Bichar v Minister for Immigration
[2004] FMCA 360
•24 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BICHAR v MINISTER FOR IMMIGRATION | [2004] FMCA 360 |
| MIGRATION ¾ Application for spouse visa – domestic violence by nominating spouse alleged – statutory declarations about domestic violence not in form required by regulations – whether Tribunal breached rules of natural justice in not informing applicant that statutory declarations not in form required by regulations. |
Statutory Declarations Act 1959 (Cth)
Migration Regulations 1994 (Cth), r.1
Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279
Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait and Islander Affairs (2000) 75 ALR 706
Luu v Renevier (1989) 91 ALR 39
Abebe v the Commonwealth of Australia [1999] HCA 14 (1999)
Alim v The Minister for Immigration and Multicultural Affairs [2002] FCAA 1279
Du v Minister for Immigration and Multicultural Affairs [2000] FCAA 1115
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Muin v Refugee Review Tribunal (2002] 190 ALR 601
| Applicant: | RIMOUN BICHAR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1167 of 2002 |
| Delivered on: | 24 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 6 August 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kissane |
| Solicitors for the Applicant: | Frank Sabelberg |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1167 of 2002
| RIMOUN BICHAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks relief by way of prerogative writ against a decision of the Migration Review Tribunal dated 26 June 2002 by which the Tribunal affirmed the decision of a delegate of the Minister to refuse the applicant a spouse visa.
The applicant is a male National of Syria. He entered Australia on
19 October 2000 on a Prospective Marriage (Temporary) (Class) TO visa, subclass 820. On 25 March 2001, he married Ms Paulette Karto, the nominator for his visa, an Australian citizen.
On 9 July 2001, the applicant was granted an Extended Eligibility Temporary (EETV) visa, subclass 820.
At the beginning of August 2001, the applicant and the nominator ceased living together as husband and wife. On the 12 August 2001, the nominator advised the Department that she was withdrawing her nomination of the applicant.
By letter dated 28 September 2001, the Department wrote to the applicant informing him, among other things, that the Department had information that the applicant's relationship with the nominator was no longer continuing and invited the applicant to contact the Department because there "are still circumstances under which you may be eligible for the grant of permanent resident’s visa”. The applicant did not contact the Department.
By a decision dated 30 October 2001, a delegate of the respondent refused the applicant's application on the basis that on 12 August 2001, the nominator had formally advised the Department that she wished to withdraw her nomination of the applicant. Therefore, at the date of the delegate’s decision, the nominator no longer met the definition of spouse in the regulations.
An application to review the decision of the delegate was received by the Migration Review Tribunal on 8 November 2001. The applicant was represented by a migration agent who provided, by letter dated 14 April 2002, a submission to the Tribunal. The basis of the submission was that the applicant satisfied the requirements for the visa he was seeking because he had suffered domestic violence committed by the nominating spouse. A statutory declaration dated 15 April 2002 by the applicant was provided with the submission. The statutory declaration was made under the laws of the State of Victoria, not under the Statutory Declarations Act 1959 (Cth).
With the letter of 14 April 2002, there was a final page headed "Attachments". The list included "Statutory declaration by Mr R. Bichar" and "Forms 1040 signed by competent persons (Will be Posted)”.
Subsequently two statutory declarations were provided by the applicant to the Tribunal; one by Dr Ibrahim, psychiatrist, and the other from Ahmed Shahien, social worker. Each was on a proforma, Form 1040, provided by the Department of Immigration and Multicultural Affairs headed "Statutory Declaration under the domestic violence provisions of the Migration Regulations".
The Tribunal conducted a hearing on 30 May 2002. Evidence was given by the applicant and his brother. By decision dated 26 June 2002, the Tribunal affirmed the decision of the delegate. The reason was that the applicant had not satisfied the evidentiary requirements of the regulations for establishing that he had suffered domestic violence. Why this is so is succinctly put in the Tribunal's reasons at [22 -28]:
FINDINGS
22. At the time the visa application was lodged, Partner (Residence) (Class BS) contained the following subclasses: subclass 801 (Spouse) and subclass 814 (Interdependency). The only subclass in respect of which any claims have been advanced is subclass 801 (Spouse). There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.
23. The relevant criteria for the grant of a Partner (Residence) (Class BS) visa, subclass 801 are set out in Part 801 of Schedule 2 of the Regulations.
24. It is not in dispute that the nominator has withdrawn her nomination and that the marriage has broken down. The visa applicant seeks to rely on Regulation 801.211(6):
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the nominating spouse has ceased; and
(c) either or both of the following circumstances applies:
(i)either or both of the following:
(A) the applicant;
(B) a dependent child of the nominating spouse or of the applicant or of both of them;
has suffered domestic violence committed by the nominating spouse;
(ii) the applicant: …
25. Regulation 1.22 states that a reference to a person having suffered domestic violence is a reference to a person being taken under Regulation 1.23 to have suffered domestic violence. Regulation 1.23 sets out when a person is taken to have suffered domestic violence. Regulation 1.24 sets out the evidentiary requirements for 1.23(1)(g). The visa applicant has submitted a statutory declaration dated 15 April 2002, a statutory declaration by Ahmed Shahien dated 30 April 2002 and a statutory declaration by Dr Ibrahim dated 30 April 2002.
26. Regulation 1.21 defines `statutory declaration' as a statutory declaration under the Statutory Declarations Act 1959. The visa applicant's statutory declaration of 15 April 2002 does not comply. In Morgan v Minister for Immigration and Multicultural Affairs [1999] FCA 1059 (29 July 1999) the declaration stated that it was made under the Oaths Act 1900, a New South Wales Act and not the Commonwealth Act. Hill J made the following statement:
“Counsel submits that a Tribunal properly instructed in the law could do nothing but reject the applicant's application. First, it is said, that so far as the applicant seeks to rely upon regulation 1.24, the statutory declaration, which the applicant himself had sworn, was not a statutory declaration as contemplated by the Migration Regulations because it was not made under the Statutory Declarations Act 1959: see regulation 1.21 which defines statutory declaration as meaning a statutory declaration under the Commonwealth Act. The declaration on its face was sworn under the provisions of the Oaths Act 1900, a New South Wales Act and not the Commonwealth Act....
It is in these circumstances unfortunate that I have no alternative but to find for the Minister on the extremely narrow and technical basis that the declaration which was prepared on his behalf and which he made available to the Tribunal was not made under the Commonwealth Statutory Declarations Act, but rather under the New South Wales Oaths Act”
27. Regulation 1.26 deals with statutory declarations by competent persons. The statutory declaration of Ahmed Shahien (a social worker) dated 30 April 2002 does not comply with Regulation 1.26 as it does not name the person alleged to have committed the relevant domestic violence. The statutory declaration of Dr Ibrahim (a psychiatrist) dated 30 April 2002 also does not comply with Regulation 1.26 as it does not name the person alleged to have committed the relevant domestic violence. Additionally as the perpetrator is described as "His ex-wife’s family" this does not meet the requirement of having suffered domestic violence committed by the nominating spouse. Accordingly the Tribunal cannot determine that the visa applicant is taken to have suffered domestic violence pursuant to Regulation 1.23(1)(g).
CONCLUSION .
28. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review as the visa applicant does not satisfy any of the subclauses specified in Regulation 801.221
The correctness of the Tribunal's findings is not disputed. The only way to establish domestic violence is to comply with the requirements of the regulations (Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279, Wilcox J. at [37]. As the Tribunal found, essential requirements were not complied with.
The single ground of jurisdictional error alleged by the applicant is breach of natural justice. The applicant submitted that the Tribunal had an obligation to inform the applicant that the statutory declarations did not meet the requirements of the regulations and to give the applicant an opportunity to rectify the deficiencies.
The submissions on behalf of the applicant referred to cases where it is said that the Tribunal, in certain circumstances, might have a duty to draw a matter or matters relevant to the application to the attention of the applicant. Submissions for the respondent referred to cases which said that it was not the Tribunal's task to make the applicant's case.
The applicant’s submissions referred to well-known passages. For instance, in Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait and Islander Affairs (2000) 75 ALR 706, Merkel J. said at [70-71]
While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa at 587 per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its "essential features": see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.
71 However, where the decision-maker intends only to rely on material provided by the applicant in making his or her decision, there is no analogous requirement to bring matters to the applicant's attention. As Fox J stated in Sinnathamby at 506:
"As a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J at p 348. The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case.
In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case ... the material which was prejudicial to the appellant had been provided by the appellant herself."
This passage may provide some support for the argument that the tribunal should have advised the applicant that the statutory declarations did not meet the requirements of the regulations.
On the other hand, there are other cases which stand for the proposition that it is not for the Tribunal to make an applicant's case for him or her. In Luu v Renevier (1989) 91 ALR 39, Davies, Wilcox and Pincus JJ said at a 45:
The comment has been made in earlier cases that, in providing procedural fairness, the decision-maker is not obliged to make the case for the applicant: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p 170, Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at p 178 and Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 at p 9. The obligation of procedural fairness was discussed by Mason J in Kioa v West (1985) 159 CLR 550 at p 587 in these terms: "However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion: s.7(1). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: ..."
In Abebe v the Commonwealth of Australia [1999] HCA 14 (1999) and 97 CLR 510, Gummow and Hayne JJ. said at 576 [187]:
The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
The question is whether, in the circumstances of this case, the Tribunal was under an obligation to inform the applicant that the statutory declarations did not meet the requirements of the regulations. I note that in Federal Court decisions concerning statutory declarations required to establish domestic violence for the purposes of the regulations, it has not been suggested that the Tribunal erred in any way by not advising the applicants of what was required by way of statutory declaration. Examples are Ibrahim, Alim v The Minister for Immigration and Multicultural Affairs [2002] FCAA 1279, Du v Minister for Immigration and Multicultural Affairs [2000] FCAA 1115.
The Tribunal was not deciding a question of fact. The question for the Tribunal was whether the statutory declarations contained within them what the regulations required. The existence of the regulations and the requirements are a matter of law. In this case they were known to the applicant's adviser as shown by the adviser's letter of 14 April 2002.
In the case of the statutory declarations from people with the necessary qualifications, in this case a psychiatrist and a social worker, proforma statutory declarations prepared by the Department of Immigration and Multicultural Affairs, form 1040, were used. In the Court Book, only photocopy pages of some of the forms were reproduced. It is apparent from those two pages that the form was suitable to be used not only by people such as the psychiatrist and social worker. The form was designed to be used by an applicant as well to satisfy the requirements of the regulations.
If the proforma had been used by the applicant, his statutory declaration, as long as it had the necessary content, would have satisfied the requirements of the regulations. The defect in the other statutory declarations was that the full name of the person who committed (or who the person making the statutory declaration believed committed) the violence was not given. The relevant part of the form is;
|
The psychiatrist's statutory declaration has the answer "his ex-wife’s family" in the box. The social worker's statutory declaration left the box blank.
It is quite apparent that the full name of the person who committed the violence, or who the maker of the statutory declaration believed committed the violence, is a necessary part of information to be provided. Even if this was not clear to the applicant, it should have been clear to the applicant's adviser, who was the person who forwarded the documents to the Tribunal.
This is a case which falls in the category of those where it is not for the Tribunal to make the applicant's case for him. It was for the applicant to comply with the requirements of the regulations. He must be taken to have known what those requirements were. The Tribunal has not made a decision based on information not known to the applicant. The applicant had ample opportunity to provide statutory declarations in the proper form to the delegate or subsequently the Tribunal and did not do so. The Tribunal’s task was to make a decision on the material it had before it and that is what it did. There was no breach of the rules of natural justice and so no jurisdictional error.
There was no evidence before the tribunal that the applicant would have been able to rectify the omissions in the statutory declarations of the psychiatrist and the social worker. The requirement not met was that the statutory declarations "must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence" (r.1.26(d) .
Relevant domestic violence is described in r.1.23(2)(b). It provides:
a reference to relevant domestic violence is a reference to 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.
Violence includes the threat of violence (r.1.21 (1).
The Tribunal described the evidence from the applicant and his brother in paragraphs 14-21 of its reasons:
14. 21. A hearing was held on 30 May 2002 and oral evidence was given by Rimoun BICHAR (the visa applicant) and his brother Ibrahim BICHAR.
15. The visa applicant stated that he commenced living with the nominator as husband and wife from the date of their marriage on 25 March 2001. They ceased living together as husband and wife at the beginning of August2001.
16. The visa applicant stated that domestic violence first occurred a week after the marriage. The nominator was avoiding him sexually because she was suffering from a disease. The nominator verbally abused him, refusing to accept the relationship because of sexual problems. Soon after the marriage she told him she did not love him everyday. There was no domestic violence apart from the verbal abuse.
17. The Tribunal sought clarification of the visa applicant's statutory declaration regarding the meaning of the word "asult". The visa applicant was not able to explain what he meant by the word, stating that he had told his brother in Arabic what to write, which his brother had then translated into English. His brother did not know a lot of English.
18. The visa applicant stated that the verbal abuse upset him and he had to see a doctor because he was unable to sleep and felt scared. He felt scared later on because he was threatened and asked to leave the country. The threats were made via his mobile telephone. 3 calls were received from an unknown person, whom he suspected was from his wife's family. The nominator has also telephoned him 3 times, threatening to kill him if he did not leave the country, the first time being in November 2001.
19. Regarding the copy of Complaint and Summons for an Intervention Order scheduling a hearing on 25 March 2002, which was provided to the Tribunal in April 2002, the visa applicant stated that he had not been successful. The judge said that as there were no witnesses they should go their own ways. The nominator had accused him at the hearing of physical violence but this was a lie.
20. Ibrahim BICHAR stated that the nominator verbally abused the visa applicant and that the visa applicant had consulted a doctor. He and his wife lived with the visa applicant and the nominator in the same house. He observed that the visa applicant was sad and depressed. He also saw the nominator mistreating the visa applicant after the marriage. When the visa applicant came to sit next to the nominator, she would get up. She refused to tell the visa applicant where she had been, telling him it was none of his business. After the nominator left the visa applicant, the visa applicant got anonymous threatening telephone calls telling him to leave the country. The visa applicant was scared and worried that he would be killed.
21. Ibrahim Bichar stated that he thought the calls were from the nominator's family who wanted the visa applicant to leave. He stated that he visits the nominator's family once every 3 months because he is married to the nominator's sister.
In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, 1948 ALR 749, the Full Court (Tamberlin, Mansfield and Jacobsen JJ) said at 755 [36-37]
36 The third reason given by Kirby J was that the applicant in Ex parte "A" had not provided any clear indication of the evidence or material it would have placed before the RRT if the country information had been made available. Here, counsel for the appellant was also unable to point to any specific evidence that may have been supplied to the RRT in answer to the four items of information. He submitted that M & K would have been able to use their resources in order to see whether there was any other country information which contradicted the information referred to by the RRT.
37 The effect of the submissions made by counsel for the appellant was, therefore, that the appellant was deprived of the opportunity to try to obtain that information. However, as Kirby J said at [54], what was required was an indication of the nature of the opportunity and the presentation of evidence or material which would disclose an arguable case that the result in the RRT would have been different. No such evidence or material was put before us. Accordingly, the omission to supply the four items of country information to the appellant has not been shown to have had any material effect on the outcome of the application before the RRT.
The central point in the appeal in SBBS was whether the applicant should have been given the opportunity to comment on country information documents which were adverse to the appellant's case. As in Muin v Refugee Review Tribunal (2002] 190 ALR 601, an issue was the need for the applicant to show that there were relevant submissions that the applicant could have made about the information contained in the documents. This case is different because the question is whether the applicant could have supplied fresh documents which would have met the requirements of the regulations.
If the applicant gave the psychiatrist and the social worker a history of events similar to that he gave in evidence to the Tribunal, it is not surprising that the psychiatrist described the perpetrators of the violence as “his ex-wife's family” and the social worker expressed no opinion as to who was the perpetrator. The circumstances are different from SBBS and Muin but I think they are such that the same principles can be applied. This is one of those cases where, even if a breach of natural justice was established, it is necessary for the applicant to put before the court evidence that an opportunity to obtain fresh statutory declarations would have made a difference. There is no evidence.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 June 2004
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