Doan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 405
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Doan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 405
File number(s): MLG 498 of 2018 Judgment of: JUDGE RILEY Date of judgment: 25 May 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – partner (migrant) (class BC) (subclass 100) visa – whether the Tribunal was required to tell the applicant what the regulations required to establish family violence – whether the Tribunal acted unreasonably or its decision-making process lacked an intelligible justification – whether the Tribunal’s decision was affected by a reasonable apprehension of bias. Legislation: Migration Act 1958 s.5F
Migration Regulations 1994 regs.1.15A, 1.21, 1.23, 1.24(a) and (b), 1.25, cl.820.211 and cl.820.221 of Sch.2
Cases cited: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1 Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 29 March 2022 Place: Melbourne Counsel for the Applicant: Jonathan Barrington Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Christopher Hibbard Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: Sparke Helmore Lawyers ORDERS
MLG 498 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI HOANG DOAN
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
25 MAY 2022
THE COURT ORDERS THAT:
1.The application filed on 27 February 2018 and amended on 8 November 2021 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a partner (migrant) (class BC) (subclass 100) visa. The delegate refused the visa on the grounds that the applicant was not the spouse of her sponsor. The Tribunal affirmed the decision on the basis that the applicant had not provided the appropriate statutory declaration proving family violence.
BACKGROUND
In her written submissions filed on 9 November 2021, the applicant provided the following background to this matter:
2.The Applicant is a female citizen of Vietnam. She applied for a Partner (Provisional) (Class UF) (Subclass 309) visa and the visa (that is, the Class BC visa) on 13 November 2014, sponsored by her husband, Mr Mark Joseph Hageman (the Sponsor). She was granted the provisional partner visa on 13 August 2015, and she came to Australia on 25 August 2015.
3.The relationship between the Applicant and Sponsor quickly soured after her arrival in Australia.
4.On 26 November 2015, the Sponsor emailed the Department stating that he wished to withdraw the sponsorship of his partner visa for the Applicant (CB 83). The Department invited the Applicant to comment on this information on 30 November 2015 (CB 85) and on further information on 22 December 2015 (CB 96).
5.On 20 January 2016, the Applicant signed a statutory declaration (CB 109-110). It set out an allegation of family violence, named the person(s) alleged to have committed the violence, and identified their relationships.
6.On 7 December 2016, the applicant’s representative contacted the Department to advise them that the Sponsor had passed away, and that as a result, the Magistrate had dismissed the application for a final intervention order, such that the Applicant would “now submit non-judicial evidence” (CB 173). Up until that point, it is clear that the Applicant had been trying to prove that she had suffered family violence by obtaining an intervention order (CB 114-116).
7.On 30 December 2016, the delegate refused the application for the visa (CB 178-182). The delegate noted that the relevant subclause was cl 100.221(4) – the family violence pathway – but noted that before assessing the Applicant’s claims of family violence, it was required to consider whether the Applicant would have satisfied the requirements of subclause (2) of clause 100.221 except that the relationship with the Sponsor had ceased (CB 180). The delegate was ultimately not satisfied that the Applicant was the spouse or de facto partner of the Sponsor, and did not consider the family violence claims further (CB 182).
8.On 10 January 2017, the Applicant applied for review of the delegate’s decision. On 19 December 2017, the Applicant was invited to attend a hearing before the Tribunal.
9.On 6 February 2018, the Applicant appeared at a hearing before the Tribunal. That hearing commenced at 8.58am and concluded at 9.51am (CB 221-222). The Tribunal decided to affirm the decision under review and gave written reasons for its decision on the same day as the hearing – about an hour later – at 10.49am (CB 226). The Tribunal’s reasons are a little over a page in length.
In his written submissions filed on 17 March 2022, the Minister provided the following background to this matter:
3.The applicant is a citizen of Vietnam. On 20 October 2014, while still resident in Vietnam, she made a combined application for the Visa and a Partner (Provisional) (subclass 309) visa (Provisional Visa) [CB 1]. In her application, she nominated Mr Mark Hageman (sponsor) as her sponsor [CB 5].
4.On 13 August 2015, the applicant was granted the Provisional Visa [CB 78]. On 25 August 2015, she arrived in Australia [CB 178].
5.On 26 November 2015, the sponsor informed the Department of Immigration and Border Protection (Department) by email that his relationship with the applicant had ceased and he wished to withdraw his sponsorship [CB 83].
6.By letter dated 30 November 2015, the Department invited the applicant to comment on information that the spousal relationship had ceased [CB 85].
7.By email dated 4 December 2015, the sponsor provided an email to the Department stating [CB 88]:
I want advice as my ex and her cousin are wanting me to lie to immigration to say we're still together apparently she was going to write a letter stating this, this is not true and I told them I don't want any part of it.
I’m sending you some messages my ex sent me last night offering me money if I change my mind.
The email attached what appear to be text messages between the applicant and the sponsor [CB 89].
8.On 15 December 2015, the Department received a handwritten letter described as being from “Mark Hageman Joseph”, which stated (copied exactly): “I am still supporty my wife Thi Hoang Doan to be permanent resident Australia … I confirm that we are still going as husband and wife …” [CB 93].
9.On 4 January 2016, the sponsor sent a further email to the Department which stated [CB 99]:
In the past I sent you info on my ex and you said in an email to update you so I just wanted to let you know that 23/12/15 my ex and cousins family came over demanding i do the right thing and lie to immigration and write a letter stating this even though the last one didn't work. I said I would look into it, just so I could get them out of the house. The next day I sent Hoang an email stating that her and her family need to leave me alone or out I will get an intervention order.
A few days had passed and I haven't heard a thing but on the 28/12/15 Hoang had come over when I was out, she had said she was moving back in and all her stuff was Un packed so when I found out I grabbed all her stuff and threw it on the front lawn. I couldn't get around to the house so I needed to call a mate to help me during this time she latched onto my dads arm and neck this is when I had to physically remove her from my house and get my mate to lock the door while I called the police. I now have a summons for an intervention order.
I don’t know what Hoang plans are now but I just wanted to inform you on what has happened!
10.On 8 January 2016, the sponsor sent a further email to the Department in which he stated “… my ex Hoang has got a intervention order against me and what she has written is straight out lies. So I’m just informing you that I will be contesting this in court and I will be seeking a lawyer” [CB 100].
11.By letter dated 22 January 2016, a migration agent provided several documents to the Department, including a statutory declaration that set out “Ms Thi Hoang Doan’s side of the story” and an application and summons for an intervention order [CB 107].
12.By letter dated 25 January 2016, the Department requested further information from the applicant, being “Evidence of your relationship with your spouse” [CB 101].
13.By email dated 17 February 2016, the sponsor informed the Department that there would be a court hearing on 26 April 2016 in respect of the intervention order sought against him, and referred to “proof against her intervention order against me” [CB 124].
14.By letter dated 22 February 2016, the Department made a further request for more information from the applicant and requested that a response be provided 28 days after she was taken to have received the letter [CB 130].
15.By letter received by the Department on 29 March 2016, the applicant’s representative provided further documents, including statements by the applicant and third parties about the relationship between the applicant and the sponsor [CB 136].
16.On 7 December 2016, an officer of the Department made a note of a phone call from the applicant’s representative in which she informed the officer that the sponsor had passed away [CB 173].
17.On 30 December 2016, a delegate of the Minister refused to grant the Visa [CB178]. Among other things, in reaching his decision, the delegate:
(a)noted that, before assessing the applicant’s claims of family violence, he was required to consider whether the applicant would have been in a relationship with the sponsor but for the fact the applicant had suffered family violence committed by the sponsor. In doing so, it was necessary for the delegate to consider whether the applicant was the spouse or de facto partner of the sponsor prior to the cessation of the purported relationship;
(b)considered whether the applicant met the definition of “spouse” or “de facto partner” of the sponsor as defined in ss 5CB and 5F of the Act, by reference to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment of the relationship;
(c)reached the following conclusion (emphasis added):
You claim to have suffered family violence allegedly perpetrated by your former sponsor, and have submitted evidence that you sought an intervention order. The department is aware that your application for the order was dismissed by the court after your sponsor passed away. The department is also aware that your sponsor took his own life due to your unsubstantiated allegations that you suffered family violence allegedly perpetrated by him. Based on my assessment of the prescribed matters discussed above, I am not satisfied that you were the spouse or de facto partner of the sponsor prior to the relationship ceasing and I am not satisfied that your relationship was one that was genuine and ongoing.
Accordingly, I am not satisfied that you were the spouse or de facto partner of your sponsor (as defined under sections 5F and 5CB of the Act, respectively) prior to the relationship ceasing. I therefore find that you do not satisfy subclause 100.22 l(4)(b) of the Regulations. Consequently, I am not required to consider your family violence claims further.
18.The delegate’s decision attached a copy of relevant legislation, including an extract of Division 1.5 of the Migration Regulations 1994 (Cth) (Regulations) [CB 191].
19.On 10 January 2017, the applicant applied to the Tribunal for review of the delegate’s decision [CB 201]. In her application, she indicated she would be represented by Dr Tung-Bao Ngo (Dr Ngo) for the purposes of the review [CB 201].
20.By letter dated 19 December 2017 sent to Dr Ngo, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 6 February 2018 [CB 214]. The letter also stated: “We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 30 January 2018”.
21.The applicant did not provide any further documents to the Tribunal. On 6 February 2018, she and Dr Ngo attended the hearing [CB 221].
22.On the same day, the Tribunal affirmed the decision under review. …
THE TRIBUNAL’S DECISION
The Tribunal’s decision was very short, so I set it out in its entirety as follows:
Written statement of decision.
1.The applicant applied for the visa on 13 November 2014 on the basis of her relationship with her sponsor. The applicant’s provisional visa (subclass 309) was issued 13 August 2015.
2.On 30 December 2016 a delegate of the Minister refused to grant the applicant a permanent visa (subclass 100) under s.65 of the Migration Act 1958 (the Act). An application for review of the refusal decision was lodged with this Tribunal. The Tribunal conducted a public hearing on 6 February 2018 to allow the applicant the opportunity to provide oral and any other evidence. The applicant appeared before the hearing with her migration agent. An interpreter was provided by this tribunal.
3.During the Tribunal’s public hearing the applicant confirmed she was no longer in a relationship with her sponsor. The applicant claims she was the victim of family violence perpetrated by her sponsor. The applicant made no other claim that any of the other alternative criteria can be met which would result in the grant of her partner visa. In that regard the Tribunal has considered whether the sponsor’s death is relevant. It is not in this case because the sponsor died around six months after the relationship had ceased.
4.At the Tribunal’s hearing, the applicant stated she has suffered family violence committed by her sponsor.
5.Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence. The Tribunal advised the applicant that further to her claim of suffering family violence perpetrated by her spouse, 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. To this end the applicant has provided none of the evidence required by the legislation in order to make a valid claim. That is to say, the applicant has provided no statutory declaration by herself, and no ‘Types of Evidence’ as specified in Schedule 1 of the instrument IMMI 12/116.
6.The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The Tribunal has also granted a reasonable period of time to do so. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided a statutory declaration as required: r.1.25.
Other considerations
7.The Tribunal disclosed to the applicant the application of a 375A and s.376 certificate attached to her departmental file. In the view of the Tribunal those certificates have been validly made because of the reasons stated in them and the justification given, and including the particulars of the person who issued them. The Tribunal asked if the applicant’s agent sought to make any comment or submission in regards to the certificates. None was made. The documents covered by the certificates were mainly administrative and interdepartmental records. These were not considered adverse. Correspondence from the sponsor and his sister were put formally to the applicant as per the requirements of the Act. An adjournment was granted for the applicant to discuss the information put. The applicant elected to comment on and respond to the information put at the public hearing. As the matters put were relevant to the relationship, and not the claim of family violence per se, no adverse weight as been assigned, as the Tribunal has given the applicant the benefit of any doubt.
FINDINGS
8.At the time of decision the applicant has made neither a judicially determined or nonjudicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider.
9.Furthermore, there is no evidence before the Tribunal that the applicant meets any of the alternative criteria.
10.For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Partner (Migrant) (Class BC) visa.
MATERIAL RELIED UPON
At the hearing before this court, the applicant relied upon:
(a)the court book filed on 5 February 2019;
(b)the applicant’s unsworn affidavit filed on 8 November 2021;
(c)the affidavit affirmed by Tegan Jane Weir on 8 November 2021; and
(d)the amended application filed on 8 November 2021.
At the hearing before this court, the Minister relied upon:
(a)the court book filed on 5 February 2019;
(b)the affidavit affirmed by Tegan Jane Weir on 8 November 2021;
(c)the Minister’s written submissions filed on 17 March 2022; and
(d)the affidavit affirmed by Adam Cunynghame on 17 March 2022.
LEGISLATION
Clauses 820.211 and 820.221 of Schedule 2 to the Migration Regulations1994 (“the Regulations”) required that, at the time of application and at the time of decision, the applicant, relevantly, be the spouse of an Australian citizen.
Spouse was defined in s.5F of the Migration Act 1958 (“the Act”) as follows:
(1)For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.15A of the Regulations relevantly provided that:
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
...
Regulation 1.21 of the Regulations provided that:
In this Division:
independent expert means a person who:
(a)is suitably qualified to make independent assessments of non‑judicially determined claims of family violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non‑judicially determined claims of family violence.
non‑judicially determined claim of family violence has the meaning given by subregulations 1.23(8) and (9).
relevant family violence means conduct, whether actual or threatened, towards:
(a) the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
Regulation 1.23 of the Regulations provided that:
(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.
Note:Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed—injunction under Family Law Act 1975
(2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is suffered and committed—court order
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b)the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed—conviction
(6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed—non‑judicially determined claim of family violence
(8)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B)the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(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.
(10)If an application for a visa includes a non‑judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i)the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii)the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non‑judicially determined claim of family violence; and
(b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
(12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non‑judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Regulation 1.24 of the Regulations provided that:
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 instrument in writing referred to in regulation 1.24(b) of the Regulations was IMMI 12/166.
Regulation 1.25 of the Regulations provided that:
(1)A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.
(2)A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a)set out the allegation; and
(b)name the person alleged to have committed the relevant family violence; and
(c)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)name the person whom the conduct of the alleged perpetrator was towards; and
(ii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3)A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) name that other person; and
(b) set out the allegation; and
(c)identify the relationship of the maker of the statutory declaration to that other person; and
(d)name the person alleged to have committed the relevant family violence; and
(e)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii)identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
THE FIRST GROUND
The first ground of review (which is numbered 3) in the amended application filed on 8 November 2021 (“the application”) is:
The Tribunal failed to give the applicant a meaningful hearing relating to the issues arising in relation to the decision under review – namely, that the applicant had not provided the evidence required by regulation 1.24(b) of the Migration Regulations 1994 (Cth) (the Regulations).
Particulars
a.The Tribunal found that the applicant had not made either a valid judicially determined or non-judicially determined claim of suffering family violence in accordance with regulation 1.23 of the Regulations (at [8]);
b.That issue was the sole dispositive issue arising in relation to the decision under review; and
c.The Tribunal failed to put that proposition to the applicant for comment or to provide a meaningful opportunity for her to give evidence and present arguments in relation to that issue.
In her written submissions filed on 9 November 2021, the applicant said in relation to this ground:
16.Under s 360 of the Act, the Tribunal must “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review”. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs1 (SZBEL), the High Court considered the analogous provision in Part 7 (s 425). It noted that the words “the issues arising in relation to the decision under review” were important.2
17.The High Court further said (emphasis added):3
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
18.Thus, a failure to put an applicant on notice of an adverse issue can constitute jurisdictional error.4 As the Full Court has previously noted (in a passage approved by the High Court in SZBEL) procedural fairness will “ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”.5
19.In Minister for Immigration and Border Protection v SZMTA,6 Nettle and Gordon JJ described the obligation as follows (emphasis in original):
The Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues in dispute in relation to the decision under review. That obligation sets the boundaries of the playing field. The phrase “issues arising in relation to the decision under review” is central to the operation of Pt 7. An applicant is entitled to know of, and therefore be in a position to respond to, the issues arising in relation to the decision under review. An applicant is entitled to know what is in play. Otherwise it is difficult to see how a Tribunal could be said to be pursuing an objective of providing a mechanism of review that is just and fair.
Application in this case
20.As noted above, the delegate did not decide this review on the basis that the Applicant had not provided evidence that she had suffered family violence in accordance with reg 1.24(b). Rather, the delegate’s entire decision record is whether the Applicant satisfied the definition of a spouse under s 5F of the Act.
21.Unless the Tribunal said otherwise, the Applicant was entitled to assume that the issues identified by the delegate were the issues arising in relation to the decision under review. And the Tribunal did not tell the Applicant otherwise. At no point did the Tribunal put the Applicant on notice of issue of the lack of documentation required by reg 1.24(b). At no point did the Tribunal (or the Department) provide a copy of the IMMI 12/116 to the Applicant to guide her on what kind of evidence she required. Further, importantly, at no point in the hearing did the Tribunal direct the Applicant’s attention to this issue.
22.Indeed, the only discussion concerning documentation at the Tribunal hearing was a brief initial exchange. In that exchange, the Tribunal made clear that it will ensure that the documentation is there for a valid claim (T-3 lines 25-26). In other words, the Tribunal will later ensure the documentation is there. The Tribunal also provided a general overview of the legislation relating to family violence. After that brief discussion, the remainder of the hearing focussed on other matters.
23.It is clear from the transcript of the hearing that the Tribunal did not put the Applicant on notice of the issue upon which it ultimately decided the case. The Tribunal’s failure to do so meant that the Applicant did not know what was in play.
24.The Tribunal’s breach of s 360(1) in this case was material. As a matter of reasonable conjecture,7 had the Tribunal informed the Applicant of the issues arising in relation to the decision under review, it is likely that the Applicant would have taken steps to provide evidence in compliance with reg 1.25(b) and to seek an adjournment (if necessary) to do so. It could not be said that there was no realistic possibility of a different outcome in those circumstances.
: (2005) 228 CLR 152 (SZBEL).
: SZBEL at [33].
: SZBEL at [35].
:See, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [38] (Gray, Cooper and Selway JJ).
:Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (Northrop, Miles and French JJ), cited by the High Court in SZBEL at [32]. See also, NDBR v Minister for Home Affairs [2021] FCAFC 170, at [73]-[75].
:(2019) 264 CLR 421 at [99].
In the present case, the delegate considered that the dispositive issue was that the applicant was not in a spousal relationship with her sponsor. However, the delegate’s decision record clearly specified that family violence was also a relevant issue. The delegate said in his decision record:
A (primary) applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4) or (4A) of clause 100.221 of Schedule 2 to the Regulations.
[The delegate then explained why the applicant did not satisfy subclause (2), (2A), (3) or (4A) of clause 100.221 of Schedule 2 to the Regulations.]
…
Subclauses (4) requires that you would meet the requirements of subclause (2) or (2A), except that the relationship has ceased and …:
•The applicant … has suffered family violence committed by the sponsoring partner …
… you have claimed to have suffered family violence committed by the sponsoring partner.
Before assessing your claims of family violence, under subclause 100.221(4)(b) I am required to consider whether you would have satisfied the requirements of subclause (2) of clause 100.221 except that your relationship with your sponsor has ceased. …
[The delegate explained why he was not satisfied that the applicant was the spouse of her sponsor.]
… Consequently, I am not required to consider your family violence claims further.
In other words, the delegate made it clear that, even if the applicant had been the spouse as defined of her sponsor, the applicant’s claim of having suffered family violence was still a matter that the delegate would have needed to assess.
Because the delegate was not satisfied that the applicant was the spouse of her sponsor, it was unnecessary for the delegate to undertake the assessment of family violence. However, the delegate did attach to his decision record a copy of the legislation applicable to the applicant’s circumstances. That attachment set out verbatim a copy of regulations 1.21 and 1.23 of the Regulations, which specify how a claim of domestic violence is to be proved.
The delegate did not attach to his decision record a copy of regulation 1.24 of the Regulations or IMMI 12/116. However, regulation 1.23(9)(c) of the Regulations specifically required that evidence be presented in accordance with regulation 1.24 of the Regulations, and regulation 1.24(b) of the Regulations specifically stated that what was required for the purposes of regulation 1.23 of the Regulations was:
The type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
Consequently, the applicant was on notice that, even if she had been able to persuade the Tribunal that she had been the spouse of her sponsor, she would still have needed to prove her claim of family violence in one of the ways specified in the Regulations. Although the delegate did not provide copies of regulation 1.24 of the Regulations or IMMI 12/116 to the applicant, the material that the delegate did provide alerted the applicant to the need to find that publicly available material, and provide evidence as required by it.
Even if the delegate had not provided a copy of regulations 1.21 and 1.23 of the Regulations to the applicant, the applicant would not have been denied procedural fairness. As the High Court said in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1 at [9]:
… Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. …
In the present case, the terms of the statutory power, being the Regulations, clearly required family violence to be proved in specified ways. It follows that the Tribunal did not need to spell out for the applicant what was required to prove her claim of family violence. It is immaterial that the relevant regulations and IMMI 12/116 were long and detailed and required careful reading. They were clear.
The parties were also in some dispute about the meaning of some of the Tribunal’s opening statements. The transcript of the Tribunal hearing includes the following:
MEMBER:Okay, so when a relationship has broken down there are a limited number of exceptions where the application can continue to be considered. Do you have any children of the relationship?
APPLICANT: (indistinct)
MEMBER:No? The claim you’re making is that you’ve suffered family violence. Correct?
INTERPRETER: Yes.
MEMBER:Okay, so the way that works is the tribunal will have regard to your claim, the tribunal will ensure that the documentation is there for a valid claim.
WITNESS:Yes.
MEMBER:The legislation requires certain documents in certain forms. If they’re not there, I can’t go on to consider the claim.
INTERPRETER: Sorry, can you - - -
MEMBER:The legislation requires certain documents in certain forms. If the documents are not there, then I cannot consider the claim further and I’ll affirm the decision. If a valid claim has been made, the tribunal will go on to consider the claim. If you satisfy the tribunal that you suffered family violence, the tribunal will hand application back to the department. If the tribunal is not satisfied you suffered family violence, the tribunal will send your case to an independent expert for his or her opinion.
The tribunal is then bound by that independent expert’s opinion. We will be advised of that opinion and the tribunal will make a decision. Do you have any questions in regard to that process?
INTERPRETER: No, thank you.
The applicant suggested that, by saying that “the tribunal will ensure that the documentation is there for a valid claim”, the Tribunal had undertaken to check whether the applicant had provided the correct documentation to make out a claim of family violence, and to alert the applicant if she had not. The Minister submitted that, on the contrary, the Tribunal did not promise to alert the applicant to any deficiencies in her documentation, but merely described the process that the Tribunal would follow. Indeed, in the Minister’s submission, the Tribunal in the extract above explained how the statutory regime worked and thereby put beyond doubt that it had met its procedural fairness obligations.
In my view, the Tribunal did not promise to check the applicant’s documentation and alert her to any deficiencies. The Tribunal was simply explaining what it would do, in accordance with the Regulations. The Tribunal asked the applicant if she had any questions and thereby gave her an opportunity to seek clarification of anything she did not understand. None of this was necessary, as the Regulations were self-explanatory. If it had been necessary, it would have been insufficient, because the Tribunal’s statements were vague and general.
In any event, this ground is not made out.
THE SECOND GROUND
The second ground of review (which is numbered 4) in the application is:
The Tribunal acted unreasonably in exercising failing to consider exercising its power under s 363(1)(b) of the Migration Act 1958 (Cth) (the Act) by adjourning the proceeding, or alternatively by exercising its power under s 348(1) of the Act, in circumstances where:
a. the Tribunal overlooked relevant evidence relating to reg 1.24(a) (at [6]);
b.neither the delegate nor the Tribunal had provided the applicant with notice of the legislative instrument issued by the Minister for the purposes of reg 1.24(b) of the Regulations;
c.the Tribunal had not put the applicant on notice of the sole dispositive issue in relation to the decision under review;
d.the Tribunal did not discuss with the applicant, at the hearing or otherwise, its view as to the validity of her non-judicially determined claim to have suffered family violence;
e.the Tribunal stated that it had provided the applicant with an “opportunity to provide appropriate evidence” and a “reasonable period of time to do so” (at [6]), when it had not; and therefore,
f.in the premises, the Tribunal’s decision-making process lacked an intelligible justification.
In relation to point (a), it was common ground that the applicant had provided evidence as required by regulation 1.24(a) of the Regulations, being a statutory declaration made by herself about the family violence she alleged. However, the Tribunal said in its reasons for decision that she had not. The Tribunal said:
5.… To this end the applicant has provided none of the evidence required by the legislation in order to make a valid claim. That is to say, the applicant has provided no statutory declaration by herself, and no ‘Types of Evidence’ as specified in Schedule 1 of the instrument IMMI 12/116.
6.… The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided a statutory declaration as required: r.1.25.
Regulation 1.25 of the Regulations required a statutory declaration by the applicant.
The Minister conceded that the Tribunal had erred in saying that the applicant had not provided a statutory declaration made by herself. However, the Minister argued that the error could have made no difference to the decision, because the applicant did not provide the other statutory declarations that were required.
The applicant said in response that, if the Tribunal had alerted the applicant to the deficiency, the applicant could have asked for an adjournment to obtain the necessary statutory declarations. The applicant argued that it was unreasonable for the Tribunal to have not followed that path.
I do not accept that submission. The applicant was on notice of what statutory declarations were required, because the Regulations specified them. The Tribunal was not obliged to alert the applicant to the deficiency in her case.
The applicant did not ask for an adjournment to provide further documentation. In such circumstances, it was not unreasonable for the Tribunal to not give the applicant an adjournment.
The Tribunal made an error in saying that the applicant did not provide a statutory declaration made by herself about family violence. To that extent, the Tribunal’s decision and decision-making process were unreasonable. However, that error could have made no difference to the decision where the applicant did not provide the other statutory declarations that were required, and where the applicant did not seek an adjournment to be able to provide them.
In relation to point (b), as discussed above, the Tribunal was not obliged to provide notice to the applicant of IMMI 12/166 in circumstances where the Regulations alerted the applicant to the existence and relevance of that instrument. It was not unreasonable for the Tribunal to not take a step it was not obliged to take.
In relation to point (c), the Tribunal did not need to put the applicant on notice of the dispositive issue in the proceeding, because the Regulations gave the applicant the required notice.
In relation to point (d), the Tribunal was not required to discuss with the applicant its view as to the validity or otherwise of her claim to have suffered family violence. It is very well established that the Tribunal is under no obligation to provide a commentary on its assessment of the case before it.
In relation to point (d), the Tribunal had provided the applicant with an opportunity to provide such evidence as she wished, and sufficient time to do so. The Tribunal sent the applicant a hearing invitation dated 19 December 2017 for a hearing on 6 February 2018. The letter included the following:
We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 30 January 2018.
The Tribunal did not specify precisely what documents the applicant might provide, but the Tribunal was not required to do so, for the reasons discussed above.
In relation to point (e), the combination of circumstances identified by the applicant do not lead to the decision or decision-making process being without intelligible justification or otherwise being unreasonable.
This ground is not made out.
THE THIRD GROUND
The third ground of review (which is numbered 5) in the application is:
The Tribunal’s decision was affected by apprehended bias, in that the Tribunal had before it prejudicial information that was irrelevant to the review.
Particulars
a.The Tribunal had before it information indicating the sponsor had taken his own life due to the unsubstantiated claims of family violence made by the applicant;
b.The Tribunal did not disclose that information to the applicant; and
c. That information was highly prejudicial and was not relevant to the review;
d.In the circumstances, a reasonable fair-minded lay observer might apprehend that the Tribunal might have been subconsciously influenced by the prejudicial information in making its decision on review.
The test for a reasonable apprehension of bias is whether a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the matter.
It is true that the Tribunal did not disclose the information described in (a) above to the applicant. However, the delegate had disclosed that information in his decision record. The delegate said:
… The department is also aware that your sponsor took his own life due to your unsubstantiated allegations that you suffered family violence allegedly perpetrated by him …
The Tribunal was under no obligation to repeat that information. The material was arguably prejudicial, but the applicant had the chance to respond to it, because she knew about it, and could have submitted anything that she wished to the Tribunal. These circumstances do not give rise to a reasonable apprehension of bias.
In oral submissions, the applicant raised for the first time that a letter from the sponsor’s sister raised another highly prejudicial allegation. The letter had not been disclosed in full to the applicant at the time of the Tribunal hearing, but it is before the court as an exhibit to the affidavit affirmed by Adam Cunynghame on 17 March 2022. The allegation was that the sponsor had taken out an intervention order against the applicant to keep the applicant away from the sponsor’s father and the sponsor’s father’s house.
The Minister argued that, during the hearing, the Tribunal informed the applicant of the substance of allegations made by the sponsor’s sister in her letter. It is true that the Tribunal informed the applicant of some of the allegations made by the sponsor’s sister, but the Tribunal did not inform the applicant of the allegation about the intervention order. Nor did the delegate.
The allegation about the intervention order was a distinct allegation that the Tribunal ought to have informed the applicant about, if it had been material. However, it was not material. That is because the matter was decided on the basis that the applicant had not satisfied the basic statutory requirements. Whether the Tribunal was biased or not could not have affected the outcome of the matter. The applicant quite simply did not provide the required evidence of family violence, or seek an adjournment to provide the required evidence, and her claim could therefore not succeed.
This ground is not made out.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed with costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 25 May 2022
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Interpretation
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Standing
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Natural Justice & Procedural Fairness
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