Minister for Immigration & Multicultural & Indigenous Affairs v Kodama [2003] FCA 510

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Kodama

[2003] FCA 510 MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v NOBUKO KODAMA N 1385 of 2002 JACOBSON J 26 MAY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1385 of 2002

On appeal from the Federal Magistrates Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

APPELLANT

AND: NOBUKO KODAMA

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 26 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Magistrate be set aside, and that there be substituted an order that the application be dismissed with costs. 3. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1385 of 2002

On appeal from the Federal Magistrates Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

APPELLANT

AND: NOBUKO KODAMA

RESPONDENT

JUDGE: JACOBSON J

DATE: 26 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an appeal from a judgment of Driver FM delivered on 29 November 2002 declaring that a decision of the Migration Review Tribunal ("MRT") made on 20 May 2002 was invalid and of no effect. 2 The MRT's decision affirmed a decision of a delegate of the Minister given on 6 December 2000 that the respondent was not entitled to the grant of a spouse (migrant) (class BC) visa. 3 The respondent is a Japanese national. She applied for permanent residency in Australia in 1996 upon the basis that she was the spouse of Mr D R Filer ("the nominator"). She was not married to the nominator but the definition of "spouse" in the Migration Regulations 1994 (Cth) ("the Regulations") includes persons who are in a de facto relationship. The respondent claimed to be in a de facto relationship with the nominator. 4 The learned Magistrate found at [27] that the MRT failed to establish an essential jurisdictional fact because it set out in its decision the wrong paragraph of the definition of "spouse", namely the definition which applied to married persons rather than the paragraph which applied to persons in a de facto relationship. He found that this was sufficient to vitiate the decision of the MRT within the reasons advanced by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 ("NAAV"). 5 The learned Magistrate also found at [19] – [20] that the respondent was denied procedural fairness because the MRT failed to direct her attention to all relevant criteria for the class of visa she was seeking. The criterion which was omitted was a paragraph of the Regulations which enables a person to meet the requirements where the spousal relationship has ceased as a result of domestic violence. However, Driver FM held that the denial of procedural fairness was not a ground of review in light of the decision in NAAV. 6 Three questions arise on the appeal. The first question is whether the Federal Magistrate was correct in finding that the MRT committed a jurisdictional error by referring to the wrong paragraph of the definition of "spouse". 7 The second question is whether the MRT failed to exercise jurisdiction by failing to consider whether the criteria for the domestic violence exception contained in the Regulations were satisfied. This question was raised by way of a notice of contention. 8 The third question, also raised by way of notice of contention, is whether there was a denial of procedural fairness by reason of the failure of the MRT to direct the respondent's attention to the provisions of the Regulations which enable an applicant to satisfy the necessary requirements where a relationship has ceased as a result of domestic violence. The decision of the MRT 9 The delegate's decision which was reviewed by the MRT proceeded upon the basis that the respondent's application was made under Part 801 of Schedule 2 of the Regulations. 10 The MRT noted at [8] that in order to be granted a sub-class 801 visa, the applicant must satisfy the criteria stated in Clause 801.221 at the time of the decision. 11 The MRT set out at [8] the following parts of that clause as follows:- "801.22 Criteria to be satisfied at time of decision