Fu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 161
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 161
File number(s): MLG 1047 of 2018 Judgment of: JUDGE A KELLY Date of judgment: 10 March 2022 Catchwords: MIGRATION – Partner (Residence) (Class BS) (subclass 801) visa – where criteria allows applicant to apply for visa on basis of a claim of non-judicially determined family violence – where regulations prescribe requirement to present evidence of specified types – where regulations provide for Minister to specify by legislative instrument the type and number of items of evidence so required – where applicant relies upon medical record of foreign hospital signed by physician – where applicant bears onus of proof on judicial review – proper construction of beneficial legislation – applicable principles – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth), ss 13, 15AA, 15AB, 21
Family Law Act 1975 (Cth), s 114
Health Insurance Act 1973 (Cth), s 3
Health Practitioner Regulation National Law Act 2009 (Qld)
Legislation Act 2003 (Cth), ss 8, 12, 13
Migration Act 1958 (Cth), ss 31, 65, 474, 476
Migration Regulations 1994 (Cth), regs 1.21, 1.22, 1.23, 1.24, 1.25, Sch 1 cl 1124B, Sch 2 cll 801.111, 801.2, 801.22, 801.221
Migration Legislation Amendment Regulation 2012 (No. 5) (Cth), Sch 6
Legislative Instrument, IMMI 12/116 (Cth), pars 1, 2, Sch 1 Items 1, 2, 3, 6Explanatory Statement, Legislative Instrument, IMMI 12/116 (Cth), cll 6, 7
Cases cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 384 ALR 668
Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (1981) 147 CLR 297
CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495
CSL Australia Pty Limited v Minister for Infrastructure and Transport (2014) 221 FCR 165
Craig v South Australia (1995) 184 CLR 163
Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180
Kaur v Minister for Immigration (2020) 356 FLR 348
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Pham v Minister for Immigration [2017] FCCA 3272
Pham v Minister for Immigration and Border Protection [2018] FCA 1946
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
SAS Trustee Corporation v Miles (2018) 265 CLR 137
Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Tjungarrayi v Western Australia (2019) 269 CLR 150Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019)
Dennis Pearce and Stephen Argument, Delegated legislation in Australia (LexisNexis Butterworths, 5th ed, 2017)Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2nd ed, 2020)
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 15 December 2021 Place: Melbourne Counsel for the applicant: Mr A. Aleksov Solicitor for the applicant: Bardos Lawyers Counsel for the respondent Ms K. Hooper Solicitor for the respondent: Mills Oakley ORDERS
MLG 1047 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: QIAN FU
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEAL TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
10 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The application dated 19 April 2018 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $7,853.
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
KELLY A, J
Introduction
By originating application dated 19 April 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 March 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Partner (Residence) (Class BS) (subclass 801) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application should be dismissed. As the Tribunal correctly concluded, there was no sufficient evidence to support the applicant’s claim to have suffered non-judicially determined family violence so as to fall within the exception under which she might have satisfied the Minister that a criterion for the grant of a partner visa had been met.
Background
On 3 December 2013, the applicant, a female citizen of China born in 1983, applied for her visa; her application was granted on 18 July 2014. The visa was obtained on the basis of her spousal relationship with her then sponsor, an Australian permanent resident.
On 18 January 2016, the Department of Immigration and Citizenship advised the applicant that her sponsor had withdrawn his sponsorship on 24 November 2015. As the sponsor had advised he had withdrawn his sponsorship on the basis that the relationship had broken down, the applicant was provided an opportunity to give additional information. On 14 February 2016, the applicant responded in writing advancing a claim to have suffered several forms of family violence that were perpetrated upon her by her sponsor.
To be ‘taken’ to have made a non-judicially determined claim of family violence an applicant must ‘present’ the required evidence: Migration Regulations 1994 (Cth) (regulations), reg 1.23(9)(c). The acceptable types of evidence comprise a statutory declaration by the applicant which conforms to the requirements of reg 1.25 together with no less than two distinct types of evidence which include detail of the kind specified in legislative instrument IMMI 12/116. Unless those evidentiary requirements are met, the visa application cannot be taken to include a non-judicially determined claim of family violence and so must be refused.
On 11 March 2016, the Department requested the applicant provide documentation which established the relationship between the applicant and sponsor before a claim of family violence. On 7 April 2016, the applicant transmitted documentation in support of her claim to have been in a genuine relationship with her sponsor.
On 27 June, 25 July, and 26 August 2016, the Department wrote to the applicant requesting evidence of the alleged family violence in accordance with clause 801.221 of the regulations. These letters detailed the type of evidence deemed acceptable in order to meet the requirements as prescribed by the regulations (an extract of which was provided). The applicant responded to the Department’s requests for evidence in support of the alleged family violence providing a statutory declaration she had made and four photographs depicting injuries sustained by the applicant, together with medical reports, a letter and statutory declaration by a psychologist.
Contextually, as relevant to the discharge of an onus of proof on judicial review, it may be noted that on 25 July 2016, and in acknowledging the documents that had been supplied by the applicant, a delegate of the Minister wrote to her by email stating a view that her documentary evidence did not meet the requirements of the regulations including by reason that: (1) the report from the Affiliated Hospital of Hainan Medical University was not made by a medical practitioner or nurse who was registered in Australia; (2) the report of the psychologist, Ms Kathryn Williamson, was not made in a statutory declaration, did not state an opinion that the applicant was subject to family violence and did not detail reasons for such an opinion. When providing that advice, the delegate supplied the applicant with a copy of the regulations.
Delegate’s decision
On 21 November 2016, the Minister refused to grant the applicant a visa, doing so on the basis that the applicant’s documentation did not satisfy the criteria prescribed in relation to domestic violence as applied to this subclass. Having regard to the applicable criteria, the substantive reasons given by the delegate for refusing the application were twofold; namely:
(a)the certified translation of a medical report from the Affiliated Hospital of Hainan University was not made by a medical practitioner who was registered in Australia;
(b)another report by Dr Henry Huayang Guo, dated 12 September 2016, did not detail the physical injuries or treatment for mental health that was consistent with a claim of family violence.
As the applicant could not satisfy any of the alternative subclauses within cl 801.221, she could not meet the visa requirements. Having failed to provide evidence of a non-judicially determined claim of family violence as set out in reg 1.23(9)(c), the application was refused.
Tribunal’s decision
On 12 December 2016, the applicant lodged an application for review of the decision by the Tribunal. On 24 January 2018, the applicant attended a hearing before the Tribunal in the course of which the Tribunal granted her additional time to seek migration advice from an agent or solicitor prior to making its decision.
Post-hearing, the applicant provided further evidence in support of her alleged claim of family violence being a statutory declaration from a personal care assistant, a further statement from the applicant, and a health care plan from a psychologist. To the extent the Tribunal considered certain other evidence supplied to it by the applicant following the hearing, it was not in issue.
On 22 March 2018, the Tribunal made a decision affirming the Minister’s decision to refuse the visa application and provided a copy of a statement of reasons for doing so (Reasons). In affirming the decision, the Tribunal found the applicant did not satisfy the requirements of sub-cl 801.221(2) because she failed to submit evidential items in support of a non-judicially determined claim of family violence. Set out below are the Tribunal’s findings at [25]-[28]:
25.At the time of decision the applicant has made neither a judicially determined or non-judicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider.
26.Based on the applicant’s own evidence, the Tribunal is satisfied that at the time of decision the applicant and his [sic] sponsor are not in a relationship which is genuine and continuing as required for the purposes of the Act under s.5F(2)(c) or s.5CB(2)(b). Accordingly, the applicant cannot satisfy the requirements of a spouse or de facto under the Act. Therefore, at the time of decision the applicant cannot satisfy the criteria in cl.801.221(2)(c) for the grant of the visa.
27.Furthermore, there is no evidence before the Tribunal that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).
28.For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
Procedural history
On 19 April 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit deposed by her solicitor affirmed on the same date and to which she exhibited a copy of the Tribunal’s decision and Reasons.
By a response filed on 18 May 2018, the Minister opposed the application on the basis the application for judicial review failed to identify or establish any jurisdictional error.
During the hearing, counsel for the Minister tendered certain documents (without objection) and the applicant was offered but elected not to make any post-hearing submissions.
Judicial review
If the Tribunal’s decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
The grant or refusal of a visa application turns upon whether an administrative decision-maker has been satisfied that the criteria for the grant of the particular visa have been satisfied; a decision as to the satisfaction of those matters is a decision upon a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ). By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted: Act, s 65(1).
On judicial review the applicant bears the onus of proof of demonstrating the existence or non-existence of a realistic possibility that the administrative decision could have been different had the decision not been affected by jurisdictional error: MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [2], [33]-[34], [39], [64], [85]-[88], [101], [155].
Statutory framework – Non-judicially determined family violence
The regulations may prescribe criteria for visas of a specified class: Act, 31(3). Within Sch 1 of the regulations, provision is made, creating a number of partner visas. As the note to reg 1.23 in Sch 1 provides, Sch 2 sets out a number of visas which may be granted on the basis of a person having suffered family violence. There are subclasses of partner visas. Criteria for the grant of a Subclass 801 (Spouse) visa are set out in Pt 801 in Sch 2 to the regulations.
Within Pt 801 of Sch 2, cl 801.2 prescribes Primary criteria including, by cl 801.22, criteria to be satisfied at time of decision. Relevantly, a criterion supplied by sub-cl 801.221(6)(c)(i)(A) is that the visa applicant “has suffered family violence committed by the sponsoring partner.” While the expression “sponsoring partner” is given a definition as contained in cl 801.111, the issue of “family violence” is addressed by Div. 1.5 of Sch 1 of the regulations which is entitled Special provisions relating to family violence and comprises regs 1.21-1.27. For the purposes of these provisions, reg 1.21 provides definitions of the following expressions:
(a)independent expert, and includes a person who is suitably qualified to make independent assessments of non-judicially determined claims a family violence and is employed by, or contracted to suit provide services to, an organisation that is specified, in a legislative instrument made for these purposes;
(b)non-judicially determined claim of family violence”, has the meaning given by sub-regulations 1.23(8) and (9).
(c)relevant family violence, means conduct, whether actual or threatened, towards an alleged victim, amongst others, the person or property and which causes the person to reasonably fear for, or to be reasonably apprehensive about his or her own well-being or safety: see also, the definition of “violence”.
It may be noted that earlier definitions of “non-judicially determined claim of domestic violence” and “non-judicially determined claim of family violence” have now been deleted. So too, a definition of “competent person” has also been deleted (see below).
Regulation 1.22 provides that a reference in the regulations to a person having suffered family violence is a reference to a person being taken, under reg 1.23, to have suffered family violence. In turn, reg 1.23 identifies a variety of circumstances in which an alleged victim is taken to have suffered family violence, including circumstances in which: a Court has granted an injunction under par 114(a), (b) or (c) of the Family Law Act 1975 (Cth); an order has been made under a law of a State or Territory against an alleged perpetrator for the protection of the alleged victim; a Court has convicted an alleged perpetrator of an offence of violence and, relevantly, where a non-judicially determined claim of family violence is made out.
Regulation 1.23(9) prescribes a cumulative series of criteria, satisfaction of which, in effect, deem a visa applicant to have made a non-judicially determined claim of family violence for the purposes of her or his visa application. As material to this application, sub-par 1.23(9)(c), which provides the third of those criteria, reads as follows:
(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.
As par 1.23(9)(c) makes explicit, for the purposes of satisfying those criteria, the evidence which must be ‘presented’, so as to be taken to have made a non-judicially determined claim of family violence, is evidence in accordance with reg 1.24 of the regulations.
In turn, regs 1.24 and 1.25 of the regulations are framed so as to prescribe the types of acceptable evidence and the content of the statutory declaration which must be made by an alleged victim of family violence. Those regulations read:
1.24 Evidence
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. (Emphasis added)
1.25 Statutory declaration by alleged victim etc
(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 sub-regulation 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 sub-regulation 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 legislative instrument, IMMI 12/116, made under par 1.24(b) of the regulations reads:
EVIDENTIARY REQUIREMENTS
(Paragraph 1.24(b))
I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under paragraph 1.24(b) of the Migration Regulations 1994 (‘the Regulations’):
1. SPECIFY for the purpose of paragraph 1.24(b) the types of evidence as acceptable evidence at Schedule 1.
2. SPECIFY that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b).
. . .
Schedule 1
Type of Evidence
includes the following detail
28 Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is:
· registered as a medical practitioner and is performing the duties of a medical practitioner, or
· registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse.
· Identifies the alleged victim, and
· Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.
29 Either a report, record of assault, witness statement or statutory declaration that is made by:
· a police officer of a State or Territory
· a police officer of the Australian Federal Police
30 OR
31 A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation.
32
· Identifies the alleged victim, and
· Identifies the alleged perpetrator, and
· Details an incident/s of family violence.
Report or statutory declaration made by an officer of:
· a child welfare authority, or
· a child protection authority of a State or Territory.
· Details fears for the dependent childs’ safety due to family violence within the household, and
· Identifies the alleged perpetrator.
Letter or assessment report made by:
· a women’s refuge, or
· family/domestic violence crisis centre on the organisation’s letterhead.
· States that the alleged victim has made a claim of family violence, and
· States whether the alleged victim was subject to family violence, and
· Identifies the alleged perpetrator, and details any evidence used to form the opinion.
Statutory declaration made by:
· a member of the Australian Association of Social Workers, or
· a person who is eligible to be a member of that Association
who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.
· States in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.
· States in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website.
· States that the alleged victim has been treated or counselled, by the family consultant or family relationship counsellor, and
· States that in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their
professional capacity.
· States that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims that they were subject to family violence, and
· Identifies the alleged perpetrator, and
· Provides details of those observations.
An Explanatory Statement confirms the intent of this legislative instrument.
In Pham v Minister for Immigration and Border Protection [2018] FCA 1946 at [28], Middleton, J held that the text set out in the table of IMMI 12/116 must be read in context and, more “Specifically, the text in the left-hand column must be read with text in the right-hand column. Thus, the registered medical practitioner or nurse must ‘detail the physical injuries or treatment for mental health that is consistent with the claimed family violence.’ The right hand column presupposes that the registered medical practitioner or nurse has already engaged with the applicant, and has assessed in certain physical injuries or prescribed certain treatment for mental health.” Each of the matters stipulated in relation to any type of evidence together with each of the details included for that type of evidence must be provided. Moreover, by par 2 of IMMI 12/116, the instrument also specifies that no more than one of each type of evidence may be presented for the purposes of par 1.24(b).
For those reasons, where only one item of evidence has been presented by an applicant, it is not sufficient that that item answers the description as being a type of evidence listed for an item in, or that it provides details complying with the requirements of, Sch 1 of IMMI 12/116: Pham [2018] FCA 1946, [34(1)] (Middleton, J). As his Honour explained, that is because reg 1.24(b), read with par 2 of IMMI 12/116, prescribe that “the applicant needed to provide two items of evidence from the list in Sch 1 to IMMI 12/116.” If each of the cumulative requirements of reg 1.25 and IMMI 12/116 are not met, no valid claim of non-judicially determined family violence has been made.
Ground of review – evidential items in support of claim of family violence
The ground of review reads:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal applied the incorrect test to whether the applicant’s visa application was taken to include a non-judicially determined claim of family violence as provided by reg 1.23 of the Migration Regulations 1994.
Particulars
(a) The Tribunal erred in finding that the statutory declaration prepared by psychologist Katherine Williamson did not amount to an opinion that the applicant was subject to family violence within the meaning of instrument IMMI12/116
(b) The Tribunal erred in finding that the medical record provided by Dr Liu was not a report that complied with the requirements of instrument IMMI 12/116.
(c) The Tribunal erred in finding that the medical report provided by Dr Guo did not detail the physical injuries or treatment for mental health that is consistent with the Claimed family violence as required by instrument IMMI 12/116
(d) The Tribunal's consequent finding that a non-judicially determined claim of family violence had not been made was therefore affected by jurisdictional error.
Although the focus of much of the submissions was upon the discharge summary of Dr Liu, submissions were also made as to the other medical evidence that was relied upon.
The applicant submitted that the applicable regulations and related instrument, IMMI 12/116 were intended to be beneficial delegated legislation and so should be given a liberal interpretation. For that reason, counsel urged that in evaluating the quality of the evidence which had been presented by an applicant in support of a claim of non-judicially determined family violence, the Court should approach the question as a matter of substance, not form. It will be necessary to say something further in relation to remedial legislation.
The Minister submitted that in order to succeed in a claim of non-judicially determined family violence, the applicant was required to present both:
(a) a statutory declaration of his or her own and in accordance with reg 1.25; and
(b)a minimum of two items of evidence from the list in Sch 1 to IMMI 12/116 but no more than one of each type of evidence for the purposes of reg 1.24(b).
Counsel for the applicant quite properly accepted the correctness of this submission.
By way of overview, the Minister further submitted that in order to succeed in her application, the applicant must show that the Tribunal had erred in law in its rejection of the statutory declaration prepared by the psychologist, Ms Kathryn Williamson, as not satisfying the evidentiary requirements in IMMI 12/116, and in finding that the medical record from the Hospital of Hainan Medical University and the letter of Dr Guo did not satisfy IMMI 12/116.
Consideration
The Tribunal reasoned that there was no evidence of any judicially determined family violence. Further, as the Minister submitted, there was no suggestion, at any stage, that any claim of judicially determined family violence was made. In such circumstances, the Tribunal reasoned it was for the applicant to present evidence satisfying the criteria to establish she had a non-judicially determined claim of family violence. To do so she was required to submit a statutory declaration setting out her claim and present to further items of evidence to support such a claim: [13]-[14]. Did the Tribunal err in relation to its treatment of this evidence?
Included in the court book was a copy of a statutory declaration that had been made by the applicant on 24 July 2016. The document, a pro forma statutory declaration for family violence claim, Form 1410, contained details of the matters required by reg 1.25. The applicant’s statutory declaration confirmed the relationship between her former sponsor and herself had ended. The Reasons confirm that the Tribunal identified the necessity to satisfy this criterion and that the applicant statutory declaration did so: [14]-[15]. It was not in issue that the applicant’s own statutory declaration satisfied the requirements of both regs 1.24(a) and 1.25 respectively. The Tribunal made an implicit finding to this effect.
Consequently, so as to satisfy the requirements of cl 1.23(9)(c) read in conjunction with cl 1.24(b) and IMMI 12/116, the dispositive issue was whether the applicant had presented two further items of evidence of the types specified by the Minister. Whether the three items of evidence presented satisfied the descriptions specified in any of the items in Sch 1 to IMMI 12/116 were questions of jurisdictional fact: Pham [2017] FCCA 3272, [19], (Riley, J); Pham [2018] FCA 1946, [34(2)], (Middleton, J). Conformably with par 2 of IMMI 12/116 no more than one of each type of evidence may be presented for the purposes of par 1.24(b).
Counsel for the applicant properly accepted the correctness of the Minister’s submission that the presentation of Ms Williamson’s statutory declaration was the first type of evidence which, together with one or other of the Affiliated Hospital of Hainan Medical University medical record or the report of Dr HH Guo, was the second type of evidence needed to constitute the making of a valid non-judicially determined claim of family violence.
In the Pham appeal, Middleton, J held at [34(2)] that “because the question of whether the application included a ‘non-judicially determined claim of family violence’, the Tribunal’s own reasons for not concluding that [the] report did not meet the relevant description in IMMI 12/116 is not determinative. The Court is obliged to consider the question for itself, informed correctly by the law, on the evidence before it.” Stated in other terms, regs 1.23(9)(c), read with regs 1.24-1.25 and IMMI 12/116, identify the evidence which must be presented in order for an applicant to advance a valid claim of non-judicially determined family violence. Each of those requirements is a jurisdictional fact which the Court is obliged to consider for itself.
Psychologists report – Ms Williamson – CB 395
By Item 6 in Sch 1 to IMMI 12/116, one type of acceptable evidence was a “Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist”. The criteria specified in the second column adjacent to this type of evidence requires that such a declaration “includes the following detail”; namely, that it: (1) States in their opinion the alleged victim was subject to family violence, and (2) Details the reasons for the opinion, and (3) Identifies the alleged perpetrator. In this case, two documents were prepared by the psychologist, Ms Williamson.
First, Ms Williamson prepared a letter addressed “To whom it may concern” dated 5 July 2016 which recorded that the applicant had attended for two counselling sessions in March and April 2015 respectively. The psychologist recorded that the applicant “presented for concerns around sleep difficulties and some anxiety like symptoms. She reported at the time that she had experienced relationship difficulties with the recent boyfriend that had involved some abusive treatment and threats that had resulted in her feeling unsafe in the relationship. She reported that she was not feeling unsafe at the time of the two sessions that I saw her.” The psychologist proceeded to describe the support which she had provided including “around sleep hygiene, relationship information and understandings around abusive behaviours” and that “some work [was] done around safety planning also.” Although one acceptable type of evidence specified in Item 6 of Sch 1 to IMMI 12/116 was a statutory declaration made by a registered psychologist, the letter from Ms Williamson did not meet that requirement.
Secondly, in light of the advice that had been received from the delegate on 25 July 2016, the applicant supplied a statutory declaration by Ms Williamson made on 4 August 2016 which stated that the applicant had consulted her on three occasions and that she had “presented for concerns around sleep difficulties and some anxiety like symptoms” having “reported at the time that she had experienced abusive treatment from the partner she had separated from six weeks prior (name and details unknown to me).” The declaration continued:
It is my opinion that Ms Fu was impacted by these traumatic events and was seeking support to gain understanding, support and coping tools. She was notably struggling with the same basic functioning such as sleep and feeling safe and secure, and reported feeling generally fearful most of the time. She expressed fear of contact with her ex-partner and fear of future relationship as a result of this current relationship experience. Some assistance around safety planning was necessary at the time as Ms Fu was not confident she was not at risk of further threats and abuse from her ex-partner.
The psychologists declaration concluded with observations as to the family support which the applicant had received from her friends during the process of separation and that the applicant had been provided information respecting available family violence contact centres. Otherwise, the declaration stated the psychologist had not had any further consultations with the applicant and, for that reason, “I have no further knowledge of her situation to date.”
It was submitted that Ms Williamson’s statutory declaration met the requirements of Item 6 in Sch 1 to IMMI 12/116. Reliance was placed upon the following: (1) Ms Williamson stated her opinion was that the applicant “was impacted by these traumatic events”, which, as the argument ran, was both a reference to, and acceptance of, the applicant’s reports of “abusive treatment from her partner”; (2) the perpetrator of the violence was also identified: “the partner she had separated from sic week prior”; (3) reasons for Ms Williamson’s opinion were set out “She was notably struggling with some basic functioning such as sleep and feeling safe and secure … etc”. These matters were said to support the opinion accepting the applicant’s claims.
On behalf of the Minister, it was accepted that Ms Williamson was a registered psychologist who had given a statutory declaration and, was capable of answering the description in Item 6 in Sch 1 to IMMI 12/116 as being one type of acceptable evidence. However, it was submitted that Ms Williamson’s statutory declaration did not state that an opinion that the applicant was subject to family violence, and; consequently, it did not give reasons for such opinion. It was further submitted that there was nothing in Ms Williamson’s declaration to indicate that she was aware of the concept of ‘family violence’ (reg 1.21) or that she expressed an opinion that the applicant had been ‘subject to’ family violence.
Resolution
Applying the principles considered above, it is not determinative that the Reasons record the Tribunal’s conclusion at [16] as to Ms Williamson’s declaration. To the contrary, as confirmed in Pham, the Court is itself obliged to consider whether this evidence answers the description in Item 6 of Sch 1 to IMMI 12/116 and includes detail as to each of the matters appearing in the second column adjacent to that item.
For the purposes of evaluating whether this evidence complied with the requirements of reg 1.24(b) and IMMI 12/116, it should not be ignored that the applicant was provided by the Department on more than one occasion with a “Family violence evidentiary requirements fact sheet” explaining the detail required in order to satisfy those requirements. Nor should it be ignored that, as concerned Ms Williamson’s earlier letter, the Department had also advised the applicant of the necessity for the psychologist to provide a statutory declaration. With those considerations in mind it is notable that Ms Williamson declared that she was a psychologist. Nothing in the declaration descends to state that the declarant was a registered psychologist in a State or Territory. I am otherwise satisfied that the evidence presented by the applicant comprising Ms Williamson’s statutory declaration answered the description of each of the other matters identified in Item 6, column 1 of Sch 1 to IMMI 12/116.
The question remaining is whether Ms Williamson’s declaration furnished details as to each of the three matters set out in column 2 adjacent to Item 6 of Sch 1. The first, second and final paragraphs of the statutory declaration respectively included the following details:
(a)identifying the alleged perpetrator of family violence – “She reported at the time that she had experienced abusive treatment from the partner she had separated from . . .” and that she “reported incidents of physical abuse, threats and emotional abuse.”
(b)stating her opinion the applicant had been subject to family violence – “It is my opinion that Ms Fu was impacted by these traumatic events and was seeking support to gain understanding, support and coping tools. She was notably struggling with some basic functioning such as sleep and feeling safe and secure, and reported feeling generally fearful most of the time. She expressed fear of contact with her ex-partner and fear of future relationships as a result of this current relationship experience.”
I am prepared to accept that Ms Williamson’s declaration identified the alleged perpetrator as one of the details required in relation to this type of evidence. I am less than satisfied whether the declaration expressed an opinion the applicant was subject to family violence or that it detailed the reasons for the opinion.
As in Pham, so here the declaration largely comprised a recitation of the history supplied to the psychologist by the applicant. While the recitation of a history obtained from a patient is to be expected, it is not a substitute for the practitioner’s expression of opinion. Nor does it represent or serve to replace the requirement to detail the reasons for the opinion so expressed.
Having expressed her opinion that the applicant had been “impacted by these traumatic events”, Ms Williamson expressed her observation that the applicant was “notably struggling with some basic functioning such as sleep and feeling safe and secure” and in this context recorded the matters reported by the applicant. As concerns the expression of a specialist opinion, it is far from unimportant to recognise the distinction between opinion evidence as to physical injuries and those which are psychological. In the former case the relative ease with which an opinion may be expressed is clearly connected to the fact that the physical injury is objectively observable. In the latter case, the expression of an opinion respecting psychological trauma will turn upon the specialist’s observations and experience.
One difficulty in the present case is that the opinion expressed by Ms Williamson was stated in essentially conclusory terms and was relatively unsupported by evidence of her observations. Accepting Ms Williamson stated that the applicant was “notably struggling with some basic functioning such as sleep and feeling safe and secure”, I am prepared to assume in the applicant’s favour that Ms Williamson’s declaration provided detail as required by the first dot point in column 2 adjacent to Item 6 in Sch 1 of IMMI 12/116 of her opinion that the applicant was subject to family violence.
However, I am not satisfied that the declaration ‘detailed’ her reasons for such an opinion.
In the Pham appeal at [26]-[32], Middleton, J agreed with the primary judge that the report of a nurse, Mr Le, did not satisfy the applicable criteria in IMMI 12/116 because: it is largely comprised of a recitation of information provided to him by the applicant and so could not be sensibly read as detailing any injuries “in the sense that it embodies the expression of an assessment of the existence and nature of any such injuries”; the report could not be said to detail the treatment for mental health that was consistent with the claimed family violence; even if the details provided were sufficient to amount to treatment for mental health, nonetheless, it did “not amount to providing details as to the “treatment for mental health that is consistent with the claimed family violence”. I regard those observations as instructive.
As stated above, the text in Item 6 which specifies as a statutory declaration by a registered psychologist in a State or Territory as being one type of acceptable evidence, must be read in the context of each of the matters of detail specified in column two of that schedule. An express, and intended, requirement for a statutory declaration by a registered psychologist who has treated a visa applicant is that it detail the reasons for the opinion that such person was subject to family violence. Giving the term ‘detail’ its ordinary and natural meaning, the least that should be expected in the context of this evidentiary requirement, was that the registered psychologist provide a detailed narrative or description of particulars upon which the opinion was founded. Although the level of detail to be expected will necessarily depend upon the unique features of the particular case, an evaluation is required by the Court whether this threshold requirement to provide details of the reasons for the requisite opinion has been met.
As in other spheres of jurisprudence, the weight to be attached to opinion evidence depends upon the cogency with which it is expressed. Necessarily, such cogency depends upon the extent to which it is adequately supported by detailed reasoning: see Cross on Evidence 13th ed (2021), [29075]. As the learned author observed with reference to an extrajudicial statement by Sir Owen Dixon, “Courts cannot be expected to act upon opinions the basis of which is unexplained.” As reg 1.24 and IMMI 12/116 confirm, the acceptable evidence that may be presented by a visa applicant bear minimum dual requirements: it must be of a type specified in column 1 of the schedule to IMMI 12/116, and; it must include “the following detail” as specified in column 2 of that schedule. To say as much is not to suggest that a slavish or formulaic recitation of the words used in either column of that schedule will suffice. Rather, it is to draw attention to the criteria specified in relation to each item that has been specified in that legislative instrument as constituting acceptable evidence for the purposes of reg 1.24(b).
I have re-examined Ms Williamson’s declaration for the purposes of evaluating whether it details the reasons for an opinion that the applicant was subject to family violence. I have concluded that it does not satisfy this requirement. There is a paucity of detailed reasoning.
The applicant also submitted, and the Minister contested, that it was not open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116. It was further submitted that the Tribunal (and indeed, the Court), might emphatically disagree with the psychologist, but the legislation gave primacy to the psychologist’s opinion evidence. The applicant contended, in all of these circumstances, the Tribunal was wrong to find at [16], [23] that Ms Williamson’s declaration and Health Care Plan constituted a type of evidence as specified by IMMI 12/116, and accordingly, its decision was affected by jurisdictional error.
I do not agree that it is not open to an administrative decision-maker or to this Court to doubt the validity of an opinion which purports to include “the following detail” of matters specified by the Minister to constitute acceptable evidence for the purposes of reg 1.24(b). In my opinion, for the reasons above, including those identified by Middleton J in Pham, the Court is obliged to consider for itself whether a statutory declaration or report answers the relevant description given by a particular Item in IMMI 12/116. So too, the Court is equally obliged to consider for itself whether “the following detail” as required by column two of Sch 1 answers the particular requirements specified in each of the applicable bullet points. Absent sufficient detailed reasoning, the bare expression of a requisite opinion will be little more than assertion.
Having regard to those conclusions, and the concession that Ms Williamson’s declaration was one type of evidence essential to the presentation of acceptable evidence to establish a claim of non-judicially determined family violence, it would be immaterial whether each of the other two items of evidence being relied upon were capable of constituting acceptable evidence. Nonetheless, it is necessary to address each of those items of evidence.
Discharge summary – Affiliated Hospital of Hainan Medical University
The most contentious item of evidence arising for consideration in the application for judicial review was a discharge summary from a Chinese hospital that was rejected by the Tribunal as being an acceptable form of evidence of family violence for the purposes of IMMI 12/116. The Tribunal reasoned at [17] that “The medical report provided by Dr Liu of the Affiliated Hospital of Hainan Medical University does not meet the requirements of the legislation as it is not made by a medical practitioner who is registered in Australia as required under law.”
It was correctly submitted that Item 1 in Sch 1 of IMMI 12/116 specified as types of acceptable evidence, the following: “Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is [relevantly] registered as a medical practitioner and is performing the duties of a medical practitioner.” It was also accepted that the matter details beside two bullet points in column 2 adjacent to Item 1, specified the following requirements: “Identifies the alleged victim, and Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.”
The applicant contended that the hospital discharge summary said to be given by Dr Liu fitted comfortably within the definition provided within the table of IMMI 12/116 as being one type of evidence capable of supporting a claim of non-judicial family violence. The applicant drew attention to the Tribunal’s reason for rejecting this as evidence at [17]; namely, that its author, Dr Liu, was apparently “not registered in Australia as is required under law”.
On behalf of the Minister it was squarely put in issue whether the author of the record made at the Affiliated Hospital of Hainan Medical University satisfied IMMI 12/116.
Included in the court book was a certified translation of a document provided by the Affiliated Hospital of Hainan Medical University dated 26 January 2015 in which, upon the applicant’s submissions contained a discharge summary prepared by Dr Liu. As became clear in the course of submissions, insofar as it comprised the record of that hospital, the document had not been prepared by Dr Liu at all. To the contrary, Dr Liu was the translator of the document. Although the Tribunal and the applicant had assumed the author of the record made at the Affiliated Hospital of Hainan Medical University was Dr Liu, they were in error.
Nothing on the face of the certified translation of this hospital record enables one to identify the author of that record. Indeed, as observed in the course of argument, it is entirely possible that the medical records comprised in this document represented data compiled by any number of hospital staff, including a doctor. In my opinion, the applicant failed at a threshold level to establish the identity of the author[s] of this medical record or whether the person whose signature appeared besides the word Physician was registered. That the applicant has failed to do so is to be seen in the context that the Tribunal’s Reasons at [17] stated it’s finding that the record was “not made by a medical practitioner who is registered in Australia as is required under law.” Since those reasons were given in March 2018, it follows the applicant had more than three years up to the hearing in this Court in which to acquire evidence to discharge her onus on judicial review of establishing this jurisdictional fact. She made no attempt to do so. For these reasons, I conclude that the Hainan Medical University record did not satisfy the requirement in IMMI 12/116 in that the evidence entered did not establish that it had been made by a person who is ‘registered as a medical practitioner and is performing the duties of a medical practitioner’. That is because there was no evidence of his or her qualifications or registration in any capacity, in any country. This conclusion renders it strictly unnecessary to consider the submissions as to the proper construction of Item 1 in Sch 1 of IMMI 12/116.
However, from a photocopy of the original, untranslated medical record, the document clearly bore a signature adjacent to the words Physician Signature. Accepting that to be so, the central issue, the subject of the parties’ dispute turned upon whether such signatory answered the requirement in Item 1, column 1 of Sch 1 to IMMI 12/116 that this record constituted a hospital report or discharge summary which had been made by a person who was “registered as a medical practitioner and is performing the duties of a method medical practitioner.”
If I am wrong in the conclusion that the identity of the physician had not been proved, it is necessary to deal with the applicant’s further contention as to whether, properly construed, it was a requirement in Item 1 of Sch 1 of IMMI 12/116 that the subject medical or hospital report must be made by a person who was registered in Australia as a medical practitioner and performing the duties of such a practitioner. The applicant contended that Tribunal’s reference at [17] to registration in Australia “as is required under law” had presumably been a reference by the Tribunal to Australian law when, in fact, nothing in Sch 1 to the instrument required that the medical practitioner be registered to practice medicine pursuant to Australian law.
The applicant submitted that there was nothing in the text of Item 1 of Sch 1 to IMMI 12/116 which required that the registered medical practitioner there referred to must be so registered in Australia. Attention was drawn to the content of the statutory text, “registered as a medical practitioner and is performing the duties of a medical practitioner” and to the conspicuous absence of any reference to the words “Australian law” in that text. It was further submitted to be absurd to import a requirement that a doctor or nurse be registered under Australian law. Particularly was that said to be so in circumstances where the regime under consideration dealt only with non-citizens. Attention was drawn to the inherent likelihood that the relevant family violence might well occur outside of Australia. And so it was asked, rhetorically, why should a family violence victim be denied an Australian visa to which they would otherwise be entitled, simply because family violence occurred overseas and the victim sought medical attention overseas?
Counsel for the applicant further urged that the force of these submissions was to be contrasted with and weighed according to the express use by the draughtsperson of the legislative instrument where express reference appeared to the requirement for either State or Territory registration of a psychologist (Item 6), and the references to “State or Territory” (Items 2, 3 and 6). Counsel advanced the orthodox submission that, had it been intended to confine the ambit of Item 1 to a report of a medical practitioner registered in Australia, IMMI 12/116 could easily have made express provision to that effect.
Insofar as IMMI 12/116 was characterised as beneficial delegated legislation, counsel for the applicant relied upon a decision of the then Federal Circuit Court of Australia, Kaur v Minister for Immigration (2020) 356 FLR 348 (and in which he had appeared), where the applicant had succeeded in an application to quash an administrative decision respecting an application for a partner visa where the criteria relied upon for the grant of the visa was based upon non-judicial evidence of family violence. Driver, J accepted a submission that the relevant legislative provisions as set out in the regulations and IMMI 12/116 above were properly characterised as being intended to be beneficial legislation and so attracted settled principles of liberal construction upon which such legislation was to be construed: [32]. In that application, Driver, J referred to the terms of the Australian Law Reform Commission’s report entitled Family Violence and Commonwealth Laws – Improving Legal Frameworks (8 February 2012) at [6]-[7] which identified the need for measures to improve accessibility “by streamlining the evidence that applicants must provide in order to make a cup non-judicial claim of family violence. People who have suffered family violence may already have been in contact with a range of support services or state agencies, and records of this contact may already exist. The new evidentiary requirements seek to enable people who are in possession of those documents to enliven a claim of family violence under the Regulations.”
His Honour examined and was satisfied at [34]-[39], two items of evidence comprising a report from a psychologist and consultant clinical psychologist, both of whom were registered in Australia, constituted evidence which satisfied the criteria prescribed by the regulations. Insofar as it is instructive for the present application, Driver, J held that the requirement which conditioned one form of acceptable evidence to establish family violence – a medical report, hospital report, discharge summary or statutory declaration made by a person who is registered as a medical practitioner and is performing the duties of a medical practitioner – was properly construed as including a report prepared by a consultant clinical psychologist upon referral from a general practitioner. His Honour held that the report from a clinical psychologist constituted “medical report that is [made by] a medical practitioner for the purposes of the Instrument” and was sufficiently detailed to meet the requirements of the Instrument: [37]-[40].
As Kaur does not appear to have been considered further, it is necessary to say something in relation to the proper approach to legislation that is characterised as ‘beneficial’. Before doing so, it is convenient to note it did not decide the extra-territorial issue arising here.
I accept that the scheme effected by s 31(3), regs 1.23 – 1.25, cl 801.221(6)(c)(i)(A) and IMMI 12/16 should be construed on the basis that they are intended to be remedial provisions so as to address the circumstances in which a valid claim for non-judicially determined family violence may be relied upon to satisfy a criterion for a partner visa. Remedial provisions of legislation should generally be given a broad, and not a narrow interpretation. Where this principle applies, the legislation should be construed so as to give the fullest relief which a fair meaning of its language will allow: see e.g., Bull v Attorney General (NSW) (1913) 17 CLR 370, 384; Waugh v Kippen (1986) 160 CLR 156, 164; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, 638; Devenish v Jewel Food Stores Pty Ltd (1991) CLR 32, 44 ; Deal v Father Pius Kodakkathanath (2016) 258 CLR 281, [36].
However, the scope of this principle is not at large. Remedial provisions of an Act, regulations and subordinate instruments should be given a liberal and beneficial construction, rather than one which is literal or technical. Nonetheless, “a Court or Tribunal is not at liberty to give it a construction that is unreasonable or unnatural”: IW v City of Perth (1997) 191 CLR 1 at 12, (Brennan CJ and McHugh J). Further, it is a mistake to approach the understanding of the legislation with a presumption that it is beneficial. In NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, the plurality stated at [32]:
. . . to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
This statement of principle has been applied by appellate courts on a number of occasions: see also, Pearce, Statutory Interpretation in Australia, 9th ed, (2019), [9.3]; Herzfeld & Prince, Interpretation, 2nd ed, (2021), [10.280]. The essential question remains: what is the meaning of the words used?
In my view, when considering the approach that should be taken to the proper construction of remedial or delegated legislation, it is more useful to recognise the restraints which are to be placed around that approach and in particular “that the interpretation adopted must be restrained within the confines of the actual language employed and what is fairly open on the words used”: Pearce, Statutory Interpretation in Australia 9th ed (2019), [9.3]; Herzfeld & Prince, Interpretation, 2nd ed (2020), [10.280]. In Tjungarrayi v Western Australia (2019) 269 CLR 150 at [44], Gageler J stated:
The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to the NTA is mandated by the requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that the construction of a provision of a Commonwealth Act that would best achieve the purpose or object of such an Act is to be preferred to each other interpretation. The principle assists in making constructional choices between competing interpretations that are textually available. (Footnotes omitted)
Counsel for the Minister identified a series of considerations which militated in favour of a conclusion that the reference in Item 1 of Sch 1 to IMMI 12/116 to a person who, relevantly, was “registered as a medical practitioner and is performing the duties of a medical practitioner” was properly confined by its context to a person registered in Australia to do so. Upon that basis, it was submitted that as concerned the Affiliated Hainan Medical University hospital record, for it to be an acceptable type of evidence for the purposes of reg 1.24(b), the language employed in Item 1 of Sch 1 required that the report or summary or declaration be made, relevantly, by a ‘registered medical practitioner’ in Australia. I disagree.
Resolution
The issue raised in relation to the presentation of the Affiliated Hospital of Hainan Medical University report as evidence to establish a claim for non-judicially determined family violence involves the proper construction of Item 1 in column 1 of the Sch to IMMI 12/116, viewed in the context of the enabling regulation, having regard to the purpose and objects of these provisions, including in the wider context of the Act itself. As noted, by s 31(3), regulations may prescribe criteria for visas of a specified class. Clause 1124B in Sch 1 of the regulations provides criteria for a subclass 801 visa (which are otherwise not of immediate relevance). Within Sch 2 of the regulations, Pt 801, comprising cll 801.1 – 801.6, provides primary and secondary criteria for this subclass of visa. By sub-par 801.221(6)(c)(i)(A), a time of decision criterion is that the applicant has suffered family violence committed by the sponsoring partner. A note to this clause directs attention to Div. 5 as containing special provisions relating to family violence. No other criteria prescribed in Pt 801 were suggested to be relevant. However, to this point it is evident that the intended beneficiary of this scheme are the victims of non-judicially determined family violence who has made an application for a partner visa.
The regulatory framework provided by Div. 5 in Sch 1 to the regulations, including the evidentiary requirements prescribed by regs 1.23 – 1.25, have been considered above.
Regulation 1.24(b) in Sch 1 of the regulations is the source of power for the Minister to promulgate legislative instruments for the purposes of that paragraph. Absent a contrary indication, the Acts Interpretation Act applies to IMMI 12/116 “as if it were an Act and as if each provision of the legislative instrument were a section of an Act”: Legislation Act 2003 (Cth), s 13(1)(a). Upon registration, a legislative instrument is taken to be, and bears the character of, a legislative instrument: Legislation Act, ss 8(2)(b), 8(3), 12(1)(a), 12(3).
By IMMI 12/116, the Minister, acting under cl 1.24(b) of the regulations, specified the types of evidence that would constitute acceptable evidence as set out in Sch 1 of that instrument. The Minister further specified for the purposes of cl 1.24(b) that “a minimum of two items of evidence from the list in Schedule 1 and not more than one of each type of evidence may be presented.” Schedule 1 to IMMI 12/116 is arranged in two columns; the first is headed, and so identifies, the eight “Types of evidence” that would be acceptable for the purposes of cl 1.24(b), while the second column, entitled “includes the following detail” provides content of what is required in relation to each respective type of acceptable evidence.
The relevant provisions of an Act, regulations and legislative instruments should be construed so that, viewed as a whole, their language is given a consistent meaning. The terms of s 31(3), regs 1.23 – 1.25, cl 801.221(6)(c)(i)(A) and IMMI 12/16 should be construed on the basis that they are intended to give effect to harmonious goals: CSL Australia Pty Limited v Minister for Infrastructure and Transport (2014) 221 FCR 165, [153] (The Court).
Meaning should be given, and given consistently, to every word of these provisions: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]. There, the plurality also identified the need to construe an instrument on the basis that its provisions were intended to give effect to harmonious goals, stating at [70] that where conflict appeared to arise from the text of particular provisions, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”; see also, [34]-[41] (Brennan J); Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (1981) 147 CLR 297, 304-5 (Gibbs CJ), 311-313 (Stephen J), 320-1, 323 (Mason and Wilson JJ), (Aickin J diss); Acts Interpretation Act 1901 (Cth), s 15AA.
Part 5 of the Acts Interpretation Act 1901 (Cth) is entitled, General interpretation rules, and comprises ss 12-25D. Within Pt 5, the following rules of interpretation are provided: (identification of the material which comprises an Act, including the headings appearing above each of its provisions: (s 13(2)); the requirement to construe the provisions of an Act that would best achieve its purpose or objects (s 15AA); that extrinsic materials, including explanatory statements, may be employed to confirm the ordinary meaning of a provision having regard to its context in the purpose or objects of the Act (s 15AB(1)(a)). Subject to considerations which are not material in this case, such extrinsic materials may also be employed to determine the meaning of a provision in cases whose intended meaning may be ambiguous or obscure: Acts Interpretation Act, ss 15AB(1)(b), 15AB(2)(e). However, it is long settled that such extrinsic materials cannot be employed to displace the clear meaning of statutory text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, [47] and cases cited, (Hayne, Heydon, Crennan and Kiefel JJ).
Although the applicable principles of interpretation were not in dispute, it must be accepted that “if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may bear a very different appearance”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. Relatedly, in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 384 ALR 668 at [3], Allsop CJ recognised that the “so-called clarity of plain meaning” could not reliably be ascertained without regard to context, observing that the task of construction required “the search for applicable principle, not an emphasis on the literality of words of judgments as if they were the text of a statute”. His Honour stated [4]:
The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material.
Flick J, who accepted that courts should be hesitant to read words into a legislative provision and that it was no function of the courts to fill gaps in legislation, considered it to be “an entirely different course of reasoning to construe a legislative phase by reference to the context in which that phrase appears and to read that phrase in a manner which gives effect to its presumed legislative object and purpose”, citing Project Blue Sky. His Honour distinguished between a process of statutory construction which involved reading into a section words which did not appear in the text, from giving the provision a construction “which follows from the natural and ordinary meaning of the words employed in that provision, albeit a meaning derived from the legislative context in which they appear.” See also, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14]; SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20] (plurality), [41] (Gageler J), [64] (Edelman J).
The general principles relating to statutory construction are applicable also to the interpretation of delegated, or subordinate, legislation: Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389, 398 (per curiam). Accordingly, the appropriate enquiry “in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose”: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, [28] (French CJ, Crennan, Kiefel and Keane JJ); CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495, [62]; Pearce and Argument, Delegated Legislation in Australia, 5th ed, (2017), [30.1]; Herzfeld & Prince, Interpretation, 2nd ed, (2020), [14.20]. For those reasons, IMMI 12/116 should be construed in a practical way, having regard to the nature of the instrument as delegated legislation, and without engaging in a minute examination of the absence of express citation to Australian law in all parts of its Schedule: see Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183.
Upon the principles considered above, an important distinction may properly be drawn between those cases in which it is impermissible to read words into, and thereby fill gaps in, a statute, from those in which the Court is authorised to “construe a legislative phrase by reference to the context in which that phrase appears” so as to give effect to the purpose and objects of the legislation. Thus, it is not determinative that the requirements in Item 1 of Sch 1 of IMMI 12/116 specify a hospital report as one type of evidence which may be acceptable provided the report is made by a person who, relevantly is “registered as a medical practitioner and is performing the duties of a medical practitioner” without any qualifying reference to Australia.
To recognise as much is merely to identify that the Court is presented with a constructional choice as to whether, for the purposes of Item 1 in Sch 1 of IMMI 12/116, the phrase “registered as a medical practitioner” should be construed as limited to persons registered in Australia to practise medicine. Upon the principles considered above, the meaning of the phrase is to be ascertained from the terms of Item 1 in Sch 1, read in the context of other Items in that Schedule and having regard to the purposes expressed in pars 1 – 2 of IMMI 12/116 and in the wider context of the special provisions contained in Div. 5 in Sch 1 of the regulations, and having regard to the purposes of the time of decision criteria supplied by sub-par 801.221(6)(c)(i)(A) in Sch 2 of the regulations. Resort to secondary material is permissible for these purposes.
By force of s 21(1) of the Acts Interpretation Act 1901 (Cth), which, by s 13(1)(a) of the Legislation Act, applies to IMMI 12/116, the reference to registration “shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.” By the application of that provision, the reference to registration of the medical practitioner could be construed to registration in the Commonwealth.
However, s 13(1) of the Legislation Act requires that the Court consider whether any contrary reference appears from IMMI 12/116 and in particular, Item 1 in Sch 1 of that instrument, I have concluded that the requirement for registration of the medical practitioner who prepares a report, is not constrained by the text of that instrument in a manner which limits the class of medical practitioners to those who are registered in Australia. I am fortified in that conclusion by the legislative history, including when viewed in the context of reg 1.24(b) and the wider objects in Pt 801 of Sch 2 of the regulations. I agree in the submission of the applicant’s counsel that any reference to Australia is conspicuously absent from the text of Item 1 in Sch 1 of IMMI 12/116. The absence of such reference is underscored by the amendments to the regulations including the deletion of an earlier definition of ‘competent person’ in reg 1.21(1)(a)(i) which identifies ‘a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners.’ Elsewhere in Sch 1 to IMMI 12/116 reference is found to a number of Commonwealth, State and Territory laws.
The deletion of the requirement in the definition of ‘competent person’ in reg 1.21(1)(a)(i) that the ‘person [be] registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners’ is also to be considered in light of the amendments to the regulations which inserted a new reg 1.24 at the same time as IMMI 12/116 was promulgated. Had it been intended that the requirement for registration of a medical practitioner in Australia be retained for the purposes of Item 1 in Sch 1 of IMMI 12/116, the drafting to retain a requirement for registration would have been obvious from the existing definition of “competent person.” Instead, Item 1 contains no such requirement.
Contrastingly, as to the qualifications of the alternative person who may make a medical or hospital report or discharge summary or statutory declaration under Item 1 of Sch 1 to IMMI 12/116, it is express that only a person registered as a nurse within the meaning of s 3 of the Health Insurance Act 1973 (Cth) and who is performing the duties of a registered nurse can meet this criteria. I am reinforced in the conclusion that, for the purposes of Item 1 in Sch 1 of IMMI 12/116, it is not a requirement that only medical practitioners registered in Australia my provide a report for the purpose of furnishing a visa applicant with an acceptable form of evidence by the presence of precisely such requirements in the schedule as concerns nurses and psychologists. As concerns reports from other types of person in column 1 of the schedule, they too recognise the requirement for a State or Territory nexus: see, e.g., as concerns police officers, child protection authorities and family consultants. Other reports will only be acceptable if they are provided on a letterhead (e.g., social workers and school principals).
It was suggested that wider context was provided by s 3(1) of the Health Insurance Act 1973 (Cth), in which the expression ‘medical practitioner’ is defined, subject to a contrary intention, as meaning, in that Act, a person who is registered under the ‘National Law’ in the medical profession.’ Section 3(1) of that Act also defines ‘National Law’ as meaning, for a State or Territory (other than Western Australia) the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), as it applies (with or without modification) as a law of the State or Territory. I do not consider that this factor lends any significant weight to the resolution of this issue.
It was also suggested that some support for construing the phrase “registered as a medical practitioner” as appearing in Item 1 of Sch 1 of IMMI 12/116 as a practitioner who is registered in Australia was to be drawn from the reasoning in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. There, Kiefel CJ, Nettle and Gordon JJ reiterated the now well-settled proposition that the Court is authorised to pay due regard to context from the outset and not at some later stage in the process of statutory construction. So much may be accepted. As counsel for the applicant submitted, an evident purpose of the requirement prescribed in IMMI 12/116 was directed to preventing sham arrangements being relied upon to found a claim to non-judicially determined family violence so as to meet the criteria for a partner visa. Equally, cl 6 of the Explanatory Statement for IMMI 12/116 confirms that the purpose of that instrument was “to form a part of a preliminary response to the Australian Law Reform Commission’s report entitled Family Violence and Commonwealth Laws – Improving Legal Frameworks.” Clause 7 of that Explanatory Statement reads:
The instrument is one of several measures operating to improve the accessibility of the family violence provisions by streamlining the evidence that applicants must provide in order to make a non-judicial claim of family violence. People who have suffered family violence may already have been in contact with a range of support services or state agencies, and records of this contact may already exist. The new evidentiary requirements seek to enable people who are in possession of those documents to enliven a claim of family violence under the Regulations.
IMMI 12/116, commenced operation on 24 November 2012, immediately after the commencement of Migration Legislation Amendment Regulation 2012 (No.5) (No 256/2021). Schedule 6 to those regulations introduced amendments relating to evidentiary requirements for family violence claims, and by item [4] in that schedule, reg 1.24 was inserted in the form in which it presently appears. So too, the Explanatory Statement to the Migration Legislation Amendment Regulation 2012 (No. 5) (SLI 2012, 256) states that this regulation amended the regulations, including to provide more flexibility and to make it easier for an applicant who wants to include a non-judicially determined claim of family violence in their visa application. While there is nothing in the Explanatory Statement which indicates any intention to depart from the previous definition by removing the requirement of Australian registration, more directly, the deletion of the definition of “competent person” which was effected by these regulatory amendments necessarily provides such an indication.
I do not agree that it would be an inconvenient and improbable result if a decision-maker considering whether a valid claim for non-judicially determined family violence had been made was required to inquire into the system of registration of medical practitioners in a foreign country: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163, [38] (French CJ, Gummow, Hayne and Bell JJ). Having regard to the remedial intent of these amendments there is every reason to conclude that a visa applicant may be entitled to present evidence from foreign sources for the purposes of providing acceptable evidence to satisfy the requirements of regs 1.23(9)(c) and 1.24(b).
For those reasons, although it is not necessary to my conclusion, I would reject the Minister’s submissions as to the proper construction of Item 1 in Sch 1 of IMMI 12/116.
Doctor Guo
The final type of evidence presented by the applicant was a report from Dr HH Gou dated 12 September 2016. In his stamped signature block, the doctor included his provider number. The report addressed To Whom It May Concern, stated as follows:
Ms Fu is a patient of this clinic since Oct 2015.
She experienced family abusive treatment durian (sic) 2013 – 2015, according to her statutory declaration and report from her psychologist Ms Kathryn Williamson.
During that period, she was too scared to see a Dr. In 2015, she went back to her parents in China straight away after the explosive abuse and physical violence. Under the environment she felt safe and a net Coan (sic) by her parents, she saw Doctors in China.
While her visiting this clinic, we discuss the situation in a few occasions. She has been suffering anxiety due to the situation. Luckily, she is very much released and feel safe now.
If you need any information further, please feel free to contact me.
It was submitted for the applicant she was content to rely upon her written submissions in relation to the report from Dr Guo. The report it was also said to qualify as an acceptable type of medical report within the scope of Item 1 of Sch 1 to IMMI 12/116 since: he had given an Australian “provider number” (presumably, Medicare provider number, requiring Australian registration); he had provided a practice address in Australia; he had also identified the victim (the applicant) and detailed the “treatment for mental health”, stating that the applicant was “suffering anxiety due to the situation”, and the treatment was “she went back to her parents in China”. Those matters were relied upon as meeting the requirements in Item 1 of Sch 1.
The Minister put squarely in issue whether the Dr Guo’s report satisfied IMMI 12/116.
Resolution
Doctor HH Guo’s report dated 12 September 2016, addressed “To Whom it may Concern” merely related, in five paragraphs, the following matters: the applicant had been a patient of his clinic since 2015; according to a statutory declaration and a report from Ms Williamson, she had experienced family abusive treatment in the period 2013-2015; during that period, she had been too scared to see a doctor; in 2015, the applicant had returned to her parents in China “straight away after the explosive and abuse and physical violence”; in China she had seen a doctor; the applicant had “been suffering anxiety due to the situation” but luckily she was “very much released and feels safe now.”
The requirements in Item 1 of Sch 1 of IMMI 12/116 as applicable to this evidence were that the applicant had provided a medical report that was made by a person who was registered as a medical practitioner and performing the duties of a medical practitioner. The requirements for evidence of this kind was that it identified the alleged victim, and detailed the physical injuries or treatment for mental health that was consistent with the claimed family violence.
Doctor Guo’s letter did not answer the matters specified in Item 1 of Sch 1 in IMMI 12/116. In particular, Dr Guo’s report did not provide “the following detail” specified in column two adjacent to Item 1 of Sch 1 in that it did not, or did not adequately: (1) detail any physical injuries consistent with claimed family violence; or (b) detail any treatment for mental health consistent with claimed family violence: cf Pham [2018] FCA 1946, [27], [29] and [30]-[31].
Conclusion
The applicant has not discharged the onus of establishing to the requisite standard, that Ms Williamson’s statutory declaration, together with one of the reports obtained from the Affiliated Hainan Medical University or Dr Guo respectively, satisfy the matters as specified in Items 1 and 6 of Sch 1 of IMMI 12/116. That being so, evidence of the type and number required by reg 1.24 has not been presented by the applicant to establish a claim of non-judicially determined family violence having been perpetrated againsther. For those reasons, the applicant did not advance a valid claim of non-judicially determined family violence.
If contrary to my conclusion, Ms Williamson’s declaration was found to meet the requirements of IMMI 12/116, I agree that the Tribunal’s error in finding to the contrary was not material and therefore not jurisdictional: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [4], [44]-[49] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [2], [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Whether or not the Tribunal erred in its consideration of Ms Williamson’s statutory declaration, the Tribunal was correct to affirm the decision refusing the application, having regard to its further findings that neither the report of the Affiliated Hainan Medical University or Dr Guo satisfied the requirements specified in Item 1 of Sch 1 in IMMI 12/116. As neither of those documents constituted acceptable evidence for the purposes of reg 1.24(b), the applicant had not presented two items evidence of the requisite kind to establish a valid claim of non-judicially determined violence: cf Pham [2018] FCA 1946, [34(1)].
Consequently, within the meaning of cl 1.23(9) of the regulations, her visa application could not be taken to include a non-judicially determined claim of family violence. It not having been suggested that any other criteria for the grant of a partner visa had been satisfied, no error in the Tribunal’s decision is demonstrated. The application should be dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 10 March 2022
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