Herft v Minister for Immigration & Anor
[2007] FMCA 756
•6 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERFT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 756 |
| MIGRATION – MRT decision – procedural fairness – duty to warn new issues arising in review – effect of SZBEL – duty not confined to hearing – effect of applicant’s qualified consent to decision on the papers – consent given on reasonable misunderstanding of issues – Tribunal’s duty clearly to identify issues before or at a hearing. |
| MIGRATION – MRT decision – permanent spouse visa – relationship ceased with domestic violence – power to consider prior existence of spousal relationship – Tribunal failed to warn intention to revisit that issue – matter remitted. |
Migration Act 1958 (Cth), ss.357A, 357A(1), 359(2), 360, 360(2)(a), 360(2)(b), 360(3), 362B(1), 363A, 425, 425(1), 476(1)
Migration Regulations 1994 (Cth), regs.1.03, 1.15A, 1.23, 100.221, 100.221(4)(b), 100.221(4)(c)
Ally v Minister for Immigration & Anor [2007] FMCA 430
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Guven v Minister for Immigration & Anor [2006] FMCA 311
Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Citizenship v Zaouk [2007] FCAFC 47
Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572
Power v Comcare (1998) 89 FCR 514
Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
Zaouk v Minister for Immigration & Anor [2006] FMCA 1607, (2006) 204 FLR 230
| Applicant: | JOSEPH DENVER HERFT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1709 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 5 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | Slattery Thompson |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 29 May 2006 in matter V05/05021.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 18 August 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1709 of 2006
| JOSEPH DENVER HERFT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 15 June 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 29 May 2006. The Tribunal affirmed a decision of a delegate made on 18 August 2005, which refused to grant a permanent residence spouse visa, subclass 100, to the applicant.
The visa applications
An application for that visa was made by the applicant on 16 February 2004, together with an application for a “spouse provisional (temporary)” subclass 309 visa, following his marriage to Jacqueline Serpanchy in Sri Lanka on 10 January 2004. The temporary visa was granted on 10 May 2004, in a decision in which the delegate must have been satisfied that their marriage met the time‑of‑application and time‑of‑decision criteria. These included that the applicant was Ms Serpanchy’s “spouse”, as defined in regs.1.03 and 1.15A of the Migration Regulations 1994 (Cth). The definition requires satisfaction that they had “mutual commitment to a shared life as husband and wife” and “the relationship between them is genuine and continuing” by reference to a list of relevant considerations which address social, financial, household and emotional details of their lives. It is unnecessary for me to describe the evidence which was before the delegate, but I note that it included official certificates establishing their married status, as well as statements by the parties to the marriage and other corroboration of a short period of acquaintance, a public marriage celebration and brief cohabitation. The applicant seems also to have been interviewed by the High Commission’s migration case officer in Colombo.
The applicant then joined his wife in Australia on 20 May 2004, and they lived together in her family’s home. However, in February 2005, the Department of Immigration received a letter from Ms Serpanchy, stating that “our relationship has irretrievably broken down and I anticipate filing for Divorce as soon as I am able”, without explaining the circumstances. When this was put to the applicant, he employed a migration agent, Mr Rudy Frugtniet to present his case to the Department.
The domestic violence claim
By letter dated 16 March 2005, Mr Frugtniet submitted that the applicant “fulfils the legislative requirements to be granted Subclass 100 visa as he has been the victim of domestic violence and as provided for under Reg. 1.23(1) we enclose the requisite documentation that meets Division 1.5 requirements”. He enclosed statutory declarations, including one which he said was “obtained from Registered Medical Practitioner Dr Menon”, and another “obtained from Registered Nurse Ms Aruna Khaitoo”. These provided evidence, in Mr Frugtniet’s words: “that our client suffered the infliction of physical and psychological harm by his wife, his in‑laws and her boyfriend, something they have not desisted from, resulting in him being totally depressed over this period of time and continues to date”. He continued:
Furthermore our client has informed us that should further evidence be required he would be happy to provide additional evidence, in that he did contemporaneously inform other professional persons at the time, which included amongst them Lawyers, Nurses, Legal Secretary, and an Investigator who can all attest to our client’s serious physical and mental state at that time, and which was directly attributable to the violence and threats of violence that were made against him.
Whilst it is evident that our client is unable to meet the requirement that he continues to be nominated by the nominating spouse, this failure to comply together with the fact that our client and the nominating spouse have not continued to live together during a two‑year period, does not operate, as our client is exempted from satisfying these two requirements, because our client had suffered domestic violence committed by Ms Jacqueline Herft nee Serpency [sic: Serpanchy] and her agents.
Moreover, a consideration of this matter clearly evidences that our client was at all relevant times the “spouse” of the nominator as required, and under Reg 1.15A the marriage was recognised as valid for the purposes of the Act, therefore his entitlement at law to be granted a subclass 100 visa on the basis of his claims which have been accepted by two competent persons as prescribed under the Migration Act suffices.
Our client since being evicted from the home he shared with his wife and in‑laws, has [been] living with friends, however, we are instructed to provide his present address which is stated below whilst taking the opportunity to thank you for your consideration of our client’s application and anticipate that you will grant our client a Subclass 100 visa so he can preserve his anonymity and live a normal life.
Mr Frugtniet’s submission shows some awareness of the relevant criteria for the subclass 100 spouse visa, which were:
100.221
(1)The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2)The applicant meets the requirements of this subclause if:
(a)the applicant:
(i) is the holder of a Subclass 309 (Spouse (Provisional)) visa; or
(ii) was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:
(A)was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or
(B)left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and
(b)the applicant is the spouse of the sponsoring spouse; and
(c)subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
(2A)The applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 309 (Spouse (Provisional)) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and
(b)the applicant is the spouse of the sponsoring spouse; and
(c)subject to subclauses (5), (6) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).
…
(4) The applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:
(i) continues to be the holder of that visa; or
(ii) is no longer the holder of that visa because the visa:
(A)was granted before 1 November 1999; and
(B)has ceased to be in effect because the applicant:
(I)was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or
(II)left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) – either or both of the following circumstances applies:
(i) either or both of the following:
(A)the applicant;
(B)a member of the family unit of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse; …
It is unnecessary for me to set out the elaborate provisions of reg.1.23 which defined “domestic violence committed by the sponsoring spouse” at that time, and to detail the contents of the statutory declarations presented by Mr Frugtniet. As has been discussed in authorities on these provisions, they required a decision‑maker to be satisfied as to the form and content of statutory declarations by “competent persons”, rather than determine the truth of the allegations of domestic violence (c.f. Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170 at [45]).
It is clear in the present case that Mr Frugtniet was under the belief that his client could qualify for a permanent spouse visa, notwithstanding the breakdown of his marriage, by presenting evidence directed at paragraph (c) of item 100.221(4) which complied with the requirements of reg.1.23. His submission to the delegate suggests that he was aware that the applicant also had to show under paragraph (b) that at the time of decision “the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased”.He may also have been alive to the possible interpretation of this criterion as requiring satisfaction that a “spouse” relationship as defined in reg.1.15A was in existence at some point of time prior to the termination of the relationship. However, his submission did not present any evidence to establish this fact, but appears to have assumed that the earlier grant of the provisional visa itself showed that “the marriage was recognised as valid for the purposes of the Act”.
As I shall explain, this assumption was not, in my opinion, unreasonably held by Mr Frugtniet in the circumstances of this case.
The legal relevance of reg.1.15A
The legal issue, whether paragraph 100.221(4)(b) allowed or required a decision‑maker to consider whether the previous relationship between the sponsor and the visa applicant was a defined “spouse” relationship, as well as whether it had “ceased”, was not settled at the time of Mr Frugtniet’s submission nor until after the present Tribunal’s decision. In Guven v Minister for Immigration & Anor [2006] FMCA 311 at [26], delivered on 24 March 2006, Hartnett FM upheld a decision‑maker’s investigation into this issue, but did not explore the construction of the regulations. A contrary construction in relation to a similarly worded criterion for a subclass 820 permanent spouse visa was taken by Scarlett FM in Zaouk v Minister for Immigration & Anor [2006] FMCA 1607, 204 FLR 230, delivered on 31 October 2006. However, on 3 April 2007, the Full Court allowed an appeal on this point, in Minister for Immigration & Citizenship v Zaouk [2007] FCAFC 47. The Court said:
15Though the applicant is not referred to as such as “a spouse” in subpara (c), it is in our view tolerably clear that the relationship it contemplates as having existed but then having ceased is a reg 1.15A married relationship. That relationship clearly enough provides an essential foundation for the criteria for this subclass of visa. Ordinarily that relationship is required to exist at the time of the application for this visa: subcll (2), (3), (4), (5), (6). In the case of the death of the sponsoring spouse, the Minister is required to be satisfied that it would have continued to exist, but for that death: subcl (7). Then there is the exceptional case where that relationship has ceased but where nonetheless an application for this visa can be made. This is subclause (8). That exception is tied to the domestic violence requirement.
16While the respondent has urged upon us the view that the incidence of domestic violence of itself provides the policy justification for the exception such that the “relationship” requirement should be construed beneficially to an applicant, we do not consider that the subpara can be so construed. Its context requires otherwise. It is evident from the provisions of Subclass 820 that the underlying policy (evident in the title of the subclass itself) is to tie the award of this visa to persons who are, or, exceptionally, who have been, in spousal relationships having the qualities identified in reg 1.15.
17While this conclusion may appear to bear hardly upon a person in the situation of the present respondent, the factual findings made which led to the Tribunal’s conclusion that no spousal relationship had been established between the parties were in turn exceptional. In saying this we are not impugning the conclusion. Rather we are suggesting that it is likely to be an infrequent one not easily arrived at.
In my opinion, their Honours’ suggestion that a finding against the existence of a prior relationship satisfying reg.1.15A requirements would be made only in “exceptional” circumstances, has equal or greater force in the context of deciding whether to grant a subclass 100 residence visa. Applicants for this visa can be assumed to have already presented evidence, and to have satisfied the Minister, as to that fact when obtaining their temporary “spouse” visa. The previous administrative decision in relation to the temporary visa therefore itself provides prima facie proof of this fact to a subsequent decision‑maker. This is less clear in relation to an applicant for a subclass 820 permanent visa, as in Zaouk, whose previously granted “prospective marriage” temporary visa will establish only that the Minister was satisfied as to an intention to marry after entry to Australia.
In most areas of administration, decision‑makers addressing a factual issue are entitled to rely upon a finding made in earlier decisions, even if no strict estoppel arises from the earlier finding. Indeed, it is commonly expected that they will do so in the absence of some special reason for reconsidering the earlier finding (cf. Power v Comcare (1998) 89 FCR 514 at 526, and Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374 at 390). In my opinion, applicants for subclass 100 visas are entitled to assume that this will occur, and to rely upon the making of an earlier decision that their relationship with their sponsor had been that of a “spouse”, at least, in the absence of some special circumstance or communication from the administrator which should alert them to the contrary.
As I shall explain below, the central issue in the present case concerns the extent to which a decision‑maker at first instance or on review must alert an applicant for a subclass 100 visa whose relationship has “ceased” that he or she must again present evidence addressing reg.1.15A matters, as well as evidence establishing the cessation of the previously accepted relationship and domestic violence or other situation falling within item 100.221(4)(c).
As I have found above, the present applicant’s agent reasonably assumed that the delegate would not require further evidence addressing whether the applicant had been the “spouse” of Ms Serpanchy prior to the breakdown of their relationship. No such issue was ever raised by the delegate expressly with him, and I consider that the applicant and his agent would reasonably have assumed prior to the delegate’s decision that it was not a live issue in the minds of the decision‑makers. The delegate’s decision would then have confirmed this assumption.
The delegate’s decision
When the delegate decided to refuse a subclass 100 visa on 18 August 2005, she did so on an extraordinarily narrow basis. Moreover, she appeared to accept that there had previously been a spousal relationship. She said:
A (primary) applicant must, at time of decision, satisfy regulation 100.221. In this case the first subclause of 100.221 is subclause (2), which requires that an applicant remains the spouse of their original sponsor at that time. The applicant is no longer in a spouse relationship with the original nominator, so the applicant is unable to satisfy the central requirement of subclause (2) or regulation 100.221. …
However, she found the statutory declarations of both the doctor and the nurse to be defective:
Dr Menon has described himself as a competent person because he claims to be a Medical Practitioner. However, there is no evidence before the delegate that Dr Menon is a person registered as a medical practitioner as required in the definition of a competent person. By operation of law, it is not necessary to assess his statutory declaration, as it can not form one of the two statutory declarations that are required for domestic violence criteria to be satisfied. Thus I have not made an assessment on this statutory declaration that relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by the applicant – as required by regulation 1.26(c).
…
The above information pertaining to competent persons specifically sets out that nurses need to be registered and that they are performing the duties of a nurse. This information is also specifically requested at Q10 on the 1040 statutory declaration. There is no evidence before the delegate that Aruna Elbie Khaitoo is a registered nurse and that she is currently performing the duties of a nurse. By operation of law, it is not necessary to assess her statutory declaration, as it can not form one of the two statutory declarations that are required for domestic violence criteria to be satisfied. Thus I have not made an assessment on this statutory declaration that relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by the applicant – as required by regulation 1.26(c).
As the requirements of Division 1.5 are not satisfied, the applicant has not established that he has suffered domestic violence from the sponsor, which in turn means that he cannot satisfy the first alternative (above) within subclause (4) of regulation 100.221.
This means that the primary applicant cannot satisfy any of the alternative provisions within regulation 100.221. Therefore the person included in this application cannot meet the requirements for grant of a subclass 100 visa.
The case presented to the Tribunal
The applicant continued to employ Mr Frugtniet as his agent in his appeal to the Tribunal, lodged on 16 September 2005. The grounds stated in the application revealed an understandable impatience with the delegate’s reasoning, and a reasonable belief that the delegate’s reasoning could be addressed favourably “on the papers”. The application said:
·Decision unreasonable (Decision & Letter enclosed).
·Not considered properly.
·Review should be considered on the papers.
·Policy dictated that if any Statutory Declaration omitted, it should have been raised with Applicant, this was not done.
·File handled by three different officers and finally in [illegible – haste?] made decision to facilitate sponsor being able to sponsor another applicant.
·Additional documents in support of competent persons e.g. Dr & Nurse will be provided to Tribunal.
·Complaint will also be lodged with Minister’s office regarding handling of this matter by DIMIA.
·There were two Statutory Declarations from competent persons and one from the Applicant, none of which were considered.
The hearing invitation
On 13 January 2006 the Tribunal sent the applicant a letter which said:
You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to your application for review. You may also request that the Tribunal:
·obtain oral or written evidence from other persons;
·obtain other written material.
The Tribunal has set down a face‑to‑face hearing for:
Time:9.30am
Date:27 February 2006
Location:Level 12, 460 Lonsdale Street, MELBOURNE VIC 3000
Interpreter: None
Please confirm whether you wish to appear before the Tribunal by completing and returning the attached form within 7 working days plus 7 calendar days of the date of this letter. If you wish to request that the Tribunal obtain oral or written evidence from other persons or obtain other written materials, you must make that request in writing within 7 working days plus 7 calendar days of the date of this letter. Please note that working days exclude weekends and public holidays. You may use the attached form for this purpose.
It is important to note that, contrary to many Tribunal hearing invitations, this invitation did not tell the applicant nor suggest that the Tribunal had already made a preliminary assessment of the material and had decided that it could not “decide the review in the applicant’s favour on the basis of the material before it” (cf. s.360(2)(a)). It was, in my opinion, therefore reasonable for the applicant’s agent to continue to believe that there remained a prospect of persuading the Tribunal so to proceed.
Moreover, in my opinion, neither this letter, nor the Tribunal’s earlier acknowledgement carried any notice to the applicant or his agent that the Tribunal was contemplating investigating whether his relationship to his wife had at any time satisfied the requirements of reg.1.15A. It made no attempt to particularise what the Tribunal saw to be “the issues arising in relation to your application for review”. The applicant therefore was “entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision” (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [36] and [40]).
Mr Frugtniet responded to the hearing invitation on 31 January 2006 with a bundle of documents attached to a “Request For Hearing” form. He wrote on the top of the form:
ENCLOSED1) COMPETENT PERSON DR MENON’S STAT DEC, REG CERTIFICATE AND LETTER.
2)COMPETENT PERSON MS KHAITOO, NURSE, STAT DEC, REG LETTER AND LETTER OF EMPLOYMENT.
ALL DIVISION REQUIREMENTS COMPLIED WITH.
Policy Requirements enclosed.
Submission on behalf of the Applicant attached.
The form was then completed with an “X” in the box stating “I do not wish to appear before the Tribunal to give evidence or present arguments and consent to the Tribunal deciding the review without my making such an appearance”. However, this “consent” was plainly heavily qualified by the prominent addition of the words: “IF TRIBUNAL CAN MAKE POSITIVE DETERMINATION ON PAPERS, GIVEN THAT ALL REQUISITE DOCUMENTS HAVE NOW BEEN PROVIDED, THEN NO NEED FOR APPEARANCE AT HEARING”.
The attached documents included copies of the certificates of registration of Dr Menon and Miss Khaitoo, and an extract from the Departmental “policy requirements in relation to domestic violence”. A covering submission stated:
It is evident that the Statutory Declarations of the competent persons together with the applicant’s Statutory Declaration all of which were provided appropriately on Form 1040 in March 2005, in conjunction with evidence of their respective registrations now provided, hitherto not requested and not considered satisfy all the legislative requirements to set aside the decision of DIMIA and direct the matter be remitted to DIMIA to grant a visa to the applicant.
Moreover DIMIA failed to properly observe its own policy requirements in that the Pam’s state that if the alleged victim had submitted a form 1040 statutory declaration and the person was not a competent person, the applicant should be informed and offered the opportunity to submit a further statutory declaration from a person who does meet the definition of a competent person.
However, DIMIA failed to consider the competent person’s statutory declaration as there was no evidence of their registrations on file, without so much as raising the matter at all, thus, has put the applicant through additional distress and expense. Consequently the Tribunal should set aside this decision without so much as compounding the applicant’s distress and direct that DIMIA consider the application in accordance with law and grant to the applicant a visa as the decision to refuse was manifestly in error.
In conclusion, it is respectfully submitted that the Tribunal determine the matter on the papers if satisfied that all divisional requirements have met and inform the applicant accordingly of its decision.
The agent’s attendance at the Tribunal
It is common ground between the parties, that on 2 February 2006, soon after lodging these documents, Mr Frugtniet and the applicant attended the premises of the Tribunal in Melbourne on an appointment made with a junior clerk, Mr Wilson, for the purposes of inspecting the files of the Department and Tribunal under the Freedom of Information Act. They met Mr Wilson and held conversations with him relevant to the purpose of the appointment. What is in issue between the parties is whether in the course of these conversations, Mr Frugtniet said anything amounting to a withdrawal of his manifest qualification on the applicant’s consent to the Tribunal making a decision without holding a hearing. Evidence on this was given by affidavits of the applicant, Mr Frugtniet and Mr Wilson, and they were cross‑examined.
Mr Wilson, in his affidavit sworn on 21 December 2006, said that he had been an APS2 public servant for four or five years at the Tribunal, and was responsible for recording and filing incoming correspondence, and “for taking any necessary action arising from the correspondence and updating details relating to the file”. He filed Mr Frugtniet’s response to the hearing invitation, and said: “although I now have no independent recollection in respect of this particular document, it would have been in accordance with my usual practice to take the file containing this document to the Tribunal Member and draw to his attention” Mr Frugtniet’s handwritten qualification. He recalled meeting Mr Frugtniet, but not the applicant, while attending in a hearing room during the file inspection appointed for 10 am. At 12.33 pm he sent the member constituting the Tribunal an email which he said “to the best of my recollection” contained “an accurate summary of a conversation I had during the course of the inspection”. The email stated:
This morning I conducted a file inspection with the AR for the case of Joseph Denver HERFT. The R/A stated on the “Request for Hearing Form” that he does not wish to appear before the Tribunal, providing the Tribunal made a positive finding. I spoke with the AR about this comment and he confirmed with me that he is quite prepared for the Tribunal to go ahead and make its decision on the papers already on file, whether positive or negative.
The R/A will not be attending the hearing scheduled for 27 February 2006.
Mr Wilson’s evidence under cross‑examination was to the following effect. He agreed that it was not his duty to enquire about the qualified hearing invitation response. He had no record nor recollection of being asked to do this, and probably referred to it in conversation with Mr Frugtniet on his own initiative. He had no recollection of what was said independently from reading the contents of the email. The only other record of what happened at the file inspection was his annotations on the FOI decision‑record, which noted that he had copied some of the folios of the DIMIA file for Mr Frugtniet.
The applicant’s affidavits deposed to attending the file inspection and being “together” with his agent for “the entire time”. He denied “ever advising” Mr Wilson “that I did not wish to attend regardless of the outcome of my application”, and unequivocally said “no discussion took place with David Wilson in the terms he has stated” or at all “in relation to attendance at the hearing”. His evidence as to his recollections was not weakened by cross‑examination, and I accept that he truthfully recounted his recollections of the incident.
Mr Frugtniet’s affidavits denied that any discussion took place in the terms of the email, and said: “I did not at any time state that my client did not wish to attend regardless what the outcome was”. He said that the only discussion with Mr Wilson related to the copying of documents which were being inspected. I do not consider that this evidence was weakened by any of his cross‑examination, and I accept that he truthfully recounted his recollections of the incident.
Weighing up the evidence as to what happened on 2 February 2006, in a situation where I accept that all witnesses made honest attempts to give their true recollections, I find on the balance of probabilities that neither the applicant nor his agent said anything amounting to a withdrawal of the qualification which had been written on the hearing invitation response. In the light of the history of the matter before the delegate, the submissions attaching to the response to the hearing invitation, the further submissions which I shall refer to below, and the generally energetic pursuit of his client’s case by Mr Frugtniet, I consider that it would have been most improbable that he gave up the opportunity to present his client at a hearing held by the Tribunal, except upon the heavily qualified basis revealed in his response to the hearing invitation.
I am not persuaded to the contrary by Mr Wilson’s email. Mr Wilson is not shown to have had any knowledge of the background to the matter explaining the annotations on the hearing response, nor any duty or occasion to inquire into those annotations when assisting at the file inspection. I accept that he may have made informal reference to it in the course of the file inspection, but in my opinion it is likely that he misunderstood the probable response of Mr Frugtniet. In the light of Mr Frugtniet’s loquaciousness and English language characteristics revealed as a witness, as well as the background to the matter, it is most improbable that Mr Frugtniet said the actual words attributed to him in the email. I also find that Mr Frugtniet probably did not say any words to the effect that the applicant was “prepared for the Tribunal to go ahead and make its decision on the papers already on file, whether positive or negative”. It is more likely that he said something which only confirmed that he expected that the Tribunal would make a favourable decision on the papers without the applicant needing to attend a hearing.
I note that there is no suggestion in the evidence about what happened on 2 February 2006, that anyone acting on behalf of the Tribunal communicated to the applicant or his agent that it might re‑open the issue whether the applicant had ever been the “spouse” of Ms Serpanchy according to reg.1.15A criteria, nor that anything was said to them which should have raised this as a real possibility in their minds.
The Tribunal’s s.359(2) invitation
On 15 February 2006, Mr Frugtniet lodged a further submission with the Tribunal. This enclosed further evidence, including a statutory declaration of a consultant psychiatrist, corroborating the applicant’s claims of psychological injury resulting from domestic violence. The letter repeated strong criticisms of the reasoning and procedures of the delegate, and contained no suggestion of any change to his understanding of the issues arising in the review being conducted by the Tribunal.
On 16 March 2006, the Tribunal sent to Mr Frugtniet a letter which referred to its power under s.359(2) of the Migration Act “to invite a person to give it additional information that is relevant to the review of the decision”. It said:
Accordingly, the Tribunal now invites you to provide the following additional information:
·In relation to the review applicant’s capacity to meet the requirements of paragraph 100.221 (4) (b) of Schedule 2 to the Regulations.
You are invited to provide the requested information, in writing, within 28 days of the date of notification of this invitation. As this letter has been sent by facsimile, you will be considered to have been notified of this invitation on the date of this letter. The effect of this is that you have a total of 28 days from the date of this letter to respond.
(emphasis in original)
It was submitted by counsel for the Minister that this letter’s reference to the criterion in item 100.221(4)(b) was sufficient to accord procedural fairness to the applicant, by warning him that the Tribunal intended to treat the prior existence of a relationship satisfying reg.1.15A as an issue in the review. However, in my opinion, it was not sufficient for that purpose, in the context of the administrative processes for granting spouse visas which I have sketched above, and in the context of the particular circumstances of the delegate’s decision and the manner in which the applicant had presented his case to the Tribunal. The letter was, in my opinion, at best obscure as to whether this issue was raised, in a situation where an explicit warning was both possible and reasonably required (compare, in a different statutory context, Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [40]‑[41]).
If, as is suggested in the Tribunal’s reasons for decision, it was at that time contemplating considering whether there was evidence before it satisfying all the issues raised by the definition of “spouse” in reg.1.15A, I consider that the normal requirements of procedural fairness identified in SZBEL (supra) at [25]‑[37] required the Tribunal clearly to identify this new issue in the review, and clearly to draw the applicant’s attention to the need to consider presenting evidence addressing the reg.1.15A criteria, including by attending a hearing offered for that purpose. This never occurred.
I shall address below a submission by the Minister that the Tribunal was not bound by law to afford such a fair procedure.
Mr Frugtniet’s response to the Tribunal’s s.359(2) letter was lodged on 12 April 2006. It shows that, in fact, the applicant had not gleaned from the Tribunal’s letter that it intended to consider reg.1.15A issues afresh. Rather, it shows that Mr Frugtniet thought that the letter’s reference to paragraph 100.221(4)(b) had raised the issue of whether the previously accepted relationship had “ceased”. He addressed this issue, and, in effect, maintained that the strength of the applicant’s “domestic violence” evidence should allow the Tribunal to make a favourable decision without taking further steps.
The Tribunal’s decision
The Tribunal made no further communications to the applicant or his agent, but delivered its decision on 29 May 2006. It referred to its invitation to attend a hearing, and said of Mr Frugtniet’s response only: “On 31 January 2006, the review applicant refused the invitation, and provided additional evidence”. The Tribunal thus appears to have thought that it was required to proceed under s.360(2)(b) and (3) and s.363A. These provide:
360Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
363ATribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The Tribunal examined the then debatable issue of construction of item 100.221(4)(b) to which I referred above at [9], and concluded that “the mere possession of a subclass 309 provisional visa does not render the holder’s relationship with the sponsor immune from scrutiny thereafter, nor establish their bona fides as an incontrovertible fact”. It said that “the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in subregulation 1.15A(3)”. It then briefly addressed each of those matters, noting that they had not been addressed by the applicant’s agent, and the absence of evidence showing, for example, “the financial aspects of the relationship” and “the nature of the household”. Its concluding reasoning was:
32.The Tribunal has not seen any objective or credible evidence of the parties’ commitment to the relationship, other than that it appears to have survived from 20 May 2004, when the review applicant arrived in Australia until 1 February 2005, when the sponsor withdrew her sponsorship.
33.The Tribunal acknowledges that in adopting the approach set out in paragraph 20 above in evaluating a putative spousal relationship, decision makers must exclude from consideration any claimed domestic violence in assessing whether the requirements of regulation 1.15A are satisfied. To do otherwise would effectively render the domestic violence provisions of Division 1.5 of the Regulations nugatory, since any relationship in which such violence was present could well be determined to be, ipso facto, not genuinely spousal in character. The latter conclusion would lead to the absurd and manifestly unjust consequence that the victim in an abusive relationship was unable to succeed in a claim under the domestic violence provisions.
34.In light of the above considerations, the Tribunal has adopted a cautious approach in the present review, and in applying the criteria set out in regulation 1.15A to the parties’ relationship in order to determine whether it could properly be regarded as a genuine spousal relationship, has carefully excluded from consideration any alleged act that may be regarded as relevant domestic violence.
35.The Tribunal notes that in Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47, the Full Court decided that the Tribunal was under no general duty to inquire, and was entitled to act on the material presented by the applicant.
36.After carefully considering and balancing the very limited evidence that has been provided in relation to the extent to which the review applicant meets the requirements of regulation 1.15A, and applying the test outlined in Nassouh, the Tribunal is not satisfied that the relationship between the parties could properly be regarded as spousal within the meaning of that regulation.
37.Accordingly, the Tribunal is not satisfied that the review applicant was the spouse of the sponsoring spouse within the meaning of regulation 1.15A, as is required by paragraph 100.221(4)(b) of Schedule 2 to the Regulations. Since he also fails to meet basic requirements of subclauses 100.221(2), (2A), (3) or (4A), he fails to meet the requirements of subclause 100.221(1) of Schedule 2, an essential requirement for the grant of a subclass 100 visa.
38.Having made those findings, the Tribunal need not make a finding in relation to the review applicant’s claims of domestic violence, and the application as a whole must fail.
The grounds before the Court
The following grounds were relied upon by counsel for the applicant in his submissions at the hearing, which addressed an amended application which was filed by leave subsequent to the hearing:
Ground one.
1.)The Tribunal exceeded its jurisdiction in failing to comply with section 360 of the Migration Act 1958 (Cth) (“the Act)”.
Particulars.
1.1)The Tribunal did not invite the Applicant to a hearing at a specified time, on a specified date.
1.2)Section 360 required the Tribunal to invite the Applicant to a hearing “at a specified time on a specified date at a specified place” and hold a hearing at that time unless, relevantly, the Applicant consented to the matter being determined on the papers (section 360(2)(b)).
1.3)The Applicant expressly did not consent to such a course unless the Tribunal were able to make a decision in his favour on the papers alone (envisaging a decision under section 360(2)(a)).
Ground two.
2.)The Tribunal erred in law, and asked the wrong question, in asking “whether the relationship [at the time of decision] could properly be regarded as spousal”, instead of asking whether or not, given that the Applicant had been granted a temporary spousal visa, the Applicant satisfied the requirements of clause 100.221(4) (a), (b), and (c) (i), and that error went to jurisdiction.
Ground three.
3.)The Tribunal failed to accord the Applicant procedural fairness in failing to inform the Applicant of the critical issue upon which the case turned, that issue not being “obviously…open on the available material” (SZBEL v MIMIA [2006] HCA 63, para 38), because not obviously arising out of the decision the subject of the review (para 39).
Particulars.
3.1)The issue “arising out of the decision under review” was the evidentiary satisfaction of the “domestic violence” provisions under Division 1.5 (extracted at RD99), not whether or not the Applicant had been in a spousal relationship.
3.2)If the Tribunal were to decide the matter on the basis that the Tribunal was not satisfied that the Applicant had not been in a genuine spousal relationship, the Tribunal was obliged to warn the Applicant in order to provide the Applicant with an opportunity to respond.
(emphasis in original)
I am able to address these grounds briefly in the light of my above conclusions on the evidence.
Ground 1
The Tribunal’s duty to allow the applicant the opportunity of participating in a hearing under s.360, was described by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572 at [58] in relation to the equivalent provision governing the Refugee Review Tribunal:
58It follows that where one of the conditions set out in s 425(2) is satisfied the entitlement to appear before a Tribunal established under s 425(1) either does not come into existence or ceases to exist and the Tribunal’s duty to invite the applicant to appear before it is discharged. The affording to an applicant of an opportunity to attend a hearing and the duty to consider what is put at the hearing are elements of the review mandated by Div 4 of Pt 7. If a hearing is not afforded where it should be provided, then the duty to conduct a review is not fulfilled and the decision in such a case is infected by jurisdictional error. This is not simply a matter of procedural fairness at common law. A necessary condition for the decision‑making power, mandated by the statute, will not have been satisfied.
In SZFML, the Tribunal received from an applicant’s agent a consent to the Tribunal proceeding without a hearing which, in fact, the applicant did not authorise nor intend to give. The Full Court held that the Tribunal had determined the application “on the false premise that she had consented to it doing so and therefore on the false premise that she was not entitled to a hearing”, and this was held to vitiate its decision due to the absence of “an effective consent” (at [65] and [74]).
In my opinion, the consent upon which the Tribunal acted in the present case can be similarly characterised. As I have found, it never was given as an unqualified consent, and the conditions upon which it was intended to be acted upon were clearly indicated to the Tribunal. The Tribunal did not take into account that the applicant’s consent was premised upon the assumption that the issues in the review were those which had been addressed by the delegate and did not include a revisiting of reg.1.15A issues. Rather, it acted upon a finding that the consent was unqualified. If it arrived at this opinion in reliance on Mr Wilson’s email – and it does not say that it did, then, as I have found above, that email incorrectly attributed to the applicant’s agent a withdrawal of the applicant’s qualification attaching to his consent. The Tribunal’s opinion that it could therefore proceed to make a decision was “falsely premised”, and the making of its decision on that basis was not authorised by the Act.
Another way of analysing the situation in relation to s.360(2)(b), is that the invitation to which the applicant’s agent responded was, in the circumstances described above and in the absence of any warning otherwise, one which implied that the “issues arising in relation to the decision under review” which the applicant was invited to address at a hearing were the issues addressed by the delegate, and not the reg.1.15A issues upon which the Tribunal decided the case. The applicant’s consent on its face addressed only such a limited invitation. He was never invited to a hearing “to give evidence and present arguments” relating to the issues upon which the Tribunal ultimately based its decision. It therefore had no power to proceed to make that decision, without having put the applicant on notice of the new issues and then affording him an opportunity to address them at a hearing.
As I shall explain below, it is, in my opinion, consistent with the High Court’s references to s.425, a provision equivalent to s.360, in SZBEL (supra) at [27], [33], and [37], to construe that provision as requiring that the Tribunal must be satisfied that the applicant is aware of any new issues on the review at the time when he responds to the hearing invitation, either prior to the hearing to which he has been invited or at least in the course of a hearing which he attends.
I do not accept the argument of the Minister’s counsel that, even if the Tribunal was not authorised under s.360(2)(b) to proceed to make a decision, it was so authorised under a different provision, s.362B(1), because the applicant did not, in fact, attend at the hearing offered for 27 February 2006. Section 362B provides:
362BFailure of applicant to appear before Tribunal
(1)If the applicant:
(a)is invited under section 360 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
I reject that contention, because the Tribunal did not proceed under that provision, and it is hypothetical how it might have exercised that discretionary power if it had contemplated its exercise. If the Tribunal had reflected on the reason for the applicant’s absence in the course of considering that discretion, it might have appreciated the assumptions upon which his case was being presented to the Tribunal, and found the probable explanation for his absence from the hearing. It might then have appointed a rescheduled hearing and given proper notice of the issues upon which it contemplated deciding the case. As in SZFML, I consider that the validity of the Tribunal’s decision should be examined by reference to the basis upon which, in fact, it actually proceeded. That basis was falsely premised.
I therefore consider that the applicant has established jurisdictional error under the first ground of the amended application.
Ground 2
The arguments in support of this ground were not clearly focused, and encountered the difficulty presented by the recent decision of the Full Court in Zaouk (supra) which I have discussed above. In my opinion, the interpretation taken in that case should be applied to the same language used in item 100.221(4)(b). It allows a decision‑maker to decline to rely upon the previous finding of a reg.1.15A “spouse” relationship at the date of the grant of the temporary visa, and to investigate whether such a “relationship” was in existence at any time before it “ceased”, before considering whether it otherwise would have existed at the date of deciding the subclass 100 visa application. The Zaouk interpretation does not require a finding of such a prior existing relationship at any particular time or of any particular duration, so long as it existed at some time before it ceased.
In the present case, I consider that the Tribunal correctly instructed itself that it could address reg.1.15A criteria as at a time prior to the alleged termination of the relationship due to domestic violence. I therefore reject the contrary submissions of the applicant.
The Tribunal’s reasoning, which I have set out above, is somewhat obscure as to the time as at which it thought it should be satisfied as to reg.1.15A criteria. If it thought that it was required to find satisfaction over a period of time or at a particular past time, it would have been in error. However, I am not satisfied that it did adopt that opinion. The reg.1.15A criteria allow a relevant consideration of the historical situation of a marital relationship even when it is being assessed as at a specified date (see Ally v Minister for Immigration & Anor [2007] FMCA 430 at [33]‑[37]). I would not infer from the very short reasons given by the present Tribunal that it misunderstood that it was required only to find a “spouse” relationship at some, not necessarily precisely identified, earlier point of time.
I therefore would not uphold Ground 2 in the amended application.
Ground 3
Counsel for the applicant did not press the first particular under this ground, which he acknowledged was untenable in view of Zaouk (supra). However, he argued that a procedural fairness obligation to warn about new issues implicit in s.360 had been identified by the High Court in SZBEL, and that the present case should be decided upon the same general reasoning.
I have above explained my conclusion that, in the circumstances of this matter, the applicant was denied the usual entitlement “to be given the opportunity of ascertaining the relevant issues”, which the High Court cited from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590‑591 in SZBEL at [32]. If an obligation to afford that opportunity was implicit in the powers and procedures of the Tribunal under the Migration Act, then the Tribunal’s decision was affected by jurisdictional error upon well‑established principles.
However, counsel for the Minister argued that the reasoning of the High Court in SZBEL was distinguishable. In particular, he argued that the implications made by the High Court as to procedures required by s.360 related only to an opportunity required to be afforded to a person who has attended a hearing. He argued that the failure of fair procedure suffered by the present applicant was not a “matter” dealt with by s.360, nor any other provision of Division 5 of Part 5 of the Migration Act. The applicant’s entitlement to be put on notice that the Tribunal would address the new issues under reg.1.15A was, therefore, excluded by s.357A(1) as interpreted in the Full Court (see Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214, SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62, Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64, and Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [138]).
I found the Minister’s argument unattractive, if only as a matter of statutory construction of ss.357A and 360. It assumes that Parliament intended that an applicant should be warned of new issues on the review and given an opportunity to respond only if the applicant attended a hearing, but should be allowed to suffer the equal or greater unfairness revealed in the present case: of deciding not to attend a hearing based upon a misapprehension of the issues upon which his case would be decided, where that misapprehension was reasonably induced by the issues addressed by the delegate. In my opinion, the argument proceeded upon a misunderstanding of SZBEL.
The foundation of SZBEL is the general principle identified by the High Court in the passage from Alphaone which it approved. At [27] and [33] the Court cited s.425 (equivalent to s.360) as the first indication in the “relevant statutory framework” that the Alphaone principle is applicable in an unqualified manner to the Tribunal’s procedure. I can find no suggestion in this discussion, that the Court confined the general principle, which it applied in Mr SZBEL’s situation, to procedural rights to be afforded by the Tribunal only during a hearing. At [35]‑[37] their language encompasses the whole course of the proceeding before the Tribunal, and in my opinion does not confine the point at which it has the duty to alert an applicant to an issue which was not addressed by a delegate. They said:
35The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
36It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
37That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
I would understand their Honours’ reference to a failure to comply with s.425(1) in the last sentence of the above passage, as encompassing a Tribunal which “said nothing” to an applicant about a novel issue at any point of time in the proceedings when fairness required that this should be done. As the present situation illustrates, in some circumstances this may need to be done before an applicant’s response to a hearing invitation can be treated as a consent to a decision on the papers, and as dispensing with the Tribunal’s obligation to give him the opportunity to deal with a new issue at a hearing.
In my opinion, the failure of procedural fairness which I have identified above occurred in relation to a “matter” dealt with by s.360, being the applicant’s right to have a real opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. He was denied that opportunity, because the Tribunal’s failure properly to warn that it contemplated deciding the appeal by reference to reg.1.15A issues, resulted in his consenting to a decision being made on the papers under the mistaken assumption that the appeal concerned only the issues addressed by the delegate.
I therefore, if necessary, would also have granted relief by upholding Ground 3 of the amended application.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 6 June 2007
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