Hadchity v Minister for Immigration
[2009] FMCA 958
•8 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADCHITY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 958 |
| MIGRATION – Visa – Partner (Migrant) (Class BC) visa – review of Migration Review Tribunal decision – family violence – non-judicially determined claim of domestic violence – whether the Tribunal failed to conduct a review in accordance with Part 5 Division 3 of the Migration Act 1958 (Cth) and s. 360 – whether the Tribunal asked the wrong question – whether the Tribunal failed to apply the relevant Migration Regulations 1994 (Cth) – whether the Tribunal failed to ask whether or not the applicant had suffered domestic violence – whether expert report invalidly obtained – where original Tribunal decision set aside and matter remitted to Tribunal to ‘re-determine according to law’ – Tribunal constituted by same member – whether “back to front” reasoning – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.359, 359A, 360 476 Migration Regulations 1994 (Cth) regs.1.15A, 1.23 (1B), 1.23 (1C) |
| Minister for Immigration and Citizenship v Sok [2008] FCAFC 18 Sok v Minister for Immigration and Citizenship [2008] HCA 50 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107 Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; [1998] FCA 5 MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 |
| Applicant: | PAUL HADCHITY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 907 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 July 2009 |
| Date of Last Submission: | 8 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Advance Legal |
| Counsel for the Respondents: | Mr Kennett |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 907 of 2009
| PAUL HADCHITY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal made on 20th February 2009, affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Partner (Migrant) (Class BC) visa.
The applicant seeks orders in the nature of certiorari, prohibition and mandamus.
Background
The applicant applied for a Partner (Migrant) (Class BC) visa on 23rd November 2005 on the basis of his proposed marriage to a lady who is an Australian citizen. He was granted a provisional spouse visa on 3rd May 2006 and arrived in Australia on 4th June 2006.
By September 2006 the relationship had broken down. The Department of Immigration and Citizenship wrote to the applicant on 12th September 2006, noting that he and the lady concerned were living separately, and asking him to provide comments as to whether there were any circumstances that would show he was eligible for a grant of residency. He was asked to provide a statutory declaration within 28 days after receiving the letter.[1]
[1] Court Book at pages 89-90
The applicant provided a statutory declaration declared on 15th October 2006 in which he claimed that his wife had been verbally abusive to him and on one occasion had actually hit him. He claimed that he remained committed to the relationship and asked that no immediate action be taken by the Department in relation to his application to remain in Australia permanently.[2]
[2] Court Book at 97
A delegate of the Minister refused the application for the visa on 6th February 2007.[3] The delegate refused the application because the applicant and the sponsor were no longer residing together and the applicant had not provided evidence that he and his sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others.[4] The delegate found:
I am not satisfied that the applicant is the spouse of the sponsoring spouse, as defined in Regulation 1.15A, therefore the applicant FAILS to satisfy subclause 100.221(2).[5]
[3] Court Book 103
[4] Court Book 107
[5] Court Book 108
Application to the Migration Review Tribunal
On 6th March 2007 the applicant applied to the Migration Review Tribunal for review of the delegate’s decision.[6] He attended a hearing before the Tribunal on 2nd August 2007. He told the Tribunal that he was claiming that his sponsor had been violent to him.[7]
[6] Court Book 113-119
[7] Court Book 193 at paragraph 21
The Tribunal wrote to the applicant on 2nd August 2007 inviting him to comment on certain information relating to his claims of having been the subject of domestic violence. The letter was written under the provisions of s 359A of the Migration Act. It also sought further information from the applicant about the domestic violence he claimed to have suffered. The letter sought the applicant’s comments and the provision of further information by 30th August 2007.[8]
[8] Court Book 120-121
The applicant’s solicitors replied to the Tribunal’s letter on 28th September 2007 and provided a statutory declaration by the sponsor’s father, some hospital records about the applicant, a psychological report and a letter from a priest, Monsignor Takchi.[9]
[9] Court Book 122-141
The Tribunal wrote to the applicant again on 4th October 2007, seeking his comments on further information, and also asking for additional information under s 359(2) of the Act.[10] The applicant’s solicitors provided further information by way of statutory declarations on 5th December 2007.[11]
[10] Court Book 142-144
[11] Court Book 145-153
The Tribunal wrote and asked for more evidence on 11th December 2007.[12]
[12] Court Book 154
The applicant’s solicitors provided to the Tribunal a copy of his Certificate of Divorce on 8th February 2008[13]. On 18th February 2008 the applicant’s solicitors wrote to the Tribunal and submitted a statutory declaration by a Dr Samir Benjamin.[14]
[13] Court Book 156
[14] Court Book 157-163
On 24th February 2008 the Tribunal wrote to Centrelink by way of a Domestic Violence Referral form, seeking an assessment by a social worker.[15]
[15] Court Book 164-175
The applicant was interviewed by a social worker on 12th March 2008, who prepared a report.[16] The Tribunal sent a copy of this report to the applicant.
[16] Court Book 177-187
There was to be a hearing on 4th April 2008 but the applicant did not attend. The Tribunal made a decision affirming the decision not to grant the applicant a visa, which it signed on 8th April 2008[17]. The decision was posted to the applicant’s solicitors under cover of a letter dated 18 April 2008.[18] As counsel for the Minister pointed out in his submission, the basis for that decision, applying the reason of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Sok[19], was that a non-judicially-determined claim of family violence could only be considered if it had been made before the delegate.
[17] Court Book 190
[18] Court book 188
[19] [2008] FCAFC 18
The applicant sought judicial review of the Tribunal decision. On 3rd November 2008 in this Court Driver FM made orders by consent, issuing writs of certiorari and mandamus.[20] His Honour noted:
THE COURT NOTES the first respondent’s concession that the second respondent fell into jurisdictional error in holding that it could not consider a non-judicially determined claim of domestic violence in circumstances where such a claim is first made in the proceedings before the Tribunal: Sie Sok v Minister for Immigration and Citizenship and Anor [2008] HCA 50.[21]
[20] Court Book 202
[21] Court Book 202
The application was remitted to the Migration Review Tribunal, which wrote to the applicant on 20th November 2008, inviting him to provide any documents or written arguments that he wished the Tribunal to consider. The letter advised the applicant:
In the meantime, your case will be allocated to a Member of the Tribunal who has not previously made a decision in your case.[22]
[22] Court Book 203
The Tribunal wrote to the applicant’s solicitor on 8th December 2008, seeking the applicant’s comments on the report by the social worker. The comments were to be provided by 14th January 2009.[23] The solicitor asked for an extension of time until 28th January[24] but this request was refused.[25]
[23] Court Book 207
[24] Court Book 222
[25] Court Book 224
A further hearing was scheduled for 20th February 2009, to be conducted by video conference.[26] The applicant attended the hearing and gave evidence.
[26] Court Book 231
Despite the Tribunal’s advice to the applicant in its letter of 20th November 2008, the Tribunal was not reconstituted.
The Migration Review Tribunal Decision
The Tribunal made its decision on 20th February 2009, affirming the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.[27]
[27] Court Book 237
The Tribunal stated:
At the third hearing the Tribunal explained that the social worker’s professional opinion was that he was not a victim of domestic violence and that the Tribunal is required to take as correct this expert’s opinion. The Tribunal also explained that, therefore, the Tribunal had no choice but to find that the applicant cannot be taken to have suffered domestic violence and that he does not meet this criterion for a spouse visa. The Tribunal also explained that as his spousal relationship is over and he has confirmed that there is no child from the relationship and his former spouse is not dead, he does not, therefore, meet any of the criteria for a subclass 100 spouse visa.[28]
[28] Court Book 247 at paragraph 61
In its Findings and Reasons, the Tribunal found that it was satisfied that a non-judicially determined claim of domestic violence had been made (regulation 1.23(1B)). The Tribunal said:
Having considered all of the evidence before it, including the evidence of a non-judicially determined claim of domestic violence provided by the applicant, the Tribunal was not satisfied that the alleged victim had suffered relevant domestic violence as the applicant’s account of the break down of his spousal relationship given by him at the hearing may not have amounted to relevant domestic violence. Therefore, in accordance with regulation 1.23(1B)(b), on 25 February 2008 the Tribunal sought the opinion of an independent expert about whether the alleged victim had suffered relevant domestic violence. On 13 March 2008, the independent expert provided an opinion that the alleged victim had not suffered relevant domestic violence.[29]
[29] Court Book 250 at [78]
The Tribunal found that the social worker concerned was a person suitably qualified to make the assessment. The Tribunal noted that under regulation 1.23(1C) it was required to take as correct an independent expert’s opinion, properly made, about whether the alleged victim suffered relevant domestic violence. It went on to state:
Accordingly, under regulation 1.23(1)(g) the Tribunal finds that the alleged victim (the applicant0 is not taken to have suffered domestic violence and the alleged perpetrator (the sponsoring spouse) is not taken to have committed domestic violence. Furthermore, there is no evidence before the Tribunal that any of the remaining alternatives in regulation 1.23(1) is satisfied.[30]
[30] Ibid at [80]
The Tribunal found that the applicant did not meet the criterion in subparagraph 100.221(4)(c)(i) and did not meet the criteria in clause 100.221(1).
The Tribunal found that the applicant did not meet the essential criteria for the grant of a Partner (Migrant) (Class BC) visa and affirmed the delegate’s decision.
Application to the Federal Magistrates Court
The applicant applied for judicial review on 20th April 2009. In an amended application filed in court on the day of the hearing, the applicant sets out this ground of review:
The Tribunal failed to conduct a review in accordance with Part 5, Division 3 of the Migration act, and section 360, and/or asked the wrong question, and/or failed to apply the relevant migration regulations in failing to ask whether or not is was satisfied that Mr Hadchity had suffered “domestic violence”, and in considering itself upon an expert report invalidly obtained by the Tribunal, differently constituted.
The particulars of the ground are:
The regulations requir3ed the tribunal to first determine whether it could be satisfied for itself, reviewing all the evidence, that Mr Hadchity had suffered relevant domestic violence, and only if it determined that it was not so satisfied was it empowered and required to obtain an expert report to determine the matter (Migration regulation 1.23(1B)).
The Applicant’s Submissions
Counsel for the applicant, Mr Jackson, submitted that the second Tribunal failed to perform again the review once the matter was remitted. To perform the review, the Tribunal had to follow the process outlined by the High Court in Sok v Minister for Immigration and Citizenship[31] at [7]-[10].
[31] supra
Essentially, the procedure set out by the High Court is that an applicant who is making a non-judicially determined claim of family violence[32] (Regulation 1.23(1A)) has to submit evidence in support of his claim in accordance with the requirements of regs 1.23(1A)(b)(ii) and 1.24.
[32] The term “domestic violence” is used in the decision but the Regulations now refer to “family violence”
Regulation 1.23(1B) provides for the determination of a non-judicially determined claim of domestic (family) violence. If such a claim is made, the Minister must consider whether the alleged victim has suffered relevant domestic (family) violence. Regulation 1.23(1B) then goes on to provide for the pursuit of alternative courses, according to whether the Minister is or is not satisfied that the alleged victim has suffered relevant domestic (family) violence.
If the Minister is not so satisfied, Regulation 1.23(1B)(b) provides that the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic (family) violence.
Regulation 1.23(1C) then provides for what is to occur once the Minister, not being satisfied that the alleged victim has suffered relevant domestic (family) violence, has sought the opinion of an independent expert. Regulation 1.23 (1C) provides that:
The Minister must take an independent expert’s opinion on the matter mentioned in paragraph 1B(b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
Mr Jackson submitted that this process involved the Tribunal first determining whether or not it could be satisfied, without recourse to any expert opinion, and after a full review, whether or not the applicant had suffered relevant domestic violence, as required by the regulations.
Only of it were so satisfied could the second Tribunal validly obtain an expert opinion, which would then be determinative of the application. The first Tribunal, he submitted, had not validly conducted the review that it was required to conduct by law before it could validly obtain the expert opinion. What the first Tribunal found was:
The applicant first made his claim that he was a victim of domestic violence perpetrated by his former sponsoring spouse, Ms Habkouk, at the hearing before the Tribunal on 2 August 2007. Further, there is nothing on the files to suggest that the Minister is satisfied that the applicant has suffered relevant family violence or is required to take as correct an opinion of an independent expert that the applicant that the applicant has suffered relevant family violence and the Tribunal finds accordingly. Further, as stated above the effect of the Full Federal Court decision in Sok is that a non-judicially determined claim of domestic violence for the purposes of regulation 1.23(1)(f) or (g) can only be made to the Minister. Where a claim is not made to the Minister (or his or her delegate0, in accordance with the Regulations, the Tribunal cannot consider the claim. Furthermore, in the light of Sok, the Tribunal is of the view that where an issue of domestic violence arises, the Tribunal is limited to considering whether any of the alternatives in regulation 1.23(1)(c), (d) and (e) is satisfied. The Tribunal is unable to form an opinion for itself, or undertake the enquiries provided for in Division 1.5 of the Regulations.[33]
[33] Court Book 201 at paragraph [57]
As Mr Jackson submitted, the second Tribunal was mistaken when it made the finding that it did in paragraph 57 that it had reached a view on that point:
Having considered all of the evidence before it, including the evidence of a non-judicially determined claim of domestic violence provided by the applicant, the Tribunal was not satisfied that the alleged victim had suffered relevant domestic violence as the applicant’s account of the break down of his spousal relationship given by him at the hearing may not have amounted to relevant domestic violence. Therefore, in accordance with regulation 1.23(1B), on 25 February 2008 the Tribunal sought the opinion of an independent expert about whether the alleged victim had suffered relevant domestic violence.[34]
[34] Court Book 250
As counsel for the applicant submitted, it is clear that the second Tribunal was talking of the first Tribunal, because it refers to the obtaining of the report as a consequence of the alleged lack of satisfaction. Therefore, it is submitted, the second Tribunal first had to perform the task that the first Tribunal had failed to do, which was to consider whether or not it could be satisfied that the applicant had suffered relevant domestic violence.
Because the second Tribunal did not consider whether or not it could be satisfied that the applicant had suffered relevant domestic violence, it fell into error going to jurisdiction, which should lead to the Tribunal decision being quashed.
Mr Jackson was critical of the fact that the Tribunal was not reconstituted after the decision was set aside. He referred to the decision of the Full Court of the Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs[35] where Burchett J said:
However, unusually, the appellant’s application was not referred back to the tribunal differently constituted, but to the same deputy president. For reasons which Davies and Foster JJ stated in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-3 …, when a decision is set aside and the matter is remitted to be heard and decided again, “justice is in general better seen to be done if the court or tribunal is reconstituted for the purposes of the rehearing”.[36]
[35] (1998) 150 ALR 608; [1998] FCA 5
[36] (1998) 150 ALR 608 at 615
The First Respondent’s Submissions
Mr Kennett of counsel appeared for the first respondent, the Minister. He submitted that the Tribunal was correct to regard itself bound by an expert’s opinion which had been obtained under reg. 1.23 before the Tribunal referred to in reg. 1.23(1B)(b) that it was not satisfied that the applicant, the alleged victim, had suffered relevant family violence.
He submitted that, in relation to a question whether a visa criterion is satisfied, the Tribunal must normally decide whether it is satisfied at the time of its decision. As a consequence, if a decision is set aside and must be made again, findings of fact in the earlier decision are not preserved (see Minister for Immigration and Multicultural Affairs v Wang[37] at [15]-[16]).
[37] (2003) 215 CLR 518
However, Division 1.5 of the Regulations stipulates a procedure that must be followed in order to reach a decision upon visa criteria of a certain kind. The High Court decision in Sok at [27]-[29] establishes that the Tribunal is bound by these provisions, even though they refer specifically to the Minister.
Mr Kennett submitted that the required steps are:
i)The Tribunal must reach a conclusion on the issue of whether there had been family violence;
ii)If that conclusion is positive, the Tribunal must apply it in determining the visa application;
iii)If that conclusion is negative, the Tribunal must obtain the opinion of an independent expert; and
iv)On obtaining that opinion, the Tribunal must treat the expert’s opinion as correct ‘for the purposes of deciding whether the alleged victim satisfies a prescribed criterion’.
It was submitted that this procedure is set in train by a conclusion which the Tribunal necessarily forms in advance of its final decision about whether the visa criteria are satisfied. Where the procedure is engaged, its outcome dictates the Tribunal’s decision about whether a ‘prescribed criterion’ is satisfied.
It was further submitted that the position does not change by reason of a purported decision being made and then set aside for jurisdictional error, unless the consequence of the court’s order is to deny the expert’s opinion any status under reg. 1.23(1C). This might be the result if the error identified by the Court lay in the process leading to the obtaining of the opinion, which did not occur in this case.
The general principle is that steps taken by the Tribunal in pursuance of its procedural obligations are not automatically undone by the setting aside of the Tribunal’s decision (SZEPZ v Minister for Immigration and Multicultural Affairs[38]). The consequence is that the Tribunal’s statutory task of reviewing the delegate’s decision remains uncompleted. To complete its statutory task in the case under review, the Tribunal needed to reconsider the matter on the basis that it was possible for the applicant to raise his family violence claims. It held a further hearing but there were no other procedures required to be revisited. In assessing whether the family violence claims were to be accepted, the Tribunal was bound by the process that had been validly undertaken under reg. 1.23 and by its outcome.
[38] (2006) 159 FCR 291; [2006] FCAFC 107
Thus, counsel for the Minister submits that there is no error affecting the Tribunal’s second decision.
Conclusions
I propose to deal first of all with the fact that the Tribunal was not reconstituted when the matter was remitted by Driver FM on 3rd November 2008. I note the comments by Burchett J in the Full Court decision of Vaitaiki[39] at 615. However, with respect, this issue has been considered more recently by the Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs[40] and, even more recently, in MZXRE v Minister for Immigration and Citizenship[41].
[39] supra
[40] supra
[41] [2009] FCAFC 82
In SZEPZ, Emmett, Siopis and Rares JJ referred to consent orders made by the Federal Magistrates Court remitting a matter to the Refugee Review Tribunal “differently constituted”, and stated:
It is by no means clear that the Federal Magistrates Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the applicant’s application for review of the delegate’s decision. As indicated above, the constitution is a matter for the Principal Member.[42]
[42] (2006) 159 FCR 291; [2006] FCAFC 107 at [30]
In MZXRE[43], a decision of the Refugee Review Tribunal had been set aside and the matter had been remitted to the Tribunal to “rehear and determine according to law” by consent. The Tribunal was constituted by the same member. The appellant argued, both at first instance and on appeal, that the Tribunal had to be reconstituted by a different member. The Full Court rejected that argument. North and Rares JJ held:
It was unfortunate and inaccurate that the tribunal wrote in its letter of 29 October 2007 that a different member would continue the review. However, it was not necessary for the tribunal to be reconstituted. The erroneous decision on jurisdiction could not have required that a different person complete the review where the original tribunal member already had conducted a hearing.[44]
[43] supra
[44] [2009] FCAFC 82 at [33]
Graham J made a similar finding at [74].[45]
[45] [2009] FCAFC 82 at [74]
In the circumstances, I am satisfied that there was no error in the Tribunal being constituted by the same member.
Counsel for the applicant has submitted that the Tribunal decision is an example of “back to front” reasoning. What should have happened is that the Tribunal, following the guidelines in Sok, should first have decided whether or not the applicant had suffered relevant domestic (family) violence (Reg. 1.23(1B)).
If the Tribunal was so satisfied, it should consider the application on that basis (reg. 1.23(1B)(a)). If it was not satisfied that the applicant had suffered relevant family violence, it should seek the opinion of an independent expert about whether the applicant had suffered relevant family violence (reg. 1.23(1B)(b)).
Here, the Tribunal had already obtained the independent expert’s report before having made its decision about whether or not it was satisfied that the applicant had suffered relevant family violence. The Tribunal relied on the independent expert’s decision, noting that under Regulation 1.23(1C) it was required to take that independent expert’s opinion as correct.
In the circumstances, the Tribunal had no other choice. It already had the report. It could hardly seek another one.
The situation is unfortunate, to say the least. The process has been carried out in reverse, but the fact is that there is in existence an independent expert’s report. Unless I am satisfied that the report was obtained invalidly and should not be considered, then I cannot be satisfied that there is a jurisdictional error that vitiates the decision. It is not without some misgivings that I find that there is no jurisdictional error.
Consequently, the Tribunal decision is a privative clause decision and the application must be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 8 October 2009
9
2