CHHOR v Minister for Immigration
[2017] FCCA 2135
•6 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHHOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2135 |
| Catchwords: FUNCTUS OFFICIO – Doctrine of – relationship with doctrine of res judicata. SECTION 375A CERTIFICATE – Applicant had document well prior to Tribunal decision – no lost opportunity to applicant in advancement of his case. |
| Legislation: Freedom of Information Act 1982 (Cth), s.47F(1) Migration Act 1958 (Cth), ss.5CB, 5F, 368(2), 368(2A), 375A Migration Amendment Act 2014 (Cth) |
| Cases cited: Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 Minister for Immigration and Border Protection v Singh [2017] HCATrans 107 Minister for Immigration and Citizenship v SZQOY [2012] FCA FC 131 Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’ (1956) 2 University of Queensland Law Journal 9 |
| Applicant: | VOAN CHHOR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2251 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 14 June 2017 & 18 August 2017 |
| Date of Last Submission: | 18 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the first respondent: | Mr N. Wood |
| Solicitors for the first respondent: | Sparke Helmore |
ORDERS
The application filed 14 November 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2251 of 2014
| VOAN CHHOR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 10 November 2014 the applicant sought judicial review of a decision made on 8 October 2014[1] by the
Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), pursuant to which the Tribunal affirmed a decision of the Minister’s delegate made on 24 October 2013 not to grant the applicant a partner (residence) (class BS) visa.[2]
[1] Court book filed 30 March 2015 at pp.229-233.
[2] Court book filed 30 March 2015 at pp.96-98.
In this court, the applicant relied on two grounds of review, namely (verbatim) –
1. The tribunal having its decision on 8 October 2014 and
13 October 2014 without having regard all documents and evidences submitted for consideration.
2. The decision was made on 8 October 2014 and the applicant was only informed by fax on 13 October 2014 while supporting documents and evidences were provided on 10 October 2014.[3]
[3] Application filed 10 November 2014 at p.3.
In essence, the Tribunal was not satisfied that the applicant met the requirements in clause 801.221(6) of Schedule 2 to the
Migration Regulations 1994(Cth) and therefore he did not satisfy the criterion in clause 801.221 of the regulations. It so concluded for two main reasons –
a)the Tribunal was not satisfied that the applicant lived with or was in a spouse relationship with Sokchea Tang; and
b)even if it was not satisfied that the applicant was in a spouse relationship with Ms Tang, the applicant had not made a valid claim of family violence.
The Minister contended that the applicant was required in this case to establish the existence of jurisdictional error in relation to both grounds, authority for which was the decision of the Full Court of the Federal Court of Australia in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs[4] (“VCAD”). That decision binds me. Accordingly, in this case I have proceeded on the basis that the applicant was required to demonstrate the existence of jurisdictional error in relation to the Tribunal’s conclusions recorded in both paragraphs 20 and 23 of the Tribunal’s reasons for decision.
[4] [2005] FCAFC 1.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error in relation to its conclusions in paragraphs 20 and 23 of its reasons. In my view, neither of the two grounds of review were made out. In relation to the Minister’s contentions in respect of the s.375A of the Migration Act 1958 (Cth) point, I agree with the Minister’s submissions, details of which are canvassed below.
A short factual narration
On 4 April 2011 the applicant applied for a partner visa. He stated that on 19 March 2011 he had married an Australian citizen, Ms Tang.
When considering the matter, the Minister’s delegate refused to grant the visa, principally because –
a)the delegate was not satisfied that the applicant was in a spouse relationship with Ms Tang; and
b)the applicant did not meet the criteria of clause 801.221(6) of the regulations, a provision referrable to family violence.
On 10 September 2014 the applicant’s agent supplied to the Tribunal –
a)a psychologist’s report;
b)a statutory declaration by the applicant; and
c)a doctor’s report.[5]
[5] Court book filed 30 March 2015 at pp.136-160.
On 11 September 2014 the applicant appeared before the Tribunal.
He gave evidence that –
a)following his marriage to Ms Tang on 19 March 2011 the applicant lived with Ms Tang in Adelaide and her family then he moved in September 2013 to Melbourne while Ms Tang remained in Adelaide with her family;
b)at that stage his relationship with Ms Tang had broken down and he was then no longer in a spouse relationship; and
c)
on arrival in Melbourne the applicant entered into a lease of
real estate in Springvale, the landlord of which was somehow related to the applicant.
The applicant’s mother gave evidence to the Tribunal to the effect that the applicant had moved in with his sister after what she described were “problems” with Ms Tang. When the Tribunal put the mother’s version of events to the applicant, namely that the applicant had moved in with his sister after problems with Ms Tang, the applicant said he had lied about the person with whom he was living as he was embarrassed that his sister required him to pay for his accommodation.
After indicating to the applicant that it had concerns about the applicant’s contentions that he had been in a spouse relationship at any point with Ms Tang, the Tribunal gave the applicant until
25 September 2014 within which to provide further evidence he had lived with Ms Tang in Adelaide. The Tribunal also gave the applicant further time to provide an assessment from Dr Sopha Sam in order to make a claim of family violence.
The applicant did not provide additional material within the time ordered, namely by 25 September 2014. Instead, on 10 October 2014 the applicant’s agent supplied to the Tribunal –
a)various forms of evidence to the effect that the applicant had lived in Adelaide for a period, including certain time with Ms Tang; and
b)a statutory declaration from Dr Sam to the effect that the applicant had been the victim of family violence and that the applicant had suffered depression.[6]
[6] Court book filed 30 March 2015 at pp.164-224.
Prior to the provision of that material, on 8 October 2014 the Tribunal signed the decision record in this case at 2:53 p.m.
On 13 October 2014 the Tribunal sent a facsimile of its decision to the applicant’s agent.
The Tribunal’s decision
As has been recorded above, the Tribunal gave two separate bases for its conclusion to affirm the delegate’s decision, the first being in paragraph 20 of its reasons and the second being in paragraph 23 of its reasons. In other words, two independent reasons were given by the Tribunal for its conclusion that it was not satisfied that the criteria for a partner visa were met. Authority beyond VCAD has held that the applicant must establish jurisdictional error in relation to both reasons. Those authorities include VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[7] and SZOOR v Minister for Immigration and Citizenship.[8] The rationale for that reasoning was explained in VCAD.[9] In essence, the court held that a decision of the Tribunal should be upheld, notwithstanding error affecting an aspect of the Tribunal’s reasons, where the reasons disclose that a further basis existed on which the Tribunal found against the person applying for the visa. That is because, if there is an error in one but not all of the Tribunal’s independent reasons, the error will not be immaterial and an immaterial error is not vitiating.
[7] [2005] FCA 965.
[8] (2012) 202 FCR 1.
[9] at [23] by Gray J and at [45] by Sundberg and North JJ.
The significance of 8 October 2014
In this case the Tribunal handed down its reasons at 2:53 p.m. on
8 October 2014. On the front cover of the decision record the words appearing lowest on the page state as follows –
Statement made on 08 October 2014 at 2:53 pm.[10]
[10] Court book filed 30 March 2015 at p.229.
By operation of s.368(2) of the Act, the decision of the Tribunal was taken to have been made by the making of the written statement and on the day and at the time the written statement was made. Hence,
the “decision” of the Tribunal in this case was made at 2:53 p.m. on
8 October 2014.
Subsequent to amendments made by the Migration Amendment Act 2014 (Cth), s.368(2) and 368(2A) became effective on 28 May 2014.
Section 368(2) has already been canvassed. Section 368(2A) provided, in effect, that the Tribunal had no power to vary or revoke a decision to which subsection 368(2) of the Act applied after the date and time the written statement was made. In this case, s.368(2A) of the Act applied to the Tribunal’s decision because the Tribunal’s decision was made on 8 October 2014, subsequent to the commencement of that subsection on 28 May 2014. Accordingly, in this case the Tribunal had no power to vary or revoke the decision made at 2:53 p.m. on 8 October 2014.
The intendment relevant to s.368(2A) of the Act was set out in the explanatory memorandum, following on from the decision of the
Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZQOY[11] (“SZQOY”) at which the precise point in time at which the Tribunal was functus officio was canvassed. The precise terms of the explanatory memorandum were as follows –
[11] [2012] FCA FC 131.
The Bill … puts beyond doubt that a decision by the … [Tribunal] on an application for review is taken to be made, other than on oral decision, by the making of the written statement, and to have been made on the day, and at the time, the written statement is made … [The Tribunal] is taken to be functus officio at that relevant time.
…
On 12 September 2012, the Full Federal Court delivered its judgment in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131, in which the Court held that a decision by the Refugee Review Tribunal on an application for review under Part 7 of the Migration Act did not become final until the review decision was notified outside the Refugee Review Tribunal, ‘externally and irrevocably’.
…
The amendments in Schedule 1 [addresses] the judgment … in SZQOY … to clarify and provide certainty as to when a decision on review (other than an oral decision) … is taken to be made on the day and at the time when a record of it is made.
The finalization is not dependent upon when the decision is notified or communicated to the review applicant …[12]
[12] First respondent’s outline of submissions filed 30 March 2017 at [25].
By operation of s.368(2A) of the Act it is now possible to state the precise point in time at which the Tribunal in this case became
functus officio, namely 2:53 p.m. on 8 October 2014.
After that time and date, the Tribunal had no power because at that precise time and date, the Tribunal had discharged its function to review the delegate’s decision.
Whatever the applicant put to the Tribunal after 2:53 p.m. on
8 October 2014 was not relevant because by then the Tribunal had become functus officio.
The two grounds of review
Each of the two grounds of review focused on the dates
8 October 2014 and 13 October 2014 and ground 2 additionally and separately focused on 10 October 2014. When properly analysed,
they amounted to a complaint that the applicant provided supporting documents to the Tribunal on 8 October 2014 and that the Tribunal should have but failed to consider those additional documents. Importantly, the applicant did not contend in this case that the Tribunal fell into jurisdictional error on any other basis such as legal unreasonableness for example, apprehended bias or other error referable to the conduct of the Tribunal hearing.
Once the Tribunal became functus officio, it had discharged its statutory function with the consequence that it had no power to receive the documents of the applicant sent on 13 October 2014.
Functus officio
Prior to the commencement of s.368(2A) of the Act, the precise point in time when a Tribunal constituted under the Act became
functus officiohad been the subject of a large number of decisions over the decades. The doctrine of functus officio (those Latin words translating to “having discharged his duty”)[13] is of very great antiquity with its heritage deeply connected to the doctrine of res judicata,
as was pointed out in his signature work, Spencer Bower and Handley:
Res Judicata[14] by the Honourable Mr Justice Handley. His Honour traced the doctrine of res judicata to civil law origins through the former ecclesiastical courts and the High Court of Admiralty that applied canon and civil law. His Honour said that the doctrine originated from principles of Roman law and that when applied,it rendered a dispute incontrovertible on the merits on the basis that it was in the interests of the community to be protected against the multiplication of suits and the scandal of conflicting decisions.[15]
[13] Osborne, A Concise Law Dictionary (Sweet & Maxwell, 5th ed, 1964).
[14] (LexisNexis Butterworths, 4th ed, 2009).
[15] (see paragraphs 27.01 – 27.04).
The overlay between the two doctrines of res judicata and
functus officiowas explained in the 1952 article by Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’.[16] There, the learned author wrote the following –
There is a rule that, if a final and conclusive judgment or decree given by a judicial tribunal as to the merits of a case exhausts,
in the absence of an order to the contrary by a superior tribunal, its powers and jurisdiction in respect of that case, it is functus officio. This rule as to functus officio is of importance mainly if an attempt is made to induce the tribunal to vary or rescind in whole or in part, at its own discretion and on its own initiative, any final and conclusive judgment which it may have given as to the merits of a case.[17]
[16] (1956) 2 University of Queensland Law Journal 9, 13.
[17] Ibid.
In a later passage of the same article, the learned author wrote the following –
For a judicial tribunal to become functus officio it must have delivered a valid judgment or decree of a final and conclusive nature. A res judicata must have come into existence.[18]
[18] (1956) 2 University of Queensland Law Journal 9, 15.
[19] (1977) 17 ALR 219, 225.
In its more modern emanation, the doctrine has been said to be preferable to the description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. So much was said by the High Court of Australia in
R v Moodie; Ex parte Mithen[19](Stephen, Murphy and Aicken JJ).
The Federal Court held to like effect in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No.1).[20] The concept underlying the doctrine of functus officio has been described in terms equating to the statutory function as having been spent and that the issue is in reality a matter of statutory construction of the statute that confers the power in issue. That was the view of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic.[21]
[20] (1991) 32 FCR 219.
[21] (1990) 21 FCR 193, 211.
In the context of the Act, a question frequently arose whether the Tribunal had power to recall the decision it had pronounced, whether the decision that was handed down could be altered prior to its being dispatched to the parties by the registry or whether the Tribunal could receive material after the Tribunal’s reasons had been prepared but not pronounced. Naturally those decisions pre-dated the date on which s.368(2A) of the Act commenced operation, namely 28 May 2014.
That probably accounted for the Minister’s written submissions[22] that the statutory framework in which the Full Court of the Federal Court of Australia considered its decision in SZQOY was fundamentally different to its present framework. To that must be added another decision of the Full Court of the Federal Court of Australia in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY,[23] judgment in which was handed down on 11 September 2013, again, significantly predating the commencement of the operation of s.368(2A) of the Act. Accordingly it is no longer to the point to search for a chronological time-setting by which it can be determined precisely when the Tribunal’s written statement was made.
The learning on point has been now largely swept away as that learning was set out in such authorities as Jayasinghe v Minister for Immigration and Ethnic Affairs[24] (Goldberg J), Semunigus v Minister for Immigration and Multicultural Affairs[25] (Spender, Higgins and Madgwick JJ), Minister for Immigration and Multicultural Affairs v Bhardwaj[26] (Beaumont, Carr and Lehane JJ), Singh v Minister for Immigration and Multicultural Affairs[27] (Merkel J) and Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs[28] (Ryan J).
[22] First respondent’s outline of submissions filed 30 March 2017.
[23] (2013) 214 FCR 374.
[24] (1997) 76 FCR 301.
[25] (2000) 96 FCR 533.
[26] (2002) 209 CLR 597.
[27] (2001) 109 FCR 18.
[28] (2001) 111 FCR 536.
Accordingly, on and from 2:53 p.m. on 8 October 2014 the Tribunal in this case had discharged its statutory function and was functus officio. It had no power to receive the documents that the applicant sent after that date. The Tribunal made no error by not considering the documents that were sent subsequent to the time upon which it became functus officio.
That disposed of the two grounds of review. Each failed.
The substantive matters before the Tribunal
Mr Wood of counsel for the Minister, in written submissions and in debate before me, addressed the Tribunal’s reasoning so as to demonstrate that the Tribunal’s decision was correct on substantive grounds and that the Minister did not merely rely on the technical operation of s.368(2A) of the Act as the Minister’s basis for resisting this application for judicial review.
Mr Wood very carefully, methodically and helpfully took me through an array of provisions of the Act and regulations relevant to the substantive matters before the Tribunal. In essence, as an applicant for a partner visa, the applicant was required to meet the requirements of various subclauses of Schedule 2 of the regulations. In particular,
the applicant was required to meet subclauses 801.221(2), 801.221(2A), 801.221(3), 801.221(4), 801.221(5), 81.221(6) or 81.221(8) of Schedule 2 of the regulations. For the purposes of subclauses 801.221(2) and 801.221(2A), the applicant needed to show he was the “spouse” or “de facto partner” of the sponsoring partner Ms Tang.
In order for the sponsoring partner to be the “spouse” (the definition of which was in s.5F of the Act and the applicable regulation was regulation 1.15A of the regulations) of the visa applicant,
the sponsoring partner and the visa applicant were required to –
a)have a mutual commitment to a shared life to the exclusion of all others;
b)have a relationship between them that was genuine and continuing; and
c)
lived together or alternatively, to not live separately and apart,
on a permanent basis.
In order for the sponsoring partner to be the “de facto partner”
(the definition of which was in s.5CB of the Act and the applicable regulation was regulation 1.09A of the regulations) of the visa applicant, the sponsoring partner and the visa applicant were required to –
a)have a mutual commitment to a shared life to the exclusion of all others;
b)have a relationship between them that was genuine and continuing;
c)live together and not live separately and apart on a permanent basis; and
d)not be “related by” family, as defined in s.5CB(4) of the Act.
Where the applicant alleged, as the applicant in this case alleged,
that family violence occurred, subclause 801.221(6) of the regulations applied. Relevantly paraphrased, that subclause provided as follows –
(1) 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) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased;
(c) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant; or
…
has suffered family violence committed by the sponsoring partner;
…[29]
[29] First respondent’s outline of submissions filed 30 March 2017 at [3].
In this case the applicant contended that he was not in a spouse relationship with Ms Tang by reason of family violence, as defined, between them. The applicant argued that despite his not being in a spouse relationship with the sponsoring spouse, he nevertheless met the requirements of clause 801.221 of Schedule 2 of the regulations.
The Tribunal addressed its findings on this issue between paragraphs 8 and 25 of its reasons. In essence, the Tribunal found that the applicant had not demonstrated that he had lived in Adelaide and therefore it was not satisfied he lived with or was in a spouse relationship with
Ms Tang. The Tribunal also found it was not satisfied that the applicant’s relationship with Ms Tang ended by reason of family violence. The Tribunal said it was not satisfied that the applicant made a valid claim of family violence. On that issue the Tribunal recorded the following –
To make a valid claim of family violence, the person must meet certain requirements in the Regulations. Where there is an injunction under the Family Law Act 1975, a court order has been made to protect the alleged victim form [sic] violence or where there is a conviction or finding of guilt for an offence of violence by the alleged perpetrator against the alleged victim, the alleged victim is taken to have suffered family violence. None of these apply in this case.
[The applicant]
relies provisions [sic] in r.1.23(8) that state an application for a visa is taken to include a non-judicially determined claim of family violence if certain requirements are met. As it applies to [the applicant], who first made a claim of family violence on 10 September 2014, this requires him to present evidence in accordance with r.1.24 that he has suffered relevant family violence and that Ms Tang is the perpetrator.
This requires a statutory declaration from [the applicant] in accordance with r.1.25, which he has provided. It also requires the type and number of items set out by the Minister in an instrument in writing. This is set out in IMMI12/116. This instrument requires two items from a schedule. Of these items,
[the applicant]has provided a statutory declaration made by a registered psychologist. [The applicant] also provided an incomplete mental health plan from his general practitioner. He was given further time after the hearing to provide a complete assessment, but did not do so. The Tribunal finds [the applicant] has not provide [sic] two items from the schedule of IMMI 12/116 and had not made a valid claim of family violence. The Tribunal further finds that [the applicant] has not made a non-judicially determined claim of family violence in accordance with r.1.23.[30]
[30] Court book filed 30 March 2015, pp.232-233 at [22]-[23].
The Tribunal found that the applicant did not meet clause 801.221 of the regulations and therefore that he did not meet the criteria for the grant of the partner visa.
In my view, the Tribunal’s findings were open and they were correct.
The s.375A point
Curiously, the lion’s share of the time of this case was devoted to the point in respect of s.375A of the Act. The substance of this application for judicial review was heard on 14 June 2017. At the time,
the Minister’s application for special leave to appeal to the High Court in a case on point, Singh v Minister for Immigration and Border Protection,[31] had then not been heard. The High Court of Australia heard the Minister’s application for special leave on 12 May 2016, making orders refusing the grant of special leave.[32] In the result,
the decision of the Full Court of the Federal Court of Australia stands.
[31] [2016] FCAFC 183.
[32] Minister for Immigration and Border Protection v Singh [2017] HCATrans 107.
Unsurprisingly, the s.375A issue was not agitated by the applicant.
The Minister brought the point to my attention by reason of its status as a model litigant. As it happened, during the hearing on 14 June 2017 Mr Wood applied for leave to file additional evidence that addressed aspects of certain documents upon which he relied. I granted leave on certain terms. The additional evidence took the form of an affidavit of Slava Graskoski affirmed 5 July 2017. In it, the deponent affirmed
that –
a)the un-redacted version of the Departmental document described as folio circled “77” contained sensitive information that was edited and protected in the redacted version in accordance with the exemption under s.47F(1) of the Freedom of Information Act1982 (Cth) (“FOI Act”) referred to in the schedule of documents; and
b)the folio circled “95”, being the certificate, was the same in the un-redacted and redacted versions of the Departmental file and the folio circled “95” did not appear to have been edited or protected in accordance with any exemption under the FOI Act.
The certificate about which Slava Graskoski gave evidence was a certificate issued on 28 November 2013 under s.375A of the Act. Several documents were attached to that certificate in respect of certain of which the certifier certified that those documents contained sensitive information provided by the sponsor and disclosure could lead to injury or damage to the sponsor.
Anticipating argument that procedural fairness required the Tribunal to disclose the existence of the certificate to the applicant, Mr Wood in his written submissions contended that the department provided the applicant with access to the certificate. He said that occurred on
2 January 2014, 18 months prior the Tribunal hearing that was held on 11 September 2014 and the certificate was provided to the
applicant more than nine months prior to the Tribunal’s decision on
8 October 2014. Citing the decision of Barker J in AVO15 v Minister for Immigration and Border Protection[33] (“AVO15”), the Minister contended that the applicant in this case did not lose any opportunity to advance his case in respect of the certificate.
[33] [2017] FCA 566.
I agree. In my view there was no jurisdictional error in this case in relation to the s.375A certificate. The applicant had been provided with a certificate a long time prior to the Tribunal hearing and a longer time prior to the handing down of its decision by the Tribunal. At all events, I take the view Barker J took in AVO15, that the applicant in this case did not lose any opportunity to advance his case in respect of the certificate.
Conclusion
Each ground of review failed. In so far as any point arose, whether as an expressly stated ground of review or otherwise in relation to the s.375A certificate, it also failed.
I dismiss this application and order the applicant to pay the Minister’s costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 6 September 2017
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