Cherkawi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 275
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cherkawi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 275
File number: MLG 1719 of 2019 Judgment of: JUDGE FORBES Date of judgment: 28 March 2024 Catchwords: MIGRATION - judicial review of decision of Administrative Appeals Tribunal refusing Partner (Residence) visa – where applicant’s former partner withdrew sponsorship – whether applicant made non-judicially determined claim of family violence – whether statutory declarations produced by applicant met prescribed evidentiary requirements – circumstances in which statutory declaration made by social worker – whether social worker had provided counselling or assistance to applicant – where social worker engaged to assess applicant and write report - whether applicant denied procedural fairness – no duty to make further inquiries – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 801.221, reg 1.23, 1.24, 1.25, IMMI12/116Cases cited: Dang v Minister for Immigration [2016] FCCA 1426
Minister for Immigration and Citizenship v Pham [2008] FCA 320
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Opoku v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 945
Pham v Minister for Immigration and Border Protection [2018] FCA 1946
Thaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2133
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 12 March 2024 Place: Melbourne Solicitor for the Applicant: David Harvey Migration Lawyer Solicitor for the Respondents: Australia Government Solicitor ORDERS
MLG 1719 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMAD CHERKAWI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Applicant’s amended application for judicial review filed 12 March 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
In this proceeding the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 3 May 2019 to refuse the grant of a Partner (Residence) (class BS) (subclass 801) visa (the visa).
The applicant advances four grounds of review, however the grounds can be reduced to a primary contention. That is, that the Tribunal erred in finding that the applicant had not made a “non-judicially determined claim of family violence” under reg 1.23(9) of the Migration Regulations 1994 (Cth) (the Regulations), and this error was jurisdictional.
The applicant contends that the statutory declarations of social worker Ms Tanya Jordan satisfied the evidentiary requirements as specified in legislative instrument IMMI12/116, and as such he was exempt from the sponsorship requirements under cl 801.221(2) of the Regulations, and thus the visa should have been granted.
For the reasons set out below, I have determined that the decision of the Tribunal was not affected by jurisdictional error. The application is dismissed.
BACKGROUND
The applicant is a citizen of Lebanon. On 30 November 2015 the applicant met his future wife (the sponsor), an Australian citizen, for the first time at her parent’s house in Lebanon. They announced their engagement shortly after, around January of 2016. After becoming engaged, the sponsor returned to Australia.
The applicant travelled to Australia, and on 18 May 2017 the couple married in New South Wales. It is not in issue that their marriage is valid for the purposes of the Act.
On 5 July 2017 the applicant applied for Partner (Temporary) (class UK) (subclass 820) and Partner (Residence) (class BS) (subclass 801) visas. These two Partner visa types are typically applied for jointly. One of the criteria for the grant of a Subclass 801 (Permanent) Partner visa, as set out in Part 801 of Schedule 2 to the Regulations, is that the applicant is a holder of a Subclass 820 (Temporary) Partner visa.
On 10 October 2017 the applicant’s sponsor sent an email to the Department informing them that the relationship had ended on 28 July 2017. The sponsor provided a new contact address and mobile number for the applicant.
On 17 October 2017 the applicant’s Subclass 820 Partner visa was granted.
On 19 October 2017 the Department responded to the sponsor, stating that the applicant had denied the breakdown of the relationship. The Department requested that the sponsor sign the correspondence she had prepared, date it and scan it back to the Department, along with a copy of her driver’s license.
Later that day on 19 October 2017 the sponsor responded to the Department, enclosing the documents as requested, and confirming that she would like to withdraw her sponsorship. The following day the Department wrote to the sponsor informing her that her sponsorship of the applicant’s Subclass 801 (Permanent) Partner visa had been withdrawn.
The Department provided the applicant with two opportunities to respond to the information that the relationship had ended, on 20 October 2017 and 4 January 2018. The applicant did not respond.
On 12 June 2018 the applicant’s Subclass 801 (Permanent) Partner visa was refused by a delegate to the Minister (delegate). As a result of the sponsor’s withdrawal, the applicant did not satisfy cl 801.221 of Schedule 2 to the Regulations.
Administrative Appeals Tribunal
On 20 July 2018, with the assistance of a registered migration agent, the applicant applied to the Tribunal for review of the delegate’s decision.
On 5 December 2018 the Department invited the applicant to comment on the information on the Department’s file that the relationship with his sponsor had ended and that she had withdrawn her sponsorship. The Department also invited the applicant to provide information that may be relevant to the following exceptions which would allow a grant of a Partner visa:
·The death of the sponsoring partner
·Family violence
·Certain court orders or responsibilities in relation to children
On 17 December 2018 the applicant’s legal representative sent a submission to the Department attaching the following documents:
·Letter to the Administrative Appeals Tribunal and Legal Submission;
·Mr Cherkawi’s signed Statutory Declaration;
·Photos taken during relationship;
·Statutory Declaration of Ms Monique Toohey; and
·Statutory Declaration and report of Ms Tanya Jordan.
The legal submissions alleged that the applicant had suffered from family violence during his relationship with the sponsor and addressed the family violence criterion in cl 801.221(6) of Schedule 2 to the Regulations. The supporting statutory declarations were written by Ms Toohey, a psychologist, and Ms Jordan, a social worker. Also attached was a “Court Report”, written by Ms Jordan.
On 15 March 2019 the applicant was invited by the Tribunal to attend a hearing, which he attended with his legal representative and an Arabic (Lebanese) interpreter on 10 April 2019. Following the hearing, the applicant’s representative filed further submissions and supporting photographs.
On 3 May 2019 the Tribunal affirmed the decision of the delegate to refuse the grant of the Subclass 801 (Permanent) Partner visa.
The Tribunal held that the applicant’s own statutory declaration satisfied reg 1.25. Reg 1.25 lays out the requirements for the statutory declaration by the alleged victim of family violence.
The Tribunal then considered the statutory declaration of the psychologist, Ms Toohey. Ms Toohey declared that she had held “multiple psychological assessments and clinical interviews” with the applicant, which formed the basis of her opinion that he was “the victim of family violence allegedly perpetrated by his wife […]”[1]. The Tribunal was satisfied that the applicant had been treated by Ms Toohey “while performing the duties of a psychologist and was in a therapeutic relationship with the applicant”[2]. The Tribunal found that Ms Toohey’s statutory declaration satisfied the evidentiary requirements of reg 1.24.
[1] Administrative Appeals Tribunal’s (Tribunal’s) reasons at [23]
[2] Tribunal’s reasons at [24]
The Tribunal then considered the statutory declaration and Court Report of the social worker, Ms Jordan. In the statutory declaration, Ms Jordan declared that she conducted a “clinical assessment” with the applicant on 7 December 2018[3]. She also stated that the applicant “was a victim of family violence whereby he experienced emotional, mental, physical and financial abuse perpetrated by [the sponsor]” and detailed the evidence to support this statement[4]. In the Court Report Ms Jordan stated:
“As a result of having conducted a clinical interview (7 December 2018) and the available documentation Mr Cherkawi is a victim of family violence within the course of his marriage to [the sponsor] and her extended family.”[5]
[3] Tribunal’s reasons at [28]
[4] Tribunal’s reasons at [28]
[5] Tribunal’s reasons at [30]
The Tribunal held that both the statutory declaration and the Court Report disclose that Ms Jordan only saw the applicant on a single occasion[6], and therefore she had not provided counselling or assistance to him “in the context of a therapeutic relationship”[7]. The Tribunal held at [33]:
“The self-titled ‘Court Report’ statutory declaration makes it clear that the consultation was arranged at the behest of the applicant’s lawyers, for the purpose of obtaining an assessment and for Ms Jordan to make a statutory declaration ‘in relation to whether Mr Cherkawi is a victim of family violence after having taken into account the Administrative Appeals Tribunal evidence guidelines, legislation, case law and policy’. Further, the ‘purpose of the report’ was said to be:
To conduct a clinical assessment and prepare a written report to ascertain if Mr Mohamad Cherkawi meets the Subclause 801.221(6) criteria of the Migration Regulations 1994 (Cth) to determine if he has suffered family violence committed by the sponsoring partner (in this case [the sponsor]).”
[6] Tribunal’s reasons at [33]
[7] Tribunal’s reasons at [32]
On account of the above reasoning, the Tribunal found that the statutory declaration and Court Report prepared by the social worker Ms Jordan did not satisfy the evidentiary requirements of reg 1.24. Accordingly, a claim of non-judicial family violence was not made out under reg 1.23, and the applicant did not meet the requirements of cl 801.221(6)(c) for the grant of the visa.
GROUNDS
In an amended application filed 12 March 2024, the applicant asserts four grounds of review:
1.The Second Respondent erred in finding the applicant had not made a valid non-judicial claim of family violence in his application.
2.The Second Respondent denied the Applicant procedural fairness.
3.The case of Dang v Minister for Immigration [2016] FCCA 1426 was wrongly decided and is distinguished from the present case in as much as the evidentiary requirements prescribed in Regulation 1.24, were met by the Applicant in the present case.
4.The case of Pham v Minister for Immigration and Border Protection [2018] FCA 1946 is distinguished on the facts. Pham concerned the evidentiary requirements for the report of a nurse, whereas the issues in the current proceeding are the evidentiary requirements for the report of a social worker.
Grounds three and four are not proper grounds and are in the nature of submissions supporting ground one. Grounds one, three and four in essence assert that the Tribunal erred in finding that Ms Jordan’s statutory declarations did not satisfy reg 1.24 of the Regulations.
LEGAL FRAMEWORK
The criteria for the grant of the relevant partner visa are set out in Part 801 of Schedule 2 to the Regulations.
Cl 801.221 requires, among other things, that the applicant continues to be sponsored by their spouse or de facto partner. If the relationship has ceased, cl 801.221(6) requires the existence of certain circumstances in order to grant the visa. One of those circumstances is that the applicant has suffered family violence committed by the sponsoring partner.
Reg 1.23 of the Regulations sets out the various circumstances where a person will be taken to have suffered or committed family violence. Reg 1.23(9) states:
(9) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
[…]
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i)the alleged victim has suffered relevant family violence; and
(ii)the alleged perpetrator committed that relevant family violence.
Reg 1.24 of the Regulations provides:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b)the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
Instrument IMMI 12/116, in force at the time of the Tribunal’s decision, provides that a minimum of two items of evidence from a list in the Schedule to the instrument must be presented and that no more than one of each type may be presented.
One of the items of evidence that is acceptable is a statutory declaration from a registered and qualified psychologist who has treated the applicant. The statutory declaration deposed by Ms Toohey was accepted as meeting the evidentiary requirements.
However, the statutory declaration made by Ms Jordan was not accepted by the Tribunal. The relevant item in the Schedule which relates to evidence given by a social worker is as follows:
Schedule 1
Type of Evidence includes the following detail […] […] Statutory declaration made by:
· a member of the Australian Association of Social Workers, or
· a person who is eligible to be a member of that Association
who has provided counselling or assistance to the alleged victim while performing the duties of a social worker. (emphasis added)
· States in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
[…] […] Relevant authorities
Dang v Minister for Immigration [2016] FCCA 1426 (Dang)
In Dang, as here, the applicant submitted statutory declarations from a psychologist and a social worker for the purposes of evidencing family violence in accordance with IMMI12/116. The Tribunal refused to accept the statutory declarations as evidence on the basis that they did not indicate that the psychologist “had treated” the applicant or that the social worker had “provided counselling or assistance”. In its reasons the Tribunal concluded that for the statutory declaration to meet the requirements of IMMI12/116 “the relationship between Applicant and the psychologist or social worker must have been essentially a therapeutic one […]”[8].
[8] Dang v Minister for Immigration [2016] FCCA 1426 (Dang) at [29]
On review of the Tribunal’s decision, Judge McNab (as his Honour then was) held that[9]:
“If that requirement [to have a therapeutic relationship] was ignored, the statutory declaration could be provided by any psychologist who was provided a history by the Applicant. […] [T]he purpose of the regulation is that it must be made by a professional who has formed the requisite opinion in the course of providing professional services in relation to the visa Applicant, in circumstances where the genuineness or otherwise of the claim might be expected to be observable by that professional”.
[9] Dang at [30]
Judge McNab found that the applicant had only seen the psychologist who made the statutory declaration once, at the request of the applicant’s representatives, and it was for the purpose of obtaining an assessment to advance the visa claim[10].
[10] Dang at [31]
Pham v Minister for Immigration and Border Protection [2018] FCA 1946 (Pham)
In Pham, a report from a nurse and a statutory declaration from a psychologist were submitted to the Tribunal for the purposes of IMMI12/116. Relevantly in that case, IMMI12/11 required that the statutory declaration be made by a person who is “registered as a nurse […] and is performing the duties of a registered nurse”.
Justice Middleton agreed with and adopted the reasoning in Dang, finding that the report of the nurse did not “detail any therapeutic treatment for any mental health condition” that was consistent with the alleged family violence[11]. Justice Middleton held that the text of IMMI12/116 must be read in its context[12]:
“Specifically, the text in the left hand column must be read with the text in the right hand column. Thus, the registered medical practitioner or nurse must “detail the physical injuries or treatment for mental health that is consistent with the claimed family violence”. The right hand column presupposes that the registered medical practitioner or nurse has already engaged with the applicant, and has assessed certain physical injuries or prescribed certain treatment for mental health.”
[11] Pham v Minister for Immigration and Border Protection [2018] FCA 1946 (Pham) at [31]
[12] Pham at [28]
Justice Middleton found that in the nurse’s statutory declaration, the nurse appeared to acknowledge that the applicant had not “engaged” with any “services that would have been appropriate to meet his needs at the time”[13]. Justice Middleton declared that it would be contrary to the purpose and construction of IMMI12/116 if the relevant practitioner was merely required to state their opinion after one or two assessment sessions, as in that case any “words in relation to treatment would be otiose”[14].
Opoku v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 945 (Opoku)
[13] Pham at [31]
[14] Dang at [29] as cited in Pham at [30]
In Opoku, the statutory declaration of a social worker was submitted to the Tribunal as an item of evidence under IMMI12/116. In that case, there was a live issue before the Court as to the nature of the relationship between the applicant and social worker who wrote the statutory declaration. The basis on which the applicant and social worker had first met, and whether the applicant had received any counselling before the “counselling interview” referred to in the statutory declaration, were unclear from the report[15]. The “counselling interview” had taken place ten days prior to the report being written.
[15] Opoku v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 945 (Opoku) at [18]
The Tribunal refused the visa, finding in relation to the evidentiary requirements that “[…] the social worker was not engaged to provide counselling or assistance per se […]”. On review, Judge Egan disagreed and held that there was no basis for this finding[16]:
“It is trite that a person may be professionally counselled on one, or on more than one occasion. IMMI 12/116 does not relevantly provide that there must be more than one occasion of counselling to have occurred before a social worker is able to relevantly make a compliant statutory declaration. Had that been the intention of the Minister, one would have thought that such requirement would have been specifically set out in the body of IMMI 12/116.”
[16] Opoku at [18]
Judge Egan acknowledged that Opoku could be distinguished factually from Dang and Pham, as in those matters there was evidence that the statutory declarations had not been written in the context of a therapeutic relationship, and thus it was open for the Tribunal to find that they did not meet the requirements of IMMI12/116[17]. In Opoku, however, there was evidence that the applicant had attended at least one counselling session, notwithstanding it being the session in which the “counselling interview” was conducted and on which the statutory declaration was based[18].
[17] Opoku at [19]
[18] Opoku at [20]
HEARING
The parties came before me on 12 March 2024. Mr Harvey appeared for the applicant and Mr Downie appeared for the respondent.
Prior to the hearing each of the parties filed written submissions and the Minister filed a court book, in accordance with Court orders. Shortly prior to the hearing, the applicant sought to file a further amended application and an affidavit of David Harvey, which deposed to the amendments in the application. The Minister had no objections and I granted leave for these to be filed.
The parties’ representatives relied upon their written submissions and developed them orally at the hearing.
Ground one
Applicant
Ground one asserts that the Tribunal fell into jurisdictional error when it found that the applicant had not made a valid non-judicial claim of family violence. The Tribunal found that Ms Jordan’s statutory declaration did not meet the evidentiary requirements as specified in IMMI12/116 because it was the product of a specific engagement by the applicant’s solicitor for the purpose of undertaking a clinical assessment and preparing a report as to whether the applicant had been subjected to family violence. The Tribunal held on the evidence that Ms Jordan did not have a previous relationship with the applicant prior to the clinical assessment which had been arranged by his representatives. This fact, regarding the nature of the engagement and purpose of the engagement, is not in contest. This was confirmed by the parties at the hearing in response to a question from the Court.
The applicant nonetheless contends that the relationship between the applicant and Ms Jordan satisfies the criteria in reg 1.24 because it was a clinical one, and that the report had been prepared following a clinical interview, as was the case in Opoku. However, at the hearing, the applicant’s representative effectively conceded that the reasons given for Ms Jordan’s conclusion were based on a history taken from the applicant at that interview, and that there was no other evidence.
The applicant contends that, following the reasoning in Opoku, it is immaterial whether Ms Jordan’s opinion was formed after only one consultation, or after several. The applicant also sought to distinguish this case from Pham, as in that case the matter involved a nurse’s statutory declaration, not a statutory declaration from a social worker.
Minister
The Minister submits that on a proper construction of IMMI12/116, the applicant and Ms Jordan should have been engaged in a therapeutic relationship in order for the statutory declaration to meet the evidentiary test, relying on the reasoning in Dang and Pham.
The Minister also relied on Thaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2133 at [29] where it was held that:
“[…] [I]nvolvement with a social worker that was superficial or without any repeated engagement in a way that would permit a social worker to provide a genuine opinion or assessment about whether the person suffered family violence is likewise something IMMI 12/116 aims to avoid.”
The Minister points to the Court Report of Ms Jordan which explicitly notes that the purpose of the “clinical interview” was to “assess [the applicant] and produce a statutory declaration in relation to whether [he] is a victim of family violence after taking into account the Administrative Appeals Tribunal evidence guidelines, legislation, case law and policy”[19]. Further, the timing of the “clinical interview”, a week before the evidence was filed with the Tribunal, points away from the existence of a therapeutic relationship. This matter is analogous with Dang and the Minister submits that the evidence of Ms Jordan is the exact kind of evidence IMMI12/116 aims to avoid.
[19] Court Book (CB) 164
The Minister submits that the applicant’s reliance on Opoku is misconceived. The Minister says that Judge Egan’s observations regarding the proper construction of IMMI12/116 are obiter dicta and fact specific, and do not cast any doubt on the reasoning in Dang or Pham.
Consideration
In determining this ground, it is open to this Court to make a its own finding on whether Ms Jordan’s statutory declaration met the requirements of IMMI12/116, as read with regs 1.23-1.25. In Pham at [34] Justice Middleton held that:
“[…] because the question of whether the application included a ‘non-judicially determined claim of family violence’, the Tribunal’s own reasons for not concluding that [the] report did not meet the relevant description in IMMI 12/116 is not determinative. The Court is obliged to consider the question for itself, informed correctly by the law, on the evidence before it.”
The applicant relied on Opoku as authority for the proposition that a single interaction between a professional and an applicant may be sufficient to establish a therapeutic relationship. However, Opoku is clearly distinguishable from this matter, as in Opoku there was a live issue about the nature and purpose of the interaction between the applicant and the social worker. Opoku does not stand for the proposition that a single interaction will satisfy reg 1.24 - only that it could.
In the present case it is clear from the statutory declaration and the Court Report of Ms Jordan that the nature and purpose of the interaction was for obtaining an assessment that was “arranged at the behest of the applicant’s lawyers”[20]. That is not contested, nor is it contested that the purpose was to obtain evidence to support the applicant’s visa application.
[20] Tribunal’s reasons at [33]
It is apt to consider what was intended by IMMI12/116. The applicant was correct that IMMI12/116 itself does not use the expression “therapeutic”. However, the table in IMMI12/116 clearly refers to a social worker “who has provided” counselling or assistance to the alleged victim. This presupposes that the counselling or assistance occurred while the practitioner was performing their duties as a social worker.
The Explanatory Statement that accompanies the instrument provides some further insight into its purpose[21]:
“The instrument is one of several measures operating to improve the accessibility of the family violence provisions by streamlining the evidence that applicants must provide in order to make a non-judicial claim of family violence. People who have suffered family violence may already have been in contact with a range of support services or state agencies, and records of this contact may already exist. The new evidentiary requirements seek to enable people who are in possession of those documents to enliven a claim of family violence under the Regulations.”
[21] Explanatory Statement, IMMI12/116
This statement clearly reveals a legislative intention to streamline the process for people who may already have been in contact with support services. It allows applicants to rely on records of their engagement with services and support agencies. Dang and Pham held that on a proper reading of the instrument, there is an implicit requirement for a pre-existing therapeutic relationship between the practitioner and the applicant. They were both in my opinion correctly decided. This interpretation has been adopted by both this Court and the Federal Court. It was correctly adopted and referenced by the Tribunal in its reasons[22].
[22] Tribunal’s reasons at [24]
The decision in Opoku does not assist the applicant. In this matter it is clear that the engagement of Ms Jordan was to interview the applicant and write a report, not to provide ongoing counselling or assistance as a social worker nor to confirm any past history of counselling or assistance. Further, I do not find any reason to conclude that the decision in Dang was plainly wrong, and it being a judgment of this Court, I should not depart from it.
The applicant sought to distinguish the decision in Pham, as in that case the matter involved a nurse’s statutory declaration, not a social worker’s statutory declaration. However, that misunderstands why the Minister relied on Pham. The Minister relied on Pham because it was a decision of a higher court that accepted interpretation of IMMI12/116 in Dang. The reasoning in Pham relating to that point is applicable to this case and I consider it both binding and correct.
For the sake of completeness, the applicant did advance the novel submission that the social worker had at least “assisted” the applicant by conducting the assessment and preparing the statutory declaration and Court Report. I reject that submission. The evidence speaks for itself as to the purpose of Ms Jordan’s engagement. The proper construction IMMI12/116 plainly contemplates that prior to the preparation of the statutory declaration the social worker has already provided counselling and assistance in the course of performing her duties as a social worker and that those services were directed to the alleged family violence. Here the assessment and preparation of a report were wholly directed, not to family violence, but to meeting the evidentiary requirements of the visa application.
I find that ground one is not made out.
Ground two
Applicant
Ground two asserts that the Tribunal denied the applicant procedural fairness when it failed to inquire into the circumstances in which Ms Jordan’s “assistance” was provided. As such, the applicant submits that there was no basis for the Tribunal to make any adverse finding in this case. The applicant had limited submissions to make on this ground, other than he contends that in Opoku “this Court found that the Tribunal has a duty to make a proper enquiry into the circumstances in which evidence is provided, in satisfaction of Regulation 1.24”[23].
[23] Applicant’s Amended Application dated 11 March 2024
Minister
The Minister submits that the Tribunal was under no duty to inform the applicant that it would proceed on the evidence before it, that is, it would proceed on the basis that the evidence relating to his family violence claim was deficient. As was held in Minister for Immigration and Citizenship v Pham [2008] FCA 320 at [58]:
“[…] [T]he thought processes of the Tribunal as to whether there were deficiencies in the statutory declaration of [a welfare worker], was not information which needed to be disclosed under s 359A of the Act.”
Further, there is generally no duty for the Tribunal to investigate the applicant’s claims - its statutory task is to conduct a review of the delegate’s decision[24].
[24] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25]
Jurisdictional error may be established, if the Tribunal fails “to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”[25]. However, in this case, submits the Minister, the applicant has not established how the evidence of Ms Jordan gave rise to any obligation to make further inquiries about the nature of her relationship with the applicant. Even if the Tribunal had made such inquiries, there is no evidence before the Court that it would have yielded a useful result, given Ms Jordan’s evidence that she was engaged for the sole purpose of producing a statutory declaration for the Tribunal.
[25] SZIAI at [25]
Consideration
The Minister addressed the argument as to whether there was any duty on the Tribunal to inquire out of an abundance of caution. The Minister was correct to submit that the duty will only arise in exceptional circumstances.
Since I have found that ground one has not been made out, there is little utility in considering the merits of ground two, given that I have already found that Ms Jordan’s statutory declaration did not meet the evidentiary requirements in IMMI12/116.
In any event, I agree with the Minister that the clarity of the purpose for which the engagement between Ms Jordan and the applicant took place, and the circumstances of the appointment, did not give rise to any doubt about the parties relationship or obligation on the part of the Tribunal to make any further inquiries. This is not a situation in which a duty to inquire as described in SZIAI arose.
The applicant was on notice of the dispositive issue. As he was legally represented, it can be assumed that he, or his legal representatives, ought to have known and understood the evidentiary requirements. That knowledge is inferred from the fact that the representatives sought to obtain the statutory declarations and tried to meet the requirements.
The applicant was not denied procedural fairness. Ground two is not made out.
DISPOSITION
For the reasons set out above, the decision of the Tribunal made on 3 May 2019 is not affected by jurisdictional error.
Accordingly, the application will be dismissed.
I will hear the parties on costs.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 28 March 2024
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