Alam v Minister for Immigration and Citizenship

[2012] FCA 1371

FEDERAL COURT OF AUSTRALIA

Alam v Minister for Immigration and Citizenship [2012] FCA 1371

Citation:		Alam v Minister for Immigration and Citizenship [2012] FCA 1371
Appeal from:		Alam v Minister for Immigration and Anor [2012] FMCA 616
Parties:		FASIUL ALAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1066 of 2012
Judge:		MANSFIELD J
Date of judgment:		4 December 2012
Date of hearing:	15 November 2012
Place:	Adelaide
Division:	GENERAL DIVISION
Number of paragraphs:	29
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	T. Liveris
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1066 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

FASIUL ALAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	4 DECEMBER 2012
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay to the first respondent costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1066 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

FASIUL ALAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	4 DECEMBER 2012
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The appellant is a Bangladeshi citizen who came to Australia on a visitor’s visa in 1988. On 4 September 2006 the appellant applied to the Department of Immigration and Citizenship for a Partner (Migrant) (Class BC) visa on 4 September 2006. The delegate decided to refuse to grant the visa on 21 February 2011 on the basis that the appellant did not satisfy cl 100.221(4) in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 100.221(4) provides the criteria which allows a partner 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 that partner.

2. The appellant applied to the Migration Review Tribunal on 4 March 2011 for review of the delegate’s decision.  On 26 September 2011 the Tribunal affirmed the decision under review.  

3. The appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 21 October 2011 on the basis that the Tribunal had failed to consider part of the appellant’s case.  On 9 July 2012 that Court dismissed the application with costs.  The present appeal is an appeal from the decision of the Federal Magistrate.

   THE TRIBUNAL’S REASONS

4. There was common ground that, at the least, the appellant had to show that he had suffered domestic violence committed by his spouse, as their relationship had ceased, to satisfy the criterion in cl 100.221(4)(c) of the Regulations. The term “suffered domestic violence” is defined in reg 1.22 of the Regulations by reference to reg 1.23. Regulation 1.23 provides:

   1.23     When 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 sub regulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence. 

5. Hence, under reg 1.23(c)-(e), a person may be taken to have suffered domestic violence on the basis of certain types of court records.  Alternatively, as reg 1.23(f) and (g) contemplate, under reg 1.23(1A) and reg 1.24 to 1.26, proof of domestic violence may be by statutory declaration of the person affected, supported either by a statutory declaration of a “competent person” and a copy of a record of assault, or two statutory declarations of competent persons.  Regulations 1.25 and 1.26 also set out the required content of the statutory declarations.  In the event that that alternative route is taken, there are then procedures available for the decision maker under reg 1.23(1B)(b) to test that evidence in certain circumstances.

6. Even at the initial decision making stage, there had been correspondence between the Department and the appellant on that alternative, including two letters of 22 September 2010 and 22 October 2010 from the Department to the appellant, requesting the appellant to provide “formal statutory declarations from competent persons in relation to non-judicially determined claims of domestic violence”.  No statutory declarations were provided by the appellant to the delegate and the delegate then proceeded to make a decision on the visa application on 21 February 2011.

7. During the review before the Tribunal, the appellant by his solicitor maintained that, notwithstanding the absence of relevant statutory declarations from a medical practitioner, Dr Viswanath (who had provided a written report) and another person John Martin (who had provided a written statement), the Tribunal could give effect to its own conclusions on the appellant’s evidence and decide whether or not there was domestic violence inflicted by on the appellant by the sponsoring spouse; although in further written submissions the appellant submitted that this aspect of the submission was not pressed.

8. The Tribunal also provided the appellant a further opportunity to provide in writing evidence that a court order was made against the sponsor for the protection of the appellant from violence after his spouse had had an opportunity to be heard or had otherwise made submissions to the Court in relation to the matter.  In reply, two statutory declarations were provided.  The first, from the appellant, described a number of interim Apprehended Violence Orders (AVOs) obtained; but that declaration ultimately was not relied on by the appellant as showing the court orders had the character required.  The second from the solicitor for the appellant with carriage for the AVOs which the appellant sought, confirms that interim orders were pursued, but that the appellant elected on counsel advice not to proceed with final orders.

9. The Tribunal’s findings are summarised at [41]-[52], under the heading “Findings and Reasons”.  For completeness I set them out here in full:

   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). 

   47.Under r 1.23(1A) and r. 1.24 a non-judicially determined claim of relevant domestic violence is taken to have been made where the Tribunal has been provided with: a police record of assault (other than a statement by the alleged victim); a statutory declaration under the Statutory Declarations Act 1959 from either the alleged victim or a person on the alleged victim’s behalf under r1.25; and a statutory declaration of a competent person under r1.26.

   48.In relation to regulation 1.23(1)(f), the Tribunal must be satisfied that the visa applicant has suffered relevant domestic violence.

   49.There is no copy of a record of assault from the State or Territory police before the Tribunal.  Accordingly, there is no evidence that would satisfy 1.23(1)(f) on the basis that he meets the requirements of clause 1.24(1)(a).

   50.In addition, whilst there is a statutory declaration from the applicant under r1.25, the Tribunal is not satisfied that Dr Viswanath’s letter or John Martin’s assessment meets the requirements of r1.26.  Accordingly, as there are no further two statutory declarations from the applicant under r1.26, it is not satisfied that evidence has been presented in accordance with r1.24(1)(b).  Accordingly, the Tribunal is not satisfied that a non-judicially determined claim of relevant domestic violence has been made under r1.23(1A).

   51.Given the above conclusion, the applicant does not meet the requirements of cl 100.221(4)(b) and (c) for the grant of the visa.  There is no evidence before the Tribunal that the applicant meets any of the alternate sub clauses.

   52.Given these findings, the Tribunal must affirm the decision under review.  The applicant does not meet the essential criteria for the grant of a Partner (Migrant) (Class BC) visa.

   (emphasis in the original)

   THE FEDERAL MAGISTRATE’S REASONS

10. The ground of review advanced before the Federal Magistrates Court was as follows:

    The Tribunal failed to deal with or address the issue of whether the further interim Apprehended Violence Orders made by the Local Court on 6 May 2009, 24 June 2009 or 8 July 2009 fell within the meaning of reg 1.23(d) of the Migration Regulations.

11. As noted by the Federal Magistrate, the ground of review focused only upon the Tribunal’s findings of the absence of a relevant court order, and not upon its obviously correct conclusion that Mr Alam had not presented the alternative, namely evidence of the character prescribed to show domestic violence under r 1.23(f) or (g).

12. The appellant submitted that the interim AVOs satisfied the requirements of reg 1.23(1)(d).  The submission made before the Federal Magistrate was on the basis that “the interim orders were continued” in the course of the listings of the interim AVOs, which the sponsoring spouse attended, and that the orders made by the Local Court on those three dates in effect continued the interim order obtained by the appellant ex parte on 6 April 2009. 

13. The Federal Magistrate rejected that claim. The Federal Magistrate found that the appellant did not provide evidence of the making of any court order at any of the three directions hearings referred to in the material, which was an order “under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim” (at [39]) and that “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”: at [40].

14. The Federal Magistrate also addressed whether the statutory declarations “clearly raised” any basis for an alternative finding about the character of the AVOs requiring specific discussion from the Tribunal.  His Honour concluded that Tribunal’s reasons showed 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”: at [42]-[44].

15. Finally, the Federal Magistrate discussed the appellant’s submissions regarding reg 1.23(1)(d) and whether its terms could be satisfied where an ex parte interim AVO was replaced by another interim AVO made by consent of the defendant at a directions hearing, at which the defendant was to be given an opportunity to be heard on a later date.  The Federal Magistrate rejected this submission on the basis that that submission did not arise from the terms of the statutory declarations, and further, that that construction was inconsistent with the requirements of reg 1.23(1)(d).  At [49] the Federal Magistrate explained:

    However, in my opinion the construction submitted by [the appellant’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. 

    GROUNDS OF REVIEW 

16. On this appeal the appellant appeared in person.  He made submissions through an interpreter.

17. The ground of appeal in the notice of appeal is that the Federal Magistrate “failed to exercise jurisdiction because it has misapplied the law and build (sic, built) in natural justice system of the law”.  I understand that to mean, in the context of this case, that reg 1.23(1)(d) may be satisfied by an AVO, even though the sponsoring spouse who is alleged to have engaged in domestic violence, had not had an opportunity to be heard or to respond in any way to the application for the AVO.

18. In his oral submissions, the appellant was much less focused.  He complained he had not been given justice before the Federal Magistrate apparently because his counsel had belatedly ceased to act for him, that his lawyers had erred by not producing in evidence the Local Court file concerning the AVOs, and that he had not fully understood the instructions he gave to his lawyers at the time of the Local Court hearing when, by consent, the interim AVO was discharged.  In some way, those matters were said to demonstrate error on the part of the Federal Magistrate.

19. Shortly before the hearing of the appeal, on 7 November 2012 the appellant filed an affidavit of 87 paragraphs.  Counsel for the first respondent accepted that [60] to [87] could be regarded as submissions.  I have read them in that light.  They clearly have that character only.  When asked what additional parts of the affidavit he wished to rely upon, having regard to the constraints upon adducing fresh evidence on an appeal (cf Orr v Holmes (1948) 76 CLR 632 at 635 and 640; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292), the appellant identified the document annexed as FA.16 as the most cogent piece of new evidence. It comprises a copy of the Local Court file on which the orders it made from time to time are entered. That file was before the Federal Magistrate, as an annexure to an affidavit of the appellant of 28 June 2012 in any event.

20. The affidavit otherwise records facts which were already before the Tribunal relating to the appellant’s personal circumstances and his claim, his health and his marital relationship.  He explains why he did not finally seek an AVO against his spouse.  It annexes other documents which were before the Tribunal and the Federal Magistrate.  None of the material is capable of demonstrating error on the part of the Federal Magistrate, or on the part of the Tribunal, as each was obliged to apply the Regulations according to their terms.

1. Accordingly, I do not propose to receive that affidavit as further evidence on the appeal.  As indicated, I will regard part of it as submissions.

2. The appellant, in those submissions, repeats the contention before the Federal Magistrate that “relevant family violence” as defined in reg 1.23(2)(b) could be, and was, established by evidence other than as prescribed by reg 1.23(1)(c), (d), (e) and (f).  He is mistaken about the use of that term.  Clearly, the relevant expression is “domestic violence”: criterion 100.221(4)(c) and regs 1.21-1.27.  Regulation 1.22 defines domestic violence.  Alternatively, he repeats the submission to the Tribunal that the evidence from the Local Court file showed he satisfied or fell within the means of proof in reg 1.23(1)(d) by the AVOs, and alternatively in regs 1.23(1)(f), 1.23(1A) and 1.24.  That contention was not pursued before the Federal Magistrate.

3. Having identified the appellant’s contentions, they can be relatively shortly addressed.  In my view, he has not shown error on the part of the Federal Magistrate as he asserts, or – if he were to be permitted to retrace contentions to the Tribunal which were not put to the Federal Magistrate – on the part of the Tribunal.

4. The Federal Magistrate was correct to decide that the evidence of the AVOs did not bring the appellant within reg 1.23(1)(c), (d) or (e).  Clearly reg 1.23(1)(d) is the most applicable of those three provisions.  The AVOs were not made after the Local Court had given the sponsoring spouse the opportunity to be heard, or otherwise to make submissions to that Court in relation to the matter.  The first AVO was obtained without the sponsoring spouse attending on 6 April 2009; the file records that the application was made ex parte (that is, on the basis that the sponsoring spouse was not heard).  After three separate adjournments, on 6 May 2009, 24 June 2009 and 8 July 2009, without hearing any substantive matters, the hearing date was fixed for 2 October 2009.  I agree with the detailed analysis at [39]-[42] of the Federal Magistrate’s reasons of the statutory declarations to which the appellant referred: they do not provide any reason to conclude otherwise.  On 2 October 2009, the application for an AVO was withdrawn by the appellant.

5. The Tribunal was also correct to conclude that the appellant should not be taken to have suffered domestic violence under reg 1.23(1)(f) because the means of proof is prescribed, and the appellant did not adduce material to the Tribunal to satisfy that prescription.  Regulation 1.23(1A) and (2) apply, so reg 1.24 required particular statutory declarations.  It is clear they were not provided.  The appellant, in effect, says that what he provided was good enough even though it did not meet those requirements.

6. That leads to the third argument.  In my view, the Tribunal correctly concluded that, unless the applicable requirements under reg 1.24 were satisfied, the appellant could not obtain the Ministerial satisfaction referred to in reg 1.23(1)(f).  The non-judicially determined claim of domestic violence, under Div 1.5 of the Regulations, is carefully described and prescribed.  It is not open to a visa applicant simply to bypass those prescriptions, however cogent that visa applicant might think his or her claim is. In this case, the path for such a determination was through reg 1.23(1A)(b)(ii) and reg 1.24 – subject to the Minister under regs 1.23(1B) and (1C) procuring independent expert opinion – and in turn by complying with regs 1.25 and 1.26.

7. Accordingly, even if on this appeal the appellant were allowed to raise matters not put to the Federal Magistrate, he could not succeed on those matters.

8. Finally, I also reject his claim that he was not accorded procedural fairness.  As the references above indicate, he was informed at all stages of the nature of the material he should produce.  He was represented by counsel before the Federal Magistrate.  The hearing was adjourned at his request, so he could properly prepare for the hearing and engage other counsel to act for him.  There is no merit in that complaint.

1. In my view, the appeal should be dismissed with costs.  I so order.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:       4 December 2012