Dang v Minister for Immigration
[2016] FCCA 1426
•30 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1426 |
| Catchwords: MIGRATION – Specification of evidentiary requirements – non-judicially determined claim of family violence – application for an extension of time. |
| Legislation: Migration Act 1958 (Cth), ss.359, 476, 477, 65, pt.5 of div.5 Migration Regulations 1994 (Cth), cl.801.221 of sch.2, div.1.5 of pt.1, regs. 1.23(10)(c)(i) and (ii), 1.24, 1.25 |
| Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | QUOC TRI DANG |
First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1097 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 2 June 2016 |
| Date of Last Submission: | 2 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Atkins |
| Solicitors for the Applicant: | Koenig & Simons Solicitors |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicant’s amended application filed 16 November 2015 for an extension of time in which to apply for a remedy be refused.
The Applicant pay the First Respondent’s costs fixed in the sum of $6825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1097 of 2015
| QUOC TRI DANG |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an amended application filed on 16 November 2015, the Applicant applied for an Order that the Respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 (“the Act”), in respect of a decision of the then Migration Review Tribunal (“the Tribunal”), dated 8 April 2015 (“the decision”). That decision was to affirm a decision of a delegate of the First Respondent (“the delegate”) not to grant the Applicant a Partner (Temporary) (Class UK) visa.
The Applicant also seeks an Order pursuant to s.477(2) of the Act to extend the time within which he may apply to the Court for a remedy.
For the reasons set out below, having considered the merits of this application, the application to extend time shall be refused.
Background
The decision of the Tribunal affirmed an earlier decision of the delegate of the first respondent (“the Minister”) to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa (“a partner visa”) under s.65 of the Act. The Tribunal was not satisfied that the requirements in the Migration Regulations 1994 (“the Regulations”) for establishing a non-judicially determined claim of family violence had been met.
The relevant requirements in order to establish a non-judicially determined claim of family violence are set out in clause 801.221(6)(b) and (c)(i) of schedule 2 to the Regulations. The Applicant applied for a visa on the basis of his relationship with a sponsor, who is an Australian citizen. The primary criteria under cl.801.221 of sch.2 to the Regulations is that, at the time of the decision, the Applicant continues to be the spouse or de facto partner of the sponsoring party, unless the relationship ceased for reasons which include that the Applicant suffered family violence committed by the sponsor. Before the Tribunal, the Applicant claimed that his relationship with the sponsor had ceased and that he had been the victim of family violence.
Legal Framework
The special provisions relating to family violence are set out in div.1.5 of pt.1 of the Regulations. A reference in the Regulations to a person having suffered violence is a reference to a person being taken under reg.1.23 of the Regulations to have suffered family violence. Regulation 1.23 of the Regulations states:
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim) is taken to have suffered family violence; and
(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Regulation 1.23(9) of the Regulations sets out that the conjunctive requirements for establishing that an application for a visa includes a non-judicially determined claim of family violence. Regulation 1.23(9) requires that:
…
(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
The evidence required to be presented in accordance with regulation 1.24 is:
a)a statutory regulation under regulation 1.25 (being a statutory declaration by or on behalf of the alleged victim of the family violence); and
b)the type of evidence specified by the Minister in writing for the purposes of the regulation (which in this case was specified by instrument IMMI 12/116).
The Tribunal correctly summarised the Applicant’s position at [17] to [18] of the decision where it stated:
17. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a Court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.
18. The Applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes: see Legislative Instrument IMMI 12/116.
Legislative instrument IMMI 12/116 (“the instrument”) specifies that a minimum of two items of evidence from a list in schedule 1 of that instrument, and not more than one type of each type may be presented.
The instrument requires, in relation to a statutory declaration by a registered psychologist, that it be made by a registered psychologist in a State or Territory, who has treated the alleged victim, while performing the duties of a psychologist. Similarly, in relation to a statutory declaration made by a member of the Australian Association of Social Workers, it requires it be made by a person, who has provided counselling or assistance to the alleged victim, while performing the duties of a social worker.
In the case presented to the Tribunal, the Applicant provided a statutory declaration to the Tribunal, made by him on 23 March 2015, under reg.1.25 of the Regulations. He also submitted a statutory declaration made by Mr Clifopoulos, a registered psychologist, on 28 November 2014, and a statutory declaration made by Ms Maria Podbury, a social worker. The statutory declarations of Mr Clifopoulos and Ms Podbury were filed in order to seek to satisfy the evidentiary requirements imposed by reg.1.24 of the Regulations.
The Tribunal found, in relation to the evidence of Mr Clifopoulos, that the statutory declaration did not satisfy the outstanding requirements of reg.1.24 of the Regulations. The Tribunal held at [24] that “the evidence does not indicate that he has treated Mr Dang”. Similarly, in relation to the evidence contained in the statutory declaration of Ms Podbury, the Tribunal held at [25] that “the evidence does not indicate that she has provided counselling or assistance to Mr Dang”. The Tribunal also held at [27] to [28] that the evidence of Ms Podbury did not identify the Applicant’s spouse as the alleged perpetrator of any family violence.
At [35] the Tribunal concluded:
… the evidence that Mr Dang has provided does not meet important requirements in the Regulations for establishing a non-judicially determined claim of family violence. In the Tribunal’s view, the statutory declarations by the psychologist and the social worker do not meet the requirements for statutory declarations made by psychologists and social workers. The statutory declaration by the social worker has the additional problem that it identifies the alleged perpetrator as Mr Dang’s father-in-law and not his former partner.
The Grounds of Judicial Review
The amended application, filed 16 November 2015, identifies four grounds of judicial review of the Tribunal’s decision.
Ground 1
This ground states that:
The decision of the Migration Review Tribunal (the Tribunal) was made without jurisdiction or was affected by jurisdictional error in that the Tribunal acted in breach of natural justice or failed to give procedural fairness to the applicant.
Under particulars to that ground, the Applicant stated:
The Applicant submitted to the Tribunal a Statutory Declaration for family violence claim in which he claimed that threats were made against him if he did not sign over his half interest in the matrimonial property being purchased by his wife and himself, and if he did not sign for a divorce. Further he claimed his wife threatened to have her father kill him if he did not leave the family home. That he was concerned about his safety and wellbeing and left the family home because of these threats. The Tribunal made a jurisdictional error by failing to find that a threat to have the Applicant killed made by his spouse was relevant family violence, within the meaning of the Migration Regulations 1994.
It is apparent the particulars do not shed any light on the ground that there had been a breach of natural justice or a failure to accord procedural fairness to the Applicant. In the Applicant’s written submissions dated 17 May 2016, at [43], the Applicant states, in relation to this ground of appeal:
The Tribunal did not make any request for additional information under s.359 of the Migration Act or suggest to the Applicant that it had received any contrary information regarding his evidence or the evidence given in support of his claim, nor did it make any request for him to attend before an expert witness pursuant to R.1.23(10)(c)(i) and (ii).
It is respectfully submitted that in the circumstances of this case the Tribunal decision was made without jurisdiction or was affected by jurisdictional error in that the Tribunal acted in breach of natural justice or failed to give procedural fairness to the Applicant. The Applicant refers to and repeats the particulars to ground 1 of the Application.
At the hearing of this application, the Court asked Counsel for the Applicant to explain in greater detail what he submitted was the failure to accord procedural fairness. The response was, to the effect that, because there had been a failure to refer the Applicant to attend before an expert witness, pursuant to reg.1.23(10)(c)(i) and (ii) of the Regulations, the decision was unfair and, therefore, procedurally unfair. In my opinion, this ground is misconceived and there is no basis for contending that there has been any failure to accord procedural fairness in the manner in which the Tribunal conducted the proceeding below. The Tribunal complied with the requirements of part 5 of division 5 of the Act, which set out the requirements of the natural justice hearing rule, in relation to the matters that it deals with.
The Applicant appeared before the Tribunal and gave evidence to present arguments which relate to the decision under review. The reasons of the Tribunal at [33] establish that it identified to the Applicant at the hearing that an issue arose on the review as to whether the statutory declarations that he relied upon were in accordance with reg.1.24. There is no basis for the contention that the Tribunal was required to request additional information under s.359 of the Act.
Further, there is no substance to the contention that the Tribunal was required to have the Applicant attend before an expert witness pursuant to reg.1.23(10)(c)(i) and (ii). The requirements of reg.1.23(10) are only enlivened if an application for a visa includes a non-judicially determined claim of family violence. As the Tribunal held that the application did not satisfy the evidentiary requirements to establish that a non-judicially determined claim of family violence had been made, there was no requirement to refer the Applicant to an independent expert. The steps set out in reg.1.23(10), (11) and (13) are only required to be taken where the application for a visa is taken to include a non‑judicially determined claim of family violence. The Tribunal found that the application did not include such a claim. It provided reasons for that decision. There was no denial of natural justice.
Ground 2
This ground states that:
The Tribunal fell into jurisdictional error in that it failed to interpret correctly the law.
Under Particulars, the Applicant states:
(i) The Tribunal failed to find that a threat by the Applicant’s spouse to have him killed by a member of the family unit of the spouse constituted non-judicially determined family violence;
…
The particulars in ground 2 also provide that:
(v) The Tribunal erred in finding that the Applicant’s failure to seek counselling in relation to relevant family violence was a relevant consideration in determining the application for review.
This ground of review is misconceived because the Tribunal was not required to embark on the exercise of whether or not to find that a threat by the Applicant’s spouse to have him killed by a member of the family unit constituted non-judicially determined family violence as the Tribunal held that the application for a visa did not include a non-judicially determined claim of family violence because it had not satisfied the requirements of making such a claim. The Tribunal was entitled to do this because it concluded that the evidence required to support such a claim had not been presented.
Ground 3
This ground states that:
The Tribunal fell into jurisdictional error in that its decision was so unreasonable that no reasonable Tribunal could have made it.
Under the particulars, it is asserted that:
(a) The Tribunal was unreasonable in finding that:
“the evidence presented to the Tribunal does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r1.24”
In addition, written submissions were filed on the morning of the hearing, and the Applicant submitted, in effect, that Mr Clifopoulos and Ms Podbury had both either treated or counselled the Applicant and submitted that their statutory declarations met the basic requirements of IMMI 12/116 and therefore, the evidence outlined the requirements of reg.1.24 of the Regulations.
In my opinion, the Tribunal was correct in determining that neither of those people had treated or counselled the Applicant in the course of preparing the reports that were attached to the statutory declarations they made. It is apparent that, in the case of a psychologist, the treatment of the alleged victim is required while performing the duties of a psychologist. If the evidentiary requirements were satisfied simply by a statutory declaration made by a registered psychologist, who is a non-treating psychologist, the words in relation to treatment would be otiose. The Tribunal was correct to conclude at [26] that:
… for a statutory declaration by a psychologist or a social worker to meet the requirements of IMMI 12/116 the relationship between the Applicant and the psychologist or social worker must have been essentially a therapeutic one… .
If that requirement was ignored, the statutory declaration could be provided by any psychologist who was provided a history by the Applicant. As the First Respondent submitted in the course of the hearing and by written submissions, the purpose of the regulation is that it must be made by a professional who has formed the requisite opinion in the course of providing professional services in relation to the visa Applicant, in circumstances where the genuineness or otherwise of the claim might be expected to be observable by that professional.
It is apparent from the evidence that was provided by both of Mr Clifopoulos and Ms Podbury to the Tribunal, that neither of those persons were in a therapeutic relationship with the Applicant. The reasons of the Tribunal disclosed that Mr Clifopoulos saw the Applicant only once, at the behest of the Applicant’s lawyers, for the purpose of obtaining an “assessment” (CB 163, page 3 of the psychological report). In relation to Ms Podbury, the Tribunal held at [25]:
… In the case of her statutory declaration the evidence does not indicate that she has provided counselling or assistance to Mr Dang. Mr Dang told the Tribunal that he saw her once for no more than three hours earlier in the month of the hearing. …
Further, at [25] the Tribunal stated:
… Asked by the Tribunal whether Ms Podbury provided any counselling or assistance to him, Mr Dang paused before saying that they talked but that he could not remember.
In written submissions filed by leave of the Court following the hearing of the application, the Applicant made submissions in relation to the dictionary definitions of the meaning of “treatment” ,”psychology” and “psychotherapy” extracted from the Macquarie Dictionary 5th Edition. Apart from reproducing those definitions, the submissions raised no grounds for finding that the decision was affected by jurisdictional error.
In the circumstances, this ground lacks merit.
Ground 4 of the amended application:
This ground states that:
The decision of the Tribunal was made without jurisdiction or was affected by jurisdictional error in that the Tribunal failed to consider or properly consider and apply the provisions of regulation 1.23(10)(c)(i) and (ii).
The particulars of this ground are predicated on the view that the review before the Tribunal included a non-judicially determined claim of family violence. Given my findings above, that the Tribunal correctly determined that the review did not include a non-judicially determined claim of family violence, this ground must fail.
Application for extension of time
The First Respondent submitted that although the delay in filing the application was short (two days out of time), the proposed application for judicial review lacks merit and that the application to extend time should be refused. The First Respondent referred the Court to a decision of Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62], where her Honour stated:
“… it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. …”
And at [63]:
“…the correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable” “sufficiently arguable” or has “reasonable prospects of success…”
Having considered the Applicant’s four grounds of his application and bearing in mind what was said by Mortimer J in MZABP at [62]-[63], the Court is of the view that the Applicant’s ground set out in his amended application have no reasonable prospects of success and that the Court should refuse an application for an extension of time under s.477 of the Act. The application will be dismissed with an order for costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 30 June 2016
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