Chu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 83
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 83
File number: MLG 961 of 2019 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 8 February 2024 Catchwords: MIGRATION – Application for judicial review of the decision of the Administrative Appeals Tribunal to not grant a Partner (Residence) (Class BS) (subclass 801) visa – spousal relationship ceased – Tribunal found there was no valid family violence claim to consider – compliance of the Applicant’s evidence with the Migration Regulations 1994 (Cth) – whether the applicant was put on notice of the dispositive issue in the Tribunal’s Decision – whether the Tribunal acted unreasonably and/or failed to provide a meaningful hearing – dispositive issue was not put to the applicant – jurisdictional error – application allowed with costs Legislation: Freedom of Information Act 1962 (Cth)
Migration Act 1958 (Cth) ss 5F, 5CB, 360 and 477
Migration Regulations 1994 (Cth) regs 1.23, 1.24, 125 and cl 801.221
Cases cited:
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494
CJU15 v Minister for Immigration and Border Protection [2018] FCAFC 45
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration & Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464
Tu'uta Katoav v Minister for Immigration [2022] HCA 28; (2022) 96 ALJR 819
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration [2008] FCAFC 138; (2008) 172 FCR 1
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submissions: 6 December 2023 Date of hearing: 6 December 2023 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Mr Lettenmaier Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 961 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NGUYEN BAO THU CHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed 2 April 2019 and amended 15 November 2023 be allowed.
2.The decision of the Second Respondent (Administrative Appeals Tribunal), dated 13 February 2019 be quashed.
3.A writ of mandamus be issued, directing the Administrative Appeals Tribunal to redetermine the Application according to law.
4.The First Respondent pay the Applicant’s costs fixed in the sum of $ 8,371.30
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in the Federal Circuit Court on 2 April 2019 (Application) and amended on 15 November 2023 (Amended Application), the Applicant seeks judicial review of the decision of the Second Respondent (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 13 February 2019 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Partner (Residence) (Class BS) (subclass 801) visa (Partner Visa).
The Application and Amended Application contain an application for an extension of time (Extension of Time Application) pursuant to s 477(2) of the Migration Act. The Application was filed 13 days outside of the 35 day time limit prescribed in s 477(1) of the Migration Act. Orders were made by consent extending the time for filing of the Application.[1]
[1] Orders made on 6 December 2023 by Her Honour Judge C.E Kirton KC, Order 1.
The hearing of this matter was held in person on 6 December 2023 at the Melbourne Registry of the Court (Hearing). Counsel appeared for both the Applicant and the Respondent. At the conclusion of the Hearing Judgment was reserved and these are the Reasons for Judgment in relation to the Hearing.
ISSUES IN DISPUTE
The issues for determination are:
(a)Whether the Tribunal failed to raise the dispositive issue, being the compliance of the Applicant’s evidence and validity of the family violence claim, with the Applicant prior to the decision of the Tribunal, dated 13 February 2019 (Tribunal’s Decision)[2]; and
(b)Whether the Tribunal committed jurisdictional error by:
(i)Acting unreasonably; and/or
(ii)Failing to provide a meaningful hearing pursuant to s 360 of the Migration Act.
[2] Court Book (CB) 275-278.
SYNPOSIS
For the reasons set out below, I have determined that the Tribunal’s Decision was affected by jurisdictional error. The Tribunal failed to:
(a)Raise the dispositive issue, being the compliance of the Applicant’s evidence and validity of her family violence claim, with the Applicant prior to the Tribunal’s Decision; and
(b)Provide the Applicant a meaningful hearing pursuant to s 360 of the Migration Act by failing to put the Applicant on notice of the dispositive issue, being the compliance of the Applicant’s evidence and validity of her family violence claim, prior to the Tribunal’s Decision.
Further, the Tribunal acted unreasonably in proceeding to making its decision without putting the Applicant on notice of the dispositive issue.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 14 July 2021 numbering 278 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Outline of Submissions, filed 29 November 2023 (Minister’s Submissions) accurately summarise the factual history of this matter at [8] to [22]. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen of Vietnam. The Sponsor, Mr Jeffrey Ian McCawley, (Sponsor) is a citizen of Australia. The Applicant and the Sponsor married on 6 December 2014.[3]
[3] CB 8-9 and 36.
On 1 December 2015 the Applicant lodged a visa application for a Partner (Temporary) (Class UK) (subclass 820) visa (Temporary Partner Visa) and a Partner Visa (Visa Application).[4]
[4] CB 1-21.
On 26 April 2016 the Applicant was granted a Temporary Partner Visa based on her spousal relationship with the Sponsor.[5]
[5] CB 68-73.
On 17 August 2016 the Sponsor notified the Department of Immigration and Border Protection (Department) that the spousal relationship had ceased and that the Applicant had departed to go overseas.[6]
[6] CB 74.
On 12 September 2016 and 15 March 2017 the Department invited the Applicant to comment on her change in relationship status with the Sponsor.[7]
[7] CB 77-83.
On 13 April 2017 the Applicant’s newly appointed migration agent Jack Ta & Associates (Applicant’s Migration Agent) requested an extension of time to submit submissions to the Department and claimed that the Applicant had suffered family violence perpetrated by the Sponsor.[8]
[8] CB 97.
On 19 April 2017 the Applicant was granted an extension of time by the Department.[9]
[9] CB 101.
On 10 May 2017 the Applicant’s Migration Agent provided information and various documents to the Department.[10] The Applicant claimed the relationship broke down on 15 June 2016 as the Sponsor had perpetrated family violence against her.[11] The Applicant claimed to have suffered sustained sexual violence from the Sponsor and repeated non-consensual sex.
[10] CB 102-145.
[11] Applicant’s Outline of Submissions, filed 15 November 2023 (Applicant’s Submissions), [8]; CB 104-105 and 111-120.
On 17 May 2017 the Department sought additional information from the Applicant regarding her family violence claim (Department’s 17 May 2017 Information Request).[12] On 13 June 2017 and 10 July 2017 the Applicant’s Migration Agent responded to the Department’s 17 May 2017 Information Request and submitted further evidence of the family violence claim as well as witness statements from friends and family.[13]
[12] CB 146-151.
[13] CB152-159 and 161-204.
On 13 July 2017 the Department requested further evidence in relation to the Applicant’s relationship with the Sponsor (Department’s 13 July 2017 Information Request).[14] On 7 August 2017 the Applicant’s Migration Agent responded to the Department’s 13 July 2017 Information Request by advising the Department that the Applicant had previously submitted evidence of the spousal relationship and by forwarding two (2) further pieces of information.[15]
[14] CB 205-210.
[15] CB 211-226.
The Applicant’s evidence included:
(a)A statutory declaration of the Applicant, dated 9 May 2017 using the Department’s Form 1410 specifically designed for family violence claims (Applicant’s Statutory Declaration);[16]
(b)A report from clinical psychologist Dr Michael King, dated 10 June 2017 (Psychologist’s Report);[17] and
(c)A report from accredited social worker Andrew Bibby, dated 7 July 2017 (Social Worker’s Report).[18]
[16] CB 104-109.
[17] CB 162-176.
[18] CB 177-178.
On 18 August 2017 the Delegate refused to grant the Partner Visa under s 65 of the Migration Act (Delegate’s Decision).[19] The Delegate found that the Applicant did not meet the criteria for the Partner Visa in cl 801.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). The Delegate was not satisfied that the Applicant was the spouse or de facto partner of the Sponsor, as defined under sections 5F and 5CB of the Migration Act, prior to the relationship ceasing as the Delegate was not satisfied that the relationship was genuine or mutually exclusive. The Delegate did not consider the family violence claim as the Delegate’s Decision was determined by the finding that there was no spousal relationship.
[19] CB 227-248.
On 27 August 2017 the Applicant applied to the Tribunal for review of the Delegate’s Decision (Tribunal Application).[20] The Tribunal Application was lodged by the Applicant’s Migration Agent. The Applicant advised the Tribunal that her relationship with the Sponsor had ceased and claimed that she was a victim of family violence perpetrated by the Sponsor.
[20] CB 249-250.
On 13 February 2019 the Applicant attended a hearing before the Tribunal with the assistance of an interpreter in the Vietnamese and English languages and the Applicant’s Migration Agent (Tribunal Hearing).[21] The Tribunal Hearing took 35 minutes, commencing at 8:31 am and concluding at 9:35 am.[22]
[21] CB 267-270.
[22] Affidavit of Catherine Farrell, affirmed and filed 17 November 2023 (17 November 2023 Farrell Affidavit), [4] and [5] and Annexure “CJF-3”.
On 13 February 2019, after the conclusion of the Tribunal Hearing, the Tribunal affirmed the Delegate’s Decision by delivering the Tribunal’s Decision.
On 2 April 2019 the Applicant’s lawyers Clothier Anderson Immigration Lawyers (Applicant’s Lawyers) submitted a request to the Tribunal for access to documents under the Freedom of Information Act 1962 (Cth). On 24 April 2019 the Tribunal provided documents to the Applicant’s Lawyers, including a copy of the audio recording of the Tribunal Hearing. The Applicant’s Lawyers have provided to the Court a transcript of the Tribunal Hearing prepared by Eqip Global.[23]
[23] 17 November 2023 Farrell Affidavit, [2] to [5] and Annexure “CJF-3”.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at pages 275 to 278 of the Court Book.
The Tribunal identified the issue for determination as being that “the applicant advises her relationship with her sponsor has ceased and claims she has been the victim of family violence perpetrated by her sponsor”: Tribunal’s Decision [3].
The Tribunal outlined that the criteria in Part 801 of Schedule 2 of the Regulations must be satisfied at the time of the decision for the grant of a Partner Visa: cl 801.221 of Schedule 2 of the Regulations (cl 801.221). The Tribunal noted that the Applicant was unable to satisfy cl 801.221(2) and that cl 801.221(6) was the only applicable claim advanced by the Applicant and apparent on the evidence: Tribunal’s Decision [5] and [6].
The Tribunal then considered whether a valid family violence claim had been made under the Regulations. There was no claim or evidence of judicially determined family violence: reg 1.23(2) to (7) of Schedule 1 of the Regulations. For non-judicially determined claims of family violence the Regulations required evidence to be in certain forms, namely in the form of a statutory declaration: regs 1.23(9)(c), 1.24 and 1.25 of Schedule 1 of the Regulations. The Applicant provided: the Applicant’s Statutory Declaration; the Psychologist’s Report and the Social Worker’s Report. The Tribunal determined that neither the Psychologist’s Report or the Social Worker’s Report met the requirements of the “Types of Evidence” required in Schedule 1 of the Regulations (Non-Compliant Evidence): Tribunal’s Decision [8] to [11].
The Tribunal considered a s 375A Certificate which was attached to the file held by the Department. The Tribunal determined that the s 375 Certificate was not pertinent to the considerations under review, as it concerned the benefits paid to the Sponsor by the government, and no weight was given to the s 375A Certificate.
The Tribunal was satisfied, on the Applicant’s own evidence, that the Applicant and the Sponsor were not in a married relationship which is genuine and continuing as required by s 5F(2)(c) of the Migration Act: Tribunal’s Decision [14]. The Tribunal found that it had no valid family violence claim to consider. Accordingly the Tribunal found that the Applicant did not satisfy the criteria in cl 801.221 for the grant of the Partner Visa and affirmed the Delegate’s Decision: Tribunal’s Decision [13] and [15] to [17].
PROCEEDINGS BEFORE THE COURT
The Application was filed in the Federal Circuit Court on 2 April 2019, outside 35 days of the date of the Tribunal’s Decision. The Applicant has not satisfied requirements for the filing of applications for judicial review pursuant to s 477(1) of the Migration Act. In order for the Court to review the Tribunal’s Decision, the Applicant required an extension of time of 13 days.
On 30 June 2016 and 8 November 2023 Orders were made for the filing of material.
The Hearing held on 6 December 2023 proceeded in person at the Melbourne Registry of this Court. Both the Applicant and the Minister were represented by Counsel. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
Documents Relied on by the Parties
The Applicant relied upon the following documents at the Hearing:[24]
(a)The Amended Application;
(b)The Applicant’s Outline of Submissions, filed 15 November 2023 (Applicant’s Submissions);
(c)The Affidavit of Catherine Farrell, affirmed and filed 17 November 2023, annexing the transcript of the Tribunal Hearing as Annexure “CJF3” (Tribunal Hearing Transcript);
(d)The Affidavit of the Applicant, affirmed and filed 17 November 2023; and
(e)The Applicant’s List of Authorities, filed 1 December 2023.
[24] Transcript P2:L19-38.
The Minister relied upon the following Documents at the Hearing:
(a)The Response, filed 13 May 2019;
(b)The Minister’s Submissions; and
(c)The Minister’s List of Authorities, filed 1 December 2023.
Extension of Time Application
Section 477(1) of the Migration Act requires an application to this Court be made within 35 days of the date of the ‘migration decision’. The time period for the Applicant to have filed an application for judicial review of the Tribunal’s Decision ended on 20 March 2019. The Applicant filed the Application 48 days after the Tribunal’s Decision. The Applicant required an extension of time of 13 days.
The Applicant relied on the following grounds for an extension of time:[25]
1.The Applicant only obtained advice from a lawyer regarding prospects of appealing the decision in the Federal Circuit Court, being Ms Karyn Anderson of Clothier Anderson Immigration Lawyers, for the first time on 25 March 2019.
2.The extension of time required is short and causes no prejudice to the Minister.
3.The Applicant alleges to be a victim of family violence and suffers from associated stress, anxiety and depression.
4.The Applicant paid funds to Clothier Anderson Immigration Lawyers on 27 March 2019 and instructed those lawyers to issue proceedings in the Federal Circuit Court.
[25] Amended Application, filed 15 November 2023 (Amended Application), “Grounds of application for extension of time” 2.
At the Hearing the Minister consented to the grant of the extension of time.[26] Given the short delay, lack of prejudice to the Minister and the Minister’s consent, Orders were made by consent extending the time for the filing of the Application.[27]
[26] Transcript P2-3.
[27] Orders made on 6 December 2023 by Her Honour Judge C.E Kirton KC, Order 1.
Grounds of Review
In the Amended Application the Applicant relied on two (2) alternative grounds of review (Grounds of Review):[28]
[28] Amended Application, “Grounds of application” 3-5.
1.The Tribunal acted legally unreasonably in failing to put to the applicant that the Tribunal considered the supplied evidence not to be in a form compliant with the Regulations, or alternatively, in failing to consider adjourning the review under s363(1)(b) of the Migration Act 1958 (Cth) (“Act”)
, or in failing to consider adjourning the review.Particulars
a.The Tribunal conducted an oral hearing on 13 February 2019.
b.At the end of that hearing, the Tribunal made an oral decision to affirm the Department’s decision to refuse to grant the Applicant a Partner (Permanent) (subclass 801) visa.
c.The Tribunal noted that the Applicant had provided the Department with a statutory declaration in her own name as required under the Act and Migration Regulations (1994) (“Regulations”), as well as a letter from a psychologist and a letter from a social worker.
d.Reg. 1.24 set out the types of evidence required to make out a valid claim of non-judicially determined family violence, being a statutory declaration under reg. 1.25 by the alleged victim and the type and number of items of evidence specified by the Minister in an instrument in writing. The relevant instrument was IMMI 12/116.
e.The Tribunal found in its decision that neither the letter from the psychologist nor the letter from the social worker met the requirements required by legislative instrument IMMI 12/116, as they were required to be in the form of a statutory declaration but were in the form of personal unsworn statements.
f.The Tribunal at no point put to the applicant that it considered the supplied evidence to be non-compliant with the form required by the Regulations.
g.The Tribunal made an oral decision to affirm the Department’s decision on the same day, finding that a valid non-judicially determined family violence claim was not made under the Regulations as the required information under reg. 1.24(b) was not provided.
h.The Tribunal was not obliged to make a decision on the day of the hearing. The Applicant was a female alleging a claim of family violence against her spouse. The Tribunal would have been caused no prejudice by allowing the Applicant a short extension of time to provide the two letters in statutory declaration form. The defects in evidence were in form, rather than in substance. There was no evidence before the Tribunal that the Applicant could not have provided those letters in the correct format had she been given a short period of time in which to do so.
i.The Tribunal is required to exercise its statutory powers reasonably and fairly.
j.The Tribunal acted arbitrarily or capriciously in failing to consider adjourning the hearing in these circumstances to permit the Applicant to meet the statutory requirements in Reg. 1.24, or in failing to consider adjourning the hearing.
k.Further and alternatively, the Tribunal acted unreasonably in failing to correct the misapprehension of the Applicant that the evidence she had provided was compliant with the Regulations.
2.The Tribunal constructively failed to exercise its jurisdiction in failing to afford procedural fairness, by denying the Applicant a proper hearing as required under s 360 of the Act.
Particulars
a.The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s360).
b.The Tribunal advised the Applicant during the hearing on 13 February 2019 that she was required to provide the necessary evidence in order to establish a valid claim for family violence under reg. 1.24(b) of the Act.
c.The Tribunal was required to afford the Applicant a proper hearing under s360, meaning afford her a proper opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
d.One of the issues arising in relation to the decision under review was that the Applicant had provided two documents which were defective, in the sense that they did not strictly comply with the requirement under reg. 1.24(b) and associated legislative instrument IMMI 12/116.
e.The Tribunal did not inform the Applicant that it considered the evidence to be non-compliant with the Regulations before making an adverse finding on that basis, which was dispositive of the review.
advised the Applicant that this was an issue and proceeded immediately to a decision.This deprived the Applicant of any opportunity to understand the issue arising in her case and to respond to it. In this way, the hearing was devoid of the meaning which it was intended to have by Parliament under s360.The adverse decision was therefore akin to an adverse decision having been made ‘on the papers’, asThe Applicant was given no meaningful opportunity to understand and rectify the issue arising on the review at the hearing or after that hearing.f.Parliament did not intend that adverse decisions were to be made ‘on the papers.’ Section 360(2)(b) only obviates the Tribunal of its obligation to hold a hearing if the review can be decided in the applicant’s favour on the basis of the material before it.g.The Tribunal failed to offer a meaningful oral hearing to the Applicant as it was required to do under s 360 of the Act and thus failed to afford her procedural fairness.
(As written)
The Amended Application sought: an order quashing the Tribunal’s Decision; a writ of mandamus directed to the Tribunal requiring it to determine the Tribunal Application in accordance with law; and an order that the Minister pay the Applicant’s costs.[29]
[29] Amended Application, ‘Final Orders sought by the applicant/s”, 3.
CONSIDERATION
In order to be entitled to relief, the Applicant must establish that the Tribunal’s Decision is affected by jurisdictional error. Jurisdictional error was discussed by Nettle and Gordon JJ in the High Court’s decision of Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, where their Honours said, at [81]:
81.The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)
(Footnotes omitted)
In this matter the Tribunal exercised its power to affirm the Delegate’s Decision and refused to grant the Applicant the Partner Visa. The determinative issue before the Court is whether, having considered how the Tribunal handled the Non-Compliant Evidence, the Tribunal’s determination of this matter amounted to jurisdictional error.
Clause 801.221 required that primary criteria be satisfied for the grant of the Partner Visa. On the Applicant’s own evidence the Applicant did not satisfy cl 801.221(2) as the Applicant had ceased a relationship with the Sponsor. Therefore, the critical issue before the Tribunal was whether the Applicant satisfied cl 801.221(6) of the Regulations, which provided at the time of the Tribunal’s Decision as follows:
801.221 Criteria to be satisfied at time of decision
[…]
(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) or (2A) except that the relationship between the applicant and the sponsoring partner 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 sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
[…]
Note: For special provisions relating to family violence, see Division 1.5.
In circumstances where an applicant is no longer the spouse of a sponsor, an applicant may be granted a Partner Visa under cl 801.221(6) if they have suffered family violence committed by the sponsoring partner. The Applicant acknowledged in her written submissions and submissions at the Tribunal Hearing that she was applying for a Partner Visa on the basis of the family violence exception. Division 1.5 of the Regulations contains substantive provisions relating to the family violence exception and set outs the evidentiary requirements for a family violence claim.
Regulation 1.23(9)(c) of the Regulations requires the alleged victim of a non-judicially determined claim of family violence, to produce evidence in accordance with reg 1.24 that the relevant family violence occurred. Regulation 1.24 at the relevant time specified the following requirements:
Evidence
1.24 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.
The relevant instrument referred to in reg 1.24 was IMMI 12/116 (IMMI 12/116). IMMI 12/116 specified that at least two (2) items of evidence from the list in Schedule 1 of IMMI 12/116 must be provided, with no more than one (1) of each type of evidence in the list, for an applicant to comply with the Regulations and IMMI 12/116.
The Applicant’s Statutory Declaration complied with the requirements of the Regulations and IMMI 12/116. The Psychologist’s Report and Social Worker’s Report were not in the form of a statutory declaration, as required by IMMI 12/116, and therefore the Applicant had not provided the required items of evidence to make a valid family violence claim. As submitted by the Applicant, the “the principal issue in this proceeding is the conduct of the hearing by the Tribunal and the failure to raise any concern about the evidence being in a non-compliant form or to adjourn to permit the opportunity to provide compliant evidence”.[30]
[30] Applicant’s Submissions, [31].
The parties do not dispute the following:[31]
(a)The Applicant made a family violence claim before the Delegate and before the Tribunal;
(b)Some of the Applicant’s evidence submitted to the Delegate and then resubmitted to the Tribunal did not comply with the requirements in the Regulations. The Non-Compliant Evidence relied upon by the Applicant was comprised of two (2) pieces of evidence, being the Psychologist’s Report and Social Worker’s Report, that were not in the form of a statutory declaration;
(c)The Delegate noted that the Applicant had submitted evidence of her family violence claim and did not put the Applicant on notice of the Non-Compliant Evidence;
(d)The Delegate did not determine the family violence claim and the family violence claim was not a dispositive issue before the Delegate as the Delegate’s Decision was determined on another basis;
(e)An error relating to s 360 of the Migration Act is material; and
(f)If the Tribunal did not put the Applicant on notice of the Non-Compliant Evidence and that the Non-Compliant Evidence would be a reason for affirming the Delegate’s Decision, then the Tribunal’s failure to put the Applicant on notice of this dispositive issue amounted to a breach of s 360 and jurisdictional error.
[31] Transcript P3:L36-P4:L5.
Ground 1
Ground 1 contends that the Tribunal acted unreasonably in either failing to correct the Applicant’s misapprehension that her evidence complied with the Regulations or failing to consider adjourning the Tribunal Hearing.
It is accepted by both parties that the Non-Compliant Evidence was a dispositive issue in the Tribunal’s Decision. The Applicant contends that the Tribunal did not put the Applicant on notice of the critical misgivings it had in relation to the Applicant’s case, being the Non-Compliant Evidence. The Applicant contended that “it is apparent that the applicant believed (albeit incorrectly) that she had submitted compliant evidence of a family violence claim” on the basis that the Delegate referred to the Non-Compliance Evidence without suggesting it was non-compliant.[32]
[32] Applicant’s Submissions, [39].
The Applicant submitted that the Tribunal failed to raise its concerns about the form of the Applicant’s evidence, despite the clear impression given by the Applicant that she thought she had submitted all evidence, and rebuffed the request to address concerns.[33] Counsel for the Applicant submitted that the Tribunal acted unreasonably by “knowingly staying silent when the tribunal was aware that the Applicant could not possibly have presented her case about family violence because two of the documents were noncompliant with the form requirements”.[34]
[33] Applicant’s Submissions, [49].
[34] Transcript P12:L30-34.
Counsel for the Applicant submitted that a “failure to correct the obvious misunderstanding on the part of the Applicant and her representative was unreasonable”.[35] The Applicant contended that the case of Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR (Plaintiff S183/2021) applies in this case. In Plaintiff S183/2021 the Court found that the decision of the delegate to proceed to a decision without making any attempt to correct the applicant’s misunderstanding was unreasonable and was affected by jurisdictional error for that reason. The Applicant submitted that no reasonable Tribunal could have failed to apprehend that the Applicant and the Applicant’s Migration Agent believed she had provided the requisite evidence in compliant form. Further, no reasonable Tribunal could have failed to make any attempt to correct that misapprehension, and give the Applicant an opportunity to correct it, before making a decision based entirely on the Non-Compliant Evidence.[36]
[35] Transcript P9:L22-24.
[36] Applicant’s Submissions, [53].
In the alternative, the Applicant submitted that it was unreasonable for the Tribunal to rush to judgment, as it did not identify the dispositive issue to the Applicant and could have granted a short adjournment of the review for the purpose of giving the Applicant an opportunity to obtain evidence in a compliant form.[37] The Applicant referred to Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) where the High Court found that the refusal of the Tribunal to adjourn to permit the applicant to obtain compliant evidence in the form of a skills assessment, when the Tribunal instead chose to make a decision immediately based on the absence of that necessary evidence, was legally unreasonable.[38] Counsel for the Applicant submitted that this matter is analogous to Li.
[37] Applicant’s Submissions, [55]-[62].
[38] Applicant’s Submissions, [57].
The Minister argued that the Tribunal did put the Applicant on notice of the Non-Compliant Evidence.[39] The Minister, citing Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [30] and Minister for Immigration & Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (SCAR) at [37]-[38] at [36], submitted that s 360 does not require the Tribunal to actively assist an applicant and that s 360 is not breached merely on the basis that if better advised, an applicant might present a more compelling case. The Minister submitted that the onus was on the Applicant, who was assisted by a registered migration agent, to provide the required evidence to the Tribunal in the correct format. The Minister submitted that the Tribunal put the Applicant on notice, which is evident as:[40]
(a)The Tribunal referred to the family violence claim;
(b)The Applicant and or alternatively her representative confirmed that all evidence had been provided;
(c)The Tribunal explained that certain documents and certain forms with certain information must be provided and referred to the Tribunal Hearing Transcript at P3:L9-29 (set out below at [57]); and
(d)The Tribunal cannot consider claims that are not valid claims.
[39] Minister’s Outline of Submissions, filed 14 July 2021 (Minister’s Submissions), [29]-[32].
[40] Minister’s Submissions, [30].
The Minister further submitted that the Tribunal’s actions were sufficient and there were no additional requirements to actively assist the Applicant’s claims, given: [41]
(a)The Applicant was assisted by an interpreter, but could also speak English;
(b)The Applicant acknowledged that she understood the requirements of a valid claim;
(c)The Applicant had a registered migration agent from 14 January 2019 assisting her; and
(d)The requirements of a valid family violence claim had been operating for eight (8) years and were not complex or onerous.
[41] Minister’s Submissions, [31]-[32].
The Minister contends that once the Tribunal had put the Applicant on notice of the Non-Compliant Evidence issue there was no additional requirement to actively assist or enquire into the Applicant’s claims. The Minister submitted that as no adjournment was requested it was open to the Tribunal to proceed to determine the review following the conclusion of the Tribunal Hearing, as the Applicant had confirmed that all information was before the Tribunal. The Minister submitted that the alleged misunderstanding in this case was not self-evident as it was in Plaintiff S183/2011 and that the Applicant did not make an adjournment request and stated all evidence had been submitted, unlike in Li. The Minister further submitted that the Applicant’s submission that only a short delay was required to obtain the necessary documents is speculative. The Minister also argued that the Applicant’s submission that the Tribunal was ‘in a rush’ in the manner described in Li should not be accepted as the Tribunal is permitted to make a decision.[42]
[42] Minister’s Submissions, [32]-[39].
The Applicant appeared before the Tribunal with the assistance of an interpreter and the Applicant’s Migration Agent. The Applicant’s Migration Agent made submissions on behalf of the Applicant. The Tribunal Hearing Transcript is six (6) pages in length. The Tribunal Hearing was some 35 minutes in length, having commenced just prior to 8:31 am and concluded at 9:05 am.
The Tribunal noted at the beginning of the Tribunal Hearing that the Applicant was making a family violence claim and stated that the Applicant must provide certain forms with certain information. The Tribunal explained the evidentiary requirements of the family violence exception to the Applicant as follows:[43]
[43] 17 November 2023 Farrell Affidavit, [5] and Annexure “CJF-3” (Tribunal Hearing Transcript), P2:L36-P3:L2; and P3:L9-P3:L29.
MEMBER: Okay. I understand from the documentation, but we’ll confirm that your relationship has ceased, is that correct?
INTERPRETER: That’s correct, sir.
MEMBER: Okay. In circumstances like that, there are a limited number of exceptions where the visa can go in to be considered. I can see from the evidence in the file and the claim previously, that you do claim the family violence exception. (Indistinct) are you claiming any of the other two exceptions?
UNIDENTIFIED SPEAKER (indistinct): All the evidence has been provided to the tribunal.
[…]
MEMBER: Okay that’s fine. In order for you to claim family violence for the tribunal to consider that you must make what is called a (indistinct) claim, that is you must provide certain documents and certain forms with certain information. If you do not provide those documents as required the tribunal cannot consider the claim further, and will affirm the decision, that is agree with the department’s decision to not proceed to grant the visa. If you make a valid claim, in your case it’s what we call a non-judicial claim, if the tribunal is satisfied that you’ve made a valid claim and that you’ve suffered family violence, the tribunal will remit your decision, that is send your decision back to the department for further consideration for the grant of the visa. Do you understand?
INTERPRTER: Yes, sir.
MEMBER: If you’ve made a valid claim and the Tribunal isn’t satisfied you’ve suffered family violence, the tribunal will seek the opinion of an independent expert. Should that occur the expert would contact you and speak with you, and once the tribunal receives the expert’s opinion this tribunal is bound by that expert’s opinion. You will also be given an opportunity to respond to any opinion that is not in your favour. Do you want to tell me about the first instance of family violence that you recall?
[…]
(Emphasis added)
The Applicant then provided the Tribunal with details about her experience of family violence.[44] Towards the conclusion of the Tribunal Hearing the following discussion occurred:[45]
[44] Tribunal Hearing Transcript P3:L31-P5:L33.
[45] Tribunal Hearing Transcript P5:L35-P6:L2; Applicant’s Submissions, [47].
MEMBER: Okay. Anything else you’d like to add? Have a think about that while I ask your agent whether she’s like to make a submission. Is there any submissions you’d like to make before we keep going?
MIGRATION AGENT: Member, I think all the evidence has been provided to the Tribunal.
MEMBER: Okay.
MIGRATION AGENT: At the time, I do not have any more to add to the hearing today.. But if you have any, like, concern or - - -
MEMBER: It’s not about my concerns, it’s about what you want to provide the tribunal.
MIGRATION AGENT: At the moment (indistinct).
MEMBER: You don’t have? Okay. Anything else you’d like to say before we conclude today’s hearing?
[...]
(Emphasis added)
After the conclusion of the Tribunal Hearing the Tribunal made no further contact with the Applicant and did not request any further information. The Tribunal’s Decision was made on the same day that the Tribunal Hearing was held.
It is clear from the materials that the Tribunal gave the Applicant sufficient notice that an issue before it was whether the Applicant’s family violence claim contained merit. The Tribunal confirmed with the Applicant that she is making a family violence claim and what exceptions she was claiming. The Tribunal spent the majority of the Tribunal Hearing hearing submissions as to the substance and merit of the Applicant’s claim. The Tribunal also outlined to the Applicant the consequences of the Tribunal making an adverse finding as to the merits of the Applicant’s family violence claim.
It cannot be said that the Tribunal gave the Applicant notice that an issue before it was whether the Applicant had made a family violence claim that was procedurally valid. The Tribunal’s comments indicated that the compliance of the Applicant’s evidence could be a live issue and the Tribunal briefly explained the consequences of the making a valid claim or failing to make a valid claim. The Tribunal did not indicate that it was unable to assess the merits of the Applicant’s claim based on the Non-Compliant Evidence. The Tribunal did not confirm with the Applicant whether she had or believed that she had submitted information in compliant form and made a valid claim. Notably, the Tribunal avoided answering or discussing whether there were concerns with the Applicant’s claim when the Applicant’s Migration Agent queried “But if you have any, like, concern or…”.
At this point I refer to the following from [9] of the Tribunal’s Decision:
9.During the public hearing conducted on 13 February 2019, this Tribunal advised the applicant that further to her claim of suffering family violence, the applicant is required to provide the necessary evidence in order to establish a valid claim for family violence under regulation 1.24 (b) of the Migration Act.
(Emphasis added)
The Court notes that a review of the Tribunal Hearing Transcript does not indicate that any such specific information was ever given to the Applicant’s Migration Agent during the Tribunal Hearing. The evidence of what was discussed at the Tribunal Hearing is set out in the extracts of the Tribunal Hearing Transcript above at [57] and [58].
Whether a decision was unreasonable is invariably fact dependent upon the particular circumstances of each case and must be closely examined: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42]. The High Court stated in Li at [74] that whether a failure to exercise a power is unreasonable is assessed by reference to the purpose of the power. The Tribunal has powers of adjournment, investigation and hearings for the purposes of properly considering and reviewing an applicant’s case and providing a meaningful opportunity for an applicant to present their case and address both supporting and adverse information. The Applicant referred to SZHKA v Minister for Immigration (2008) 172 FCR 1 at [5] to [7], where Gray J observed that a hearing invitation is only necessary under the Migration Act where the Tribunal is not minded to decide in an applicant’s favour on the papers. The Applicant submitted that the purpose of the Tribunal holding a hearing is therefore to provide an opportunity to persuade the Tribunal to overcome its misgivings about the applicant’s case.[46]
[46] Applicant’s Submissions, [65].
In Plaintiff S183/2021 the misunderstanding on the part of the applicant concerned the location of the interview and “no one from the department attempted to correct the plaintiff’s misunderstanding as to the location of the interview she was being offered”: Plaintiff S183/2021 at [34]. The Court stated at [36] that “no reasonable decision-maker could have ignored the plaintiff’s misunderstanding, particularly having regard to her circumstances, and proceeded to refuse to grant a visa for reasons that depended on the plaintiff's failure to provide further information and to attend an interview”.
As determined above, the Tribunal failed to put the Applicant on notice of the dispositive issue in the Tribunal’s Decision. Whilst I would not describe the failure as a “failure to correct”, this matter is similar to Plaintiff S183/2021 in that the failure to raise and address the Applicant’s understanding of the validity of her claim and affirming the Delegate’s Decision without further information from the Applicant constitutes unreasonableness.
This matter differs from Li as the Applicant’s representative was not aware of the Non-Compliant Evidence and no adjournment was requested. In Li the Applicant’s representative was aware of the non-compliant evidence and asked for an adjournment. The adjournment was refused by the Tribunal and the Tribunal proceeded to make the decision on the basis that the Applicant had enough opportunities to present her case. In this matter the Applicant and the Applicant’s Migration Agent acted under the same understanding that all evidence had been properly provided to the Tribunal.
Whether the error was in not granting an adjournment or not correcting the misunderstanding of the Applicant is not pertinent. The fact that the Tribunal did not put the Applicant on notice of the dispositive issue before, during or after the Tribunal Hearing for the Applicant to respond to the fact her evidence was non-compliant is the material error in this matter. I am satisfied that the Tribunal proceeding to making the Tribunal’s Decision without hearing submissions or attaining further information as to the Applicant’s evidence constitutes unreasonableness.
It is apparent that Applicant’s Migration Agent believed that all required information was before the Tribunal. The fact that the Applicant was represented by a migration agent and acknowledged that she understood the Tribunal’s explanation of a valid claim does not detract from the fact that it was not put to the Applicant’s Migration Agent that the evidence that was provided was not in the compliant form. The Tribunal did not sufficiently or specifically raise the validity of the Applicant’s family violence claim with the Applicant before, during or after the Tribunal Hearing. The Applicant was not aware of the determinative reason for the Tribunal affirming the Delegate’s Decision.
The Tribunal is not required to provide the Applicant with a running commentary of its assessment of the Applicant’s claims through its review: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [89]. The Tribunal must, where an applicant has not been previously put on notice, make clear from its questions the issue pertinent to the review before it: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 (AZAAD) [108]-[110]. The Full Court of the Federal Court stated in AZAAD at [108]:
[…] Since the second Tribunal intended to decide the review on a completely different issue to that of the delegate and the first Tribunal, I consider it was obligated as a matter of procedural fairness to inform the appellants that was so. […]
In CJU15 v Minister for Immigration and Border Protection [2018] FCAFC 45 Perram, Farrell and Gleeson JJ made the following observations in relation to the threshold for ‘put on notice’ at [8] to [10]:
8.We would accept that the architecture of the Appellant’s argument is supported by the High Court’s decision in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’). The way in which a delegate deals with a claim can legitimately leave an applicant on review with the impression that a particular topic has been concluded in the applicant’s favour. In such cases, unless the Tribunal gives notice to an applicant that it proposes to do so, it will generally be procedurally unfair to determine that topic adversely to the applicant: see SZBEL at [47].
9.The question here is whether the ‘topic’ is couched at a high level of generality (‘the Appellant has not satisfied the Tribunal that he is of ongoing interest to the authorities’) in which case the Appellant was on notice of it or at a lower level of generality (‘the statement of Mr V was unreliable because it was inauthentic’) in which case he was not.
10.The correct answer to that question turns on the reason one is asking it. In this case the immediate question is whether the Appellant has suffered a procedural unfairness. Unless the Appellant had a submission which could have been made if he had been put on notice of the inconsistency argument no unfairness arises. […]
I do not accept that the Tribunal’s generic explanation of the possible outcomes of the Tribunal’s review was sufficient to put the Applicant on notice of the Non-Compliant Evidence. I am not satisfied that the Tribunal made it sufficiently clear through its correspondence prior to the Tribunal Hearing and at the Tribunal Hearing, that the dispositive issue was the compliance of the Applicant’s evidence with the provisions of the Migration Act and the Regulations and whether the family violence claim had been validly made by the Applicant.
The dispositive issue was not sufficiently brought to the attention of the Applicant at the Tribunal Hearing. The Applicant’s Migration Agent was under the impression that the validity of the Applicant’s family violence claim was not in question and that all her evidence was properly before the Tribunal. It is apparent from the Tribunal Hearing Transcript that the Tribunal was made aware that the Applicant’s Migration Agent thought she had appropriately submitted all evidence supporting the Applicant’s family violence claim and the Visa Application. The Tribunal conducted the Tribunal Hearing without addressing the Non-Compliant Evidence with the Applicant. The Tribunal spent the substantive part of the Tribunal Hearing discussing the merits of the Applicant’s family violence claim. The Tribunal only referred generally to the requirements for a family violence claim and the different processes that could occur if a valid family violence claim had or had not been made. The Tribunal did not specifically refer to the Applicant’s Statutory Declaration, Psychologist’s Report or Social Worker’s Report. Given the Tribunal did not address the Non-Compliant Evidence, the only submissions made to the Tribunal regarding the Applicant’s evidence were that all the evidence had been provided and that her claim had merit. The Applicant was not directed to specific topics such as the form, content and source of the Psychologist’s Report or Social Worker’s Report, or whether she had complied with statutory requirements. At no point prior to the Tribunal’s Decision did the Tribunal communicate that the form of the Applicant’s evidence was a dispositive issue, not merely a possible issue, before the Tribunal.
The Tribunal must be careful to not merely “check off” boxes when reviewing decisions and holding hearings. Putting an applicant on notice means being meaningfully and properly informed of the key contentious issues and adverse information, and Applicant’s must understand the consequences of certain findings. Sufficient and proper notice requires the Tribunal to not simply make the Applicant generally aware of possible issues that could determine the matter, but to make the Applicant aware of the critical issues determinative in the particular matter.
I am satisfied that the Applicant was not sufficiently put on notice of the Non-Compliant Evidence.
It is a well-established principle that merits review contains an element of “decisional freedom” within which reasonable decision makers may differ in conclusions about the correct or preferable decision and, as such, no error would materialise: see Li at [28] per French CJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton) at [7] per Allsop CJ. In Stretton at [10] to [13] Allsop CJ expressed the assessment of unreasonableness as follows:
10.This concept of legal unreasonableness is not amenable to minute and rigidly‑defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63]‑[76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64]‑[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]‑[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
[11]The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12]Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
[13]The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
(Emphasis added)
The purpose of putting an application on notice of the dispositive issue is to provide applicants with an opportunity to respond to adverse information and/or provide further information. The procedural fairness requirements within the Migration Act require the Tribunal to conduct merits review in a way that allows applicants to meaningfully participate and respond to information. The significance of a meaningful hearing will be discussed further in relation to Ground 2.
Having consideration to the purpose and obligations of the Tribunal in carrying out merits review, a reasonable decision maker would not have proceeded to making a decision without putting the dispositive issue to the Applicant. Given the finding above that the Applicant was not sufficiently put on notice that her evidence was not in the form required and that the Tribunal Application would be determined by whether her family violence claim had been validly made, I am satisfied that the Tribunal’s Decision cannot be said to be within the range of possible lawful outcomes. It is apparent that the Applicant understood the determinative issue to be the merit and substance of her family violence claim. The Applicant was not aware that the form of her evidence supporting the claim was a live and dispositive issue. A reasonable decision maker having reference to the statutory source of power and submissions of the applicant would not have proceeded to making a decision without ensuring that the applicant understood the dispositive issue(s) at hand and had provided a meaningful opportunity for the applicant to make submissions in relation to the dispositive issue(s). It was legally unreasonably for the Tribunal to proceed to make its decision having failed to put the Applicant. I do not consider that a decision to proceed to determine the matter without the Applicant having been on notice of the dispositive issue to be within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Further, I am satisfied that there is a realistic possibility that the Tribunal could have made a different decision were it not for the failure to put the Applicant on notice: Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
Ground 1 is made out and consequently I am satisfied that jurisdictional error has been established.
Ground 2
Ground 2 contends that the Tribunal breached s 360 of the Migration Act as it did not afford the Applicant a meaningful hearing by failing to put the Applicant on notice of the Non-Compliant Evidence, which would be a reason for affirming the Delegate’s Decision. Section 360 of the Migration Act requires the Tribunal to invite an applicant before it to give evidence and present arguments relating to issues arising in relation to the decision under review, if the Tribunal considers that it cannot come to a decision favourable to the applicant, based on the material before it.
The authorities make clear that a hearing invitation under s 360 of the Act must provide an applicant with a real and meaningful opportunity to give evidence and present arguments: SCAR at [37] to [38]. It is well established that the Tribunal must put an applicant on notice of any determinative issues and any issues arising in the review that were not in issue before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35].
There is no dispute between the parties that a failure to give the Applicant a meaningful hearing and opportunity to give evidence is material. The Minister accepted that if the Tribunal did not put the Applicant on notice that the Non-Compliant Evidence was an issue arising on review, then there was a material breach of s 360 of the Act.[47]
[47] Minister’s Submissions, [4(c)].
Pursuant to s 360 the Tribunal must provide the Applicant with information regarding issues arising in relation the review of the Delegate’s Decision and the Tribunal must invite the Applicant to respond with evidence and arguments. Fulfilling the obligations to objectively provide a real and meaningful opportunity to be heard and make submissions under s 360 requires the Applicant to be put on notice of the dispositive issue.
The Tribunal’s role is not to fix technical or procedural faults in an applicant’s case, or in detail specifically analyse an applicant’s claim with the applicant. The Tribunal is not required to manage or run an applicant’s case however the Tribunal must ensure that applicants: understand the statutory requirements of their claim; are aware of the dispositive issues before the Tribunal; and have an opportunity to respond to critical adverse findings. Reeves J commented in AZAAD, at [108]:
108.“[…] Since the second tribunal intended to decide the review on a completely different issue to that of the delegate and the first tribunal, I consider it was obligated as a matter of procedural fairness to inform the appellants that was so. The most obvious way to do that was to include a statement to that effect in the letter inviting the appellants to attend the s 425 hearing. Alternatively, it could have informed the appellants of this fact at the outset of the hearing, although such a dramatic change to the issues in the review at that late stage would probably not have afforded the appellants a sufficient opportunity to give evidence and present arguments at the hearing on the new issue and would most probably have led to an adjournment. In either situation, I cannot see how such a notice would interfere unduly with the review process, or place any onerous obligation on the tribunal, or require it to disclose any of its thought processes. […]”
(Emphasis added)
This is a case where, whether or not the Tribunal was aware prior to the Tribunal Hearing, the Tribunal should have raised the issue of the Non-Compliant Evidence with the Applicant and sought a response. The Tribunal must put to the Applicant all dispositive issues. It is the obligation of the Tribunal to hold a fair and meaningful hearing in which an Applicant can present evidence and make submissions, respond to adverse information and findings, and persuade the Tribunal of any misgivings or concerns about her case. Had the Tribunal indicated, either before, during or after the Tribunal Hearing, that it was precluded from considering the substance of the family violence claim because of the Non-Compliant Evidence then the Applicant could have made further relevant submissions and/or sought to correct the error.
The High Court said in Li at [83]:
“[…] Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest there was no prospect for the second skills assessment being obtained or that the outcome could not be known in the near future. In these circumstances, it is not apparent why the tribunal decided, abruptly, to conclude the review”.
Whilst it is unknown whether the Applicant could have obtained compliant evidence or could have presented a valid claim to the Tribunal, the Tribunal’s Decision was made without providing the Applicant a meaningful opportunity to present her case at any point. The Applicant was not afforded the opportunity to make submissions as to the compliance of the evidence, whether compliant evidence could have been provided, whether she thought the evidence was in the correct form as required or whether she required an adjournment. Neither the Delegate nor the Tribunal put the Applicant on notice regarding the issues with respect to the validity of the Applicant’s family violence claim.
The Court otherwise relies upon the matters discussed in relation to Ground 1
It cannot be said that the Applicant was given a meaningful opportunity to present her case pursuant to s 360 of the Migration Act. Ground 2 is made out and consequently I am satisfied that jurisdictional error has been established.
CONCLUSION
By reason of the foregoing Ground 1 and Ground 2 of the Amended Application are made out and I am satisfied that jurisdictional error has been established on both grounds. The Tribunal’s Decision is affected by jurisdictional error, as the Tribunal proceeded to affirm the Delegate’s Decision without affording the Applicant a meaningful opportunity to address her case and address the dispositive issue in the Tribunal’s review. The Amended Application should be allowed.
At the Hearing the Applicant sought costs in accordance with the scale amount[48] in Item 3, Division 1, Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The scale amount at the time of the Hearing was $8371.30.
[48] Transcript P21:L11-14.
Orders will be made accordingly.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 8 February 2024
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