Arachchilage v Minister for Immigration and Anor (No.2)
[2019] FCCA 3254
•14 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARACHCHILAGE v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 3254 |
| Catchwords: MIGRATION – Partner visa – where applicant’s sponsor denies parties are in a continuing relationship and no compelling reasons established to waive criteria for grant of visa – where applicant makes further application for adjournment – where no sufficient evidence adduced to support further adjournment – where it was open to Tribunal to find that criteria for grant of Partner visa were not made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 349, 474, 476 Migration Regulations 1994 (Cth), regs.1.21, 1.23, 1.24, 1.25, 1.26, 820.211, 820.221 |
| Cases cited: Arachchilage vMinister for Immigration and Border Protection [2019] FCCA 3073 CDV17 v Minister for Immigration and Border Protection [2019] FCA 726 Craig v South Australia (1995) 184 CLR 163 DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Sidkar v Minister for Immigration and Border Protection [2018] FCCA 1203 |
| Applicant: | CHANDIMA LAKSHAN PALADENIYA ARACHCHILAGE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 426 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 October, 11 November 2019 |
| Date of Last Submission: | 11 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor-Advocate for the Respondents: | Ms Buhary |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 2 March 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 426 of 2017
| CHANDIMA LAKSHAN PALADENIYA ARACHCHILAGE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 2 March 2017, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 7 February 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Partner visa pursuant to s 65 of the Migration Act 1958 (Act).
As appears below, although the proceeding was set down for hearing on 18 October 2019, the applicant did not appear but had foreshadowed that he would seek an adjournment of the hearing for six months. In the event, arrangements were made to contact the applicant by telephone and he was granted an adjournment albeit for a shorter period than that which he had requested: see Arachchilage vMinister for Immigration and Border Protection [2019] FCCA 3073. Those reasons should be read with these reasons for judgment.
Background
The applicant, a male citizen of Sri Lanka aged 42 years, first came to Australia on 8 February 2008 holding a student visa.
In April 2009, the applicant met Ms Buddhika Jeewani Aluthhewage (sponsor) at a time when she was boarding at his friend’s house.
By his application, the applicant named Ms Aluthhewage as his sponsor and identified her as being a permanent resident who had arrived in Australia on 28 January 2008.
In a statement made by the sponsor, she described her various academic studies in Australia from 2008 and the completion of a Diploma in Commerce at Deakin University in 2009. She also declared that upon completing that study she had taken up rental accommodation as a result of which she was later introduced by her landlords to the applicant.
Shortly after meeting the sponsor, the applicant proposed to her on 5 August 2009. On 2 October 2009, they decided that they would commence living together when the sponsor returned from a vacation in Sri Lanka in February 2010.
The parties were married on 28 February 2010 and they lived together until the sponsor returned to Sri Lanka in 2012. It appears that the sponsor travelled frequently between Australia and Sri Lanka, doing so for the apparent purpose of undertaking studies in Sri Lanka to satisfy the requirements of her IELTS English tests so as to qualify for permanent residency.
On 31 August 2012, the applicant lodged his visa application. It may be noted that the applicant was represented by a migration agent for the purposes of his application and that a number of documents were provided to the Department in support of the application.
On 4 February 2014, the Department wrote to the applicant making a request for the provision of further information including “evidence of how you maintained your relationship when your sponsor was overseas for lengthy periods of time . . .” The applicant was also requested to provide evidence respecting: the financial aspects of his relationship; the nature of his household; the social aspects of his relationship, and; the nature of the parties’ relationship.
On 21 March 2014, the applicant’s migration lawyer responded to that request, lodging a submission and providing a detailed statement from the applicant which addressed the various aspects of his relationship with the sponsor.
It appears that on about 14 March 2014, the applicant’s sponsor provided a detailed statement in which she described the nature of her relationship with the applicant stating, in conclusion[1] “We plan to get married in next year and I want to have a family and kids with him. These declarations is done for in assist with assing his patner visa application and earnestly requesting to grant a partner Visa for our future, . . .”
[1] Errors in original.
By letter dated 5 June 2014, the Department wrote to the applicant advising that it had received information concerning the ending of his relationship with his sponsoring partner. The letter further advised of three other circumstances in which the applicant might be considered eligible for the grant of a partner visa including, relevantly, that the applicant may have suffered family violence committed on him by the sponsoring partner. The Department supplied the applicant with a copy of reg 820.211 of the Migration Regulations 1994 (Cth) (Regulations).
On 15 July 2014, a firm of lawyers advised the Department that they had been appointed as the applicant’s new representatives. Responding to that advice, on 16 July 2014, the Department sent the applicant’s new lawyer a further letter addressing the matters in [13] above together with a further copy of reg 820.211 of the Regulations.
By letter dated 15 August 2014, the applicant’s new lawyers wrote to the Department advising that their client had suffered extensive domestic violence and, to that end: (a) provided a statutory declaration made by the applicant which, in 12 paragraphs, outlined the nature of the domestic violence to which, as he claimed, he had been subjected by the sponsor; (b) advised that medical reports had been sought from the applicant’s treating general practitioner and psychiatrist; (c) requested 2-3 weeks within which to supply those reports.
On 19 August 2014, the Department wrote to the applicant acknowledging his claim of having suffered family violence perpetrated by his former sponsor and requesting further information.
On 10 November 2014, the applicant’s lawyer supplied a medical report from his treating psychiatrist whom the applicant had consulted on 1 August 2014. While the report provided a diagnosis of anxiety with depression due to relationship issues and answered each of the four questions that had been posed by the lawyer, the report said nothing as to the perpetration of domestic violence upon the applicant by his former sponsor. It seems that at no stage was a report supplied from the applicant’s treating general practitioner.
On 2 July 2015, a delegate of the Minister refused to grant the application and gave reasons for so doing.
The delegate was not satisfied that the applicant and the sponsor were in a genuine de facto relationship as defined in the Regulations and therefore was not required to determine the applicant’s claims of alleged family violence against him.
Tribunal’s decision
On 21 July 2015, the applicant applied to the Tribunal for a review of the delegate’s decision and for this purpose employed the same lawyer who had been appointed to assist with the application to that point.
On 22 July 2015, the Tribunal invited the applicant to provide material.
On 22 November 2016, the Tribunal invited the applicant to attend a hearing on 25 January 2017 to give evidence and present arguments relating to the decision under review. It also requested that the applicant furnish any additional documents that he may wish to rely upon. The applicant’s response to the hearing invitation indicated that he did not require the assistance of an interpreter.
The applicant’s migration agent lodged written submissions dated 20 January 2017 with the Tribunal. The submission attached a number of documents that sought to demonstrate the nature of the applicant’s relationship with the sponsor.
That submission contained no reference to family violence.
On 25 January 2017, the applicant attended a hearing with the Tribunal and was assisted by his representative. Although the applicant was given an opportunity to file a post hearing submission, there is no evidence that any further submission was provided.
On 7 February 2017, the Tribunal notified the applicant of its decision. In a written statement of reasons (Reasons), the Tribunal affirmed the delegate’s decision not to grant the applicant a partner visa.
The Tribunal noted that where a sponsor committed family violence against, relevantly, an applicant, a Partner visa may be granted despite the relationship having ceased: [9]. The Tribunal correctly recognised that under reg 1.23 of the Regulations, a person was taken to have suffered or committed family violence, as the case requires, if: there was evidence tested before a court; or if the visa application included a non-judicially determined claim of family violence, and; either the Minister or a Tribunal was satisfied that the alleged victim had suffered relevant family violence, or an opinion of an independent expert had been given that the alleged victim has suffered relevant family violence: [11].
The Tribunal correctly found that in the present case, there was no judicially determined claim of family violence, and that it was therefore necessary to determine whether the alleged family violence occurred when the relationship was in existence: [12], [27].
The Tribunal found the applicant’s evidence regarding when the alleged family violence began and when the relationship ended to be vague: [19], [24]. The applicant initially told the Tribunal that the relationship “changed” in 2012 when the sponsor’s family wanted her to marry another man and became “irritable, moody and difficult”: [20]. However, when questioned further by the Tribunal, the applicant claimed that the alleged family violence had actually begun in early 2011: [22]. When asked about when the relationship ended, the applicant told the Tribunal that he was not sure, as the sponsor had never told him the relationship was over, and that the first he knew of it was when he learned that she had withdrawn her sponsorship. The applicant also provided inconsistent responses as to when he had last had contact with the sponsor: [23].
Although the Tribunal found the applicant’s evidence to be vague, it did accept that he had been in a relationship with the sponsor which ended when she withdrew her sponsorship in May 2014: [24]. This was despite the relationship being “somewhat unconventional”, “characterised by conflict” and punctuated by the considerable periods of time the sponsor spent in Sri Lanka without the applicant: [25].
The Tribunal found that the parties had been in a de facto relationship and that the criteria in cl 820.211(2) of the Regulations were met. It also concluded correctly, that the issue for determination was whether the applicant had suffered family violence committed by his sponsor as defined by the Regulations: [27].
The Tribunal recognised that a visa application was taken to include a non-judicially determined claim of family violence where: either a joint undertaking to a court had been made by both the alleged victim and perpetrator, or evidence in accordance with reg 1.24 was provided: [28]. It noted that the applicant was relying upon evidence referred to in reg 1.24; namely, a statutory declaration under reg 1.25 together with evidence of the kind specified by the Minister: [29].[2]
[2]I note the Tribunal erroneously referred to IMMI 12/16 instead of IMMI 12/116; however, I am not prepared to treat this as a material error.
As the only evidence which had been provided by the applicant to support his claims was the psychiatrist’s report dated 31 October 2014, the Tribunal found that it did not contain details of any physical injuries or treatment of mental health conditions that were consistent with the alleged family violence. The report simply stated that the applicant was suffering from anxiety and depression due to relationship issues, and not that those issues were related to the alleged family violence: [31].
The Tribunal noted that it had provided the applicant with an opportunity to provide evidentiary material that satisfied reg 1.24, but the applicant had not provided any further information: [32].
The applicant was expressly told that his evidence did not appear to satisfy the requirements of reg 1.24 and found that as the claim of family violence had not been established, he did not meet the requirements of cl 820.221(3) or any alternative criteria: [32]-[34], [35]-[37]. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the visa: [38].
Procedural history
On 2 March 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application.
By a Response filed on 5 April 2017, the Minister opposed the application on the stated basis that it made several broad and unparticularised allegations of jurisdictional error that could not be substantiated without further particularisation.
On 30 August 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions; however, those opportunities were not taken.
On 23 October 2017, the Minister filed written submissions which were responsive to the grounds appearing in the application. By that consent order, the proceeding was set down for final hearing on 18 October 2019.
Shortly before the scheduled hearing date, the applicant advised that he would seek an adjournment on the basis of a back injury. His application was granted, albeit not for the six month period that he sought. The reasons for allowing his application are detailed in Arachchilage vMinister for Immigration and Border Protection [2019] FCCA 3073.
By the orders made on 18 October 2019, the applicant was afforded, but did not take, a further opportunity to file submissions. Instead, by email sent on Friday, 8 November 2019, the applicant sent a copy of a radiologist’s report dated 28 October 2019 which detailed the findings of an X-ray scan of the applicant’s lumbosacral spine. The report addressed three matters: (1) Clinical Notes: “Lower back pain”; (2) Report: the report detailed the views that had been obtained and identified moderate upper lumbar/thoracolumbar scoliosis with right side convexity. The radiologist found that “The lumbar vertebrae are intact with normal heights. The disc spaces are within normal limits.”: (3) Comment: the radiologist observed that persisting symptoms may suggest CT scanning of the lumbar spine for further assessment of any possible disc lesion as well as the facet joints.
Objectively, the X-ray report did not make an affirmative finding such as disc herniation or otherwise report a clinical spinal injury.
The applicant filed no other evidence.
At the hearing on 11 November 2019, the applicant presented in a wheelchair, with a person who said that she was there to provide support to him. He stated that he had a special request which was that he sought a further adjournment on the basis that he wanted to retain a lawyer. The applicant stated that he had expended his available funds in relation to certain litigation before a Magistrates Court and then, on appeal, before the County Court where, he said, he had been exonerated. The applicant also described how he owned property in Sri Lanka which he proposed to sell and, by using the proceeds of sale, to retain a migration lawyer, stating that he required $10,000 for this purpose.
I explained to the applicant that he had been self-represented in this proceeding since its commencement in March 2017 and it appeared from his psychiatrist’s report dated 31 October 2014 that he “has hired an immigration lawyer”. I further explained that I would determine his application for an adjournment and at the same time, if it was refused, deal with the substantive application, providing reasons for both any grant of refusal of the adjournment and application for final relief.
Adjournment
Given the course of events above, it is necessary to consider the principles applicable to the grant or refusal of an application for an adjournment. The power to adjourn a proceeding is discretionary and relates to a matter of practice and procedure.
An application for an adjournment is not automatic but calls for the exercise of judicial discretion: cf Gallo v Dawson.[3] Indeed, inherent in the grant of a discretionary power is an assumption that such applications will sometimes be refused: Jackamarra v Krakouer.[4] More recently, in DKX17 v Federal Circuit Court of Australia, Rangiah J, with whom Reeves and Bromich JJ agreed, stated:[5]
An adjournment is not granted merely for the asking. Wider issues are in play, even if they were not expressly referred to by the trial judge. As Toohey and Gaudron JJ observed in Sali v SPC Ltd:[6]
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales.The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.
[3] (1990) 93 ALR 479, 480 (McHugh J).
[4] (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
[5] [2019] FCAFC 10, [83].
[6] [1993] HCA 47; (1993) 67 ALJR 841, 636.
The principles applicable to the determination whether of or not to grant an adjournment were also comprehensively considered in EPH17 v Minister for Immigration and Border Protection.[7] Notwithstanding that the analysis undertaken by Kenny J in that case concerned the question of appeal from refusal of an adjournment, the following statements of principle can be distilled from that decision (citations omitted):
a)an adjournment is a means whereby prejudice to a party – especially an unrepresented party – may be avoided;
b)contextually, the courts are not required to ensure that a party takes the best advantage of the opportunity to present his or her case and each case will depend upon the individual circumstances;
c)the withdrawal of legal representation shortly before a hearing does not mean that a court will always grant an adjournment in the proper exercise of its discretion;
d)the discretion to grant or refuse the application must be exercised judicially;
e)a refusal to grant an adjournment can constitute a failure to give a party an adequate opportunity to present his or her case, and can constitute procedural unfairness or may be legally unreasonable where it lacks an intelligible justification;
f)such error may be demonstrated in circumstances where no formal application for an adjournment has been made and upon matters which were unknown to the court.
Her Honour emphasised that the duty of the court is to ensure that a party is given a reasonable opportunity to present his or her case: see also, CDV17 v Minister for Immigration and Border Protection.[8]
[7] [2019] FCA 824, [16]-[24].
[8] [2019] FCA 726, [32] (Snaden J).
Upon my review of the matter, the applicant has had more than adequate opportunity to prepare for, and present submissions at, his application. As long ago as August 2017, he consented to orders listing the matter for hearing in October 2018. When the matter was listed for hearing he was granted a further opportunity to prepare the case for trial.
There is no evidence that the applicant has taken any step since the institution of the proceeding to actually prepare the application. This observation does not ignore that the applicant has been self-represented. He was represented by a migration lawyer in 2014. At the least, the belated call to sell unidentified property in Sri Lanka sufficiently indicates the inaction that has overlaid this proceeding.
A party’s inability to have a lawyer represent them at a hearing is not always a sufficient or adequate reason to adjourn a proceeding and the demands of business upon this court and considerations of case management require me to take into account that this matter had been listed for hearing, by consent, and that another litigant had lost the opportunity for a hearing at the time and date which had been allocated to this case. In all the circumstances, I am not satisfied that there is any sufficient merit in the request for an adjournment of the hearing. The application is refused. Accordingly, as indicated at the hearing, if the application for an adjournment was refused, I would proceed with the hearing of the application for judicial review.
Applicable principles
If the Tribunal’s decision was a privative clause decision[9], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[10] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[11] Whether it should do so is a separate issue.
[9] Act, s 474(2).
[10]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[11] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[12] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[12]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Consideration
The applicant was self-represented before me. As he was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and application for review.
The grounds of review in the application read (adding emphasis):
The decision by the Second Respondent is affected by jurisdictional error. For the reasons outlined below, the Second Respondent acted outside its scope of power and failed to exercise its proper jurisdiction in accordance with law. As such the decision does not come within the scope of a privative clause decision as defined by the Migration Act 1958.
The decision made by the Second Respondent
a. is affected by an error of jurisdiction because the Second Responded was only required to consider whether the Applicant was able to satisfy Regulation 820.221(2) as highlighted in the First Respondents decision dated 2nd July 2015
and further in the alternative
a. is affected by an error of law as the Second Respond applied Reg 1.23 erroneously by failing to admit previously submitted documents namely statutory declaration by the Applicant and written statements by qualified medical practitioners to prove that the Applicant had made a valid claim of non-judicially determined family violence
b.is so unreasonable that no reasonable decision maker could have made it;
c. is based on a finding for which there was no evidence or other material;
d. takes into account irrelevant considerations
e. fails to take into account relevant considerations
f. was an improper exercise of power conferred by the Migration Act 1958
g. was otherwise contrary to law
h. was made in bad faith as the Second Responded was biased about the issue of family violence perpetrated against men
The chapeau to the grounds of review may be understood as recognising that if the Tribunal’s decision was a privative clause decision it was not amenable to judicial review. Further, as the Minister submitted, the matters identified by the applicant were presented in the alternative and can be sensibly arranged into three grounds of review, the first being focussed upon cl 820.221(2) of the Regulations, the second relating to reg 1.23 and the third addressing a litany of unparticularised complaints.
Ground 1
Ground 1 contends that the Tribunal’s decision was affected by an error of jurisdiction because the Tribunal was only required to consider whether the Applicant was able to satisfy Regulation 820.221(2).[13] This was said to be highlighted in the delegate’s decision dated 2 July 2015.
[13]The applicant’s reference to cl 820.221(2) appears to be in error, as that clause relates to decision criteria when the sponsor has died.
As to the delegate’s decision dated 2nd July 2015, in that section of the decisional record which contained the delegate’s reasons and decision, the delegate observed that to satisfy the requirements of sub-cl 820.211 (1), the applicant must, amongst other things, be the spouse or the facto partner of a person who was an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
Taking a literal view of Ground 1, the applicant seemed to be suggesting that it was sufficient, without more, to satisfy the criteria for a Partner visa that he was the spouse or de facto partner of a person who was either: an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. To have stated the ground of challenge at that level of generality ignored the many criteria which fell for consideration in the determination whether an applicant for a Partner visa was the spouse or do facto partner of such a person.
On another view, the applicant’s complaint appeared to be that, as the delegate had refused the application upon finding the applicant was not in a genuine relationship with his sponsor (and therefore did not meet cl 820.211(2)), the Tribunal only needed to consider that issue. This is plainly incorrect. As the Minister submitted, the Tribunal is not bound to make a decision based upon the same grounds as those employed by the delegate.[14] To the contrary, cl 820.221 requires that the Tribunal consider the applicant’s circumstances at the time of its decision and on the basis of all the claims that the applicant has made.
[14] See s 349 of the Act
In particular, sub-cl 820.221(1) required it to be satisfied at the time of decision that the applicant continued to meet the requirements of sub-cl 820.211(2) or that he met sub-cll 820.221(2) or (3). On the facts of this case, as the sponsor had withdrawn her sponsorship, the only relevant means by which the applicant could qualify for a Partner visa was that, at the time of application, he met sub-cl 820.221(3); namely, that he had been the victim of family violence committed by the sponsor.
Ground 1 is rejected.
Ground 2
Ground 2 alleges that the Tribunal misinterpreted regulation 1.24. It is not said how, or in what way, this had occurred.
From my review of the Reasons, there is no substance in this ground.
In Minister for Immigration and Citizenship v Ejueyitsi,[15] the Full Court surveyed a number of the authorities and concluded:
It is common to all of these cases that for a declaration to conform to reg 1.26, it must be clear from the declaration itself that the declarant is expressing his or her opinion that the visa applicant has suffered domestic violence within the meaning ascribed to that term in reg 1.23(2)(b), namely, " ... violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.[16] (emphasis added)
[15] (2007) 159 FCR 94, [33].
[16]The definition of ‘relevant family violence’ in the present Regulations is the same, it is now located in Regulation 1.21
In a statement which was affirmed by the Full Court Ejueyitsi,[17] in Du v Minister for Immigration and Multicultural Affairs,[18] Mathews J said the following as to the proper construction of reg. 1.26(c):
The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency between a person’s presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in Reg. 1.23 has been suffered by a person.
This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here.
The Minister also referred me to Sidkar v Minister for Immigration and Border Protection.[19]
[17] (2007) FCR 94, [34].
[18] [2000] FCA 1115, [18]-[19].
[19] [2018] FCCA 1203, [42]-[47].
As applied here, the Tribunal correctly found that the psychiatrist’s report did not state that the applicant’s mental health problems were consistent with family violence. There was no other independent evidence supporting a conclusion of family violence.
Further, IMMI12/116 required that the applicant provide two pieces of evidence that complied with the requirements in Sch 1 of IMMI 12/116. Only one item of evidence had been provided by the applicant. Even if it could be said that the psychiatrist’s report otherwise complied with the applicable requirements, the applicant had not satisfied the requirements of reg 1.24 by supplying two items of evidence.
Ground 2 is rejected.
Ground 3
The remaining omnibus grounds of review are comprised of broad and unparticularised allegations that the decision was unreasonable; based on a finding for which there was no evidence; took into account irrelevant considerations; failed to take into account relevant considerations; was an improper exercise of power; contrary to law and made in bad faith.
However, without further particularisation, none of these allegations can be substantiated.
The matters of complaint comprised in Ground 3 are rejected.
Conclusion
For the reasons above, the application must be dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 14 November 2019
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