KARSTEN v Minister for Immigration
[2015] FCCA 534
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARSTEN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 534 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, regs.1.21, 1.23, 1.25, 1.26 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 |
| Applicant: | KARSTEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 316 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 5 March 2015 |
| Date of Last Submission: | 5 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Anang |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Ms Stone |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The proceedings be summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 316 of 2015
| KARSTEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which a Constitutional writ is sought in respect of a decision of the Tribunal delivered on 9 January 2015 affirming a decision not to grant the applicant a Partner (Residence) (Class BS) visa. The application filed in this Court in the originating process identifies on the return date that the Court may hear and determine all interlocutory and final issues or make directions for the future conduct of the proceedings.
In this matter the Court looked at the application and alleged grounds as well as the decision of the Tribunal, and formed a concern that there may not be an arguable jurisdictional error and that it may be an appropriate case for summary dismissal. Proposed short minutes of order were received by the parties prior to the hearing. On 3 March 2015 the applicant’s solicitors were sent by the Court’s associate an email noting that the Court did not at this stage propose to make the consent orders and that the matter would be listed but now at 2.15pm, and the Court may consider whether there’s an arguable case or whether directions should be made for a final hearing.
At the commencement of the matter at 2.15pm I was informed that counsel was not available by the solicitor for the applicant, and that the applicant wished the matter to be dealt with on a later occasion. On seeking to clarify the position, it became apparent that counsel had not in fact been briefed. It is of the greatest importance that officers of this Court do not mislead the Court. The applicant’s solicitors were highly alive to the fact that the question of whether there was an arguable case was clearly up in lights by the communication that was received from this Court’s associate.
It is not acceptable, in relation to the return of a matter that may be heard finally on the return date, to be told that the legal representatives are unable to attend or present argument. In fact, the solicitor for the applicant did then develop pre-prepared argument in support of ground 1, seeking to articulate why it was that the ground was arguable, and sought to develop argument in relation to ground 2.
This is not a case where there would be any utility in relation to the granting of an adjournment because the grounds are clearly doomed to failure. I have taken into account, in considering the exercise of the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
The first ground in relation to the application of the expert’s opinion is clearly, in my opinion, doomed to failure.
The relevant regulation, reg.1.23(1B) provides as follows:
(1B) If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and:
(a) if satisfied that the alleged victim has suffered relevant domestic violence – consider the application on that basis; or
(b) if not satisfied that the alleged victim has suffered relevant domestic violence – seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
It is clear from the reasons of the Tribunal that it was not satisfied that the alleged victim had suffered relevant domestic violence. In those circumstances, the Tribunal was bound to seek an expert opinion. It is in these circumstances also it is apparent that there is no substance whatsoever in the second ground relating to s.359A of the Act.
Where an expert’s opinion is received by the Minister, reg.1.23(1C) provides as follows:
(1C) 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 domestic violence.
It is clear on the face of reg.1.23(1C) that the Minister must, as a mandatory requirement, accept the opinion as correct. Whether there are circumstances in which a question of whether the report was properly made are open to be raised. This is not such a case. There is no substance in the proposition in the present case that the opinion was not properly made on the face of the reasons of the Tribunal.
Further, in relation to an independent expert’s opinion, even if there was some non‑compliance in relation to the family violence by that expert, it would be an error within jurisdiction, and it would not be a jurisdictional error by the Tribunal as the Tribunal must apply reg.1.23(1C). For the reasons I have identified, I am clearly satisfied there is no error of the kind alleged in the present case.
The Tribunal carefully set out the requirements for a visa:
3. Relevantly to this matter the primary criteria include cl.801.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered domestic violence committed by the sponsor: cl.801.221(6)(b), (c)(i). The applicant claims this occurred in this case.
The Tribunal noted that the delegate refused to grant the visa on the basis the applicant did not meet clause 801.221 because the delegate was not satisfied that the applicant had provided evidence in accordance with the regulations that he had suffered domestic violence committed by the nominated spouse.
The Tribunal noted that the delegate found the applicant failed to meet the criteria under clause 801.221 and refused the visa. The delegate also considered the application under subclass 814 Interdependency visa and found the applicant did not meet any of the criteria for a grant of that visa. The delegate issued an adverse decision on 10 April 2013 from which the applicant sought a review on 26 April 2013.
The Tribunal notes that the applicant appeared before the Tribunal on 9 October 2013 and gave evidence and presented arguments. The Tribunal noted that prior to adjourning the hearing, there were particular documents provided by the applicant. The Tribunal records that the applicant then appeared before the Tribunal on 19 November 2013 and gave further evidence and presented arguments. In para.28, the Tribunal said as follows:
28. The tribunal was not satisfied that the applicant had suffered relevant domestic violence. The tribunal is not satisfied that any of the behaviour of the sponsor's children was done at her instigation or that either that behaviour or the claims of financial control by the applicant caused the applicant to fear for or be apprehensive about his personal well-being or safety. Accordingly the matter was referred to an independent expert for assessment.
It was in those circumstances that the Tribunal was required to refer the matter to an independent expert. There is no substance in the suggestion that there was a requirement to notify or inform the applicant of the legislative effect of regulation 1.23(1B).
The Tribunal carefully set out what occurred with the expert’s report and the further variations of the expert report which opinions were provided to the applicant, consistent with s.359A, for the applicant to be able to respond. The Tribunal said as follows:
29. The independent expert prepared a report dated 6 January 2014. In preparing the report, the independent expert had consideration of the material provided in support of the application by the applicant as well as interviewing the applicant. The independent expert concluded that the applicant had not suffered relevant family violence.
30. The tribunal referred the matter back to the independent expert, requesting the independent expert apply the appropriate definition of relevant domestic violence in respect of their findings. After considering this, the independent expert issued a second report finding the applicant had not suffered relevant domestic violence.
31. The reports were provided to the applicant pursuant to s.359A of the Act. In response to the first report, the applicant made certain submissions as to why he felt the opinion of the independent expert was wrong. In the second he referred to various examples of actions which the applicant interpreted as acts of domestic violence committed by the sponsoring partner against him.
32. This information was referred to the independent expert to be taken into account in their assessment. The independent expert provided a further report dated 8 September, 2014 in which they took into account the further information provided by the applicant. The independent expert found that the additional material had not changed their opinion and that the applicant had not suffered relevant domestic violence.
33. This further report was provided to the applicant pursuant to s.359A of the Act. The applicant provided a further response where he disputed the opinion of the independent expert. No further information or relevant material was provided by the applicant. A further hearing was conducted by the tribunal on 17 December, 2014. The applicant attended. The applicant did not provide any new information to the tribunal for the independent expert to take into account. The applicant indicated that he disagreed with the opinion of the independent expert.
At para.36, the Tribunal said it was satisfied that the applicant and the sponsor were in a spousal relationship and the relationship ceased. The only issue that arises on the evidence in this case is whether the applicant has suffered domestic violence committed by the sponsor within the meaning of the regulations.
The Tribunal continued:
37. Under r.1.23 of the Regulations, a person is taken to have suffered or committed domestic violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim and either the Minister (or the tribunal on review) is satisfied that the alleged victim has suffered relevant domestic violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant domestic violence. Relevant domestic violence is defined in r.1.21, and means violence against the alleged victim or his or her property that causes him, her or a member of the family, to fear for, or to be apprehensive about, his or her personal wellbeing or safety. These regulations are extracted in the attachment to this decision.
38. In the present case the applicant is seeking to establish domestic violence on the basis of a non-judicially determined claim of domestic violence.
The Tribunal noted the applicant in this case was seeking to rely on evidence referred to in reg. 1.24(1)(b), namely, a statutory declaration under reg. 1.25 together with two statutory declarations under reg. 1.26 by competent persons who hold different qualifications, and the Tribunal said that it was satisfied that the statutory declarations met the requirements under reg.1.25.
It was in those circumstances that the Tribunal was satisfied that evidence had been presented within, and in accordance with, reg.1.24(1)(b) and, therefore, that reg.1.23(1A)(b)(ii) is satisfied. The Tribunal then said in paragraph 47:
47. Having considered all of the evidence before it, the tribunal was not satisfied for the purposes of r.1.23(1)(f) that the applicant has suffered relevant domestic violence. In accordance with r.1.23(1B)(b), the tribunal sought the opinion of an independent expert. On 1 January 2014 the independent expert provided an opinion that the applicant had not suffered relevant domestic violence. As this report referred to family violence and not domestic violence, the independent expert was asked to apply the findings of the independent expert to the correct terminology of domestic violence. On 21 April 2014 the independent expert provided an opinion that the applicant had not suffered relevant domestic violence.
The Tribunal then set out the history of what occurred with the expert’s report and the opinion that the applicant had not suffered relevant domestic violence. The Tribunal held a further hearing with the applicant and the Tribunal then referred the information received from the applicant back to the independent expert to take into consideration on the opinion as to whether the applicant had suffered relevant domestic violence. The Tribunal notes that a further report from the independent expert found that the further information did not alter the opinion that the applicant had not suffered relevant domestic violence.
The applicant was again provided with a copy of this further report and the applicant criticised the opinion of the independent expert, however, the applicant did not provide any further information or issues to be put to the independent expert. It was in these circumstances, the Tribunal said it was satisfied that the opinion is authorised by the regulations, in that the opinion was provided by an independent expert as a person suitably qualified to make the assessment, being a member of a gazetted organisation for the purpose and that the opinion was properly made.
The Tribunal was satisfied that all relevant information was provided to the independent expert to allow them to make a proper assessment of the claims made by the applicant. The applicant was allowed to provide all relevant material to the independent expert under reg. 1.23(1C).
53. Under r.1.23(1C) the tribunal is required to take as correct an independent expert’s opinion, properly made. Therefore, the tribunal finds that the applicant is not taken to have suffered domestic violence committed by the sponsor for r.1.22.
There is no error in this reasoning by the Tribunal. The findings of the Tribunal were plainly open in the evidence before the Tribunal and it can be said the findings lack an evident and intangible justification. In these circumstances, it is clear that ground 1(a) is doomed to failure and so too, is ground 1(b). There is no utility in granting any adjournment which will only cause the incurring of further costs and further use of Court hearing time unnecessarily. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 March 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Summary Judgment
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