Ali v Minister for Immigration

[2007] FMCA 1405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1405

MIGRATION – Review of Refugee Review Tribunal decision – Partner (Migrant) (Class BC) visa – domestic violence provisions – Tribunal unable to be satisfied on the applicant’s evidence that he had suffered domestic violence – referral of applicant to independent expert for assessment – opinion of independent expert binding on the Tribunal – no bias on part of the independent expert – no apprehension of bias – no fraud on the part of the applicant’s legal representative before the Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958, ss.359, 359A
Migration Regulations 1994, reg.1.21, 1.23, 1.24, 1.25, 1.26, Clause 100 of Schedule 2

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: HASSAN ALI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2571 of 2006

Judgment of: Nicholls FM

Hearing date: 20 July 2007

Date of Last Submission: 20 July 2007

Delivered at: Sydney

Delivered on: 23 August 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application made to this Court on 12 September 2006 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,000.

4. Within seven (7) days of the making of order (3), the Minister’s solicitors write to the applicant at the last notified address for service by express post notifying the applicant of the orders made today, but only in relation to order (3) of the existence of r.16.05 of the Federal Magistrates Court Rules as it may relate to that order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2571 of 2006

HASSAN ALI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 12 September 2006 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”), said to have been made on 15 August 2006 and notified to the applicant by way of his legal representative on 25 August 2006.  The Tribunal affirmed a decision of a delegate of the first respondent to refuse the grant of a Partner (Migrant) (Class BC) visa to the applicant, Mr Ali.

Background

1. The applicant is a Lebanese national who was granted a Partner (Provisional) Visa after marrying an Australian national overseas.  He entered Australia on 30 December 1999, and was subsequently refused a Partner (Migrant) Visa on 22 June 2002.  The delegate’s decision record is reproduced in the Court Book (“CB”) at CB 79 to CB 89.  The applicant had applied for, in effect, a Spouse Visa (Sub-Class 100) which would allow him permanent residence in Australia. 

2. Before the delegate (the marriage had broken down), the applicant pressed that he met the requirements of that part of Part 100 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) which specified the criteria relevant to a Spouse Visa. In particular, he pressed that he had been the victim of domestic violence. The delegate found that the applicant had failed to satisfy the delegate that the spousal relationship was ever a genuine one and therefore, the delegate could not be satisfied that the relationship between the applicant and his sponsoring spouse could be said to have ceased. The delegate found that the applicant failed therefore to satisfy that part of the relevant subclause which related to domestic violence.

3. The applicant appears to have sought review of that decision before the Federal Magistrates Court.  However, by orders made on 19 July 2005, that application was withdrawn and the applicant subsequently applied to the Tribunal on 17 August 2005 for review of the delegate’s decision.  (A copy of the application for review is reproduced at CB 93 to CB 99.)  The applicant appears to have been represented before the Tribunal by lawyer, Mr S El-Hanania (CB 96).

4. Before the Tribunal the issue for consideration was whether the applicant met the requirements of Clause 100 of Schedule 2 to the Regulations, the requisite for the grant of the spouse visa, and in particular, whether the applicant had suffered domestic violence committed by his spouse (CB 165.7).

Legislation

1. Division 1.5 of the Regulations sets out the special provisions relating to domestic violence applicable for the purposes of the Migration Act 1958 (“the Act”).  Relevantly, regulation 1.23 sets out the circumstances when a person is taken to have suffered, or to have committed, domestic violence, and in particular I note that a person is taken to have suffered domestic violence either where a court has determined that such violence was committed by the alleged perpetrator on the applicant or in circumstances where a non-judicially determined claim of domestic violence can be established.  Regulation 1.24 sets out matters of evidence relating to non-judicially determined domestic violence and provides that evidence is to be provided in the form of statutory declarations which must satisfy the requirements as set out in Regulation 1.25 and Regulation 1.26.

2. Upon receipt of the application for review, and following acknowledgement (CB 104), relevantly the following occurred:

   1)The Tribunal wrote by letter sent to the applicant’s recipient authorised to receive correspondence (Mr El-Hanania, a solicitor and migration agent who represented the applicant before the Tribunal), and invited the applicant to comment on certain information pursuant to s.359A of the Act, and provided the applicant with the opportunity to provide further information pursuant to s.359(2) of the Act.

   2)The Tribunal’s letter dated 4 January 2006 is reproduced in the Court Book at CB 106 to CB 110.

   3)The applicant’s response sent by way of his representative is reproduced at CB 111 to CB 113, with relevant annexures being reports by “competent persons” annexed at CB 114 to CB 126.

   4)The applicant attended a hearing before the Tribunal on 21 March 2006 and gave evidence, as did two witnesses (including his uncle, Mr Bilal) (CB 129).  The Tribunal’s account of what occurred at the hearing is set out at paragraphs 24 to 32 of its decision record (CB 169.1 to CB 170.4).

   5)By letter dated 31 March 2006, the Tribunal provided the applicant with a further opportunity to provide information (pursuant to s.359(2)) being certain evidence in support of his claims (CB 130 to CB 131).

   6)By letter dated the same date, the Tribunal advised that it was referring the issue of domestic violence to an “independent expert” for an opinion (CB 132 to CB 133).

   7)By letter dated 9 May 2006, the Tribunal provided yet another invitation to the applicant to comment on information (pursuant to s.359A of the Act), being information provided by the independent expert that the applicant had not suffered domestic violence as relevantly defined in the Regulations (CB 156 to CB 157).

   8)Following requests to extend the period within which the applicant could respond, a response was ultimately put to the Tribunal by communication on 14 July 2006 (CB 160 to CB 161).

3. The Tribunal’s decision record is reproduced at CB 164 to CB 174.  The Tribunal found:

   1)In the circumstances of this case the only subclass of the visa class applied for was Subclass 100 (Spouse) (CB 172.1).

   2)The relationship between the applicant and his sponsor for the class of visa applied for had ceased (CB 172.3).

   3)For the applicant to meet the requirements of Clause 100.221(4), the issue to be determined, relevantly, was whether relevant domestic violence had occurred. This would require the Tribunal to consider the evidence provided by the applicant and the requirements of Division 1.5 of the Regulations (CB 172.3).

   4)Statutory declarations provided by the applicant in support of his application complied with the procedural requirements of the Act, that is, they complied with the procedural requirements of a “non-judicially determined claim of domestic violence” (CB 173.5).

   5)The Tribunal noted that pursuant to regulation 1.23(1B) it was required to consider whether the applicant had suffered relevant domestic violence (CB 173.5).

   6)The Tribunal was not satisfied that the applicant had suffered relevant domestic violence (CB 173.6).

   7)Given that it could not be so satisfied, the Tribunal noted that it was required to seek an assessment by an “independent expert” and that such opinion was binding (CB 173.8).

   8)The independent expert provided an opinion on 28 April 2006 that the applicant had not suffered relevant domestic violence (CB 174.1).

   9)Therefore the Tribunal found that, given that it was required, pursuant to regulation 1.23(1C), to take as correct the independent expert’s opinion, that pursuant to regulation 1.23(1)(g), the applicant was taken not to have suffered relevant domestic violence (CB 174.4).

   10)Given this, the Tribunal affirmed the decision under review (CB 174.6).

4. The application to the Court filed on 12 September 2006 states the ground of the application as:

   “1. The Second Respondent misconstrued and misapplied section 125 and 126 of the Migration Regulations.”

5. On 23 October 2006, a notice of appearance was filed in this matter by solicitors, Slattery Thompson Solicitors, noting the solicitor as Mr S El-Hanania.  It appears that this was the same lawyer who assisted the applicant before the Tribunal.  A notice of ceasing to act was filed in this Court on 12 February 2007.  This was supported by an affidavit from Mr El-Hanania made on 23 January 2007, with annexures.

The Hearing

1. At the hearing before the Court, Mr T Reilly of Counsel appeared for the Minister.  The applicant was unrepresented.  He was accompanied to Court by a Mr Nizar Bilal, who stated that he was the applicant’s uncle and that he sought to represent the applicant in this matter.  An interpreter in the Arabic language was also present in Court to assist the applicant.  It was clear that Mr Bilal was not legally qualified.  I allowed him to sit next to the applicant and provide support where appropriate and, in a limited way, allowed him, at appropriate times, to assist the applicant with submissions.

2. The applicant’s complaints before the court, as put by Mr Bilal were:

   1)The applicant had put before the Tribunal the evidence of two psychologists, a medical practitioner and a letter of support from the father of the applicant’s former wife, all supporting the assertion that the applicant had suffered domestic violence, and as against this, there was the report “from one particular Centrelink social worker.”  Further, that in light of this the Tribunal should have accepted the evidence from the applicant’s witnesses, rather than the Centrelink social worker assessment.

   2)The applicant questioned the qualifications of the “social worker” because, in Mr Bilal’s words, there was nothing “here to show me what particular degree that expert has obtained.”

   3)The applicant questioned the independence of this expert on the basis, as he submitted, that this expert is “being paid by Centrelink,” a “Government Department” and that the Government is also a party to this proceeding.

   4)Some time ago the applicant had sought review of the delegate’s decision in this Court (this was before seeking review before the Tribunal) and that, ultimately, that matter was finalised (the Court Book at CB 90 reproduces orders made by Smith FM on 19 July 2005, noting that the application be withdrawn and that the respondent pay the reasonable costs of the applicant).  The applicant then sought review by the Tribunal.  In relation to this, he made a number of allegations:

   a.Somehow, the effect of this was to “grant the applicant” a “new extension,” such that, by the time the matter came before the Tribunal new legislation came into place that allowed the Minister to seek independent expert advice.

   b.The applicant’s legal representative at that time was motivated by greed and he took the money (this was a reference to the fact that the respondent paid the reasonable costs of the applicant), rather than pressing the matter before the Federal Magistrates Court.

   c.The then Minister, and Minister’s solicitors, were somehow involved with the applicant’s then solicitor in putting the applicant in a disadvantageous position because by the time the matter came before the Tribunal, the Tribunal was able to rely on the opinion of the independent Centrelink expert, rather than having to proceed on the overwhelming evidence that was in favour of the applicant.

3. The Court cautioned Mr Bilal that these serious allegations needed to be supported by evidence, which he had not provided to the Court.  Mr Bilal confirmed that “at this stage” he did not have any evidence but that he could provide names to the Court of others who had been treated similarly to the applicant at that time.

4. The applicant subsequently submitted to the Court that he understood what had been put by his uncle, but was “not here to make any allegations against anyone.”  The applicant submitted:

   1)He pressed the complaint that the Tribunal should have been satisfied on the evidence that he had presented that he had been the subject of domestic violence.

   2)In any event, having gone to Centrelink and obtained the expert opinion, it should have preferred the evidence of his expert witnesses rather than the Centrelink expert.

   3)He pressed the issue of the Centrelink social worker’s qualifications and that this should have been a factor taken into account by the Tribunal in accepting his evidence over the evidence of the Centrelink expert.

   4)He was not pressing what he described as the “conflict of interest” issue that the expert was a Government employee and that the matter now was between the Government and himself.

   5)He did not understand that the application before the Court in July 2005 had been withdrawn but that what he had been told by his solicitor was that “we won the Federal Court, come and sign,” and that now “we go into the MRT.”

   6)But that he did not press the issue, as put by his uncle, as against the Minister and his legal representatives.

   7)In relation to Mr El-Hanania and the allegation that he acted improperly (motivated by greed), all that the applicant wanted to put to the Court is that his understanding of what had occurred in July 2005 was different from what was now being put.

Consideration

1. Clearly, the applicant’s complaints as ultimately presented by the applicant himself at the hearing before the Court, bore little resemblance, as Mr Reilly correctly submitted, to the ground as stated in the application. In this regard, I should also note that I understood the reference in the application to “section 125 and 126” to be a reference to regulation 1.25 and regulation 1.26 of the Regulations. In any event, given that the applicant was legally unrepresented before the Court, I considered all the issues as raised by the applicant himself, as well as what I understood to be effectively what was stated as the ground in the application.

2. The applicant’s first complaint is that the Tribunal should have accepted the evidence presented by him as being sufficient to find that he had suffered domestic violence.  Mr Reilly’s submission was that there was conflicting evidence before the Tribunal, and on that basis the Tribunal could not be satisfied for the purposes of the relevant regulation that the applicant had been the subject of domestic violence.  Mr Reilly referred the Court to the Tribunal’s decision record at paragraph 34 (CB 170.6):

   “In view of the conflicting evidence on file in regard to the relationship between the visa applicant and his sponsor, particularly claims by both parties that they had been victims of domestic violence, and the fact that the Tribunal did not interview the sponsor, it elected to refer the claim of domestic violence made by the visa applicant to an independent expert for assessment.”

3. The circumstances as to when a person is taken to have suffered, or committed, domestic violence are set out in regulation 1.23 of the Regulations. There is nothing before the Court to show, nor is it otherwise contended by the applicant, that there was anything before the Tribunal to show that the applicant met the requirements set out in regulation 1.23(c), (d) or (e), that is, that there was a judicially determined claim of domestic violence. The only other way, relevantly, that the applicant could be taken to have suffered domestic violence is if he could be found to fall within the provision of regulation 1.23(1)(f). That is, that relevantly, the Tribunal could be satisfied with reference to regulation 1.23(1B)(a) that the applicant had suffered relevant domestic violence. Relevantly, regulation 1.23(1B)(a) provides:

   “(1B)     If an application for a visa includes a non‑judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and:

   (a)     if satisfied that the alleged victim has suffered relevant domestic violence – consider the application on that basis; or

   (b)     if not satisfied that the alleged victim has suffered relevant domestic violence – seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.”

4. The Tribunal’s decision record reveals that it considered the applicant’s evidence (see paragraphs 47 to 51 (CB 172.5 to CB 173.5)), and found (at para.52 (CB 173.6)) that the applicant’s evidence complied with the procedural requirements of the Act for a non-judicially determined claim of domestic violence. The Tribunal properly understood that pursuant to regulation 1.23(1B), it was required to consider whether the applicant had suffered relevant domestic violence. The Tribunal records (at para.53 (CB 173.6)) that, having considered all of the evidence before it, it was not satisfied that the applicant had suffered relevant domestic violence. The Tribunal gave reasons which were consistent with what it had said that it had advised at the hearing. That is, that it could not be satisfied for the purposes of regulation 1.23(1B)(a) because of the contradictory claims made by the applicant and his sponsor as to who in fact had been the victim of domestic violence, contradictions in the applicant’s evidence about reconciliation, and inconsistent evidence about alleged threats of violence by the sponsor’s brother. On what was before it, this finding was open to the Tribunal.

5. For the applicant’s benefit in particular, I note that it is not relevant as to whether some other Tribunal may have accepted the evidence as being satisfactory, nor can this Court intervene in circumstances where the Tribunal’s inability to be satisfied was based on material evidence that was before it and where it was open to it to make the finding that it did.  In light of the conflicting evidence, the Tribunal was, as Mr Reilly submitted, not bound to be satisfied on the basis of the evidence before it.

6. Having arrived at the conclusion that it could not be satisfied on the evidence before it, that the applicant had suffered relevant domestic violence then, consistent with the provisions of regulation 1.23(1B)(b), the Tribunal sought the opinion of an independent expert about whether the applicant had suffered relevant domestic violence.  Plainly, this is what the Tribunal did in this case (see para.54 (CB 173.7) and para.34 (CB 170.6)).

1. The applicant’s complaint now that, notwithstanding that the Tribunal sought the opinion of an independent expert, that is, the Centrelink social worker, that it nonetheless should have preferred the applicant’s evidence from a number of qualified persons over the evidence of the independent expert, does not succeed in light of the provisions of regulation 1.23(1B) which require that the Tribunal take the independent expert’s opinion as correct.  As Mr Reilly correctly submitted, once the Tribunal had decided to refer the matter to an independent expert, the Tribunal was bound by the opinion of the independent expert, as the Tribunal properly understood the situation to be.  The independent expert’s opinion was that the applicant had not suffered relevant domestic violence and, given that the Tribunal was bound by this (regulation 1.23(1)(g)), the Tribunal could not be satisfied (regulation 1.23(1)(f)) that the applicant had suffered relevant domestic violence.  I cannot see that the Tribunal’s understanding and application of the relevant regulatory provisions was wrong in this regard, and the applicant’s complaint therefore is not made out.

2. The applicant also complains about the qualifications of the Centrelink independent expert.  I note in this regard that, from the material available to the Court, the independent expert’s opinion which is reproduced at CB 143 and CB 144, and which was the opinion that the Tribunal relied on, was in fact provided by two independent experts.  The form is signed (see CB 144.3) by two experts, one from the Fairfield Centrelink office, and the other from the Burwood Centrelink Office.  Nothing turns for the purposes of the regulation on the fact that there were two independent experts.

3. As to the issue of their qualifications, the Tribunal notes in its decision record (see para.42 at CB 171.9) that it sought and received confirmation “from Centrelink” that independent experts are employed by Centrelink and all workers so employed are professionally qualified and are members of the Australian Association of Social Workers (see also the first respondent’s exhibit, “RE1,” tendered at the hearing before the Court).

4. I note that in regulation 1.21, which sets out relevant definitions for the purposes of Division 1.5, the definition of “competent person” and “independent expert” are two different definitions. The relevant scheme requires the applicant to provide evidence, amongst other things, in the form of statutory declarations made by competent persons for the purposes of regulation 1.23(1A)(b)(ii). That is, for a claim of non-judicially determined domestic violence, the applicant must present evidence of having suffered relevant domestic violence, and such evidence (regulation 1.24(1)(a)(i)) must be in the form of a statutory declaration made by a competent person. “Competent persons” is defined, for the purposes of this regulation, at regulation 1.21(1)(a), as it relates to domestic violence committed against an adult.

5. The “independent expert,” however, to which the Tribunal must refer, if it cannot be satisfied on the evidence before it, is defined at regulation 1.21 as:

   “independent expert means a person who:

   (a)     is suitably qualified to make independent assessments of non‑judicially determined claims of domestic violence; and

   (b)     is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non‑judicially determined claims of domestic violence”

6. Following enquiry, the Tribunal was satisfied that the opinion of the independent expert had been provided by suitably qualified persons and that these persons were employed by Centrelink, which as the Tribunal noted was the only organisation gazetted for the purposes of regulation 1.21(b) in the definition of “independent expert.”

7. It is clear that the relevant regulation contemplates a difference in the qualifications required by a “competent person” and the qualifications required by an “independent expert.”  To the extent that the applicant’s complaint is that the “independent expert” may not have met the qualification requirements set out for a “competent person,” then what is clearly relevant is that the “independent person” providing this opinion to the Tribunal, only needs to meet the definition of “independent expert.”  And in this regard, there is nothing before the Court to show that it was not open to the Tribunal to make the finding that it did.

8. The applicant also complains that the independent expert was employed by Centrelink, a Government organisation, and that it was, in effect, the Government which had refused him a visa and a representative of the Government that was opposed to him in litigation before the Court.  I understood this to be a complaint that some sort of conflict of interest would arise in these circumstances.

9. As already set out above, “independent expert” is taken by the regulations to mean, amongst other things, a person employed by, or contracted to, an organisation specified in a gazette notice for the purposes of making independent assessments of non-judicially determined claims of domestic violence.  As the Tribunal notes in its decision record (at CB 173.8), Centrelink was the only organisation gazetted for the purposes of regulation 1.21(1).  Having decided to refer the issue for an assessment by an independent expert, then it is plain in the circumstances that the Tribunal referred the issue to the only organisation available to it for this purpose pursuant to the relevant regulatory requirements.  The Tribunal acted lawfully in this regard.  In these circumstances, there is no issue of conflict of interest on the part of the Tribunal or, indeed, any apprehension of bias on its part.

10. I did also consider the relevant test for the apprehension of bias (see Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [28]), as to whether a well-informed lay observer might apprehend some conflict of interest, or bias, in that the independent assessment was provided by what are Government employees. I am not persuaded that this would be the case. That two members of the Australian Association of Social Workers, persons qualified professionally in that capacity, would be seen, without any other factor, as not providing an impartial, professional assessment on the basis that they work for a Government organisation and that they are providing this report to an independent Tribunal with which they have no other connection other than, ultimately, both would be paid by the Australia taxpayer. In relation to this connection, in the absence of anything else, I cannot see that the well-informed lay observer would apprehend any bias in this process. This complaint also does not succeed.

11. The applicant himself was properly cautious about his comments concerning his former legal representative, Mr El-Hanania.  At its highest, the applicant stated that he did not understand that he had withdrawn his earlier proceedings before this Court, but that he had been told by his lawyer that he had won and that the matter would go on to the Tribunal for consideration.  There is considerable lack of evidence before the Court to say with any degree of certainty what occurred in relation to the former proceedings.  There is certainly no evidence before the Court to even indicate, let alone sustain, the uncle’s allegation (not pressed by the applicant himself) that the lawyer was motivated by greed, or that somehow the Minister’s representatives, including the Minister’s lawyers at the time, acted to deprive the applicant of some opportunity that the uncle says would have been advantageous to him.

12. What can be said is that the delegate’s decision to refuse the applicant the relevant visa was made on 22 June 2002.  The material in the Court Book shows that a letter was sent to the applicant dated 22 June 2002, care of his legal representative at that time (CB 79).  The letter attached the relevant decision record.  FM Smith’s orders were made on 19 July 2005 (CB 90), and another letter notifying the applicant of the decision sent to the applicant himself, dated 21 July 2005, is reproduced at CB 91 to CB 92.  The applicant’s application to the Tribunal is then dated 17 August 2005 (CB 93 to CB 99).  What can reasonably be inferred from this sequence is that for whatever reason the applicant sought review of the delegate’s decision in this Court sometime in 2005.  It is not clear, nor was any explanation put forward in the hearing before the Court as to what may have happened in the intervening period.  But what is clear is that following withdrawal of the application before the Federal Magistrates Court complaining about the delegate’s decision, the applicant was re-notified of the delegate’s decision by letter dated two days later, which enabled him to pursue the matter before the Tribunal.  There is no evidence that he had previously sought any such review earlier, although had he done so at any time from August 2002, the Tribunal would not have had jurisdiction to consider his application fro review.

13. The coincidence of the re-notification of the decision to the applicant was itself probably possible because of the Full Federal Court’s decision in VEANof 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 (“VEAN”) (a judgment made on 23 December 2003) (and noting in particular that the notification sent to the applicant care of his lawyer at that time was not in accordance with what was subsequently found in VEAN).  In all the circumstances, it is reasonable to infer that, for whatever reason, when the applicant sought review of the delegate’s decision, he would have encountered by that time (that is, 2005) a difficulty with the jurisdiction of the Tribunal, and whatever occurred, this enabled him to subsequently go before the Tribunal.

14. In this context, the applicant’s statement that he was told by his lawyer, Mr El-Hanania, in 2005 that “we had won,” is perfectly consistent with a situation where the applicant some three years after the delegate’s decision was able to get merits review of that decision before the Tribunal.  This is a far more plausible explanation for what occurred, than Mr Bilal’s allegations that the solicitor, motivated by greed, somehow colluded with the Minister’s representatives to deprive the applicant of an advantageous legal situation.  Whatever the case, however, Mr Bilal and the applicant have produced no evidence to the Court to support Mr Bilal’s allegations and, in any event, whatever occurred in July 2005 would not serve to reveal jurisdictional error on the part of the Tribunal.

15. I note that after the hearing of the matter before this Court the High Court handed down its judgment in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (SZFDE”), but even if there had been some evidence of fraudulent behaviour on the part of the applicant’s then solicitor (noting that there is no evidence whatsoever of such behaviour), this would still not bring this situation within what the High Court found in SZFDE. The fraud found in that case was relevant to the nature, scope and purpose of the review conducted by the Tribunal (at [29]). In the current case, if there had been any fraud (and I stress that there is no evidence whatsoever before the Court that there had been), then what occurred in SZFDE is plainly distinguishable, as the High Court stated (at [47]), the ultimate issue considered by the Court in that case was the effect upon the Tribunal’s decision making process of the fraud of the agent, a fraud said to have been committed during processing of the application by the Tribunal, and particularly in relation to an invitation to a hearing before the Tribunal, such that it could be said that there was “fraud on the Tribunal” (at [51]). I note also that what the High Court found in that case (at [53]), turned upon the provisions of Division 4 of Part 7 of the Act (relevantly, the Refugee Review Tribunal equivalent of Division 5 of Part 5 of the Act as it applies to the Migration Review Tribunal). In all therefore, the complaint, even as put by Mr Bilal himself, does not assist the applicant before this Court.

16. In all, I cannot see jurisdictional error in what the Tribunal has done. The Tribunal complied with the relevant regulatory scheme applicable to determining whether the applicant in this case was entitled to a visa on the basis of the claim of having suffered domestic violence.  It was open to the Tribunal to find that it could not be satisfied on the evidence provided by the applicant himself and, at that point, the Tribunal was required to refer the matter to an independent expert, and in fact referred it to the only organisation containing such experts for the purposes of the relevant regulations.  The Tribunal was ultimately bound by that expert’s opinion.  No jurisdictional error is revealed.  This application is therefore dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  23 August 2007