Fang Li Mizzi v Immigration Review Tribunal (Kim Ross) & Anor [1997] FCA 328

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 331 of 1996 ) GENERAL DIVISION )

BETWEEN: FANG LI MIZZI Applicant AND: KIM ROSS, sitting as Immigration Review Tribunal First Respondent MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Respondent

CORAM: EMMETT J PLACE: SYDNEY DATED: 27 FEBRUARY 1997

EX TEMPORE REASONS FOR JUDGMENT There is presently before me the hearing of proceeding NG 331 of 1996, being an application for review of a decision of the Immigration Review Tribunal. This is an application brought under section 476 of the Migration Act for review of a decision given by the Immigration Review Tribunal on 29 March 1996. That was a decision under division 3 of part 5 of the Migration Act 1958. The decision affirmed the decision of the Minister not to grant the applicant a class 820 entry permit. The grounds presently stated are first that the Tribunal failed to act according to substantial justice and the merits of the applicant's case; second, that procedures that were required by the Migration Act and the regulations to be observed in connection with the making of the decision were not observed, and, third, that there was no evidence or other material to justify the making of the decision. The first ground is not open as a separate ground under section 476 of the Migration Act although failure by a Tribunal to comply with the requirements of the Act to act according to substantial justice and the merits of the case is argued to be a failure to observe relevant procedures. In the course of explaining the second and third grounds, the applicant, who appears in person assisted by an interpreter, made an allegation that a solicitor was paid to give false evidence. I then invited the applicant to indicate whether she wished to amend the grounds seeking a review of the Tribunal's decision in order to rely on paragraph (f) of section 476(1) to the effect that the decision was induced or affected by a fraud. The applicant indicated that she did wish to make such an amendment. I invited her therefore to formulate the grounds in detail and to indicate the reason why that ground was not raised initially. The applicant then indicated that the particulars of false evidence upon which she would rely were that her ex-husband's solicitor deceived the Tribunal when he wrote to the Tribunal concerning an apprehended violence order which had been obtained by the applicant. Second, reference was made to alleged false evidence of the applicant's ex-husband's brother. Third, reference was made to a doctor's report relating to the mental ability of her ex-husband. I invited the applicant to give sworn evidence as to the facts relating to her discovery of those matters. In the witness box, in answer to questions from counsel for the Minister, it became apparent that the matters relied upon by the applicant are matters that were known to her at the time of the Tribunal hearing and that she appears to have had the opportunity of challenging those matters before the Tribunal. They are matters in respect of which the Tribunal either made an adverse finding or did not need to make a finding. It also emerged that, in connection with the preparation of the application to this court, the applicant was assisted by a legal aid agency in Castlereagh Street and that the applicant had had the opportunity of discussing with an individual in that legal aid agency, the grounds upon which the application would be made. It also emerged from the answers given to questions put to the applicant that there was no new material which had come to her attention since the application was made. It seems to me that the allegation of false evidence simply involves putting in issue matters which were before the Tribunal and in respect of which an adverse determination was made. The particulars that are furnished do not appear to me to be capable of constituting grounds that the decision of the Tribunal was induced or affected by fraud. Further, there is no satisfactory explanation as to why, if there is any substance in the grounds, they were not raised in the first place. In those circumstances I refuse the application for leave to amend the grounds. I will therefore give a decision in relation to the proceedings. When the matter was called this morning, the applicant appeared in person and it became apparent that her comprehension of English and the procedures of the court were very limited. I therefore suggested that the Minister endeavour to make arrangements for the applicant to be assisted by an interpreter. The proceedings were then adjourned until 12.30 this afternoon and at that time there was in attendance Ms S. Chan, an accredited interpreter, who produced authority of the National Accreditation Authority for Translators and Interpreters, number 11286. Ms Chan sat at the bar table with the applicant and appeared to translate for her the comments which I have made and the questions which I have put from the bench. Despite extensive questioning of the applicant, there has not emerged any basis, it seems to me, that could support either of the grounds relied upon which appear in paragraphs (a) and (g) of section 476(1). Certainly it appeared that the applicant did not comprehend the limited nature of the power of review which this court has under section 476. On many occasions the applicant sought to call in question the decision made by the Tribunal on the basis that the decision was wrong. The primary determination made by the Tribunal was that the applicant did not satisfy the requirements of regulation 126(1)(a)(i)(E), namely, that the applicant is the spouse of an Australian citizen who has a marital relationship with the applicant that is genuine and continuing. For the reasons outlined in the statement of decision and reasons for decision, the Tribunal concluded that, while there was a marriage ceremony entered into between the applicant and an Australian citizen, the Tribunal was not satisfied that the marital relationship between that Australian citizen and the applicant was genuine and continuing. I have read the statement of decision and reasons for decision. There does not appear to me to be in that document material which would support a review of the decision on ground (g), namely that there was no evidence or other material to justify the making of the decision. That ground, of course, is itself limited by section 476(4). I could not on a reading of the decision find any particular matter which it was necessary to establish, for which it might be said that there was no evidence or other material from which that matter could be established, nor could it be said that the decision was based on the existence of any particular fact which it might be shown did not exist. In those circumstances there did not appear to me to be any basis for impugning the decision on ground (g). There was no evidence before me as to the procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision and accordingly there was no basis for concluding that any of those procedures were not observed. It is troubling when an applicant appears in person and clearly has no real comprehension of the procedures of this court and no apparent comprehension of the intricacies of the Migration Act. However, this matter has been before the court on a number of occasions. On one occasion an adjournment was granted while the applicant sought legal aid. Further, the applicant gave evidence before me today that she had the assistance of a legal aid agency in connection with the preparation of her application. Reference is made to that above in my reasons for refusing leave to amend the application to rely on paragraph (g) of section 476(1). The Minister is entitled to have the matter disposed of. If I thought, from a consideration of what has been said by the applicant and what I have read in the statement of decision and reasons for decision, there was any prospect of any ground in section 476(1) being made out, then I would be reluctant to proceed without ensuring that the applicant was given the opportunity of taking legal advice in relation to that matter. However, as I have said, I could see nothing in the decision, although without the assistance of counsel or solicitor that is not to say that there could not be something there. In the circumstances, nothing is to be gained by further delaying the finalisation of the proceedings and the appropriate course is to dismiss the application. I should say, however, that the applicant should understand that I am not making any comment at all about the merits of her case. The statute simply does not give this Court the jurisdiction or power to inquire into the merits or substance of the case before the Tribunal except on the very limited grounds set out in section 476(1). Nor should my comments be taken to suggest that there is any basis for impugning the decision of the Tribunal. In the circumstances I dismiss the application. I order the applicant to pay the respondent's costs. I certify that this and the preceding five pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett. Associate: Dated: 27 February 1997 Heard: 27 February 1997 Place: Sydney Decision: 27 February 1997