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Federal Court of Australia - Full Court Decisions |
Last Updated: 5 March 2007
FEDERAL COURT OF AUSTRALIA
Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22
MIGRATION – remaining relative visa – Tribunal’s
application of departmental policy – misapplication or misconstruction
of
policy – whether error of law – whether appellant discharged burden
imposed by policy of demonstrating no contact
within reasonable period with
overseas near relatives or that contact confined to single instances –
Tribunal holding that
burden not discharged despite its apparent acceptance of
evidence of appellant and his father.
s 39B of the Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 reg 1.15, Sch 2 cll 835.212 and
835.213
Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo [2005] FCAFC 192; (2005) 145 FCR 564
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63;
(2006) 231 ALR 592
GARETH ROY
ELLIOTT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION
REVIEW TRIBUNAL
WAD 57 OF 2006
RYAN,
TAMBERLIN AND MIDDLETON JJ
2 MARCH 2007
MELBOURNE (HEARD IN
PERTH)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of Nicholson J made on 9 February 2006 be set aside.
3. A writ of certiorari issue to the second respondent quashing its decision of 22 November 2004.
4. The matter be remitted to the second respondent, differently constituted, to determine according to law the application made on 9 March 2004 for review of the decision of the delegate of the first respondent to refuse to grant the appellant a sub-class 853 Remaining Relative visa.
5. The first respondent pay the appellant’s costs of the application to this Court, including his costs of the appeal.
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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GARETH ROY ELLIOTT
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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RYAN, TAMBERLIN AND MIDDLETON JJ
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DATE:
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2 MARCH 2007
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PLACE:
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MELBOURNE (HEARD IN PERTH)
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REASONS FOR JUDGMENT
THE COURT
1 This appeal raises narrow questions as to the interpretation and application of those provisions of the Migration Regulations 1994 ("the Regulations") which regulated the grant of "remaining relative" sub-class 835 visas. Clause 835.212 of Schedule 2 of the Regulations prescribed a criterion for the grant of a sub-class 835 visa that the applicant be a "remaining relative" of an Australian relative. Clause 835.213 of the Regulations prescribed the additional, relevant, criterion that;
‘The applicant is sponsored;
(a) By the Australian relative, if the Australian relative:
(i) has turned 18; and
(ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii) is usually resident in Australia; or
(b) by the spouse of the Australian relative, if the spouse:
(i) has turned 18; and
(ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(iii) is usually resident in Australia; and
(iv) cohabits with the Australian relative.’
2 It is not in dispute that the appellant, Gareth Roy Elliott, has been sponsored by his father, Gary Elliott, who satisfied each of the requirements stipulated in pars (i), (ii) and (iii) of cl 835.213(a) of Schedule 2 to the Regulations. It is also common ground that Gary Elliott, as the "other person" within the meaning of reg 1.15 of the Regulations, was a parent of the appellant and was usually resident in Australia. However, reg 1.15 prescribed a cumulative catalogue of requirements for an applicant to be a "remaining relative", of another person, only the first two of which could be satisfied by the other person’s being, relevantly, a parent of the applicant and permanently resident in Australia.
3 Regulation 1.15(1), so far as is relevant, was in these terms;
‘(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a) the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and
(b) the other person is usually resident in Australia; and
(c) if the applicant or the applicant’s spouse (if any), has an overseas near relative:
(i) the applicant and the applicant’s spouse (if any) usually resides in a country, not being Australia, that is different to the country in which that relative resides; and
(ii) neither the applicant nor the applicant’s spouses (if any) have had contact with that relative within a reasonable period before making the application; and
(d) the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives;’
4 "Overseas near relative" was defined in reg 1.15(2) of the Regulations which, again so far as is relevant, provided;
‘overseas near relative, in relation to an applicant, means a person who is:
(a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); ...
other than a relative of that kind who:
(c) is an Australian citizen permanent resident or an eligible New Zealand citizen; and
(d) is usually resident in Australia.’
5 The appellant, who is a citizen of the United Kingdom, was born on 26 October 1981 and has lived in Australia since he arrived in this country on a sub-class 976 Visitor visa on 6 September 1998. On 17 October 2002, the appellant applied for a sub-class 835 Remaining Relative visa acknowledging the existence of three "overseas near relatives" being his mother, Cathy Payton, and two half-sisters, Kerry Payton and Nicola Swarbrick, each of whom has at all relevant times resided in England. That application for a Remaining Relative visa was refused by a delegate of the first respondent, ("the Minister") on the ground that the appellant did not satisfy the criterion in reg 1.15(c)(i) and so was not a "remaining relative" of his father, Gary Elliott. On 10 March 2004, the appellant applied to the Migration Review Tribunal ("the Tribunal") for review of that refusal but, on 22 November 2004, the Tribunal affirmed the decision of the Minister’s delegate refusing the appellant a Remaining Relative visa. The appellant then applied to this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal’s decision on the following grounds;
‘1. In making or purporting to make the decision the Tribunal acted without or in excess of jurisdiction in that it failed to understand and to apply the definition of remaining relative in Regulation 1.15 of the Migration Regulations (1994) ("the Regulations") made applicable by Item 1123B in Schedule 1 to the Regulations and Part 835 of Schedule 2 to the Regulations, and thereby asked itself the wrong question or failed to ask itself the right, or a right, question. [particulars omitted]
2. If (which is denied) the Tribunal did as part of its decision-making process ask itself the question of whether the Applicant had not had contact with his overseas near relatives within a reasonable period before making his application, and to address that matter, in so doing the Tribunal acted without or in excess of jurisdiction. [particulars omitted]’
6 While the matter was pending at first instance in this Court, a Full Court of this Court (French, Finn and Hely JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v Hidalgo [2005] FCAFC 192; (2005) 145 FCR 564 dismissed an appeal which raised a question about the proper interpretation of reg 1.15(1)(c)(i) of the Regulations. Contrary to what the Tribunal had held in the present case, the Full Court concluded that it was not a necessary requirement for the grant of a Remaining Relative visa that the applicant, at the time of making the application, be usually resident in a country other than Australia. (Ms Hidalgo, like the present appellant, had been usually resident in Australia at the time of her application for a Remaining Relative visa). In the course of ex tempore reasons for judgment, French J (with whom Finn and Hely JJ agreed without giving separate reasons) observed, at 568;
‘In my opinion, reg 1.15(1)(c)(i) is intended to apply to the circumstance in which an applicant for the relevant visa has an overseas relative in another country. It is concerned with their geographical relationship when they both reside outside Australia. It is not a regulation which is intended to bring in, by a sidewind, a disqualifying criterion for the grant of such a visa based upon the circumstance that the applicant happens to have her only usual residence in Australia. In the event that the applicant usually resides in Australia only, then the criterion under reg 1.15(1)(c)(i) simply does not apply because the circumstances to which it is intended to apply do not arise.’
7 In the light of the conclusion reached by the Full Court in Hidalgo [2005] FCAFC 192; 145 FCR 564, the Minister, as is acknowledged in the outline of submissions filed on her behalf in the present appeal, "accepted that the Tribunal was in error in concluding that the appellant had not met the requirements of subregulation 1.15(1)(c)(i) of the Regulations."
8 Despite that acceptance, the Minister has contended, both at first instance and on appeal, that the Tribunal had correctly expressed itself as not satisfied that the appellant met the requirements in reg 1.15(1)(c)(ii) and had not committed any jurisdictional error in reaching that conclusion.
9 In assessing the available evidence, the Tribunal paid regard to a Departmental statement of policy (PAM 3) which contained the following guidelines;
‘18.3 Assessing the degree of contact
In assessing whether the applicant has (or has not had) contact with an ONR [overseas near relative], officers must have regard to the following (arising from various court rulings).
‘Contact’ does not mean "physical contact" (such as meeting) but rather communication in the sense of a social relationship. Non-social, unavoidable contact, for example:
• for legal reasons such as the settling of a will, disposing of property or signing documents or
• making contact with a relative at [the Department’s] request
• should not be regarded as ‘contact’ for the purposes of this regulation.
18.4 ‘Reasonable period’
The bar on contact ‘within a reasonable period’ means contact throughout the period, rather than single instances of contact (specific to this provision, a reasonable period is, under policy, taken to be three years preceding the application).
18.5 Contact is to be assumed
It is policy that, in the absence of evidence to the contrary, contact, if made:
• has been in the context of a social relationship and
• has been throughout the period in question.
In other words, it is for the applicant to demonstrate (or otherwise satisfy the decision-maker) that:
• there has been no contact or
• if there has been contact, it has not been in the context of a "social relationship" or
• if there has been contact (whether or not in the context of a social relationship), it has been single instances rather than throughout the period in question.
18.6 Interviewing
To assess claims against this requirement, officers should interview the applicant/s (and where considered appropriate, the Australian relative) with a view to establishing the nature and degree of contact made with ONR/s [overseas near relatives].
The following may be useful as a basis for an interview and assessing the genuineness of the applicant’s claims:
• the reasons for there being no contact
• whether the lack of contact is due to a passive attitude towards family relationships
• whether the Australian relative has had contact with the relevant ONR [overseas near relative] with whom the applicant is claiming not to have had contact
• the applicant’s attitude towards the ONR [overseas near relative] in circumstances of family crisis or family celebration.’
10 The Tribunal related those guidelines to the evidence adduced by the appellant when it observed at [60] of its reasons;
‘The visa applicant has claimed that he did not have any contact with either his mother or half-siblings in the United Kingdom within a reasonable period before making his application on 17 October 2002. He gave evidence that apart from a birthday card in 1998 or 1999 he had not heard from his mother and half-siblings and that he believed it had been 4-5 years since he had last spoken to his mother. When questioned by the Tribunal why the visa applicant had not had any contact with his mother, given that he had always lived with her until the age of 16 years, he responded that he had not got on well with his mother for a number of years and he believed it was just a matter of time before contact between them would have ceased in any event. ... Mr Elliott [the applicant’s father] also told the Tribunal that during the sixteen years the visa applicant had lived with his former spouse, she had been involved in a number of abusive relationships where the visa applicant had been required to step in to stop the physical abuse of his mother by one of his [sic] partners. However, Mr Elliott stated that the visa applicant’s mother had failed to provide him with any ongoing support in the circumstances and therefore it was not surprising that the visa applicant had not maintained contact with his mother. Mr Elliott also claimed that one of the visa applicant’s half-siblings had also left her mother and returned to live with her natural father for the same reason.’
11 After noting that the three year period taken to be reasonable in item 18.4 of PAM 3 would have covered, in the present case, from 17 October 1999 to 17 October 2002, the Tribunal observed, at [61] of its reasons;
‘... The visa applicant has claimed to have had only single instances of contact with his mother and half-siblings in the United Kingdom since 1998 or 1999 in the form of birthday cards. He claims not to have had any social contact with his mother because their relationship had effectively been difficult prior to his arrival in Australia. ... ’
12 What the learned primary Judge identified as "the essence of the Tribunal’s reasons" is expressed as follows in the next paragraph, [62], of those reasons;
‘The Tribunal has taken into account that the policy guidelines require the visa applicant to demonstrate that he has not had any contact with his overseas near relatives and observes that proving a negative fact can be difficult for an applicant. However, the Tribunal also notes that despite his claims regarding the nature of his relationship with his mother, apart from his oral evidence and that of his father, no other evidence, such as statements from the [sic] his mother or half-siblings, custody documents or the like have been provided to the Tribunal to support his claim. On the other hand, the visa applicant’s evidence to the Tribunal was that he had lived with his mother for the first sixteen years of his life before he arrived in Australia. He was also somewhat vague in describing to the Tribunal when he had last had contact with his mother and half-siblings. In the circumstances of this particular case, the Tribunal sees no cogent reasons to depart from policy in relation to the onus of proof regarding lack of contact with an overseas near relative. In addition, the Tribunal notes that the claims regarding lack of contact with his overseas near relatives were only raised by the visa applicant at review, after the visa applicant had become aware of the importance of this particular issue in relation to the definition of a remaining relative. In the circumstances, the Tribunal gives less weight to the claim that the only contact that took place with the visa applicant’s mother in relation to his visa application was between his father and his mother.’
13 The reference in the last sentence of that paragraph to contact with the appellant’s mother was apparently to a communication between the appellant’s father and his mother which resulted in the latter’s furnishing this letter, dated 20 March 2003, addressed "Dept of Immigration, Australia, To whom it may concern";
‘I, Catherine Payton, confirm that Gareth Roy Elliott is my son and that Nicola Louise Swarbrick & Kerry Payton are my daughters and, therefore, that Gareth is the brother of Nicola & Kerry.’
14 After that review of the evidence, the Tribunal concluded;
‘63. Based on the evidence before it, the Tribunal is not satisfied that, on the balance of probabilities, the visa applicant had not had any social contact with his mother or half-siblings within a reasonable period before making his visa application. Accordingly, the Tribunal finds that at the time of application the visa applicant did not satisfy subregulation 1.15(1)(c)(ii) and therefore clause 835.212 and the application must fail.’
Reasoning of the Primary Judge
15 His Honour identified the question which the Tribunal had been required to answer in relation to reg 1.15(c)(ii) as being whether the appellant had not had contact within a reasonable period before making his application with any of his three overseas near relatives, being his mother and his two half sisters. In this context, his Honour summarised, as follows, the evidence disclosed by the Tribunal’s reasons;
‘(1) The applicant’s mother and half-siblings reside in the United Kingdom: [10].
(2) Since his arrival in Australia in September 1998 the applicant has not left Australia: [10].
(3) Subsequent to his application for a visa, copies of the applicant’s half sisters school reports and a letter from his mother were received. In the letter his mother confirmed the applicant is her son and that he is a half-brother of his half-sisters: [12].
(4) In an interview on 12 February 2004 the applicant confirmed the place of residency of his mother and two half-sisters: [12].
(5) It was submitted at the interview that the only contact the visa applicant had with his mother or half-sisters was a birthday card in 1998 "and" 1999: [14].
(6) The applicant’s father stated that the applicant had experienced physical violence by his mother’s de facto spouse: [14].
(7) At the hearing on 30 August 2004 the applicant stated that he had lived with his mother in England his entire life until the age of 16 years: [16].
(8) The applicant also stated that after he came to Australia he had little contact with his mother or half-sisters in England. He said that apart from a birthday card in 1998 "or" 1999 he had not heard from his mother or sisters in England and he believed the last time he spoke to his mother was 4-5 years ago: [19]. [The transcript of this evidence shows that the applicant’s father referred to ‘probably 1998 "and" 1999’ but the respondents do not dispute the applicant’s contention from listening to the tape that "and" should read "or"].
(9) The Tribunal asked the applicant why he had not any contact with his mother, given that he had always lived with her until the age of 16 years. He responded that he had not got on well with his mother for a number of years and he believed it was just a matter to time before contact between them would have ceased in any event: [19].
(10) The Tribunal observed that the applicant’s mother had sent the Department a letter and the applicant had said that his father had asked his mother to do so: [19]. His father confirmed this was so: [20].
(11) The applicant’s father gave evidence (described by the Tribunal as explaining in part why they had ceased to have any contact once the applicant came to Australia). He told the Tribunal that the applicant’s mother had been in three de facto relationships in the 16 years that the applicant had lived with her, some of which had been physically abusive. On a number of occasions the applicant had been required to step in and stop physical abuse of his mother by one of her partners but she had failed to provide him with any ongoing support. Therefore he said it was not surprising that the applicant had not maintained contact with his mother: [20].’
16 The learned primary Judge then considered that, if the Tribunal’s reasons were examined with the benevolence enjoined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, they supported a conclusion that the Tribunal had correctly understood the question posed by reg 1.15(1)(c)(ii) and had not applied the policy enunciated in PAM 3 without regard to the requirements of the Migration Act 1958 (Cth) ("the Act"). In particular, his Honour rejected a contention on behalf of the appellant that the Tribunal had misapplied the "onus of proof" imposed by item 18.5 of PAM 3 by requiring the appellant to satisfy it that the contact in the form of a birthday card in 1998 or 1999 was not in the context of a social relationship and was in the nature of a single instance. It was further contended at first instance that there was evidence to support a finding in favour of the appellant on each of those matters. His Honour noted that the Tribunal had arrived at a contrary view evinced at [62] of its reasons, which is reproduced at [12] above, which he summarised as follows at [43] of his reasons at first instance;
‘(A) The applicant had not provided other evidence such as statements from his mother or half-siblings, custody documents or the like to support his claim. [The letter from the applicant’s mother was confined to an attestation of the applicant as her son and that he is the brother of his half-sisters].
(B) The applicant was ‘somewhat vague’ in describing to the Tribunal when he had last had contact with his mother and half-siblings.
(C) The claims regarding lack of contact with his overseas near relatives were only raised by the visa applicant at review, after the applicant had become aware of the importance of the issue. [It is difficult to see why this should have been an adverse consideration to the applicant.]
(D) Less weight was therefore to be given to the claim that the only contact that took place with the applicant’s mother in relation to his visa application was between his father and mother. [The applicant makes the submission that this was irrelevant because the contact was of a non-social nature].’
Submissions on behalf of the appellant
17 Mr Walker of Counsel for the appellant submitted that the Tribunal, instead of asking itself whether it was satisfied that the appellant had not had contact with his mother or half-sisters within a reasonable period before making the application, had asked itself a complex series of inter-related questions derived from the guidelines in PAM 3. The propositions which the Tribunal had distilled from PAM 3 were said to be;
‘(i) if any contact at all had been made it was to be assumed in the absence of evidence to the contrary that:
A. such contact had been in the context of a social relationship;
B. it had occurred throughout the period in question;
(ii) there would have to be cogent reasons to depart from policy in relation to the onus of proof; and
(iii) the question was whether the appellant had not had contact with his overseas near relatives within a period of three years before making his application, rather than within a reasonable period before that time.’
18 A slightly different formulation of the error which Mr Walker imputed to the Tribunal was that it had treated PAM 3 as laying down a set of rigid and binding rules and had thereby failed to give genuine and realistic consideration to the merits of the appellant’s case.
19 Alternatively, it was submitted that, even on a rigid application of the guidelines to be found in PAM 3, the evidence precluded the Tribunal from expressing itself as not satisfied that the appellant had not had contact with his mother or half-sisters within three years before the date of his application. The only evidence of contact was that related to the birthday card from his mother in 1998 or 1999. If it had been received in 1998, it was outside the three year period ordained by item 18.4 of PAM 3. If received in 1999, it was only just within that period and could not have supported a finding that contact had occurred throughout that period and had not been confined to "single instances". That misapprehension of the effect of the policy guidelines was so fundamental as to amount to a failure to take account of considerations to which the Tribunal was bound to have regard; see Minister for Immigration Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189 at 205-208.
Submissions for the respondent
20 Mr Macliver of Counsel for the respondent contended that the Tribunal had asked itself the right question, namely whether the appellant had satisfied it that he had not had contact with his mother and half-sisters within a reasonable time before making his visa application. It had answered that question by saying that it was not so satisfied. It was further submitted that the Tribunal had not wrongly directed itself that, if any contact at all had been made, it was to be assumed, in the absence of contrary evidence, that the contact had been in the context of a social relationship and had occurred throughout the reasonable period.
21 According to Mr Macliver, the Tribunal’s reasons disclosed a correct analysis of reg 1.15(1)(c)(ii). It then accurately stated how the appellant sought to bring himself within that provision when it said, at [60] of its reasons;
‘The visa applicant has claimed that he did not have any contact with either his mother or half-siblings in the United Kingdom within a reasonable time before making his application on 17 October 2002.’
22 The Tribunal rejected that claim when it said at [63] of its reasons;
‘Based on the evidence before it, the Tribunal is not satisfied that, on the balance of probabilities, the visa appellant had not had any social contact with his mother or half-siblings within a reasonable period before making his visa application.’
Disposition of the Appeal
23 The Court accepts that the Tribunal, in arriving at a decision in a particular case, may have regard to governmental policy. As was observed in Gray 50 FCR, at 206;
‘The place of government policy in the Tribunal’s decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other.’
That passage was an acknowledged paraphrase
of these earlier observations of Bowen CJ and Deane J in Drake v Minister for
Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591;
‘It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determination of the Tribunal That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.’
24 The Tribunal, in arriving at its decision on whether the applicant satisfied reg 1.15(c)(ii), was not wrong in referring to, and applying, PAM 3. In order to bring himself within reg 1.15(1)(c)(ii), the appellant had to satisfy the Minister that he had not had contact with his overseas near relatives within a reasonable period before the making of the application. PAM 3, at 18.3 laid down, as a matter of policy, that contact was to be treated as "communication in the sense of a social relationship." At 18.4, the same document indicated that contact within a reasonable period should be applied as meaning "contact through the period, rather than single instances of contact", and a reasonable period as the three years preceding the application. The appellant made his application on 17 October 2002, and therefore the reasonable period contemplated by the policy was from 17 October 1999 to 17 October 2002.
25 At 18.5, PAM 3 stipulated that, if contact has been made, it is to be assumed, in the absence of evidence to the contrary, that the contact has been in the context of a social relationship and has been throughout the period in question, namely, the three years preceding the application. The appellant gave evidence that his only contact with his overseas near relatives had been in the form of a telephone call "four and a half to five years ago", and a birthday card, in either 1998 or 1999. The telephone call was well outside the three year period, and therefore was not relevant to the application of the policy. As his birthday fell on 26 October, if the birthday card had been received in 1998, it would have been outside the three year period, and therefore could not have invoked the assumption dictated by the policy that there had been contact within a reasonable period preceding the application. If received in 1999, it would have been just within the three year period and so capable of supporting the assumption, dictated by the policy, of disqualifying contact within a reasonable period.
26 The Tribunal made no finding of fact in relation to whether the birthday card had been received in 1998 or 1999, stating at [60] that the appellant gave evidence "that apart from a birthday card in 1998 or 1999 he had not heard from his mother and half-siblings and that he believed it had been 4-5 years since he had last spoken to his mother." However, at [61] the Tribunal observed that;
‘The visa applicant has claimed to have had only single instances of contact with his mother and half-siblings in the United Kingdom since 1998 or 1999 in the form of birthday cards.’
This was not
an accurate recital of the evidence of the appellant, but it seems to reveal an
assumption by the Tribunal that contact
had occurred within three years
preceding the application.
27 On the assumption that the birthday card had been received by the appellant in 1999, and that contact had therefore occurred within three years of his application, the appellant, in order to displace the further assumption, erected by PAM 3, that contact had been made in the context of a social relationship and had occurred throughout the three year period, had to demonstrate, or otherwise satisfy the decision-maker, that:
‘18.5 ...
• there has been no contact or
• if there has been contact, it has not been in the context of a "social relationship" or
• if there has been contact (whether or not in the context of a social relationship), it has been single instances rather than throughout the period in question.’
28 As we have already noted, the appellant’s evidence was that there had been contact but confined to a single birthday card in either 1998 or 1999. That entailed that the contact was a communication occurring in a social relationship. It followed that the policy in PAM 3 required the appellant to demonstrate or otherwise satisfy the decision-maker that the contact was by way of a single instance rather that throughout the period in question. The appellant explained the absence of contact, otherwise than by means of the birthday card, as due to his poor relationship with his mother before he left the United Kingdom, and his evidence was accepted by the Tribunal at the hearing. His father corroborated his evidence at the hearing, and further explained the reasons for the lack of contact, by reference to difficulties which the appellant had encountered whilst living with his mother. The Tribunal expressed no reservations about the credibility of the appellant or his father in relation to this issue.
29 In its analysis of whether there had been contact, the Tribunal said, at [61] that;
‘[the] Policy states that the onus is on the visa applicant to demonstrate that there has been no contact with an overseas near relative or if there has been contact that it has not been in the context of a "social relationship".’
referring to the first two of the
three alternative limbs of the test erected by item 18.5 of PAM 3 set
out at [9] above.
It is true that, later in [61] of its reasons, the Tribunal
appeared to acknowledge the third limb of the test when it observed;
‘Policy also requires that the contact be of a social nature throughout this period, rather than in single instances of contact’.
30 The Tribunal then referred to the appellant’s contact with his mother since 1998 or 1999 as "single instances ... in the form of birthday cards" in the plural. That reference misstated the evidence. The Tribunal then went on, still at [61] to refer to the letter from the appellant’s mother to the respondent dated 20 March 2003. However, that letter had no relevance to the application of PAM 3 as it had been written after the application was made, was not written at the request of the appellant, and, in any event, could not be regarded as contact in the context of a social relationship.
31 At [62] of its reasons, the Tribunal recited that it had "taken into account that the policy guidelines require the visa applicant to demonstrate that he has not had any contact with his overseas near relatives ..." and it acknowledged that "proving a negative fact can be difficult for an applicant." That was a misapplication of item 18.5 of PAM 3 which left it open to an applicant to negate "contact" by demonstrating that it had occurred in "single instances" rather than throughout the period of three years ordained as a "reasonable period" by item 18.4 of PAM 3. This analysis is borne out by the Tribunal’s observation at [62], that;
‘... despite his claims regarding the nature of his relationship with his mother, apart from his oral evidence and that of his father, no other evidence, such as statements from his mother or half-siblings, custody documents or the like have been provided to the Tribunal to support his claim."
32 That observation indicates, in our view, that the Tribunal erected, as a further condition to its attaining the satisfaction required by item 18.5 of PAM 3, that the evidence of the applicant and his father as to the absence of contact had to be corroborated by evidence from the mother or half-sisters or other documentary evidence of the kind suggested by the Tribunal. No warrant can be found in the language of PAM 3 for thus increasing the burden of proof which it imposed on an applicant. This is not to say that the Tribunal could not disbelieve, or regard as implausible without further corroboration, the evidence adduced by an applicant.
33 At no earlier point in the Tribunal’s reasons for its decision had it expressed any disquiet with the appellant’s, or his father’s, evidence. Nor, as far as appears from the transcript, had the Tribunal indicated, during the course of the hearing, any difficulty in accepting that evidence without further corroboration. At no stage during the hearing did the Tribunal alert the appellant to a perceived need for supporting documentary evidence like "custody documents." There was no evidence before the Tribunal which contradicted that of the appellant and his father. It is true that the Tribunal recited in its reasons at [62] that;
‘... on the other hand, the visa applicant’s evidence to the Tribunal was that he had lived with his mother for the first sixteen years of his life before he arrived in Australia. He was also somewhat vague in describing to the Tribunal when he last had contact with his mother and half-siblings.’
34 It was open to the Tribunal to infer, as a matter of ordinary human experience, from the fact that the appellant had lived in his mother’s household for the first sixteen years of his life, that he would have communicated fairly regularly with her after leaving that household. However, that inference was negatived by the appellant’s unequivocal evidence that there had been only one instance of contact since his arrival in Australia on 6 September 1998. It is true that the Tribunal expressed a reservation about the appellant’s evidence when it noted, in the passage just quoted, that he had been "somewhat vague in describing ..... when he last had contact with his mother and half-siblings." However, that was apparently a reference to the evidence recounted by the learned primary Judge at [8] of the summary reproduced at [15] above that the birthday card had been received in 1998 "or" [as it is common ground the appellant said] 1999. There was nothing which we can discern to cast doubt on the appellant’s disavowal of any other contact since September 1998 with his mother or half-sisters. It is also significant in this context that the Tribunal did not see fit to explore with the appellant, or in its reasons, what contact, if any, there had been between the appellant and his mother in the twelve months or so from when he last lived with her until he travelled to Australia.
35 Another indication that the Tribunal misunderstood the factual inquiry which PAM 3 required it to undertake is the statement, also at [62] of its reasons, that it "sees no cogent reasons to depart from the policy in relation to the onus of proof regarding lack of contact with an overseas near relative." The appellant did not advance any case that the Tribunal should depart from the policy in PAM 3. The essential thrust of his case was that he had come within the policy by demonstrating that there had been only a single instance of contact with his overseas near relatives in the three years preceding his application. Nevertheless, the Tribunal concluded, at [63] that;
‘Based on the evidence before it, the Tribunal is not satisfied that, on the balance of probabilities, the visa applicant had not had any social contact with his mother or half-siblings within a reasonable period before making his visa application.’
36 We take it that, by using the term "social contact", the Tribunal intended to convey "contact in the context of a social relationship", which was the nature of the contact which item 18.5 of PAM 3 required to be assumed "in the absence of evidence to the contrary" to have continued throughout the period in question. However, there was evidence to the contrary from the appellant and his father that there had only been one instance of concededly "social contact" which may have antedated the relevant period. The appellant and his father each gave an explanation, which was not fanciful or far-fetched, why the "social contact" with the overseas near relatives had been confined to that single instance. The Tribunal’s failure to base a finding on that evidence is, we consider, a strong indication that it misunderstood what PAM 3 required, as a matter of policy, to displace the assumption, stipulated by items 18.4 and 18.5, of contact within a reasonable period.
37 It is not necessary for us to characterise the Tribunal’s approach as manifestly unreasonable. It is sufficient to conclude, as we have, that it failed to have effective regard to those considerations which it was bound to take into account in applying reg 1.15(1)(c)(ii).
38 The learned primary Judge examined, at [53] of the reasons below, a contention advanced on behalf of the Minister that, even if the Tribunal had erred in rigidly applying PAM 3 to equate a reasonable period under reg 1.15(1)(c)(ii) with three years, that error did not vitiate the Tribunal’s ultimate conclusion in respect of contact which was adverse to the appellant. His Honour there said;
‘53 ... ... The respondent contends that the reasons of the Tribunal should be understood to conclude that there would have been no basis for the Tribunal to have reached a contrary conclusion in respect of any period whether a two year period or a one year period or some other period. The respondent maintains it follows that even if the Tribunal was somehow in error in taking a reasonable period to be three years prior to the making of the visa application in accordance with the Department’s PAM 3 guidelines, that did not have any effect on the Tribunal’s ultimate decision, and accordingly would not have amounted to jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351, at [82].
54 I do not accept this submission. The selection of a two or one year period or some other lesser period would necessarily have excluded from consideration the evidence of contact in 1998 or, relevantly, 1999. The Tribunal would therefore have been bound to approach the issue on that basis. For instance, in terms of the policy it would have been open to it to conclude that the applicant had demonstrated that there had been no contact. It would not necessarily therefore have resorted to the absence of the type of evidence which it referred to in (A) above.
55 None of those considerations, however, make unreasonable the choice of three years as a reasonable period.’
39 His Honour then went on to reject a contention advanced on behalf of the appellant that the Tribunal had misconstrued or misunderstood the policy embodied in PAM 3. He observed that there was no evidence of misconstruction comparable with what had occurred in Gray [1994] FCA 1052; 50 FCR 189 and concluded, at [66];
‘In the end the Tribunal was simply not ‘satisfied’ of the issue on which the applicant was required to satisfy it. In my view the respondent is correct when she submits there was no error of law in the reasoning of the Tribunal.’
40 We have been unable, with respect, to reach the same conclusion. If, as his Honour thought, the selection of a two or one year period would have left it open to the Tribunal "to conclude that there had been no contact", that was no less open on the application of a three year period because the only evidence of contact within that period was of a single instance. At worst for the appellant, the Tribunal was bound to make a finding, on the balance of probabilities, whether the birthday card had been received within or outside the three year period.
41 We consider that the Tribunal in the present case, in its application of PAM 3, fell into error of the kind identified by the Full Court in Gray [1994] FCA 1052; 50 FCR 189. French and Drummond JJ there observed, at 208;
‘The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. ...’
42 An examination of the Tribunal’s reasons, without the minute concentration on infelicities of language stigmatised in Wu Shan Liang [1996] HCA 6; 185 CLR 259, has led us to attribute to the Tribunal the mistaken view that PAM 3 precluded an applicant from demonstrating solely by his own evidence or that of a near relative in Australia that there had not been contact with an overseas near relative other than in single instances during the three years preceding the application. We are reinforced in this conclusion, as well as by the matters canvassed above, by the Tribunal’s observation at the end of [62] of its reasons reproduced at [12] above, that it "gives less weight to the claim that the only contact that took place with the visa applicant’s mother in relation to his visa application was between his father and his mother." As the learned primary Judge noted parenthetically in par D of the summary quoted at [16] above, the appellant had contended that communication to be irrelevant to the application of PAM 3 because it had not occurred in the context of a social relationship. We would have upheld that contention, but, more significantly, the Tribunal’s reference to giving "less weight" to the appellant’s claim in relation to the mother’s letter discloses that, at one point, it saw itself as engaged in a "weighing" or "balancing" exercise in determining whether the appellant had displaced the assumption, or discharged the onus, erected by item 18.5 of PAM 3. However, there was "evidence to the contrary" in terms of that item and no evidence to be put into the scale against it.
43 It may be that the learned primary Judge shared the misgivings which we have expressed because he appended this "comment" at the end of his reasons for refusing the application;
‘Given the serious consequences for his life flowing from the refusal of the remaining relative visa, it may be considered appropriate for him to have the opportunity to bring the absent evidence either in support of a further application or as a consequence of the exercise of any appropriately available Ministerial discretion.’
44 That line of thought raises at least the possibility that by failing to alert him that it might regard the unequivocal evidence of himself and his father as implausible unless corroborated by direct evidence from the mother or "custody documents or the like", the Tribunal failed to accord the appellant procedural fairness; see eg Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 per Lee J at [89]-[92] and per Tamberlin J at [118] and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592. However, in light of our conclusion that the Tribunal had misconstrued PAM 3, it is unnecessary to consider whether it was also subject to the procedural requirement discussed in those authorities.
Conclusion
45 Having regard to the Minister’s acceptance that the Tribunal had
erred in the way identified in Hidalgo [2005] FCAFC 192; 145 FCR 564, and for the
additional reasons which we have endeavoured to explain, the appeal must be
allowed. We shall set aside the orders made
below and, in lieu thereof, shall
order that a writ of certiorari issue to the Tribunal to quash its decision of
22 November 2004.
We shall also make an order in the nature of mandamus
requiring the Tribunal, differently constituted, to determine according to
law
the application made on 9 March 2004 for review of the decision of the delegate
of the Minister to refuse to grant the appellant
a sub-class 853 Remaining
Relative visa. The Minister must pay the appellant’s costs of the
application to this Court, including
his costs of the appeal.
Associate:
Dated: 28
February 2007
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