Abidi v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1380
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abidi v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1380
File number: MLG 641 of 2019 Judgment of: JUDGE SYMONS Date of judgment: 12 December 2024 Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant Partner (Temporary) (Class UK) Subclass 820 visa – where applicant sought to satisfy visa criterion through claim of non-judicially determined family violence – where applicant failed to attend hearing before Tribunal – where Tribunal made a decision on the review without taking any further action to allow or enable the applicant to appear before it – where applicant failed to meet prescribed evidentiary requirements – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5F, 360A, 362, 362B, 379A, 426, 426A
Migration Regulations 1994 (Cth), regs 1.23, 1.24. 1.25; sch 2, cl 820.211
Legislative Instrument IMMI 12/116
Cases cited: DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 303 FCR 466; [2024] FCAFC 75
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submissions: 3 December 2024 Date of hearing: 3 December 2024 Place: Melbourne Solicitor for the Applicant The applicant represented himself Solicitor advocate for the First Respondent Mr J McDonald, Clayton Utz Solicitor for the Second Respondent Submitting appearance save as to costs ORDERS
MLG 641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED ARSALAN ABBAS ABIDI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.Pursuant to Item 10 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the Second Respondent.
3.The application for judicial review filed on 7 March 2019 be dismissed.
4.The applicant pay the First Respondent’s costs fixed in the sum of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 7 March 2019, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 20 February 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa (visa). The Minister opposes the application. The Tribunal has filed a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Pakistan who arrived in Australia on 1 July 2014 on a student visa.
On 30 December 2014, the applicant applied for a Protection (Class XA) Subclass 866 visa. This application was refused, and the applicant lodged, but then withdrew, an application for merits review with the former Refugee Review Tribunal.
On 29 September 2016, the applicant applied for the visa, with the assistance of a migration agent (CB 1-23). The applicant identified his sponsor as a woman by the name of Ms Hussain, who was a national of Pakistan and an Australian Permanent Resident. The applicant and the sponsor married on 27 September 2016 after first meeting at Melbourne airport on 24 September 2016 (CB 33).
On 15 February 2017 the Department sent an invitation to the applicant to comment on adverse information it had received being that the applicant and sponsor were no longer living together and that the sponsor had withdrawn their sponsorship (CB 46-77). The source of the information was the sponsor. The applicant was given 28 days in which to provide any comment or further information, including information to support consideration of the grant of the visa despite the breakdown of the relationship.
On 17 March 2017, the applicant provided a response to the invitation to comment (CB 85-86). The response did not identify any alternative basis upon which the visa might be granted (in the absence of a valid sponsorship) but confirmed the cessation of the applicant’s relationship with his sponsor.
On 13 April 2017, the applicant’s newly appointed migration agent made a request to the Department for further time to provide information in response to the withdrawal of the applicant’s sponsorship (CB 87-88). The Department approved an extension of 28 days (CB 94).
On 16 May 2017, the applicant’s migration agent sent the Department a submission which recorded that the applicant sought to satisfy the criteria for the grant of the visa by making a non-judicially determined claim of family violence. The submission noted that the applicant had consulted his general practitioner and a psychologist but that he sought further time to obtain amended versions of the reports that both individuals had produced, noting that they were incomplete or did not comply with the requirement for a statutory declaration (CB 96-108). The submission attached various documents said to establish that the parties were originally in a genuine spousal relationship as well as a statutory declaration of the applicant dated 16 May 2017 that contained an allegation that the applicant had been subjected to family violence by his sponsor, a letter dated 16 May 2017 from clinical psychologist Joon Choi, letters from general practitioner Dr Kazmi dated 16 May 2017 and 27 July 2015 and two medical reports that concerned surgery performed on the applicant in July 2016.
On 6 June 2017, a delegate of the Minister made a decision to refuse the applicant the visa (CB 140-168). The delegate was not satisfied that the applicant was the spouse of the sponsor, as defined under s 5F of the Migration Act 1958 (Cth) (Act), before the relationship ceased. The delegate did not therefore assess the applicant’s claim to be the victim of family violence as the applicant did not, at any time, satisfy cl. 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 24 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 169-170). Although the application erroneously sought review of a “BS-801” visa, the applicant confirmed with an officer of the Tribunal that the application could be amended to seek review of the decision to refuse the visa (CB 171-172) and his application was formalised on 27 June 2017 (CB 174-175).
On 4 July 2017, the applicant sent the Tribunal a copy of the delegate’s decision (CB 182-212).
On 14 September 2017, the applicant appointed a new migration agent as his representative and authorised recipient (CB 213-214).
On 4 July 2018, the applicant appointed a different migration agent as his representative and authorised recipient (CB 215-217).
On 24 January 2019, the Tribunal sent the applicant (via his migration agent) an invitation to attend a hearing on 20 February 2019 (CB 218-228).
On 13 February 2019 and again on 19 February 2019, the Tribunal sent a message via SMS to the applicant’s mobile phone number which reminded him that his hearing was on 20 February 2019 (CB 229-230). The mobile number was the same as that recorded for the applicant on the Tribunal application form.
On 20 February 2019, the Tribunal convened a hearing, but the applicant did not appear. The Tribunal made a decision on the same date and produced a written decision record (D) (CB 236-243).
DECISION OF THE TRIBUNAL
The Tribunal identified the decision under review and confirmed that it had before it a valid application seeking review (D [1]-[2]).
The Tribunal noted that it had written to the applicant’s authorised recipient and registered migration agent on 24 January 2019 advising that it had considered all the material before it relating to the applicant’s application, but it was unable to make a favourable decision on that information alone. The Tribunal noted that it had invited the applicant to give oral evidence and present arguments at a hearing on 20 February 2019. Further, the applicant had been advised at that time that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice (D [3]).
The Tribunal noted that its registry had not received a response to the hearing invitation and the applicant did not appear before the Tribunal on the scheduled hearing date (D [4]-[5]).
The Tribunal recorded the following at D [6]:
As at the time of this decision the Tribunal has received no other communication from the applicant in regards to the hearing. The Tribunal has carefully considered whether to adjourn the review and invite the applicant to another hearing. However, taking into account that the applicant has provided no reasons why he couldn’t attend the scheduled hearing, nor has he requested additional time in order to prepare for an alternate hearing date, in the circumstances, and under s. 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal identified the issue in the case as the applicant’s claim that his relationship with his sponsor had ceased and he had been a victim of family violence.
The Tribunal identified the relevant law for the grant of a Subclass 820 visa and noted that in this case, the issue was whether the applicant met one of the alternate requirements, namely, cl. 820.221(3) which is concerned with an applicant, or a dependent child of the sponsor or applicant, having suffered family violence committed by the sponsor (D [9]).
The Tribunal noted that Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature (D [10]).
The Tribunal turned to the applicant’s claim that he was the victim of family violence committed by his sponsor and noted that because there was no evidence or claim that there had been court tested evidence, the applicant was required to provide the necessary evidence to establish a valid claim for family violence under regulation 1.24(b) (D [11]-[13]). In this context, the Tribunal noted that regulation 1.24 required a statutory declaration under regulation 1.25 and the type and number of items of evidence specified by the Minister, which, in this case, was identified in instrument IMMI 12/116 (D [14]).
The Tribunal then recorded the following (D [15]):
The applicant has not provided the immigration department or this tribunal with a Statutory Declaration from himself as required under the legislation. Accordingly, the applicant has not provided evidence in the nature and form required to make a valid claim of non-judicially determined family violence.
The Tribunal was satisfied “given all the above” that at the time of decision the applicant did not continue to be sponsored for the grant of the Subclass 820 visa by the sponsoring partner and could not satisfy the criteria in cl. 801.221(b). Further, the Tribunal was not satisfied that a valid claim had been presented in accordance with Division 1.5 of the Regulations such that the applicant had not made a valid claim of family violence under the Act with the consequence that he was unable to meet the requirements of cl. 820.221(3) for the grant of the visa (D [16]-[18]).
APPLICATION FOR JUDICIAL REVIEW
On 7 March 2019, the applicant filed an application seeking judicial review of the Tribunal decision. The application was accompanied by an affidavit affirmed by the applicant on 7 March 2019.
On 28 April 2021, Registrar Van Der Westhuizen made procedural orders including that the applicant file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of the application, any supplementary court book, and written submissions.
On 23 May 2024, Registrar Van Der Westhuizen convened a telephone mention at which the applicant and a representative of the Minister appeared. Orders were made including that the application be adjourned for final hearing on a date to be advised. A notation to the orders recorded that the applicant confirmed he had received a physical copy of the court book and the solicitors for the Minister would email him an electronic copy. It was also recorded that the parties had been put on notice that the matter may be listed for hearing in the second half of 2024.
As events transpired, the matter of the applicant’s judicial review hearing was listed before me for final hearing on 3 December 2024. The parties were informed of the listing by email sent on 18 October 2024.
The applicant did not file any material before this date. The Minister filed written submissions on 19 November 2024.
On 3 December 2024 the applicant represented himself at hearing and the Minister was represented by solicitor advocate, Mr McDonald.
Grounds of Review
The application document records the following grounds:
1. The Tribunal failed to take into consideration a relevant matter in its decision.
a. Tribunal’s decision did not take into consideration that the applicant was not in attendance at the hearing and that his claims could not be expanded upon.
b. This resulted in a decision affected by jurisdictional error.
2. The Tribunal failed to afford the applicant natural justice.
a. The Tribunal’s decision did not afford the applicant natural justice.
b. There were no attempts on the Tribunal’s behalf to further contact the applicant.
c. A decision from the Tribunal due to the applicants absence at the hearing denied the applicant natural justice.
Ground one – failure to consider relevant matters
When invited to address this ground, the applicant told the Court that his claims of family violence were ongoing and that he would like the opportunity to present them (and his case) better.
The applicant said that he was not aware of the Tribunal hearing and that had he been, he would certainly have attended. The applicant said that he had not received the text messages sent as reminders about the hearing. The applicant said that he had presented “enough proof”.
The Minister submitted that the Tribunal had considered all the relevant material before it with the question of relevance to be assessed having regard to the issues that were before the Tribunal. Where the applicant had made a claim to have suffered non-judicially determined family violence, the dispositive issue became whether he had satisfied the evidentiary requirements contained in regs 1.23-1.25.
The Minister noted (as is the case) that regulation 1.24 specifies that the evidence mentioned in reg 1.23(9)(c) must be:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) (paragraph 1.24(a)); and
(b)the type and number of items of evidence specified by the Minister in writing for paragraph (b) (para 1.24(b)).
The Minister submitted that the reasoning of the Tribunal recorded at [15] (reproduced at [25] above) was unassailable and properly reflected the evidence that was before it because the statutory declaration provided by the applicant to the Department did not include a minimum of two items of evidence and no more than one of each type of evidence as specified in Schedule 1 to IMMI 12/116.
I raised with the Minister’s representative that the reasons at [15] suggested that the Tribunal had proceeded to determine the review application in ignorance of the fact that the applicant had provided a statutory declaration that was capable of satisfying reg 1.24(a). The Minister invited the Court to take a beneficial approach to the construction of the Tribunal’s reasons but submitted, in the alternative, that in circumstances where the applicant had not produced any evidence capable of satisfying reg 1.24(b), the Tribunal’s conclusion that the applicant had not provided evidence in the nature and form required to make a valid claim of non-judicially determined family violence was correct and any error on the part of the Tribunal relating to its treatment of the applicant’s statutory declaration was immaterial.
I accept the submission of the Minister as to materiality. On my review of the court book, I am unable to identify any documents that were before the Tribunal that were capable of satisfying reg 1.24(b), by reference to IMMI 12/116. As I recorded earlier, the applicant in submissions to the Department acknowledged that the material he had supplied from his general practitioner and psychologist was deficient and required amendment before it could satisfy the non-judicially determined family violence evidentiary requirements. The applicant did not produce any further material, either at the delegate stage or in connection with his review application to the Tribunal.
I can appreciate however that the applicant, on reading the decision record, might well have formed the view that the Tribunal did not have a complete appreciation of the material that he sought to rely on in support of his claim of non-judicially determined family violence. Paragraph [15] of the reasons is unambiguous. It records a finding by the Tribunal that the applicant had not provided the Department or the Tribunal with a statutory declaration from himself as required under the legislation. This was incorrect. Furthermore, nowhere in the reasons does the Tribunal identify and evaluate the other documents that were provided by the applicant in support of his family violence claim.
Ground two – failure to afford the applicant natural justice
The applicant’s complaint that he was denied an opportunity to attend the Tribunal hearing raises several issues that the Minister, as model litigant, fairly raised with the Court.
The first was whether the conditions for the exercise of the power in s 362B(1A)(a) of the Act were engaged and the second was whether the exercise of the power by the Tribunal was legally reasonable.
It is the case that in circumstances where an applicant for review under Part 5 of the Act is invited to appear before the Tribunal but does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear, the Tribunal has a discretion to exercise one of two powers:
(a)pursuant to s 362B(1A)(a), the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)pursuant to s 362B(1A)(b), the Tribunal may dismiss the application without any further consideration of the application or information before the Tribunal.
Here, although the Tribunal did not identify precisely the power that it sought to exercise (refer D [6]) it is clear enough that it was proceeding under s 362B(1A)(a).
The Minister submitted that the preconditions for the exercise of this procedural discretion were engaged in this case where the applicant (through his authorised recipient) had been invited to a hearing and where he had failed to attend at the appointed time. The Minister further submitted that the reasoning of the Tribunal, encapsulated in D [6], exposes an evident and intelligible basis for the exercise of the power, being that the applicant had not made a request for an adjournment and had provided no explanation for his failure to attend the hearing.
As far as the applicant, in his grounds of review, referred to the failure of the Tribunal to make further attempts to contact him, the Minister submitted that such steps were not required following the applicant’s non-appearance at the hearing. The Minister referred the Court to DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75 where at [48] the Full Federal Court expressed the view about the now repealed but analogous s 426A(1A) that it “appears as part of a fairly detailed regime setting out what the Tribunal needs to do in order to give proper notice of a hearing and the consequences that arise if, with proper notice having been given, the review applicant does not attend” and that “[t]hese features make it difficult to accept that there are circumstances in which the Act implicitly requires, as a condition of a valid exercise of s 426A(1A) or (1E), inquiries to be made by the Tribunal about the review applicant’s whereabouts”.
I accept that the conditions for the exercise of the power in s 362B(1A) were engaged in this case. The evidence before the Court is that the notice of invitation to appear was sent by email to the last email address provided to the Tribunal by the recipient in connection with the review (consistent with s 379A(5)(d)). The notice gave at least the prescribed period of notice and contained a statement of the effect of s 362B (complying with ss 360A(4) and (5)).
The applicant suggested that he did not receive notice of the Tribunal hearing, either through his authorised representative or by means of the SMS messages sent by the Tribunal. However, in the absence of any evidence even remotely indicative of some operative fraud, there is no consequence that flows from this contention.
The second issue is whether the exercise of s 362B(1A) was in this case legally reasonable. In this context, the Minister referred the Court to the decision of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975. In DNK17, the appeal judge (Horan J) had been required to determine whether it had been legally unreasonable for the Tribunal to make a decision on the review under (the now repealed) s 426A(1A)(a) of the Act (the analogue to s 362B(1A)), rather than dismissing the application under s 426(1A)(b) of the Act, which would have preserved for the appellant a right of reinstatement. His Honour decided that it had been unreasonable to proceed under the former power and to fail to explain why it had chosen to do so in preference to the other (less definitive) option.
The Minister acknowledged that the Tribunal in this case had the option to proceed under s 362(1A)(b) when the applicant failed to appear at the scheduled hearing which would have produced different consequences for his application. However, the Minister defended the Tribunal’s decision to make a decision on the review including, because the facts in this case were distinguishable from those in DNK17.
The Minister submitted that contrary to the applicant in DNK17, the applicant had not engaged at all with the Tribunal (apart from appointing the third and fourth representatives), and did not seek an adjournment of the hearing before the Tribunal, which fact the Tribunal expressly considered at D [6]. The Minister submitted it to be further significant that the decision in DNK17 related to a Part 7 review of a decision not to grant an applicant a protection visa, as opposed to a Part 5 review of a decision not to grant the applicant a temporary visa.
In DNK17, the Federal Court considered it a matter of some significance that although the appellant had ultimately failed to appear at a scheduled hearing, he had made two requests for an adjournment, both of which had been granted and a third request that was denied and notified on the morning of the adjourned hearing. These facts, which suggest an ongoing preparedness and intention to engage with the review process, are absent from this case.
While the reasons given by the Tribunal might generously be described as economical, they plainly disclose a view taken that there would be little to be gained from affording the applicant a further opportunity to participate in the review process when his actions (or inactions) to date had not disclosed any intention to do so. I accept in these circumstances, and for the reasons given by the Tribunal, that no error arose from the Tribunal exercising its power to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
ORDERS
Where I am unable to identify any jurisdictional error in the decision of the Tribunal, I will order that the application filed on 7 March 2019 be dismissed.
I will make a further order that the applicant pay the Minister’s costs fixed in the amount of $7,467, The Minister sought costs in this amount on the basis that this reflected the scale amount in item 3 of Division 1 in Part 2 of Schedule 2 to the (now repealed) Federal Circuit Court Rules 2001 (Cth) as at 6 February 2019. I consider that a costs order in this amount is appropriate.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 12 December 2024
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