Bunnag v Minister for Immigration & Citizenship & Anor [2008] HCATrans 299 (8 August 2008)

Last Updated: 13 August 2008

[2008] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P11 of 2008

B e t w e e n -

NAVAPHAN BUNNAG

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 8 AUGUST 2008, AT 12.51 PM

Copyright in the High Court of Australia

MR T.V. HURLEY: May it please your Honours, I appear on behalf of the applicant in this matter. (instructed by Mark Andrews & Associates)

MR J.D. ALLANSON, SC: May it please the Court, I appear on behalf of the first respondent. (instructed by the Australian Government Solicitor - Perth)

GUMMOW J: There is a submitting appearance from the second respondent, which is the Tribunal. Yes, Mr Hurley.

MR HURLEY: Your Honour, the applicant seeks special leave to appeal against the decision of the Federal Court, asserting that that court and the Federal Magistrates Court erred in failing to detect jurisdictional error in the decision of the Migration Review Tribunal. The grounds of appeal relied on all centre around, your Honour, the treatment by the Tribunal of the mental health issue of my client’s wife, or my second client.

The Tribunal accepted that she had attended at the hearing on 9 November to give evidence, but did not give evidence due to her condition at the time, and the Tribunal hearing on 9 November concluded on the basis that medical reports would be obtained from a hospital. The Tribunal accepted that this was a relevant matter because on 5 December it invited my clients - who were then unrepresented and appearing with my client’s employer, a Mr Chu, as a friend – on 5 December to provide information, including details of the sponsor wife’s medical condition and the periods of time on which she had been hospitalised.

Your Honours, section 359(1) of the Migration Act provides where the Tribunal seeks information it shall have regard – it “must have regard to that information in making the decision on the review”. The information that was supplied is set out in paragraphs 42 to 46 of the reasons of the Tribunal at appeal book page 9, and in a series of letters from Mr Chu the Tribunal was told that the sponsor wife was an in-patient in a facility and various doctors asserted that they could not provide medical reports until she had been discharged, or presumably cured, as she could not make an informed decision regarding release of her medical record. The Tribunal received the last of these communications on 31 January 2006.

The point in the special leave application, your Honour, is that, armed with all of this information, the Tribunal did nothing. It did not consider whether to reconvene; it did not consider whether to invite the applicant to a new hearing. It did not consider whether it should use the powers to subpoena given to it under the Act, but it simply proceeded a month later to turn its mind to another issue relating to home visits 18 months earlier, seek information on that, which was provided, and then make a decision in March 2006.

In making its decision, the Tribunal accepted - in paragraph 56 which is at application book page 13 – that:

There is little evidence before the Tribunal of the sponsor’s commitment to the review applicant as his wife. While the Tribunal accepts that the indications are that the sponsor has some unspecified health issues, and that this may play some role in the lack of evidence –

I underline that, your Honour: this may play some role in the lack of evidence –

there is very little evidence before the Tribunal from which an inference of mutual commitment could be drawn. Given the lack of evidence about the nature of the sponsor’s illness, the Tribunal can only place limited weight on this factor.

KIEFEL J: All right. But Justice McKerracher’s judgment at paragraphs 84 and 85 take up from that point, do they not?

MR HURLEY: They do.

KIEFEL J: Because the view his Honour takes of the Tribunal’s approach is that the problem or the medical evidence about mental health was just one of the issues upon which there was an absence of evidence, and it could not be regarded as critical in the way in which the Tribunal approached the matter.

MR HURLEY: Your Honour, on that point, whether it is critical is one of the grounds of appeal. In the decision in Le reciting Justice Wilcox there are terms – Justice Wilcox prefers the term – at application book page 59 he concluded that it was enough if the issue was centrally relevant. This is at application book page 59, line 46 where, as Justice Kenny on the same page of the third line required it to be a critical issue. So Justice Kenny has put a gloss on what Justice Wilcox concluded. Justice Wilcox would have accepted that it was a centrally relevant issue. Justice Kenny has elevated it to a critical issue.

KIEFEL J: But on either approach, this case is distinguishable from Le, as Justice McKerracher points out in the following paragraph, 86.

MR HURLEY: No. With respect, your Honour, if one goes to the reasons of the Tribunal where the Tribunal considers the four statutory elements that are to be considered in determining a valid marriage – at application book pages 12 to 13 – at application book page 12, of the four characteristics, “financial aspects of the relationship” is not a matter that relates to emotions or health. “The nature of the household”, in the second paragraph at about line 46, the Tribunal observes:

No medical evidence has been provided to the Tribunal which indicate the nature or extent of the sponsor’s ‘conditions’.

The Tribunal goes on at paragraph 56 and also at paragraph 63 to observe that these “unspecified health issues . . . play some role in the lack of evidence”. The medical issue is in the second factor. Over the page, your Honour, in “The social aspects of the relationship” – at the top of application book page 13, line 11 the sponsor’s illness is a factor raised there. In the final factor, the nature of the commitment and the third line in the first short paragraph, again the sponsor’s illness is a factor that is relevant in determining that, or claimed to be. At line 28 her illness which, if I go to the bottom of the page at paragraph 58, the Tribunal accepts, the Tribunal accepts that there is an illness – that is also relevant.

KIEFEL J: No, but the view that the Tribunal takes is that, accepting that there are some health issues of that nature, there are so many other indications relevant to the criteria about the relationship it considers that it could not possibly overcome – it cannot give much weight to it, that is what it is saying in paragraph 56.

MR HURLEY: It is, your Honour, and the effect of the judgment is that in determining a marital relationship, one half of that relationship has never been heard, and the Tribunal knew that that half of the relationship could not be heard because that person was involuntarily detained or they used the words “remanded in a psychiatric facility”. Therefore, your Honour, that factor does permeate the analysis in the facts of this case of all of the statutory factors leading to the spouse relationship.

To say that there is no evidence about that issue, accepts that it was, in our submission, the failure of the Tribunal when it received the information to look at it and understand it and act on it in a real and meaningful way. When it asked for information about medical conditions, it received specific information, and at the conclusion of paragraphs 42 to 46, having been told the parties are unable to provide information because a woman is unwell and is detained, and it cannot be done, there is complete silence.

The Tribunal did absolutely – it did nothing. It did not consider whether to reconvene or inform the applicant of its powers – the applicant being a lay person – and the response to Justice McKerracher’s observations, at paragraph 58, is that it begs the question to say that the little evidence was only one factor. The evidence that might have been forthcoming could have been overwhelming.

So if I can just continue to make – one of the points that is raised, the fourth special leave question, is the role of the affidavit evidence before the Federal Magistrates Court and in the Federal Court. That evidence was never tendered in an attempt to persuade either court to exercise merits review. It was tendered to establish three things: first, why there was no transcript, which is because the machinery did not function; secondly, to provide evidence of what the sponsored wife would give were the matter to be remitted; and thirdly, to establish that in the context of the MRT’s decision, the sponsored wife was involuntarily detained between 10 December 2005 and 30 January 2006, which was precisely the time the Tribunal was requiring her husband, and his employer, to obtain details of her confinement, her involuntary treatment and her conditions.

We submit that this matter does raise questions as to what is the role of the Tribunal in a situation where, it being an inquisitorial Tribunal and not one determining adversarial litigation, whether it does commit jurisdictional error by simply ignoring the material that is provided to it, just simply not responding at all. Having accepted that the material was relevant, having invited the parties to respond to it, whether the Tribunal by simply repeating the information, as it did, between paragraphs 42 and 46, it is sufficient to discharge its duty, to have regard to it, that duty being imposed by section 359(1).

GUMMOW J: Is this ground 5?

MR HURLEY: It is grounds 1 and 2, your Honour. That was ground 3, failing to have regard.

GUMMOW J: Yes.

MR HURLEY: Failing to have regard to the information that was in fact provided. It appears as in fact paragraph 4 on application book page 80. Whether or not the Tribunal did discharge the duty imposed on it to have regard to the response to the notice of 5 December. The ground that is numbered 2 on the same page, the first ground, is whether the Tribunal made a jurisdictional error by making its decision.

GUMMOW J: Yes.

MR HURLEY: Your Honour, the powers given to the Tribunal that are listed in those grounds of review are various. To invite hearings which involved giving an applicant notice that he, she or it may seek to have the presiding member issue a subpoena, ask the secretary to make inquiries, and none of those – the reasons for the Tribunal do not disclose that having received the information that it did it did anything in response, even to simply defer making a decision until it could be more satisfied that the dust had settled.

But making the decision that it did, when it did, with the last material submitted to it, including medical advice from mental health services that the woman was detained and unable to make an informed decision regarding release of her medical record, we submit constitutes a jurisdictional error.

Your Honours, Justice Gummow and Justice Hayne, have in SGLB observed that the Tribunal is under no duty to inquire, and it is not asserted that the Tribunal is under a general duty to inquire. But when the Tribunal accepts issues are relevant, invites comment under section 359, receives the comments that it did that the information is unavailable for the reasons given, which could be readily addressed by either the Tribunal reconvening or responding, using the powers that it has, we submit it does not discharge its jurisdiction to determine the review properly by simply repeating that material and not making any response or considered judgment in response to it, save to accept that as a result of that there is insufficient evidence to – in the words of the Tribunal – that this may have played some role in the lack of evidence, and then to base its own decision on the fact that there is no evidence where the Tribunal has created as it were a self-fulfilling prophecy in creating that by not availing itself of the powers given to it.

Your Honours, there are other arguments in the written appeal – written outline, and I do accept that the first three points are different ways of looking at the same point, which is the response to the sponsor wife’s medical condition, but we submit that special leave should be granted to address – or so the Court can consider what is the disharmony and views set out in the consideration of the decision in Le between Justice Kenny and Justice Wilcox, or because the interests of justice require it, and because the application by this person’s spouse for a visa has been determined without the person, without my client’s wife, or my client who is the wife, ever being heard, because in the circumstances that prevailed she was involuntarily detained in a psychiatric facility at the relevant time.

The Tribunal proceeded to make a decision, if not fully knowing that, knowing enough of it to be on notice that it was an issue that it should conclude or determine or make a finding about rather than simply accept that it may play a role in the lack of evidence that formed the basis of the Tribunal’s own decision.

Your Honours, unless I can be of assistance they are the basis on which we seek special leave.

GUMMOW J: Thank you, Mr Hurley. We do not need to call on you, Mr Allanson.

Counsel for the applicant has fully articulated the proposed grounds of appeal but nevertheless we consider that there are insufficient prospects of success to warrant a grant of special leave in this matter. Special leave is refused with costs.

We will adjourn to reconstitute for the last matter on the list.

AT 1.08 PM THE MATTER WAS CONCLUDED