Goodreau v Minister for Immigration & Anor [2009] FMCA 35 (28 January 2009)

Last Updated: 3 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOODREAU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 35

MIGRATION – Judicial review of Migration Review Tribunal decision affirming decision not to grant the applicant a visa – application to adduce fresh evidence refused – presumption as to death not applicable – application refused.

Migration Act 1958 (Cth), ss.474 & 476 Migration Regulations 1994 (Cth), reg.1.15

Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Kim v Minister for Immigration & Anor [2007] FMCA 798 Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761

Applicant:

MARYANN LOUISE GOODREAU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 95 of 2008

Judgment of:

Lindsay FM

Hearing date:

11 November 2008

Date of Last Submission:

11 November 2008

Delivered at:

Adelaide

Delivered on:

28 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr Colton

Solicitors for the Applicant:

Coltons Barristers & Solicitors

Counsel for the Respondents:

Mr D’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The Application for Judicial Review filed on 19 June 2008 be refused.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

PEG 95 of 2008

MARYANN LOUISE GOODREAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking the issue of prerogative writs relating to a decision of the Migration Review Tribunal (“the Tribunal”) of 22 May 2008.
2. The decision of the Tribunal is a privative clause decision according to s.474 of the Act and is final and conclusive unless it can be demonstrated that it has been vitiated by jurisdictional error. Jurisdictional error is a concept best explained by the High Court decision of Craig v The State of South Australia [1995] HCA 58. In the context of applications under the Act it is best explained by the High Court decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
3. The Tribunal’s decision affirmed the decision of the delegate of the Minister of 28 March 2007 not to grant the applicant a sub-class 835 Other Family (Remaining Relative) visa.
4. The applicant is an American citizen. Her mother is usually resident in Australia. She is the sponsor of the applicant for the grant of the visa.
5. Regulation 1.15 of the Migration Regulations 1994 (Cth) (“the Regulations”) deals with the visa that is sought by the applicant. In summary, the applicant will be entitled to a visa that will enable her to live in Australia with her mother if she can satisfy the Minister that she has no near relatives other than near relatives who are usually resident in Australia. ‘Near relative’ is of course defined in the Regulations. The only relevant near relative is her father. The applicant’s entitlement to a visa turns upon whether the Minister (or the Tribunal on review) will make a finding of fact that she has an overseas near relative or, in other words, whether she has a father who is not usually resident in Australia or an Australian citizen or permanent resident The actual controversy is whether the father is alive but the key question for the Tribunal to determine is not whether he is alive but whether the applicant has a near relative who is not usually resident in Australia or an Australian citizen or permanent resident. The distinction is an important one (see the discussion of this issue in the decision of McInnis FM in Kim v Minister for Immigration & Anor [2007] FMCA 798 at [23] to [38]). The applicant did not seek to impugn the Tribunal’s decision on this ground and in any event I am satisfied that the Tribunal asked itself the appropriate question in that regard.
6. The applicant provided a written statement to the Department, a statutory declaration to the Tribunal and various information relating to her attempts to locate her father in the United States of America (“USA”). The applicant’s mother wrote a letter to the Tribunal. Both the applicant and her mother gave oral evidence to the Tribunal.
7. The applicant’s parents never married. Her father was an itinerant alcoholic, who was rarely at home. The last time the applicant saw her father was in 1997. They argued and he pushed her into a wall. Neither the applicant nor her mother has seen the father since that time.
8. The application for the visa was lodged on 5 December 2006.
9. The applicant’s efforts to find her father through missing persons’ agencies, the Red Cross, Alcoholics Anonymous, churches, funeral homes and like organisations produced no information in relation to his whereabouts or whether he was alive or dead.
10. One of the documents provided to the Tribunal on the applicant’s behalf by her agent contained information provided by an internet search engine called Zabasearch. It contained a reference to a Charles L. Goodreau born on 30 April 1935 with an address in Sanford, Maine, USA. The applicant’s father’s name is Charles Louis Goodreau and he was born on 30 April 1935. The applicant’s mother resided in Sanford, Maine until 2003, when she travelled to another state in the USA and then to Australia.
11. At the hearing the Tribunal was asked to apply the common law presumption of death to assist it in coming to the conclusion that the applicant’s father was dead. The failure to have regard to the common law presumption was a matter that McInnis FM in Kim’s case (supra) considered that the Tribunal ought to have regard to and in respect of which its failure to take into account constituted a jurisdictional error.
12. The presumption is a presumption of fact not of law and is conveniently described by Latham CJ in Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 401:
    • ... if a person has not been heard of for seven years by persons who in the ordinary course would have been expected to hear of him if he were still alive, it may be presumed that he is dead.
13. Later in that same judgment Latham CJ describes an important qualification to the rule (at 401):
    • ...the rule only applies where it is shown that persons who might have been expected to hear of the continued existence of the person whose death is in question have failed to hear of him. It is clear, as a matter of common sense, that no presumption as to the death of particular person can arise from the fact that he has not been heard of by persons who had no connection or association with him, or between whom and himself no mutual interest had existed.
14. The Tribunal was prepared to apply the presumption but considered itself unable to do so because the Zabasearch information indicated that Mr Goodreau was alive in 2003.
15. It is the Tribunal’s use of the Zabasearch information which is the only ground agitated in support of the jurisdictional error submission before me.
16. Mr Colton, who appeared on behalf of the applicant, asked me to accept by way of fresh evidence the following documents:
    1. an Affidavit of Susan Wright sworn on 4 September 2008;
    2. an Affidavit of Alan Colton sworn on 5 September 2008 and filed on 9 September 2008; and
    100. an Affidavit of Alan Stirling Colton sworn and filed on 6 November 2008.
17. I received these affidavits de bene esse.
18. The essential proposition they promote is that the information provided by Zabasearch is unreliable and inaccurate (it will be recalled that this was information that was provided by the Tribunal on behalf of the applicant). The affidavits provide an explanation as to how it may have come about that Mr Goodreau was said to be resident at Sanford, Maine in 2003 and goes into some detail as to matters such as how long it was that the mother of the applicant resided at the specific address the Zabasearch provided for the father and how it was that the street number identification of that address itself changed some years before the date at which the search said Mr Goodreau was present at that address. It also went to the inquiries that had been made of the persons now resident at that former street number address. The cumulative effect of the information is to suggest the sound basis for the drawing of an inference that the information provided by the Zabasearch suggesting Mr Goodreau as having lived at Sanford, Maine in 2003 is unreliable and inaccurate.
19. It goes without saying that none of this information impugning the reliability of the information provided by the Zabasearch was made available to the Tribunal. On the contrary, the Tribunal was implicitly asked to have regard to such information.
20. I set out s.474 of the Act:
    • (1) A privative clause decision:
      • (a) is final and conclusive; and
      • (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
      • (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
    • (2) In this section:
      • privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
    • (3) A reference in this section to a decision includes a reference to the following:
      • (a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
      • (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
      • (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
      • (d) imposing, or refusing to remove, a condition or restriction;
      • (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
      • (f) retaining, or refusing to deliver up, an article;
      • (g) doing or refusing to do any other act or thing;
      • (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
      • (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; and
      • (j) a failure or refusal to make a decision.

(4) ...
(5) ...
(6) ...
(7) ...

21. It is not unknown for courts exercising a jurisdiction pursuant to s.476 of the Act or of like provisions of the Act in a former state, to receive evidence that was not available to the Tribunal itself. Such circumstances are, however, rare and usually arise where the evidence is of assistance in understanding and evaluating a submission that is being made to the court exercising the jurisdiction relating to the prerogative relief.
22. Here, the applicant through her counsel did not demur from the proposition that the purpose of receiving the evidence would be to show that the Tribunal had made a factual error in finding that the applicant’s father was resident in Sanford, Maine in May 2003 and that therefore no basis for the application of the presumption of death was made out. That would plainly be the purpose of receiving this evidence.
23. As for the conditions that must be satisfied for an appellate court to receive further evidence (apart from the issues that arise on account of s.476 of the Act and the nature of the review this Court is conducting) they are set out conveniently by the Full Court of the Federal Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43]:
    • In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, ... , an opposite result would have been reached by the primary judge’).
24. For reasons that I will come to in a moment I do not think that the evidence sought to be adduced before me satisfies the conditions referred to in that judgment.
25. But there are especial problems arising from the nature of this review and the fact that under no circumstances must this Court engage in a merits-based review of the Tribunal’s decision. When he was asked to receive fresh evidence in these circumstances O’Loughlin J in the Federal Court in SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761 said as follows at [21]:
    • There is a line of authority in this Court which strongly suggests that it is beyond my power to receive new evidence and to use it to remit the matter to the Tribunal: Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 145 ALR 532; Servos v Repatriation Commission [1995] FCA 1137; (1995) 56 FCR 377; Ozberg v Minister for Immigration and Multicultural Affairs [1998] FCA 12; Demir v Minister for Immigration and Multicultural Affairs [1998] FCA 1308.
26. Here, the purpose of the receipt of the fresh evidence would be to contradict the evidence put to the Tribunal and upon which it relied. I could not receive such evidence for such purpose without departing from my duty to hear this review according to law.
27. I refuse the applicant to receive the fresh evidence.
28. I am not satisfied, in any event, that the receipt of the evidence would have led to a favourable outcome on the review for the applicant. True it is that the Zabasearch information would no longer have provided an impediment of the application of the presumption of death. But all of the information before the Tribunal indicated that there would have been considerable difficulty in applying the presumption in any event. The circumstances in which the applicant last saw her father in 1997, involving as they did a verbal and physical altercation, surely would lead to the conclusion that there would be no expectation that thereafter the daughter would “naturally hear”, to use the language of Latham CJ in Axon (supra), from her father. As His Honour indicates in that case and is the case here, such a conclusion is a matter of common sense.
29. There being no other argument advanced as to jurisdictional error, the Application must be refused.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 28 January 2009