herself to the Department for any interview."
[emphasis added]
35 An important aspect of these submissions was an asserted failure of the decision-maker to accord Mr Konteh procedural fairness – that the Department should have treated what Mr Konteh put to it as a substitution of nominators or should have allowed Mr Konteh to withdraw his application and renominate Ms Nikolopoulos as nominator. Embedded in these complaints is the proposition that the delegate was obliged in law not to decide Mr Konteh’s application without warning Mr Konteh of the flaw in his application. Again, it is to be noted that Mr Konteh’s submission was not that he had been misled into thinking that the only issue relevant to be considered was his character or criminal record.
36 Mr Konteh filed further submissions on the day of the hearing of his application. These were submissions in reply to those filed by the Minister. They covered three issues. Relevantly, the second was as follows:
"(b) The Applicants lack of clarity (as the Respondent sees it) that he was seeking to nominate his new partner Ms Connie Nikolopoulos for the purposes of continuing his application for a Spouse Visa."
37 The submissions dealing with this topic were to the following effect (continuing to use the third person as Mr Konteh did sometimes when referring to himself in writing):
"As stated in the original submissions filed in the is Court on 13/14 March 2006, the Applicant swore an statutory application to the effect that he had commenced a new relationship with a Ms Nikolopoulos on 6 August 2003, and this was also followed with a corroborating with a statutory declaration from the applicants partner. Interestingly his then lawyer countersigned the Applicant’s statutory declaration and the Applicant respectfully submits that the purpose in submitting this statutory declaration amongst other things was that he was intending to continue with his spouse visa application albeit with a new nominator. The Department in receipt of this information was duty bound to inform the Applicant of the correct method he should abide by and further could have given him an opportunity to withdraw his application and submit a fresh application. It should be borne in mind that there is nowhere that the Applicant can see where there is a procedure for the Applicant to have followed to submit a change of circumstance in this case the nominator. Further the Applicant notes the Respondents submission that the Applicant was ably represented at the time and the Applicant carries that on and suggest that the Applicants statutory declaration was in fact counter signed by his own lawyer which seemingly suggests that this was the advice that the Applicant was asked to follow by his then lawyer. Thus the question for this Court ultimately decide firstly do the statutory declarations sufficiently infer that the Applicant was in fact in a new relationship and further were the Applicants actions reasonable having regard that there is now here [sic] to be found a proper procedure for advising the department of a change of circumstance. If the answer is affirmative to both questions then it stand to logic that the Department failed to give further and proper consideration to all the material before it and further and therefore is said to be in jurisdictional error. Particularly in light of the supporting statutory declaration of the Applicants partner."
[emphasis added]
38 These submissions make clear that the case put to the primary judge was that the delegate should have recognised that some application for the substitution of nominator was being made and that in the circumstances was obliged not to decide adversely to Mr Konteh without telling him of the flaw in the application.
39 No additional relevant oral submissions were made by Mr Konteh.
40 The primary judge dismissed the application. First, his Honour rejected the submission that it was open to the delegate to substitute, informally, the nominator. Secondly, his Honour accepted the submission of the Minister that Mr Konteh was represented by competent solicitors and that if he wanted to substitute Ms Nikolopoulos for Ms Tenney, he should have withdrawn his application. Thirdly, his Honour accepted that it was not the delegate’s obligation to refrain from deciding the application and warn of the defects in the application, in particular in the light of the duty in s 47 of the Migration Act. Fourthly, in part dependent on the first point made by his Honour that it was not open to the delegate informally to substitute nominators, his Honour rejected the submission that there was no evidence that the delegate had not considered his change of circumstances. Fifthly, his Honour rejected a submission that Mr Konteh did not have to demonstrate some Family Law proceedings for the purposes of sub-clause 820.211(3). Sixthly, his Honour rejected a submission based on the International Convention on the Rights of the Child.
Appeal
41 A notice of appeal was filed, apparently drafted by Mr Konteh. It contained three grounds of appeal, as follows:
"1. That the learned Justice Conti respectfully erred in his reasoning that there was evidence that the Department did in-fact give consideration to the Applicant’s change of circumstance, to say the Applicant’s affidavit dated 6 August 2003, and further the affidavit of the Applicant’s purported new nominator, Ms Nikolopoulos dated the same date.
2 That the learned Justice Conti respectfully erred in his reasoning when determining that the Applicant was ably represented by experienced Migration Agents and as such the effect of the Applicants affidavit of the 6 August 2003 and the Applicants purported new nominator Ms Nikolopoulos’ affidavit of the same date (6 August 2003) did not have the effect of the Department been notified that the Applicant was in a meaningful relationship with a purported new nominator, Miss Nikolopoulos.
3. That the learned Justice Conti respectfully erred where in his reasoning he determined there was no legal principle on the Department to so advise the Applicant of the correct procedure on which he should adhere in particular where the Department was in possession of the relevant affidavits to the effect that there was an obvious change in circumstance."
42 The third ground in the notice of appeal clearly expressed the substance of Mr Konteh’s complaint as reflected by all the material put to the Court – that the delegate, as a matter of law, was required not to decide the application and to advise Mr Konteh of the correct procedure in circumstances where the change of circumstances made the need for that correct procedure obvious.
43 On the appeal, Mr Konteh was represented by Mr Leeming SC and Mr Thomas of counsel. An amended notice of appeal was filed in Court. It had been drawn with counsels’ assistance. It stated the grounds of appeal as follows:
"1. The primary judge erred in failing to find that the Minister’s delegate did not accord procedural fairness to the applicant, thereby resulting in jurisdictional error.
2. The primary judge erred in failing to find that the Minister’s delegate did not comply with s 57 of the Act, thereby resulting in jurisdictional error.
44 The respondent Minister opposed leave to amend the notice of appeal on the grounds of prejudice. At the hearing of the appeal, the Court indicated that the question of what could be raised under the amended notice of appeal would be dealt with in these reasons. Argument took place on this basis.
45 One issue was mistakenly the subject of some submissions by the Minister, and later corrected. Section 51A of the Migration Act had no relevance to the appeal, the visa application having been lodged on 23 June 1998.
46 Leaving aside the question of the form of relief, the issues that were argued on appeal were:
(a) whether as developed in argument, Mr Konteh should have leave to rely upon the assertion of a denial of procedural fairness in paragraph 1 of the amended notice of appeal;
(b) if so, whether that assertion or any other way of putting the procedural fairness argument was made out; and
(c) whether, there was a failure to comply with s 57 of the Migration Act (there being no objection to paragraph 2 of the amended notice of appeal).
47 Before dealing with these issues, it is necessary to note that there was no ground of appeal complaining about the primary judge’s conclusion that it was not open to the delegate to substitute, informally, nominators. Further, no ground of appeal sought to argue that if informal substitution were possible, the delegate erred by failing to deal with all the issues presented by the material on file for consideration. Nevertheless, it is appropriate to observe, first, that there does not appear to be a provision in the Act or the Regulations for one nominating spouse to be substituted for another in respect of an application for a visa of the class applied for here by Mr Konteh. It is clear that the requirements that must be met in respect of a spouse at the time of the application and at the time of a decision on such application do not permit consideration to be given to a different spouse. Secondly, the criteria permitted by sub-clause 820.221(3) were addressed by Mr Konteh and dismissed by him as inappropriate to his circumstances. This is clear from the terms of paragraphs 13 and 14 of his statutory declaration made 6 August 2003, as to which see [26] above. Thirdly, whilst it would have been open to Mr Konteh to withdraw his application for a subclass 820 – spouse visa with Ms Tenney as his nominating spouse and to substitute a fresh application for a like visa with Ms Nikolopoulos as his nominating spouse, the facts deposed to in the statutory declarations made 6 August 2003 demonstrated that, had Ms Nikolopoulos been put forward at that time as the nominating spouse, the criteria to be satisfied at the time of the application would not have been met. As at 6 August 2003 it could not be said of Mr Konteh and Ms Nikolopoulos that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was genuine and continuing and that they lived together or did not live separately and apart on a permanent basis. As Mr Konteh declared in his statutory declaration of 6 August 2003 ‘Connie lives with her [3] children [aged 5, 6 and 7] and her parents’. He was in the habit of ‘seeing’ Ms Nikolopoulos either late at night or during the day. He said that during the time since he met Ms Nikolopoulos he was able to find a place to live rather than living in a squat. In her statutory declaration made 6 August 2003, Ms Nikolopoulos declared that she had been in a romantic relationship with Mr Konteh since February 2003, that she and Mr Konteh ‘get on really well’, that about a month before the declaration was made Mr Konteh and herself discussed buying a property together to live in and that they had looked together at properties in Strathfield to buy. The circumstances were such that if Mr Konteh had withdrawn his then current application for a visa and at the same time lodged a fresh application, with Ms Nikolopoulos as his nominating spouse, the circumstances were not such as to satisfy the relevant criterion in paragraph 820.211 of Schedule 2 to the Regulations as to Ms Nikolopoulos being Mr Konteh’s spouse.
48 It is convenient to deal with issues (a) and (b) referred to at [46] together as they are intertwined.
Procedural Fairness
49 The submissions in writing of Mr Leeming criticised the primary judge’s reasons in a number of respects. Essentially the criticism was that the primary judge "did not address the real complaint" which was identified in his written submission as follows:
"the Department had told Mr Konteh to respond to an exercise of the s 501A power, where the only issue was character;
the Department had not told him that other issues were relevant, and that it was going to revisit the matter explored in detail and resolved favourably to him by Ms Yake in 1999, which would lead to the need for him to address additional issues and/or reframe his application."
50 This led to an approach, it was submitted, that lacked candour and was unfair. The submission on this issue concluded as follows:
"The primary judge did not address the gravamen of Mr Konteh’s complaint – that he was not given an opportunity to respond to the new basis in which the Minister’s delegate now proposed to refuse his application."
51 This apparent unitary basis of the asserted lack of procedural fairness must be viewed in the light of counsel’s oral submissions and other documents handed up on appeal. Mr Potts, who appeared for the Minister, submitted, correctly, that there were two strands of the procedural fairness argument interwoven in Mr Leeming’s various submissions. Mr Potts identified these two strands as follows:
"(a) The delegate failed to warn the appellant that the decision might be made on grounds other than character, and give the appellant an opportunity to respond.
(b) There was a breach of procedural fairness by the Minister’s delegate determining Mr Konteh’s application without first advising him that she was not treating his application as one in which Ms Nikolopoulos had been substituted for Ms Tenney as his nominator."
52 Mr Potts illuminated the two strands of argument by reference to the submissions made by Mr Leeming. Mr Potts indicated that, insofar as the first way of putting the matter under ground 1 of the amended notice of appeal was pressed, objection was taken on the ground of prejudice. No opposition was taken to the second way of putting the matter under ground 1.
53 In our view, Mr Potts was justified in his complaint about the first way of putting the procedural fairness complaint. Before the primary judge, there was no complaint whatsoever by Mr Konteh that he had not understood anything but character to be in issue. Nor was there any evidence from the solicitor who assisted him with his application. To the contrary, his sworn evidence, and all his submissions, were to the effect that he was aware of what might be referred to as the "nominator issue" and that he thought that he had validly substituted nominators. His complaint was that the delegate did not tell him that there was a procedural flaw in his application and that he had not adequately attended to the "nominator issue".
54 If Mr Konteh had put to the primary judge that he had been led to believe that only character was in issue, it would plainly have been necessary to cross-examine him on his affidavit that he thought that he had substituted the nominator. In these circumstances, it would be wrong to permit the appellant now to argue that the way the Department had conducted itself had led Mr Konteh to think that only his character was in issue, thereby depriving him of the opportunity to be heard on, and to deal with, the other criteria necessary for a successful visa application. Mr Konteh, though lacking legal assistance in the conduct of the hearing before the primary judge, was a man who wrote clear and articulate submissions. He should not now be permitted to raise an argument on appeal which plainly could have led to the trial taking a different course: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at 438-440 [34]- [39] and the cases there cited and discussed.
55 Was then Mr Konteh denied procedural fairness by the delegate determining the issue without first advising him that she was not treating his application as one in which Ms Nikolopoulos had been substituted for Ms Tenney?
56 In our view, the answer to that is, ‘no’. Mr Konteh was advised by a solicitor. It was not the Department’s obligation to advise and assist Mr Konteh in the best way of making his application. There was no request by the solicitor to treat Ms Nikolopoulos as a new nominator. As we have said, the information provided in August 2003 was not sufficient to permit Ms Nikolopoulos to be considered a sponsoring spouse at that time. There was no suggestion in the material that any officer of the Department had led Mr Konteh to believe that he had effected a substitution of nominators. We see no basis for a legal obligation upon the Minister (breach of which would sound in a lack of procedural fairness and thus jurisdictional error) to warn any applicant of any apparent flaw in his application so that steps might be taken to correct or supplement the application. No doubt, in any given circumstances, what an officer has said in any given case may raise an obligation to speak. But in such cases the obligation will arise from the specific facts as a manifestation of the duty to act fairly.
57 Mr Konteh may have thought that his application was in order. It was not. We see no legal basis requiring the delegate to inform him of its defect. Fairness did not require it. There was no denial of procedural fairness.
58 Thus, we would permit the amended notice of appeal filed in Court to be relied upon, but not so as to permit Mr Konteh to argue that the delegate failed to warn Mr Konteh that the decision might be made on grounds other than character.
59 Ground 1 of the amended notice of appeal should be dismissed.
Section 57 of the Migration Act
60 Section 57 of the Migration Act is a provision requiring the Minister (or as here, a delegate) to provide certain information to an applicant for a visa. Section 57 is in like terms to s 424A of the Migration Act which sets out a similar obligation upon the Refugee Review Tribunal, and s 359A in respect of the Migration Review Tribunal. Section 57 is in the following terms:
"(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa."
61 The "relevant information" for the purpose of the operation of s 57 was put in at least two ways by Mr Leeming. First, it was put that the relevant information was that Mr Konteh was no longer in a relationship with his nominator, Ms Tenney. Secondly, it was put that the relevant information was the fact that the Department was not treating his documentation put forward in August 2003 as a withdrawal of the existing application and the submission of a new application with a new nominating spouse and the fact that the delegate was taking a technical view and insisting that Mr Konteh was to be bound by the original application and not treating the material as an amendment.
62 In our view, the second way of characterising what happened as information is both artificial and of no assistance to Mr Konteh. The information so expressed was not the reason or a part of the reason for refusing the visa. It may or may not adequately describe the approach of the delegate, but it does not describe the reason or part of the reason for refusing the visa. The reason for refusing the visa was the information that Mr Konteh and Ms Tenney were no longer married (as defined) so that sub-clause 820.211(2) was not satisfied and the information that Mr Konteh had not made any application to the Family Court so that sub-clause 820.211(3) was not satisfied.
63 The first way of describing the information was legitimate. The Minister accepted that, so characterised, there was information for the purposes of s 57, subject to the satisfaction of s 57(1)(c). The information was undoubtedly given to the Department by the applicant. The question is, however, whether it was given "for the purpose of the application"?
64 The information was provided by Mr Konteh (through his solicitor’s letter and attachments) in answer to the notice of intention to consider refusing a visa under s 501A sent to Mr Konteh on 24 June 2003.
65 Section 501(1) is in the following terms:
"(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test."
(It may be assumed that Mr Konteh failed the character test by reason of his criminal record.)
66 The AAT had reviewed the earlier decision favourably to Mr Konteh.
67 Section 501A gave the Minister power to set aside the decision of the AAT and to refuse to grant Mr Konteh a visa. Section 501A(1), (2), (5) and (7) are in the following terms:
"(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision ):
(c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
...
(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.
...
(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7."
[emphasis in original]
68 It was argued by Mr Konteh that the information was not given for the purpose of the application, but, separately, for the purpose of persuading the Minister not to exercise the power under s 501A.
69 The power that might be exercised under s 501A is to set aside the original decision (here the second decision of the AAT) and to refuse to grant a visa. Those matters are part of dealing with the application for the visa. What Mr Konteh was seeking to do was to persuade the Minister not to set aside the AAT decision and not to refuse a visa made on his application. The information was being supplied directly for the purposes of his application for a visa. That, it seems to us, falls squarely within s 57(1)(c).
70 Therefore, s 57 does not avail Mr Konteh. Thus ground 2 of the amended notice of appeal should be dismissed.
71 For these reasons, the appeal, to the extent that leave should be given to rely upon the amended notice of appeal, fails and should be dismissed with costs.
72 Mr Leeming and Mr Thomas appeared pursuant to a request under Order 80 of
the Federal Court Rules. The Court is grateful not only for the quality of the
assistance provided by them (and by Mr Potts) but also for the willingness
of Mr
Leeming and Mr Thomas to appear under Order 80.
Associate:
Dated: 14
February 2007
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/12.html