KC v Minister for Immigration - [2015] FCCA 2349

FEDERAL CIRCUIT COURT OF AUSTRALIA

KC v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2349

Catchwords:
MIGRATION – Judicial Review.

Legislation:

Acts Interpretation Act 1901
Legislative Instruments Act 2003

Migration Act 1958 (Cth), ss.474, 476

Migration Amendment Regulations 2007 (No.13)
Migration Regulations 1994, Regulation 1.21, 1.23, Schedule 2, Subclass 100, Clause 100.221

Al-Momani v Minister for Immigration & Anor [2011] FMCA 453
Craig v South Australia (1995) 184 CLR 163
Liu v Minister for Immigration and Citizenship [2011] FMCA 601
Maman v Minister for Immigration & Anor [2011] FMCA 426
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZSTR v Minister for Immigration and Border Protection [2014] FCCA 2554

Applicant:

RAGHAV KC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 81 of 2015

Judgment of:

Judge Howard

Hearing date:

13 July 2015

Date of Last Submission:

13 July 2015

Delivered at:

Brisbane

Delivered on:

28 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Brady (direct brief)

Counsel for the Respondents:

Mr Richardson

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application be dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 81 of 2015

RAGHAV KC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 13 May 2011 the applicant (a Nepalese national) was granted a Partner (Migrant) Class BC visa. The applicant had applied for that visa on 3 December 2010. The applicant had met an Australian citizen, Ms Filetti (the sponsor) in Nepal in early 2010.
The applicant married the sponsor on 9 May 2010 in Nepal.
After the said visa was granted – the applicant arrived in Australia on 26 May 2011 to live with the sponsor.
Unfortunately, the relationship did not go well for the married couple. On 13 December 2011 the sponsor contacted the relevant Immigration Department. The sponsor explained that her relationship with the applicant had ended and she wished to withdraw her sponsorship of his visa application.
In March 2012 the applicant submitted to the department documentary evidence that he had suffered family violence at the hands of his sponsor. The criteria for the grant of the applicant’s visa are contained in Part 100 of Schedule 2 to the Migration Regulations 1994 (hereinafter referred to as “the Regulations”). The primary criteria contained in the regulations included clause 100.221. That clause required the applicant to be the spouse or the de facto partner of the sponsor – unless the relationship had ended and certain circumstances existed. Those circumstances included the fact that the applicant had suffered family violence committed by the sponsor. In the present case the applicant contends that such family violence at the hands of the sponsor did occur. That is why he submitted the documentary evidence to the department…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] FCCA 2349
Decision Date: 28 August 2015

CaseChat Overview and Summary

This matter came before Judge Howard of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision concerning their immigration status, arguing that the Independent Expert (IE) whose opinion was relied upon had committed a jurisdictional error. The core of the dispute centred on whether the IE had correctly applied the definition of "relevant family violence" as set out in the Migration Regulations 1994.

The legal issues before the Court were whether the IE had applied the correct legal test for relevant family violence, and whether the applicant was asking the Court to undertake an impermissible merits review of the IE's factual findings. The Court was also required to consider the effect of Regulation 1.23(10)(c) of the Migration Regulations, which mandates that an IE's opinion must be taken as correct, and the circumstances in which such an opinion might be vitiated by jurisdictional error.

The Court reasoned that the IE had correctly identified and set out the definition of relevant family violence at the commencement of their opinion. The applicant's submissions were found to be an attempt to have the Court re-examine factual findings made by the IE, which would constitute an impermissible merits review. The IE's statements regarding the applicant's willingness to perform home duties and the absence of evidence of force or threat, as well as findings concerning a "friend of the sponsor" and the sponsor's father, were all characterised as factual findings, not errors in applying the legal test. The Court noted a potential typographical error in the IE's opinion regarding the direction in which the applicant turned away from the sponsor, and indicated that parties would have seven days to make further submissions on this specific point.

The Court ultimately found that the IE had applied the correct legal test and that the applicant's grounds for review amounted to a request for a merits review of factual findings. Therefore, the applicant's claim that the IE's opinion was vitiated by jurisdictional error was not made out, and the Court would proceed accordingly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated, from paragraph 82, inter alia:-“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” The passage from the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 (as quoted in paragraph 82 of the decision in Yusuf) sets out the guidelines for Courts of first instance in Australia undertaking judicial review of executive (administrative) decisions. In the grounds for review it will be noted that the applicant has asked the Court to conclude that the IE’s opinion (Doctor Watt’s opinion) was, essentially, flawed because it was (to use the words contained in the first respondent’s written submissions) “infected by jurisdictional error”. If the Tribunal was not satisfied that the applicant had suffered the relevant family violence – it was required to seek the opinion of an independent expert (IE). This is required by Regulation 1.23(10)(c)(i) of the Migration Regulations. Further, Regulation 1.23(10)(c)(ii) states that the IE’s opinion must be taken as correct. Notwithstanding that the Regulations require that the Tribunal must take an IE’s opinion on the matter to be correct – there still remains a need to ensure that the IE’s opinion is authorised by the Regulations. In this regard I note the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115. In particular I note paragraphs 66 and 69 of that decision where French, North and Merkel JJ stated:-“66 It is not necessary for the purposes of this case to characterise consideration of the Medical Officer’s opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.69 …it makes no difference to the outcome of the case that his Honour characterised the decision of the Medical Officer as a judicially-reviewable decision.…If the (Medical Officer’s) opinion is vitiated by error of law the delegate errs in taking it as correct. On the basis already outlined, the Court has jurisdiction to consider the lawfulness of the Medical Officer’s opinion as an element of its consideration of the lawfulness of the delegate’s decision.”

Ratio Decidendi

Legal Principle Established

The IE has applied the correct test. At the beginning of the IE’s opinion (page 57 of the court book) the IE has set out the correct test. It states:-“Relevant family violence has the meaning given in Regulation 1.21(1) of the Migration Regulations 1994:Relevant family violence means conduct, whether actual or threatened towards:(a) The alleged victim; or(b) a member of the family unit of the alleged victim ;or(c) a member of the family unit of the alleged perpetrator; or(d) the property of the alleged victim;(e) the property of a member of the family unit of the alleged victim; or(f) the property of a member of the family unit of the alleged perpetrator;that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about his or her own wellbeing or safety.” In my view, the submission put forward on behalf of the first respondent in relation to this issue is correct. The applicant is in fact asking this Court to engage in an impermissible merits review. The IE was well aware of the correct legal test to be applied. He included it at the commencement of his opinion. The applicant has asked the Court to have regard to the paragraph (which has now been) numbered 3 on page 67 of the court book – within the IE’s opinion. The IE has noted that the applicant “acknowledged that he was willing to complete all of the home duties”. The IE, by noting that there was no evidence “…that this arrangement was from force or threat of violence from the sponsor” – was, merely, making findings of fact. It is quite clear from the IE’s opinion that he did not work on the basis that the applicant was obliged to prove some sort of physical violence, or threat of physical violence or intimidation (as submitted on behalf of the applicant in paragraph 30 of the applicant’s outline of submissions). In the paragraph (which is now) numbered 8 in the IE’s opinion on page 68 of the court book – the IE has once again made findings of fact. For instance, in relation to the “friend of the sponsor” – the IE has made the following findings of fact, namely:-a)That the friend of the sponsor had made no threat towards the applicant;b)That the friend of the sponsor had not given any indication that he would actually harm the applicant; c)In relation to the sponsor’s father – the IE concluded that the applicant’s concern “seemed unrealistic as the father lived in Sydney and did not communicate with the applicant”; andd)Accordingly, no expression of threat was communicated by the sponsor’s father to the applicant. These are examples of findings of fact made by the IE in relation to the friend of the sponsor and the sponsor’s father. They do not indicate to the Court that the IE applied the wrong test. The applicant, in making the submissions concerning this issue – is asking the Court to engage in an impermissible merits review concerning the findings of fact made by the IE. In relation to the paragraph (which is now) numbered 9 of the IE’s opinion beginning at page 68 of the court book – the findings of fact made by the IE include:-a)“When the applicant declined the sponsor’s sexual advances – the sponsor turned away from the applicant”. It should be noted that, in fact, on page 69 of the court book (in the paragraph now numbered 9 of the IE’s opinion) the words are included as, “she reportedly turned away from the sponsor”. Clearly that is an error. Clearly it should read “she reportedly turned away from the applicant”. I will allow parties seven days from the date of the delivery of these reasons for judgment to make any further submission should they think it appropriate in relation to that particular matter;b)The IE also found, as a fact, that when the applicant declined the sponsor’s sexual advances – the sponsor – did not resort to “threats, intimidation, physical force or coercion to obtain sex” from the applicant;c)Further, the IE made a finding of fact that when the applicant did engage in sex with the sponsor (even though he stated in the interview with the IE that he did not want to participate in such sexual activity) – the IE found as a fact that the applicant made no indication to the sponsor that he did not want to engage in such sexual activity;d)The IE found, as a fact, that there was no evidence that the sponsor had resorted to threats, intimidation, physical force or coercion in order to obtain compliance with her instigation of sexual activity;e)Finally, the IE found, as a fact, that the applicant described feeling embarrassed in relation to these situations – but, the IE also found as a fact that there was no indication that the applicant felt “fear” or “apprehension for his wellbeing or safety”.