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Gungor v Minister for Immigration

Gungor v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

GUNGOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 516

MIGRATION – Review of decision of MRT – family violence – whether Tribunal erred in misconstruing the definition in the Regulations – whether the existence of mutual violence could negate that of family violence.

PROCEDURAL FAIRNESS – Whether the Tribunal erred in not referring back to the independent expert’s comments upon her report made by the applicant – legitimate expectation – whether the applicant could hold such an expectation in the circumstances of this case.

Migration Act 1958 (Cth), ss.357A, 359A
Migration Regulations 1994, reg.1.21, 1.23, 1.24, 1.25, 1.26

Alameddine v Minister for Immigration [2010] FMCA 313
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Canada (Attorney General) v Mavi [2011] SCC 30
Minister for Immigration v Seligman [1999] 85 FCR 115
Silver v Minister for Immigration [2007] FMCA 1955
Maman v Minister for Immigration [2011] FMCA 426

Applicant:

RASIM GUNGOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 524 of 2011

Judgment of:

Raphael FM

Hearing date:

1 July 2011

Date of Last Submission:

1 July 2011

Delivered at:

Sydney

Delivered on:

7 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondents:

Ms R Graycar

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 524 of 2011

RASIM GUNGOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Mr Gungor seeks judicial review of a decision of the Migration Review Tribunal to affirm a decision of the delegate not to grant him a Partner (Migrant) (Class) BC visa made on 23 February 2011. The visa application was originally based upon Mr Gungor’s marriage to a Ms E and her consequent sponsorship of him. Mr Gungor and Ms E were married in November 2007 but her sponsorship was withdrawn and Mr Gungor advised the DIAC that the relationship had ended on 24 September 2008. Mr Gungor continued with his application basing it upon him being the alleged victim of family violence. As the Tribunal notes at [7] [CB 171]:
“To be granted a Subclass 100 visa, the applicant must meet, at the time of decision, one of the alternate requirements of either cl.100.221(2), (2A), (3) (4) or (4A) of Schedule 2 to the Regulations: cl.100.221(1). If the relationship with the sponsoring spouse/partner (the sponsor) has ceased, an applicant may still satisfy a criterion for the grant of this class of visa if, since arriving in Australia, the applicant, or a member of the family unit of the sponsor or of the applicant or both of them has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i).”
The governing regulation covering family violence is Reg 1.23 Migration Regulations 1994 (the “Regulations”), the relevant sub-clause…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 516
Decision Date: 7 July 2011

CaseChat Overview and Summary

The case of Gungor v Minister for Immigration involved Mr Gungor challenging the decision of the Migration Review Tribunal (MRT) which had reviewed his application for a visa. The primary dispute centred on whether the Tribunal had erred in its interpretation of the definition of family violence under the Migration Regulations, and whether the existence of mutual violence could negate the existence of family violence. Additionally, Mr Gungor argued that the Tribunal failed to adhere to procedural fairness by not referring back to an independent expert’s comments on her report. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were twofold: first, whether the Tribunal had misconstrued the definition of family violence as set out in the Regulations; and second, whether the Tribunal had erred in its handling of the independent expert’s report. Specifically, Mr Gungor argued that the Tribunal should have referred back to the independent expert for her comments on the inconsistencies in his evidence, thus breaching his right to procedural fairness. The court needed to determine if the Tribunal had indeed erred in these respects.

The court found that the Tribunal had not erred in its interpretation of the definition of family violence. The court held that the Tribunal’s opinion, which concluded that there was no evidence of relevant family violence due to the mutual nature of the violence in the relationship, was consistent with the definition provided in the Regulations. Furthermore, the court determined that the Tribunal was not required to refer back to the independent expert for her comments on the inconsistencies in Mr Gungor’s evidence. The court held that such a referral was only necessary if the comments pertained to the failure to properly make the expert’s report or if they directly affected the Tribunal’s decision-making process. In this case, the comments were merely seeking a further merits review, which did not warrant a referral back to the expert. Therefore, the court found no jurisdictional error in the Tribunal’s handling of the matter.

The court dismissed the application and ordered that Mr Gungor pay the Minister for Immigration’s costs, assessed at $5,500.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I am of the view that the only representation that an applicant in the position of Mr Gungor could properly argue was being made to him by the Tribunal was that it, the Tribunal, would consider any representations that were made. I cannot see that the Tribunal could be held to have made a representation so clear, unambiguous and unqualified that it would provide Mr Gungor with a legitimate expectation that the comments which he made to the Tribunal would be passed to the IE for her consideration and response. I am of the view that there are only two categories of matters upon which the Tribunal would be required to act should they appear in a response to a s.359A letter. The first is the provision of what is truly new evidence and the obligation to consider it arises from the wording found in bold at the completion of the IE report:“If relevant new evidence is submitted before the application is finally determined this opinion can be reconsidered.” The second type of comment which I believe the Tribunal is obliged to take into account would be submissions that the IE’s report was not “properly made”, that is something which would affect the Tribunal’s decision to the extent of invalidating it if the complaint was justified: Minister for Immigration v Seligman [1999] 85 FCR 115; Silver v Minister for Immigration [2007] FMCA 1955; Maman v Minister for Immigration [2011] FMCA 426. I hold to the view which I expressed in Maman that if a response to a 359A letter articulates a matter which would constitute the failure to properly make the report (in that case a failure to provide the applicant with procedural fairness) then the Tribunal is under an obligation to consider the representations and either refer the matter back to the IE or explain in its own reasons why it did not do so. I also remain of the view expressed in Maman that the Tribunal is under no obligation either to refer back to the IE or to comment upon representations that do no more than seek a further merits review of the IE’s decision. This is what the instant applicant’s representations were doing. For these reasons I would not find that the Tribunal fell into jurisdictional error in the manner suggested by Ground 2 of the grounds of the Amended Application. In regard to the first ground of the application the final two paragraphs of the IE’s report extracted at [4] of these reasons do appear on their face to be internally inconsistent. It states that the relationship between the parties was characterised by mutual violence in the first paragraph but in the second paragraph it states that there is no evidence that Mr Gungor experienced relevant family violence as defined. The definition of family violence is conduct towards the alleged victim that causes the alleged victim to reasonably fear for or be reasonably apprehensive about his or her own wellbeing or safety. The IE goes on to say:“Nor is there any reliable evidence that any conduct, whether actual or threatened caused Mr Gungor to reasonable (sic) fearful or to be reasonably apprehensive about his own wellbeing or safety.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The expert’s opinion was that:“The alleged victim has not suffered relevant family violence (as defined in Regulation 1.21(1) of the Migration Regulations 1994), committed by the alleged perpetrator (identified above).”In her reasons for coming to this opinion the expert refers to a three and a half hours face to face interview with Mr Gungor and states that she has taken into consideration all of the information provided to her from the MRT and Phoenix Migration, Mr Gungor’s migration agent:“From the information it is noted that there are several inconsistencies in the reports of incidents of family violence, separation dates and Mr Gungor’s alleged fear for his safety, apprehension and well being.”The IE refers to certain inconsistencies between Mr Gungor’s evidence and that of his experts and stated:“Information provided by friends of Mr Gungor also recount inconsistent incidents of abuse allegedly experienced by Mr Gungor. Ms B writes that Ms E would threaten to beat Mr Gungor with a stick. Mr S advised the details of contacts made between Mr Gungor and Ms E following separation. IE notes that both of these matters were not mentioned by Mr Gungor during his interview. Information from other third parties makes no mention of the impact of the family violence on Mr Gungor’s fear and apprehension for his wellbeing and safety however, it is noted that Ms B states that Mr Gungor is fearful of his future. In regard to Mr Gungor’s fear and apprehension for his wellbeing and safety, IE has questioned his authenticity of his alleged fears given that he reportedly met with Ms E following separation and evidently took little action to protect himself. IE considers that typical victims of family violence who are fearful of their safety or apprehensive for their wellbeing, do not continue having contact with their former in-laws or place themselves in situations where they may risk contact or further harm from their ex partner.The conflicting information raises concerns about the authenticity of information contained in the statutory declarations from Mr Gungor to the IE.”The IE’s opinion ends with the following paragraphs which contain the essence of Mr Gungor’s complaint:“In regard to the marriage between Mr Gungor and Ms E, it appears that their relationship was characterised by mutual violence. IE has drawn this conclusion given the evidence presented for this assessment including from the Turkish Community Centre that refused to assist Mr Gungor following separation as they were assisting his wife via a referral from the police. Given this information IE considers that a relationship consisting of mutual violence tends to negate the issue of a power imbalance which can be a precursor to forms of violence. Therefore IE considers that there is no evidence that Mr Gungor experienced relevant family violence as defined nor is there is any reliable evidence that any conduct, whether actual or threatened, caused Mr Gungor to reasonable fear for, (sic), or to be reasonably apprehensive about his own wellbeing or safety.”