Alam v Minister for Immigration
[2012] FMCA 616
•9 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALAM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 616 |
| MIGRATION – MRT decision – Spouse visa where domestic violence – proof by apprehended violence order – alleged perpetrator required to have been given an opportunity to be heard – Court directions listing appointing a contested AVO hearing – evidence that ex parte AVO was ‘continued’ – Tribunal did not fail to consider – no evidence of the making of a new AVO – no error made by Tribunal – application dismissed. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), regs.1.23(1), 1.23(1)(d), 1.23(1)(f), 1.23(1)(g), 1.23(1A), Sch.2, cll.100.221, 100.221(4)(c)(i) |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 |
| Applicant: | FASIUL ALAM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2407 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 9 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs, including reserved costs, in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2407 of 2011
| FASIUL ALAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Alam seeks judicial review of a decision of the Tribunal, which on 26 September 2011 affirmed a decision of a delegate made on 21 February 2011 to refuse to grant him a permanent residence ‘spouse’ visa. These decisions were made because he did not satisfy the criteria which allow the visa to be granted to an applicant who is no longer in a relationship with his or her partner, but was subjected to domestic violence by the partner. The Migration Regulations allow domestic violence to be established either by tender of defined species of court orders, or by prescribed forms of evidence of a ‘non‑judicially determined claim of domestic violence’. Mr Alam’s grounds of review focus only upon the Tribunal’s finding of the absence of a relevant court order, and not upon its obviously correct conclusion that Mr Alam had not presented the alternative prescribed evidence.
Mr Alam is a national of Bangladesh, who came to Australia on a visitor’s visa in 1998. Over the subsequent eight years he unsuccessfully litigated his entitlement to a protection visa. In 2006 he married an Australian citizen, Ms Razia Islam, shortly after they both divorced their previous spouses. Mr Alam returned to Bangladesh in July 2006, to allow his solicitor to lodge an application for an off‑shore spouse visa at the Immigration office in Dhaka. His solicitor did so on 21 September 2006, with supporting certificates and statements showing a genuine and continuing marital relationship with Ms Islam.
Under the scheme of the Migration Regulations at the time and currently, applicants for permanent resident spouse visas were required simultaneously to apply for a temporary residence visa subclass 309, and a permanent residence visa subclass 100. Decision‑making in relation to the permanent visa was not permitted to occur until the lapse of two years. In effect, that two year period gave the parties an opportunity to establish at time of decision on the resident’s visa that they still maintained a genuine and continuing spousal relationship.
In Mr Alam’s case, a delegate was satisfied as to his qualifications for the temporary visa. The visa was granted on 24 June 2007, and allowed and required Mr Alam to return to Australia to resume his cohabitation with Ms Islam. He did so, re‑entering Australia on 17 July 2007.
Shortly before the relevant two year period had lapsed, Mr Alam’s solicitor was invited by the Department of Immigration to submit documents establishing the continuance of the spousal relationship for the purposes of decision‑making on the permanent visa. He did so by letter dated 22 October 2008, which included declarations by Mr Alam and Ms Islam confirming that they were currently living together in a marital relationship.
However, in fact the marriage was falling apart. On 9 March 2009, the Department wrote to Mr Alam’s solicitor informing him that “the Department has been advised that the relationship on which Mr Alam’s application was based is no longer continuing”, and inviting his client’s response.
The Department appears to have been informed that Ms Islam had obtained an interim apprehended violence order against Mr Alam following a domestic incident and a complaint to the police in May 2008. The Department later received a copy of an order made at the Kogarah Local Court on 9 April 2009, in which Ms Islam is the ‘protected person’ and Mr Alam is the defendant. The order is headed “Final Apprehended Violence Order” under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and states:
TERMS OF FINAL ORDER
------------------------------------
TO THE DEFENDANT:
The Court has made an Apprehended Violence Order against you in the following terms:
This Order is in force for a period of 2 YEARS
This order remains in force until it is revoked or a further order made by the Court becomes effective.
MANDATORY ORDERS:
1.a.The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.b.The defendant must not engage in conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.c.The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
ADDITIONAL ORDERS
7.The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative.
13.Other Orders: 3. THE DEFENDANT MUST NOT ENTER THE PREMISES AT ST VINCENTS PRIVATE HOSPITAL DARLINGHURST 4. THE DEFENDANT MUST NOT GO WITHIN 100 METRES OF THE PREMISES AT [ADDRESS]
That order noted: “THE DEFENDANT WAS PRESENT IN COURT”.
Three days before the final order was made in Ms Islam’s AVO matter, Mr Alam had himself attended the Local Court at the Downing Centre, where he had been issued an “Interim Apprehended Violence Order” under the same legislation, directed at Ms Islam. That document is dated 6 April 2009 and states:
TERMS OF INTERIM ORDER
------------------------------------
TO THE DEFENDANT:
The Court has made an Apprehended Violence Order against you in the following terms:
This order remains in force until it is revoked or a further order made by the Court becomes effective.
MANDATORY ORDERS:
1.a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.b. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
ADDITIONAL ORDERS
--- * Nil * ---
THE DEFENDANT WAS NOT PRESENT IN COURT
**NOTE** :It is not a contravention of this interim order to attend Court ordered mediation.
TO THE DEFENDANT:
YOU ARE DIRECTED TO ATTEND THE LOCAL COURT
AT:
143-147 LIVERPOOL ST, SYDNEY
ON:
06/05/2009
TIME:
09:30am
This Interim Apprehended Violence Order (AVO) has been listed before the Court. The Court may vary or revoke the Interim Order or make a Final Order.
If you fail to attend the court may make orders against you or issue a warrant for your arrest to bring you before the court.
[Signature]
Registrar of the Court at LEVEL 4 DOWNING CENTRE SY
On 20 April 2009, Mr Alam’s solicitor responded to the Department’s invitation to comment:
We refer to the Department’s letter of 9 March. We confirm that the relationship between the applicant and his wife has broken down. Proceedings are on foot in the Local Court at Downing Centre in relation to domestic violence and we enclose certified copy of the interim order made by the Court. The case is listed for hearing on 6 May and we anticipate on that date that a permanent order will be made. The applicant will then be asking the Department to continue to process and approve his application pursuant to Regulation 100.221(4)(c)(a)(i) and Regulation 1.23(1)(d).
We will advise the Department after the next hearing and trust that no decision will be taken by your office in the meantime. Should you have any queries, please advise. …
However, the solicitor later provided no further evidence as to the proceedings at the Downing Centre Local Court, other than was provided in a letter dated 20 January 2010:
We refer to previous correspondence. We advise that our client was not able to obtain a permanent order from court in relation to domestic violence. His wife contested the proceedings and, in view of the costs involved, our client was faced with no other option than to withdraw the proceedings.
We enclose report received from Dr K Viswanath dated 10 December 2009 and psychologist’s report from John Martin dated 30 November 2009, both of which address the mental health state of our client and provide corroborative support of his belief that he was the victim of domestic violence.
In the circumstances we are instructed to request the Department to refer our client’s claims in relation to domestic violence to an Independent Expert with a view to the expert providing an opinion to the Department that family violence has occurred. Our client will be happy to attend an interview with the expert for this purpose.
We await the Department’s advice.
Similar information was also provided to the Department in a letter from the solicitor dated 19 April 2010:
We advise that our client’s relationship with his sponsoring partner has now reached a point where she has filed an application for divorce. The divorce hearing is listed on 22 April 2010.
Our client attempted to obtain a permanent AVO order against his wife in proceedings, but because of her opposition to the application, he decided to withdraw the application. We now write to the Department to specifically request the Department to refer the issue as to whether or not our client suffered domestic violence, as defined, to an independent assessor to enable an assessment to be made whether he in fact met the provisions of Regulation 100.221 (4) (c) (a). We await the Department’s further advice.
We also advise that our client will be travelling to Bangladesh very soon. We accordingly request that the Department not take any decision on the application or in relation to our request for the referral to the independent assessor until after our client’s return from Bangladesh. Should there be a problem in this regard, please advise.
The case officer in the Department of Immigration then sent to Mr Alam’s solicitor a series of letters pointing out that the Migration Regulations required formal statutory declarations from “competent persons” in relation to “non‑judicially determined claims of domestic violence”. Her letters sent on 22 September 2010, and again on 22 October 2010, drew attention to the required form and contents of the necessary statutory declarations and invited their completion and submission.
However, statutory declarations were never forthcoming, although Mr Alam’s solicitor informed the Department by letter dated 25 October 2010:
We refer to our client’s pending appeal and the telephone discussion between Ms Moore and our Mr Bitel on 21 October. We enclose a copy of our letter of 20 January 2010 with the enclosed two reports. We are now attempting to obtain from Doctor Viswanath and Mr Martin these reports engrossed in the format Statutory Declarations 1040 and will advise you when these are obtained.
No further communication was made, and according to a file note, the case officer endeavoured in January 2011 to contact Mr Alam’s solicitor by telephone, but did not receive a response.
The delegate then proceeded to make a decision on the permanent residence visa application on 21 February 2011. The delegate set out in his decision the relevant regulations. Under cl.100.221 of Sch.2 to the Migration Regulations 1994 (Cth), an applicant whose relationship with the sponsoring spouse had ‘ceased’ was able to qualify for the visa if:
100.22 Criteria to be satisfied at time of decision
100.221 …
(4) The applicant meets the requirements of this subclause if:
…
(c)after the applicant first entered Australia as the holder of that visa — either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B)a member of the family unit of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
…
The meaning of “has suffered domestic violence” was at that time defined in Div.1.5 of the Migration Regulations, in terms which have been recast in the current regulations, but which provided a scheme which appears still to be continuing. At the relevant time, reg.1.23(1) provided:
1.23When is a person taken to have suffered or committed domestic violence?
(1)For the purposes of these Regulations:
(a) a person (the alleged victim) is taken to have suffered domestic violence; and
(b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim;
if:
(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f) the Minister is satisfied, for paragraph (1B) (a), that the alleged victim has suffered relevant domestic violence; or
(g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence.
(emphasis added)
As will appear below, the present ground of review concerns only the Tribunal’s application of reg.1.23(1)(d). Other regulations defined when “an application for a visa is taken to include a non-judicially determined claim of domestic violence” for the purposes of reg.1.23(1)(f) and (g), and give rise to the requirements in relation to statutory declarations. Only if such declarations were provided did the Minister have an obligation himself to decide the existence of domestic violence, and to consider obtaining an independent expert’s opinion on the matter. It is unnecessary for me to set out those regulations.
In the present case, the delegate said:
Division 1.5 of the Migration Regulations makes detailed and specific provisions for deeming when family violence is taken to have occurred. These provisions, which are shown in the attachment to this decision, may broadly be summarised as follows:
A person is taken to have suffered domestic violence if there is acceptable evidence that this has occurred.
This evidence may consist of
- court records of an injunction, order, conviction or undertaking indicating that there has been domestic violence against the alleged victim by the alleged perpetrator; or
- statutory declarations from at least 2 “competent persons” (as defined) that the alleged victim has suffered domestic violence from the alleged perpetrator.
The statutory declarations referred to above must set out certain prescribed information in order to be acceptable as evidence for the purposes of Division 1.5.
The applicant provided a Psychology Assessment report from Mr John Martin and a medical certificate from Dr Viswanath in support of his claims of domestic violence. The applicant has failed to provide a form 1040 or statement for himself. The applicant was provided a further opportunity to provide the requested documentation. The applicant’s agent wrote to DIAC, on 25 October 2010, stating he was attempting to obtain 1040 forms from Mr Martin and Dr Viswanath. The applicant’s agent advised DIAC on 27 January 2011 that he was unable to obtain the reports and stated he had sent a letter to DIAC asking that the applicant be referred to an independent expert. The applicant has been asked to provide statutory declarations from competent persons and has failed to do so. I consider that the applicant has been offered a reasonable opportunity to provide the necessary information. According to the Migration Act I am not obliged to defer my decision because further information might be forthcoming at some time in the future.
Accordingly, I am unable to find that the applicant has suffered domestic violence, as defined. As the requirements of Division 1.5 are not satisfied, the applicant has not established that they have suffered domestic violence from the sponsor, which in turn means that they cannot satisfy the first alternative (above) within subclause (4) of regulation 100.221. Therefore the person included in this application cannot meet the requirements for grant of a subclass 100 visa.
Mr Alam’s solicitor lodged an application for review by the Tribunal on 4 March 2011. Mr Alam and the solicitor and two witnesses appeared at a hearing of the Tribunal on 21 July 2011. On the day before the hearing, the solicitor lodged copies of statements by Mr Alam and witnesses, which appear to have been prepared for presentation in the Downing Street Court in his contested application for an apprehended violence order against Ms Islam. They recounted incidents of violence alleged to have been inflicted by Ms Islam on Mr Alam.
Further evidence about these alleged incidents was given by Mr Alam and his witnesses to the Tribunal in the course of the hearing. According to the Tribunal’s description of the hearing, at the end of the hearing Mr Alam’s solicitor maintained that, notwithstanding the absence of relevant statutory declarations from Dr Viswanath and Mr Martin, the Tribunal could give effect to its own conclusions on Mr Alam’s evidence and decide whether or not there was domestic violence inflicted by Ms Islam on Mr Alam.
However, he wrote to the Tribunal on 22 July 2011:
We refer to the hearing held on 21 July. Near the conclusion of the proceedings the Member asked me to identify the domestic violence options available to the Tribunal. In oral submission I indicated that the Tribunal may have the power to proceed to find domestic violence on the basis of evidence. The Tribunal expressed concern in relation to this submission and I now write to indicate that I do not press this aspect of the submission.
The case presented to the Department and the Tribunal might therefore appear to have left it with no avenue by which it could grant the visa. However, on 28 July 2011 it wrote to Mr Alam and his solicitor:
INVITATION TO PROVIDE INFORMATION – MR FASIUL ALAM
I am writing about the application for review made by you in relation to a decision to refuse to grant a Partner (Migrant) (Class BC) visa.
You are invited to provide the following information in writing:
·Any evidence that a court order was made against the sponsor for the protection of Mr Fasiul Alam from violence after the alleged perpetrator had an opportunity to be heard or otherwise make submissions to the Court in relation to the matter.
The information should be received at the Tribunal by 25 August 2011. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator. …
In response, Mr Alams’s solicitor wrote on 25 August 2011:
We refer to your letter of 28 July 2011.
We now enclose the following for the Tribunal’s consideration:
1.Statutory declaration of Mr Alam dated 25 August 2011.
2.Statutory declaration of Mr Howard Douglas Murdoch dated 25 August 2011, Solicitor at Parish Patience Immigration.
Should you require further information, please contact our office.
Mr Alam’s statutory declaration was witnessed by Mr Murdoch, and stated:
1.I Fasiul Alam’s was the victim of domestic violence and including assaults on me by third parties arranged by my wife at the time, Razia Islam.
2.I was at the time being sponsored by Razia Islam and did not want to cause further relationship difficulties between us that might lead her to cause a break up of the marriage, by my reporting her to police.
3.However, as time went by I became aware through my friends and acquaintances overseas that my wife in her visits to Bangladesh had been possibly taking steps to arrange for me to be bashed and left for dead when next I went to Bangladesh. As well, I heard of rumours within the local Bangladeshi community in Sydney that she might be arranging for somebody to fly out from Bangladesh to bash me.
4.I had on‑going and growing concerns for my safety. I had avoided involvement of the Police despite their request on one occasion after an incident. Eventually, in early April 2009 I made a private application against my wife for an Apprehend Violence Order with the assistance of my solicitors, Parish Patience Lawyers.
5.I was granted an Interim Apprehended Violence Order by the Local Court Downing Centre 06/04/2009 reference 20123286/09/02 with a Directions Hearing scheduled for 06/05/2009. The papers were served on my wife.
6.At that Directions Hearing the Interim Orders were continued until the next court date 24/06/2009. My wife attended all court hearings and had for all the court attendances legal representation.
7.At that time because of the complexity of the case a further court attendance for directions was scheduled for 08/07/2009 with Interim Orders continuing until the scheduled full court hearing 02/10/2009.
8.At the Local Court Downing Centre hearing on 02/10/2009 because of the costs involved in gathering further evidence, and the need to have an audio‑visual link with Bangladesh my barrister, Ms. Jehane Ghabrial recommend to me that it was probably not worthwhile to proceed further with Final Orders.
Mr Murdoch’s statutory declaration said:
1.I was the solicitor with carriage for Fasiul Alam’s application for a Domestic Apprehended Violence Order against his wife, Razia Islam.
2.Fasiul Alam was granted an Interim Apprehended Violence Order by the Local Court Downing Centre 06/04/2009 reference 20123286/09/02 with a Directions hearing scheduled 06/05/2009.
3.At the Directions hearing the Interim Orders were continued until the next court date 24/06/2009.
4.The Defendant, Razia Islam had legal representation throughout the proceedings and attended the court. Because of the nature of proceedings a substantial amount [of] correspondence ensued including filing of further affidavits and subpoenas.
5.At that time a further court attendance for directions was scheduled 08/07/2009 with Interim Orders continuing until the scheduled full court hearing 02/10/2009.
6.At the Local Court Downing Centre hearing on 02/10/2009 the client elected on counsel advice not to proceed with Final Orders.
The Tribunal then proceeded to make a decision on 26 September 2011. The Tribunal affirmed the delegate’s decision not to grant Mr Alam a Partner (Migrant) (Class BC) visa, including the subclass 100 spouse visa sought by Mr Alam. The Tribunal referred to the relevant regulations and some authorities on the ‘domestic violence’ regulations. These have not, however, addressed the meaning of reg.1.23(1)(d).
The Tribunal under the heading “Claims and Evidence” recounted the whole history of the matter which I have summarised above. It set out Mr Alam’s evidence concerning the domestic violence, and described parts of the hearing in which it had pointed to some difficulties with his narration of these events. The Tribunal also recounted verbatim the correspondence subsequent to the hearing, including by extracting the whole of the statutory declarations of Mr Alam and Mr Murdoch as to the proceedings in the Local Court at the Downing Centre.
The Tribunal’s reasoning in relation to judicially determined claims of relevant domestic violence was short:
41.On the basis of the evidence before it, the Tribunal is satisfied the applicant and the sponsoring spouse (the sponsor) were in a spousal/de facto relationship and that this relationship has ceased. The applicant must therefore meet the requirements of cl.100.221(4). The only issue that arises on the evidence in this case is whether the applicant has suffered relevant domestic violence committed by the sponsor, within the meaning of Division 1.5 of the Regulations.
42.For the applicant to meet the requirements of cl.100.221(4), the only issue to be determined is whether relevant domestic violence has occurred. This involves the Tribunal considering the evidence provided by the applicant and the requirements of Division 1.5 of the Regulations.
43.The Tribunal is not satisfied that on the application of the alleged victim (being the applicant), a court has granted an injunction under s.114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator (the sponsor). The Tribunal finds that relevant domestic violence is not taken to have occurred under r.1.23(1)(c) of the Regulations.
44.The Tribunal notes that whilst there is an interim apprehended violence order that has been issued by the Downing Centre pursuant to the Domestic and Personal Violence Act 2007 and made against the sponsor for the protection of the applicant, this order has not been signed by the sponsor and states that the sponsor was not present in court. The Tribunal is therefore not satisfied that a court order was made against the alleged perpetrator (being the sponsor) for the protection of the alleged victim (the applicant) from violence, after the alleged perpetrator had an opportunity to be heard or otherwise make submissions to the Court in relation to the matter. Whilst the applicant has stated that he was granted the interim apprehended violence order by the local court on 6/4/2009 with a directions hearing scheduled for 6/5/2009 and that the papers were served on the sponsor, there is no evidence the papers for the interim apprehended violence order were served on the sponsor wife before those interim orders were made thereby giving her an opportunity to be heard or otherwise make submissions to the Court in relation to the matter. In addition, given the wording in the interim apprehended violence order that states she was not present in court and she did not sign the order and given that the applicant and solicitor’s declarations make reference to the sponsor’s attendance subsequent to the interim orders having been made, the Tribunal is not satisfied that the sponsor was present when the interim orders were made. The Tribunal therefore finds that relevant domestic violence is not taken to have occurred under r.1.23(1)(d) of the Regulations.
45.There are no other relevant court orders before the Tribunal. The Tribunal is not satisfied on the evidence before it, that a court has convicted the alleged perpetrator of an offence of violence against the alleged victim (the applicant) or recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim (the applicant). The Tribunal finds that relevant domestic violence is not taken to have occurred under r.1.23(1)(e) of the Regulations.
46.There is no evidence that there are court orders that would satisfy 1.23(1)(c),(d) or (e). Accordingly, the Tribunal finds that relevant domestic violence is not taken to have occurred under regulation 1.23(1)(c), (d) or (e).
(emphasis in original)
The Tribunal then identified the provisions which require non‑judicially determined claims of relevant domestic violence to be raised by relevant statutory declarations and reports by police and police records. It noted that there were no police records before the Tribunal, and that no statutory declarations had been provided by either Dr Viswanath or Mr Martin. The Tribunal said: “accordingly, the Tribunal is not satisfied that a non‑judicially determined claim of relevant domestic violence has been made under r.1.23(1A)”.
Assisted by his previous solicitor, Mr Alam filed an application in this Court on 21 October 2011 seeking judicial review of the Tribunal’s decision. His solicitor appeared at the first court date on his behalf, when the matter was fixed for hearing on 20 April 2012. However, no further documents were filed by Mr Alam’s solicitors, and they did not appear at the hearing. Mr Alam appeared in person and sought an adjournment, on the basis that his solicitors had told him only very shortly before the hearing that they were withdrawing. I acceded to that adjournment application and adjourned the matter until today.
Mr Alam has appeared today by way of counsel, who has relied on an amended application filed at the hearing. It contains one ground of application:
1.An issue for the Migration Review Tribunal to deal with or address was whether, after the Local Court made an interim Apprehended Violence Order on 6 April 2009, the Local Court made a further interim Apprehended Violence Order on 6 May 2009, 24 June 2009 or 8 July 2009 within the meaning of reg 1.23(1)(d) of the Migration Regulations. The Tribunal failed to deal with or address this issue, giving rise to jurisdictional error.
It therefore appears that Mr Alam’s challenge is focussed upon the Tribunal’s reasoning concerning reg.1.23(1)(d).
In support of this ground, Mr Alam’s counsel submitted that the statutory declarations of Mr Alam and Mr Murdoch raised for the Tribunal’s consideration whether the Downing Street Local Court had made orders satisfying paragraph (d) at directions hearings which were referred to in the statutory declarations as occurring on 6 May 2009, 24 June 2009 and 8 July 2009.
Counsel submitted that the making of such orders was the implication of both Mr Alam and his solicitor’s statements that “the Interim Orders were continued”. He submitted that, because the evidence also suggested that Ms Islam was in attendance at those listings, either in person or with her legal representative, there was evidence before the Tribunal that orders were made by the Local Court on those three dates, and that their effect was to ‘continue’ the interim order obtained by Mr Alam ex parte on 6 April 2009, which I have set out above. He submitted that the making of a continuing order by the Local Court in the circumstances described provided evidence that on each of those three occasions “the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter” on those dates before making its orders.
Counsel for Mr Alam then submitted that the Tribunal’s reasoning in paragraph 44 had failed to address this evidence when concluding that the reg.1.23(1)(d) was not satisfied. It therefore erred in law or denied procedural fairness in a manner giving rise to jurisdictional error, by failing to address a claim made by Mr Alam that orders were made by the Local Court on these dates which satisfied this paragraph, invoking the well known reasoning of the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263.
Mr Alam’s contentions might also be understood, although it is not clear to me that they were so put by his counsel, that the Tribunal made a finding at paragraph 46 which was not open to it as a matter of law, when it concluded that “there is no evidence that there are court orders that would satisfy 1.23(1)…(d) …”.
However, I do not accept any of these contentions.
In my opinion, when the contents of the statutory declarations is considered in the context of the previous correspondence from Mr Alam’s solicitors to the Department and to the Tribunal, they did not provide evidence of the making of any court order at any of the three directions listings referred to in the statutory declarations, which was an order “under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim”.
The better reading of the statutory declarations in the light of the evidence previously provided by Mr Alam’s solicitor, was that those listings were merely directions listings arising from the original making of the ex parte interim order. The interim order in its terms did not require any additional order for it to ‘continue’ in effect until replaced or revoked. Mr Alam’s solicitors neither submitted any certified additional AVO order, whether interim or final, nor quoted the terms of any such order made by the Local Court at any of these listings. In my opinion, the evidence which was before the Tribunal showed that the likely orders made by the Local Court were probably only the adjournment of the matter for contested hearing on later dates, perhaps with procedural orders for the preparation of that hearing. It is clear that, when the matter eventually was listed for a contested hearing, Mr Alam gave instructions to withdraw his application for an apprehended violence order.
In my opinion, if Mr Alam’s solicitors had evidence that a Local Court order was made which replaced the previous interim order with some further interim order, then this would have been set out in the statutory declarations and a copy of the relevant orders provided. In the circumstances in which the statutory declarations were drafted and presented to the Tribunal, in my opinion, they established no more than that the parties to Mr Alam’s AVO proceedings had appeared at these directions listings, whether before a Registrar or Magistrate, and consented to the adjournment of the matter for contested hearing on a later date. At most, they suggest that the Local Court might have noted the continuing effect of the original interim apprehended violence order in the terms made, pending the listing for contested hearing. They certainly did not establish that Ms Islam had been ‘given’ by the Local Court an ‘opportunity to be heard’ as to the merits of the making of an AVO in the course of any of the listings on those dates. Their implication was that the parties did not expect, and that the listings did not provide, any such opportunity except by way of a future listing for contested hearing.
I am not satisfied that the statutory declarations and the correspondence in which they were presented ‘clearly raised’ any contrary contention of fact calling for specific discussion by the Tribunal, and in the absence of which I would infer a failure to perform jurisdiction under concepts discussed in NABE (supra), noting their Honours’ references to the need for claims to “clearly arise from the materials” at [60], [62] and [68].
I am also not satisfied that, in fact, the Tribunal failed to consider the implications of the references in the statutory declarations to the directions hearings at which “the Interim Orders were continued”. Plainly, it was aware of these references when it made its decision, since it fully extracted the statutory declarations in its statement of reasons, and expressly adverted to them at the end of paragraph 44.
In my opinion, its reasoning in that paragraph shows that it understood the statutory declarations as showing no more than that the parties’ legal representatives had noted or agreed that the ex parte Interim Orders would have continuing effect until there was a contested hearing on a later date. It therefore found that there was evidence of only one AVO having been made against Ms Islam, this being the ex parte AVO which had been previously provided to the Department by Mr Alam’s solicitor.
I therefore do not accept that the Tribunal’s reasoning in paragraph 44 shows that it either overlooked any part of the statutory declarations, or arrived at a factual assessment of their contents which was not open to it.
Indeed, as I have indicated, I consider that the Tribunal’s conclusion at paragraph 46 that “there is no evidence that there are court orders that would satisfy 1.23(1)…(d)…” was correct, and may have been the only conclusion open to it as a matter of law. I do not need further to consider whether that finding was affected by a legal or jurisdictional error.
There was discussion during submissions as to the interpretation of reg.1.23(1)(d). In particular, whether its terms could be satisfied in circumstances where an ex parte interim AVO was replaced by another interim AVO made by consent of the defendant at a directions listing, at which the defendant was given an opportunity to be heard on a later date in opposition to the terms of the AVO. Counsel for Mr Alam submitted that in those circumstances a relevant court order for the purposes of reg.1.23(1)(d) would have been made at the directions listing.
This issue does not arise, on my above conclusions as to the implications of the statutory declarations presented by Mr Alam in the present case as to what probably occurred at the directions listings in the present matter.
However, in my opinion the construction submitted by Mr Alam’s counsel is plainly inconsistent with the objects of the regulation. This seeks to identify an AVO made after, not before, the defendant has in fact enjoyed procedural fairness by way of an ‘opportunity to be heard’ by providing rebutting evidence or mitigating submissions. Its purpose is to allow the Minister to be confident that the existence of domestic violence has already been conclusively decided inter partes by a court in accordance with principles of Australian justice. In my opinion, a visa applicant seeking to satisfy this criterion, must satisfy the Minister that, in fact, the defendant was afforded by a court making an AVO an opportunity to present a defence in a manner which procedural fairness would require under well understood principles of Australian justice, whether the resultant AVO were labelled as an ‘interim’ or ‘final’ AVO. If the Minister is not satisfied that this occurred, then he could not be satisfied in terms of the criterion. Without more evidence as to the circumstances in which an order labelled ‘interim’ was made, the Minister may well not be able to be satisfied as to its sufficiency.
Such an interpretation, it appears to me, has support from the explanatory memorandum to which I was referred. However, I do not need to rely upon this material, since I consider that it is clearly intended by the language and context of the regulation.
For all the above reasons, I am not satisfied that any ground of jurisdictional error has been established to affect the present Tribunal’s decision, and I must therefore dismiss the application.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 23 July 2012
0
2
0