Kumar v Minister for Immigration & Anor [2009] FMCA 649 (30 July 2009)

Last Updated: 4 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 649

MIGRATION – Migration Review Tribunal – remaining relative – cancellation of visa – allegedly false information about applicant’s marriages – marriages allegedly invalid – applicant allegedly “mentally incapable of understanding the nature and effect of the marriage ceremony” – whether Tribunal substituted its own lay opinion for an expert opinion – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal’s decision was Wednesbury unreasonable.

Marriage Act 1961 (Cth), s.23B(1)(d)(iii) Migration Regulations 1994 (Cth), reg.1.15

AK & NC (2004) FLC 93-178; [2004] FamCA 1006 Durham v Durham (1885) 10 PD 80 Forster, Otherwise Street and Forster (1923) 39 TLR 658 Fuduche v Minister for Immigration and Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515 Ghosn v Principle Focus Pty Ltd & Ors (No.2) [2008] VSC 574 Leonid Zakinov v John Gibson and the Minister of Immigration and Ethnic Affairs [1996] FCA 1652 Privet v Vovk [2005] NSWSC 1258

Applicant:

JOSEPH SANJAY KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG156 of 2009

Judgment of:

Riley FM

Hearing date:

9 June 2009

Date of Last Submission:

9 June 2009

Delivered at:

Melbourne

Delivered on:

30 July 2009

REPRESENTATION

Counsel for the Applicant:

John Gibson

Solicitors for the Applicant:

Dorota Sokolowski Lawyers

Counsel for the Respondents:

Emily Latif

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application filed on 10 February 2009 and amended on 6 May 2009 be dismissed.
(2) The applicant pay the first respondent’s costs, fixed in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG156 of 2009

JOSEPH SANJAY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application to review a decision of the Migration Review Tribunal affirming a decision to cancel the applicant’s general residence visa on the basis that the applicant had given false information in his application for the visa and in subsequent statements to the Immigration Department.
2. On 29 July 1999, the applicant applied for a general residence visa on the basis that he was his mother’s last remaining relative. In the application form, the applicant was asked if he had “previously been married or been in a de facto/common law marriage”. He ticked “no”. In answer to a question about his marital status, the applicant wrote “single”. In a question asking for details of his spouse, the applicant wrote “N/A”. On 2 July 1999, the applicant completed a form regarding his personal particulars. In answer to a question about his current marital status, the applicant wrote, “Never Married”.
   On 29 November 2001, the applicant swore a statutory declaration stating that he had been engaged to Ms Neelam Prasad for six or seven months ending in June 1999 and stating that he was now single.
3. The Tribunal found that:
   1. the applicant married Maya Wati Singh on 21 October 1991 and they were divorced on 13 March 1992;
   2. the applicant married Neelam Prasad on 9 March 1998 and they were divorced on 12 February 2005; and
   100. the applicant (purportedly) married Sharda Jayoti on 8 February 2003 (when he was still married to Ms Prasad).
4. The applicant argued before the Tribunal that his first and second marriages were void pursuant to s.23B(1)(d)(iii) of the Marriage Act 1961. That section provides that a marriage is void where the consent of a party to the marriage is not a real consent because the party was “mentally incapable of understanding the nature and effect of the marriage ceremony”.
5. The applicant supported his application with a report by a psychologist, Mr Lake. Mr Lake administered an IQ test to the applicant. The results were :
   1. Full Scale IQ: 83: Low average range
   2. Verbal IQ: 71: Borderline range
   100. Performance IQ: 100: Average

Mr Lake expressed the opinion that the applicant had a level of disability that rendered him incapable of entering into a valid marriage

6. The Tribunal gave weight to Mr Lake’s report but also considered a number of other matters including:
   1. in a number of immigration forms and medical examinations there was no suggestion that the applicant had an intellectual disability;
   2. the applicant completed a Certificate II in meat processing on
      19 August 2002;
   100. the applicant fulfilled the requirements for registration as a taxi driver on 31 May 2004;
   4. in Fiji, the applicant was a rental manager in a video store between 1995 and 1998, a cutter in a clothing business between 1995 and 1998 and a driver and office assistant from October 1998 to March 1999;
   5. the applicant worked at La Ionica Poultry from July 2000 full time, and had become a leading hand responsible for looking after the labour force in his section and maintaining a high productivity rate;
   6. on Sundays, the applicant drove a cab for his mother’s business; and
   7. the applicant answered all questions asked by the first Tribunal in a clear and forthright manner and apparently had no difficulty answering the first Tribunal’s questions, in contrast to his answers to the second Tribunal, which were slow and very brief.

The Tribunal concluded that the applicant did have the mental capacity to give real consent for his first two marriages.

7. The Tribunal found that the applicant was the spouse of Ms Prasad when he applied for the remaining relative visa. Accordingly, her relatives needed to be taken into account under Regulation 1.15 of the Migration Regulations 1994 in determining whether the applicant was a remaining relative. The Tribunal found that Ms Prasad’s mother lived in Fiji at the time of the application. The Tribunal concluded that the applicant would not have been granted the visa if he had given the correct information. The Tribunal affirmed the cancellation decision.

Grounds of review

8. In this court, the applicant challenged the way in which the Tribunal dealt with the evidence of Mr Lake. The particulars of the grounds of review in the amended application filed on 6 May 2009 are:
   • (i) the Tribunal failed to take account of and/or disregarded a relevant consideration being the expert opinion of the psychologist Mr Lake on a matter properly the subject of expert opinion being the Applicant’s mental capability or capacity to understand the nature and effect of the marriage ceremony and to give real consent to each of the two overseas marriages and wrongly substituted its own opinion derived from its assessment regarding his IQ score and other matters and/or in so doing the Tribunal acted unreasonably in the circumstances of the case
   • (ii) the Tribunal failed to take account of and/or disregarded a relevant consideration being the expert opinion of the psychologist Mr Lake that because of his intellectual impairment and arrested emotional and psychological development the Applicant would not be seen as competent to enter into a lawful marriage and wrongly substituted its own opinion derived from its assessment regarding his IQ score and other matters that the Applicant did have the requisite mental capacity to give real consent and/or the Tribunal in so doing acted unreasonably in the circumstances of the case
9. Essentially, the applicant argued that the Tribunal had improperly substituted its own opinion for an expert’s. The applicant characterised the error as unreasonableness, or a failure to take into account a relevant consideration or a taking into account of an irrelevant consideration. The applicant said this case was more like Fuduche v Minister for Immigration and Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515 than Zakinov v Gibson [1996] FCA 1652.
10. The applicant relied particularly on the following passage from Zakinov:
    • 21. While the skill and techniques of a psychologist may assist a Tribunal in determining whether a person holds conscientious beliefs, such an inquiry is within the ordinary fact-finding skills of the Tribunal. Nothing in the evidence before the Tribunal demonstrated any unique skill or technique of the psychologist which should have led the Tribunal to defer to Mr Dunn without reference to its own view in the circumstances. It was a thoroughly rational course to ascertain Mr Dunn's opinion, hold it up against the Tribunal's independently formed view, and give weight to Mr Dunn's opinion by reference to the limitations accepted by Mr Dunn and the concessions made by him.
    • 22. The applicant relied on Fuduche v Minister for Immigration and Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515, in which the Court held that no reasonable person could have rejected the opinion of a psychiatrist relating to the applicant's psychiatric condition. In that case, the applicant sought to establish that his presence in Australia was required by the special needs of his sister because of her psychiatric condition. The sister's treating psychiatrist gave evidence that the sister had an emotional need for the presence of the applicant. The Tribunal rejected that evidence on the basis of the Tribunal's lay opinion of the patient's condition. The rejection was found by the Court to be unreasonable.
    • 23. The distinctions between that case and the present are clear. The psychiatrist in Fuduche gave a medical opinion, that is to say, an opinion in a field of specialisation on a subject requiring medical skill, such that it was unreasonable for a lay Tribunal to reject the uncontradicted view of the expert. Burchett J put it thus, at 522:
      • Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own.
    • 24. Further, his Honour held that a reasonable lay person could not have avoided the conclusion, in the extreme circumstances of the case, that the patient had a special need for the applicant. The opinion was formed after many years of treating the patient, the treatment commenced before any application was made under the Migration Act 1958, and the opinion was formed for the purposes of treatment and not for the purposes of the application. These factors made it unreasonable for the Tribunal in Fuduche to reject the psychiatrist's opinion.
    • 25. In the present case, the evidence of Mr Dunn was not in a field in which lay opinions could not be validly held. The opinion was formed in circumstances which Mr Dunn conceded reduced its value, and the opinion was sought for the express purpose of the application. In these circumstances, the unreasonableness which was found to exist in Fuduche does not exist in the present case.
11. In Fuduche, the court considered that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it. Among the circumstances of that case was the circumstance that a highly qualified psychiatrist had formed the opinion that the applicant’s sister had depression which would be adversely affected by the disruption of her relationship with her brother. The court also noted that the sister had twice attempted suicide and she was diagnosed as being at risk of doing so again. The court said:
    • It is difficult to imagine on what basis the opinion of [the psychiatrist] ... could possibly have been rejected.
12. Matters relating to depression and how it may be exacerbated are clearly matters of medical science on which medical science is able to offer a conclusion on the probabilities. Whether a person is “mentally incapable of understanding the nature and effect of the marriage ceremony” is not so straightforward.
13. The first respondent argued that capacity to marry is not simply a medical question and is not a question on which lay opinions cannot validly be held. The first respondent relied on Ghosn v Principle Focus Pty Ltd & Ors (No.2) [2008] VSC 574 at [79] where Forrest J considered a person’s capacity to give a power of attorney. His Honour held that the medical evidence was highly relevant to the question of the donor’s capacity. However, his Honour held that “the Court must be affirmatively satisfied, based on the medical and any other evidence, that the donor had the requisite capacity to understand” the relevant matters.
14. In Ghosn, the medical opinion was that the donor had the appropriate capacity. However, the court accepted lay evidence about conversations with the donor which pointed to “a clear lack of relevant understanding and cognitive function”: [102]. The court concluded that the donor did not have the requisite capacity. That is, the court considered the evidence as a whole, including both the lay and the expert evidence, and formed its own view about the donor’s capacity.
15. The first respondent also relied on the decision of Young CJ in Privet v Vovk [2005] NSWSC 1258 at [22]. In that case, the court considered whether a particular woman was “mentally incapable of understanding the nature and effect of the marriage ceremony”. There was medical evidence but, at [22], the court said the most significant piece of evidence was given by a marriage celebrant. The celebrant had refused to perform the marriage ceremony because, based on her conversations with the woman in question, she considered that she did not have the requisite capacity.
16. In AK & NC (2004) FLC 93-178; [2004] FamCA 1006, Chisholm J in the Family Court considered whether a particular woman was “mentally incapable of understanding the nature and effect of the marriage ceremony”. In that case, the woman in question was living in a nursing home and had dementia. A doctor gave evidence that she did “not have the capacity, due to her mental illness and dementia to give informed consent” to marriage. However, the court concluded, based on conflicting medical evidence as well as lay evidence about the woman’s conversations and actions that:
    • 170. In my view the evidence is consistent with the wife having an understanding that marriage to the husband involved some sort of public choice to be involved in life with him, and, circumstances permitting, going to live with him as man and wife. It is not clear to what extent she understood the precise legal consequences of marriage in relation to such matters as inheritance, maintenance, ownership of property, and her ability to live where she chose, but as earlier indicated the validity of a consent to marriage does not require such knowledge.
    • 171. In my view, therefore, the evidence is consistent with the wife having an understanding of marriage and its consequences, both in general and specifically for her.

The court dismissed the application for a decree of nullity.

17. These cases show that the question of a person’s capacity to marry, or to give a power of attorney, is not a question that is determined solely by medical evidence, but is a question for the court, or Tribunal, to determine, based on the totality of the evidence before it, both medical and lay.
18. Fuduche does not say anything different. In that case, the medical evidence was the proper subject of expert evidence and it was overwhelming. The court considered that it was irrational and unreasonable, in the circumstances of that case, not to decide the matter in accordance with the medical evidence.
19. In other cases, the expert evidence might be contradicted by other expert evidence, or it might have palpable deficiencies, or it might be based on a belief about the underlying facts that is contrary to the findings of the court or the Tribunal. These are all legitimate reasons for rejecting an expert opinion.
20. Accordingly, I do not accept that the court in the present case was bound to accept the opinion of Mr Lake, and was bound to disregard the other evidence in the case. On the contrary, the Tribunal was entitled to, and, indeed, required to consider all of the evidence in the case. For these reasons, I do not accept that the Tribunal took into account irrelevant considerations by taking into account the other evidence in the case. I do not accept that the Tribunal failed to take into account relevant considerations by giving the evidence of Mr Lake some weight, but not determinative weight.
21. In relation to the Tribunal substituting its own opinion for an expert’s, the applicant particularly relied on the fact that the Tribunal consulted a website endorsed by the Victorian State Government, namely, www.betterhealth.vic.gov.au, where there is a Fact Sheet on Intellectual Disability prepared in consultation with the Centre for Developmental Disability Health Victoria. The Tribunal noted that the Fact Sheet says that intellectual disability is generally classified as arising where a person has an IQ below 70 and significant difficulty with daily living.
22. The Tribunal is entitled to inform itself on matters as it sees fit. I do not see how consulting an authoritative website on health matters is any different to consulting an authoritative website on recent events in a particular country, as the Refugee Review Tribunal does regularly.
    I do not consider that consulting the website meant that the Tribunal was substituting its own lay opinion for expert opinion. The Fact Sheet also contained expert opinion.
23. In any event, the Tribunal’s conclusion that the applicant’s overall IQ was in the low average range, rather than the intellectual disability range, was in accordance with Mr Lake’s report. At CB437, Mr Lake said that the applicant’s Full Scale IQ was 83 and said that was in the low average range. Attachment 1 to Mr Lake’s report, at CB443, says a score of 80 – 89 is in the low average range.
24. In relation to the applicant’s claim that the Tribunal’s attribution of limited weight to Mr Lake’s report was unreasonable, the reality is that there were a number of deficiencies with that report. Mr Lake acknowledged that there were limitations in part of the test where those who are not proficient in English are concerned, and those limitations may have affected the applicant’s scores in that part of the test. The applicant is a person with limited English. Mr Lake did not use an interpreter when he administered the test because he thought the applicant’s English “was okay”. However, the applicant scored 71 (borderline) on Verbal IQ, where, presumably, proficiency in English might have made a difference, and 100 (average) on Performance IQ, where proficiency in English might not have been so significant. The applicant’s overall result of 83 (low average) might have been much higher if he had been given the assistance of an interpreter when undertaking the test.
25. Additionally, Mr Lake told the Tribunal that he had only discussed the concept of marriage very briefly with the applicant. Moreover, Mr Lake did not explain in his report what he considered to be the requisite capacity to enter into a valid marriage. It is by no means clear what he meant when he said that the applicant did not have the necessary capacity.
26. It is not clear whether Mr Lake was aware of the decided cases on capacity to marry, such as those mentioned above, or the following English cases, which deal with a slightly different test:
    1. Durham v Durham (1885) 10 PD 80 at 82, where Hannen P said:
       • it seems to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and a woman to live together, and love one another as husband and wife, to the exclusion of all others” (emphasis added); and
    2. Forster, Otherwise Street and Forster (1923) 39 TLR 658 at 661, where the following exchange is recorded:
       • Court: Did you ever know anybody who was in a condition to understand all the consequences of matrimony?
    • Medical witness: No, my Lord.
27. As it was not clear that Mr Lake’s opinion addressed the right question, and for the other reasons explained above, it cannot be said that it was unreasonable, in the Wednesbury sense, for the Tribunal to prefer the other evidence in the case to the opinion of Mr Lake.
28. The application must be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Rhonda Soans

Date: 30 July 2009