El Darwich v Minister for Immigration
[2007] FMCA 1350
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL DARWICH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1350 |
| MIGRATION – Applicant allegedly suffered domestic violence by his wife – opinion of independent expert required – joint opinion is opinion of an independent expert. |
| Migration Act1958 (Cth), ss.359A, 474 Migration Regulations 1994 (Cth), regs.1.21, 1.23, 1.24, 1.25, 1.26 |
| Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56 |
| Applicant: | IBRAHIM EL DARWICH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 721 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 18 June 2007 |
| Date of last submission: | 18 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Jones |
| Counsel for the Respondents: | Mr P. Braham |
| Solicitors for the Respondent: | Ms A. Radich of Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 721 of 2007
| IBRAHIM EL DARWICH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 2 March 2004 for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 11 January 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Partner (Temporary) (Class UK) visa, or a Partner (Residence) (Class BS) visa. The applicant has not filed an amended application.
Case background
The applicant, who is a citizen of Lebanon, first came to Australia on 12 February 2004 (CB 134). During this stay, he met and became engaged to Ms Nahla Samia (his sponsor).
The applicant left Australia on 10 May 2004 and returned in January 2005 on a Class TO, Subclass 300 Prospective Marriage (Temporary) visa (which allowed the applicant to migrate to Australia as the fiancé of an Australian citizen – CB 41). The applicant and Ms Samia were married on 26 February 2005 (CB 50).
On 22 March 2005 the applicant applied to the Department of Immigration and Multicultural Affairs for permanent residency on spouse grounds. The application incorporated the following visas (CB 133):
·A Partner (Residence) (Class BS) visa, which is normally granted two years after lodgement of the application in order to ensure that the relationship is genuine and continuing; and
·A Partner (Temporary) (Class UK) visa, which allows the applicant to remain in Australia pending determination of the permanent visa application.
On 12 April 2005 Ms Samia withdrew her sponsorship in support of the applicant’s permanent residency visa (CB 53).
By letter dated 14 April 2005 (CB 55) the Department advised the applicant that his wife’s sponsorship withdrawal would likely result in his application being refused. The letter went on to state:
before a decision is made on your application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
The applicant’s solicitor responded by letter dated 26 April 2005 (CB 56), with claims that the applicant had suffered domestic violence at the hands of his wife and father-in-law (CB 60, 66, 70).
On 6 August 2005 a delegate of the first respondent refused the applicant’s application for a Partner (Temporary) (Class UK) visa (CB 76-84).
On 23 August 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Migration Review Tribunal (CB 86). The applicant attended a hearing before the Tribunal on 10 May 2005 to give evidence and present oral arguments.
On 11 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a Partner (Temporary) (Class UK) visa. In considering the applicant’s claims, the Tribunal found (CB 137-9) (highlighting added):
On the basis of the material before it I find that at the time of application the applicant was validly sponsored by an Australian citizen who had turned 18. I find that at the time of application (22 March 2005), the sponsor and the applicant were in a spousal relationship for the purposes of the Regulations.
It is a time of decision criteria that the applicant meet clause 820.221. It is the undisputed evidence that the spousal relationship broke down in early April 2005 and that the sponsor withdrew her sponsorship for the applicant in a letter to the Department dated 12 April 2005. On the evidence before me, I am satisfied that at the time of this decision (i.e. now) the relationship between the applicant and the sponsor has ceased.
The issue for this review is whether the Tribunal is satisfied that the applicant’s circumstances come within clause 820.221(3). In other words, am I satisfied that domestic violence has taken place as this notion is explained in Division 1.5 of the Regulations? In the circumstances of this case this becomes the question, can the applicant satisfy 820.221(3)(b)(i)? For I note in passing that the applicant cannot satisfy the other parts of 820.221, namely, 820.221(1)(a) or (2) or (3)(b)(ii).
For the visa applicant to meet the requirements of clause 820.221(3)(b)(i) the only issue to be determined is whether relevant domestic violence has occurred. This involves the Tribunal considering the evidence provided by the applicant and the requirements of Division 1.5 of the Regulations.
Of the various ways of establishing domestic violence set out Division 1.5 the applicant relies on the provision of 3 statutory declarations – one from himself and two from different competent persons. The applicant claims that non-judicially determined domestic violence has occurred and provides material in accordance with reg. 1.23(1A)(b)(ii) and reg. 1.24(1). He provides, in other words, a statutory declaration from himself and from two competent persons, Dr Adel Zaki dated 15 April 2005 and Ms Lila Vrlevski dated 19 April 2005. Based on the material now on file I am satisfied that Dr Zaki is a registered medical practitioner with the NSW Medical Board and that Ms Vrklevski is a registered psychologist with the NSW Psychologists Registration Board. They are both competent persons (see reg. 1.21(1)).
Reg. 1.25 requires the applicant’s declaration to set out certain matters. This it does. Reg. 1.26 requires the declarations by the competent persons to set out certain matters. Both declarations comply with this regulation. As the Tribunal has been provided with the requisite statutory declarations it finds that a non-judicially determined claim of domestic violence was made.
In applications based on non-judicially determined domestic violence the Tribunal is required to make the additional finding that it is satisfied that the applicant has suffered relevant domestic violence. If the Tribunal is not satisfied on this issue it is to seek the opinion of an independent expert (see reg. 1.23(1B). For the definition of domestic violence, see reg. 1.23(2)(b).
As noted above, having considered all of the evidence before me, including the evidence of a non-judicially determined claim of domestic violence provided by the applicant, and in light of the meaning of relevant domestic violence as interpreted by the Full Federal Court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56, I was not satisfied that the alleged victim had suffered relevant domestic violence. In accordance with r.1.23(1B)(b) I sought the opinion of an “independent expert” about whether the alleged victim has suffered relevant domestic violence. The “independent expert” provided an opinion that the alleged victim had not suffered relevant domestic violence. This opinion is dated 27 June 2006 and was made by Matt Heyburgh and Mary Magias.
This assessment was sent to the applicant for comment and the comments (basically concerning the failure to properly interpret) were relayed back to the “independent expert” to see whether this caused a reassessment of this assessment. It did not. In these circumstances I am satisfied that the applicant has had the opportunity to comment on the opinion of the independent expert and that the independent expert has been made aware of these comments.
It remains the view of the independent expert that the applicant has not suffered domestic violence. Based on the material on file I am satisfied that the two social workers who formed this opinion are suitably qualified to make this assessment (see reg.1.21). Both are social workers and hold Bachelor degrees in Social Work from UNSW. Both are eligible for membership with AASW. I am satisfied that they are employed by or provided services to an organisation gazetted for the purposes of reg.1.21 (namely Centrelink; see SGA 119, 1 July 2005)). In these circumstances the Tribunal is required to take the opinion of the independent expert as correct (reg. 1.23). Accordingly I find that the applicant has not suffered domestic violence.
As the applicant does not satisfy 820.221(3)(b)(i) he does not satisfy 820.221(1). For as noted above he can not satisfy 820.221(1) in some other way. His circumstances do not come within 820.221 (2) (as the spouse has not died) or 820.221(3)(b)(ii) (as no children are involved).
Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Subclass 820 visa. It follows that as the visa applicant does not meet essential criteria for a Class UK visa, the visa applicant does not meet the criteria for a Class BS visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out two grounds as follows:
(1)The Tribunal committed jurisdictional error of law by taking into account a joint opinion of two persons as if it were the opinion of “an independent expert” as stipulated in reg. 1.23(1C).
(2)The Tribunal failed to comply with the requirements of s.359A of the Act.
Particulars:
The Tribunal had information about the qualifications, suitability and employment of the individuals whom it accepted as “independent experts” which was information which the Tribunal must have considered was part of the reason for affirming the decision under review, and which was not exempt under s.359A(4), but it did not give particulars of that information to the applicant in the way required by the legislation.
Findings of the Court as to the grounds in the application
Ground one: independent expert opinion
Ground one alleges that the Tribunal made a jurisdictional error by taking into account a joint opinion of two persons as if it were the opinion of an independent expert. The joint opinion is at CB 119. Regulation 1.23(1B)(b) requires the Tribunal to seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence. The Tribunal sought the opinion of an independent expert; reg.1.23(1B)(b) was therefore complied with. The opinion which resulted (CB 119) is the opinion of an independent expert and the opinion of a second independent expert. Their opinion is the same.
By reg.1.23(1C) the Tribunal was required to 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”. Both independent experts gave the same opinion. The fact that two independent experts expressed the same opinion does not prevent the opinion from being the opinion of an independent expert on the matter. The Tribunal set out its reason for holding that both social workers who formed this opinion were qualified to give their opinion (CB 138.6). A further basis for finding that the provision of, and consideration of, the opinion of two independent experts does not amount to an error of jurisdiction is s.23(b) of the Acts Interpretation Act 1901 (Cth) that provides:
In any Act, unless the contrary intention appears:
(a)……
(b)words in the singular number include the plural and words in the plural number include the singular.
Section 46(1), of the the Acts Interpretation Act1901 (Cth) provides:
(1)If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears:
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation; and
(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority.
The Court does not accept the submission for the applicant that a contrary intention is shown in relation to the opinion of an independent exercise, because the Tribunal is bound to apply it (Transcript 19, line 30). The Court finds that the expression “an independent expert” in reg.1.23 of the Migration Regulations 1994 (Cth) is not confined to the opinion of one independent expert. The Court finds no error of law to be established. Ground one is rejected.
Ground two: alleged breach of s.359A
Ground two alleges a breach of s.359A of the Act through the Tribunal failing to give to the applicant in writing details of the names and qualifications of the independent experts, and whether they were employed or contracted by a Gazetted organisation.
Those facts about the independent experts themselves did not form the reason, or part of the reason, for the decision of the Tribunal affirming the decision under review. The Court accepts the submission for the first respondent that the names of the independent experts was not part of the statutory process in deciding whether the applicant was the victim of domestic violence. The reason for affirming the decision was that the Tribunal was not satisfied that the applicant had suffered domestic violence. It was only when the Tribunal had the experts’ opinion that the Tribunal had “information” that could be a reason or part of the reason for affirming the decision.
The applicant claims that the Tribunal did not ensure that the applicant understood why the information (the opinion) was relevant to the review. That allegation is incorrect. The Tribunal stated at CB 112.8 that “this information is relevant to the review because pursuant to the provisions of regulation 1.23(1C) the Tribunal is bound to accept the opinion of the independent expert about whether you have suffered domestic violence.” Also, with the further s.359A letter (CB 123) the Tribunal’s information about the two independent experts was completed except for their names. By the s.359A letter on 7 July 2006 and the attachments, the applicant was informed that both independent experts were from Centrelink (CB 114.2). The attachments indicated that the first expert was the holder of a Bachelor of Social Work Degree from the University of New South Wales (graduating in 1986), was eligible for membership of the Australian Association of Social Workers (AASW), and was the Social Work Manager at the Bankstown Centrelink office (CB 125). The other expert had a Bachelor of Social Work from the University of New South Wales and was also eligible for membership of the AASW (CB 126). Their names were not disclosed. However, it has not been shown that their names were the reason, or part of the reason, for the Tribunal affirming the decision that is under review. A breach of s.359A has not been established. Ground two is rejected.
The applicant alleges also that the s.359A letter did not invite the applicant to comment on the information. Again, that is not correct. The applicant was invited to comment on the fact at CB 112 that:
…the independent expert who assessed the claim informed the Tribunal that he was not satisfied that relevant domestic violence had taken place (a copy of this advise in attached for your perusal).
This information is relevant to the review because pursuant to the provisions of regulation 1.23(1C) the Tribunal is bound to accept the opinion of the independent expert about whether you have suffered domestic violence.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 9 August 2007
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