Liu v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1451
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration and Citizenship [2025] FedCFamC2G 1451
File number: MLG 740 of 2020 Judgment of: JUDGE FORBES Date of judgment: 5 September 2025 Catchwords: MIGRATION – Partner (Residence) (Class BS) (Subclass 801) visa – judicial review of decision of Administrative Appeal Tribunal not to grant visa – where the Tribunal was satisfied applicant and sponsor were in a relationship that has ceased – where the applicant alleged family violence committed by former sponsor - where Tribunal found that evidence presented did not meet reg 1.24 requirements – where applicant claims they were not put on notice of dispositive issue and that the Tribunal conducted itself unreasonably – no error established Legislation: Migration Act 1958 (Cth) ss 5F, 360
Migration Regulations 1994 (Cth) regs 1.23, 1.24; cl 820.221
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
Chu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 83
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Ghansham v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2023] FedCFamC2G 633
Minister for Immigration and Citizenship v Pham [2008] FCA 320
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of last submission/s: 28 April 2025 Date of hearing: 28 April 2025 Place: Melbourne Counsel for the Applicant: Mr Mutton Solicitor for the Applicant: Australian Legal Advisory Centre Counsel for the First Respondent: Ms McInnes Solicitor for the First Respondent: Mills Oakley Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 740 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HONG XIA LIU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The Applicant’s application for judicial review filed on 28 February 2020, and as amended on 24 February 2025 be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceedings fixed in the sum of $6,100.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 29 January 2020, the second respondent (the Tribunal) affirmed a decision of the first respondent (the Minister) to refuse the grant of a Partner (Residence) (Class BS) (Subclass 801) visa (the visa). By an application filed on 28 February 2020, the applicant seeks judicial review of that refusal decision.
The applicant is a citizen of China. She applied for a partner visa based on her relationship with an Australian citizen (the sponsor). The sponsor withdrew his sponsorship following the breakdown of their relationship.
A delegate of the Minister initially refused the visa application on the basis that the applicant did not meet a requirement for the grant of a partner visa, namely that applicant did not continue to be the spouse or de facto partner of the sponsor.
The applicant applied to the Tribunal for review of the delegates decision. Through her representative the applicant claimed that the relationship had ended because of family violence, and she provided various documents in support of that claim. She relied on the family violence claim as an exception to the visa requirement that she remain in a spousal or de facto relationship.
The Tribunal found that the documents relied upon by the applicant did not meet the evidentiary requirements prescribed by the Migration Regulations 1994 (Cth) (the Regulations). Accordingly, the Tribunal found the claim of non-judicially determined family violence had not been made out, the Applicant did not meet the Regulations’ requirements of cl 802.221(6)(c) for the grant of the visa, and so it was required to affirm the decision under review.
In her application for judicial review, the applicant sought to impugn the Tribunal’s decision on grounds that the Tribunal had acted unreasonably, and that she had been denied procedural fairness as required by section 360 of the Act. These two species of error, as will be explained below, are closely interrelated.
In short, the applicant contends that the Tribunal failed to squarely put her on notice that the information supplied in support of her claim to have been the victim of family violence did not meet the evidentiary requirements prescribed by the Regulations. The applicant claims that as the deficiencies in her evidence were dispositive of her claim of family violence it was incumbent on the Tribunal to raise this issue with her. The applicant also contends that the Tribunal constructively failed to exercise its statutory function by not affording her a proper hearing and a meaningful opportunity to respond to and address these deficiencies.
For the reasons set out below, I am not persuaded that the Tribunal’s decision is affected by jurisdictional error. Accordingly, the application must be dismissed.
STATUTORY FRAMEWORK
The criteria for the grant of the relevant partner visa are set out in Part 801 of Schedule 2 to the Regulations.
Clause 801.221 of the Regulations requires, among other things, that the applicant continue to be sponsored by their spouse or de facto partner.
If the relationship has ceased, cl 801.221(6) requires the existence of certain circumstances in order to grant the visa. One of those circumstances is that the applicant has suffered “non-judicially determined family violence” committed by the sponsoring partner under cl 801.221(6)(c)(i).
Reg 1.23 of the Regulations sets out the various circumstances where a person will be taken to have suffered or committed family violence. Reg 1.23(9) states:
(9)For these Regulations, an application for a visa is taken to include a non- judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
[…]
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
Reg 1.24 of the Regulations provides:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a)statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b)the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
Instrument IMMI 12/116, in force at the time of the Tribunal’s decision, provides that a minimum of two items of evidence from a list in the Schedule to the instrument must be presented and that no more than one of each type of each evidence may be presented.
BACKGROUND
The applicant is a citizen of China. The applicant and the sponsor met in China on 22 May 2010.
The applicant came to Australia on a “Prospective Marriage visa” in September 2013 and commenced cohabitation with the sponsor[1]. She and the sponsor married in Australia on 11 March 2014[2].
[1] CB 39.
[2] CB 34.
On 9 May 2014, the applicant made a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa as well as for a substantive Partner (Residence) (Subclass 801) visa. The applicant was granted the temporary Subclass 820 visa on the same day.
The applicant fell pregnant and gave birth on 25 December 2016 at Box Hill Hospital[3]. The applicant’s child is an Australian citizen[4].
[3] CB 152.
[4] CB 284.
The relationship broke down in late 2017.
On 30 October 2017, the sponsor advised the Department of Home Affairs that he wished to withdraw his sponsorship of the applicant’s temporary visa and her application for a partner residence visa, as the relationship had irreparably broken down. The sponsor states that this was because he discovered the applicant’s child was “not [his]”[5].
[5] CB 153, 172.
By letter dated 3 November 2017[6], the Department invited the applicant to comment on adverse information it had received, namely the change in her relationship status. The correspondence from the Department informed the applicant that there were three (3) circumstances in which she could continue to be considered for the grant of a visa, even where the relationship with a sponsoring partner had ended. Those were where:
1. your sponsoring partner had died; or
2. you, or a member of your or your sponsoring partner’s family unit has suffered family violence committed by the sponsoring partner; or
3.you and your sponsoring partner share custody, access or maintenance obligations in respect of a child.
[6] CB 155.
There was no response to this correspondence. Various emails were sent by the sponsor to update the applicant’s contact details as it appeared she had travelled to China and subsequently returned to Australia without the child.
On 20 February 2018 the Department again wrote to the applicant, just as they had in November 2017, and invited her to comment on the change in her relationship status[7]. The Department also attempted to contact the applicant via her mobile number, but received no response[8]. The correspondence of 20 February 2018 was subsequently returned to the Department as “unclaimed”.
[7] CB 178.
[8] CB 186.
On 9 May 2018 a delegate of the Minister refused the application for the visa, as it found that the applicant did not meet subclause 801.221(1) of the Regulations, which required the applicant to be a spouse or de facto partner, nor was it satisfied that she met any of the alternative eligibility criteria[9]. The delegate stated:
Subclauses (3), (4), (5) and (6) prescribes certain circumstances in which an applicant may continue to be considered for the grant of permanent residence, where the relationship with the sponsoring partner has ceased. These are, in summary:
•the sponsoring partner has died;
•the applicant or dependent child is the victim of family violence committed by the sponsoring partner; or
•the applicant and sponsoring partner share custody, access or maintenance obligations in respect of any dependent children.
I am not satisfied that you meet the requirements of subclauses (3), (4), (5) or (6) because at the time of my decision you have not made any claims or provided any evidence regarding the death of your sponsor or any incidence of family violence, nor is the evidence that satisfies me as to the existence of a child of the relationship. I note that departmental information suggests that you gave birth to a child, however, you have not provided evidence to demonstrate that your sponsor is father of the child, such as a birth certificate. I am therefore not satisfied that there is a child of the relationship with your sponsor.
[9] CB 182-188.
Proceedings in the Tribunal
On 29 May 2018, the applicant applied to the Tribunal for review of the delegate’s decision, listing a registered migration agent and legal practitioner as her representative.
On 5 December 2018, the Tribunal invited the applicant, via her representative, to comment on or respond to and provide information in relation to the application for review. The applicant was invited to give information regarding the sponsor’s withdrawal of his sponsorship and was advised that if she was no longer in a relationship with her sponsoring partner, there were exceptions under which she could be granted the visa. These exceptions included the death of the sponsoring partner, family violence, and certain court orders or responsibilities in relation to children[10].
[10] CB 211-215.
On 19 December 2018, the applicant’s representative wrote to the Tribunal seeking an extension of time to respond to the invitation due to her mental health status. Correspondence to the Tribunal added that the applicant “has suffered depression due to her former husband’s domestic violence and she has been a victim of family violence… She has sought treatment since separation” [11].
[11] CB 216.
Two days later on 21 December 2018, the Tribunal granted the extension of time request, giving the applicant until 31 January 2019 to provide her response[12].
[12] CB 220.
On 31 January 2019, the representative provided a statutory declaration by the applicant, dated 30 January 2019. That declaration ran to seven pages and detailed her experience of family violence with the sponsor. In that statutory declaration the applicant claimed, among other things, that:
(a)she has been a victim of domestic violence and left her husband due to domestic violence;
(b)she and her husband were initially very happy living as a couple and sharing their dream together, but the husband “totally changed his attitude” and she “suffered periodic domestic violence” from her husband after they moved into the home they purchased together;
(c)the husband did not allow her to work, have any friends in Australia, or give her any spending money. She was his “servant and sex slave”;
(d)she felt trapped, powerless and became very depressed. The applicant claimed a mental breakdown as a result of her anxiety and fear;
(e)in or around 2015, the applicant returned to China to live with her parents to escape her husband’s controlling and abusive behaviour. There she sought medical treatment, and was diagnosed with severe depression and prescribed medication;
(f)about this time she also realised that she was pregnant. Her husband ordered that she abort the child, which she did;
(g)the applicant stayed in China until April 2016. She returned to Australia on her husband’s promises that he would be nice to her;
(h)in May 2016, the applicant realised she was pregnant again. The applicant was surprised by the pregnancy and informed her husband that it was the result of a rape when she was in China, and that she did not realise she was pregnant. Her husband accepted this and “wanted to keep [their] marriage and take the baby as [their] child”;
(i)the husband forced the applicant to sign many things in English which she was not able to understand, one of which she later discovered was the transfer of their home ownership to his sole name;
(j)in or about November 2017, the husband informed her that he needed to have a DNA test to prove that he was not the biological father of the child;
(k)When their son became noisy, he attempted to hit the child, hitting her instead when she would not allow him to touch the child; When angry the husband smashed plates, kicked furniture and swore at her and their child;
(l)In October 2017, the applicant returned to China along with their child, seeking help from her parents. She returned in December 2017 but the husband forced her to leave the home; and
(m)She has suffered severe depression due to the violence she suffered during her marriage and has not been able to resume normal living as a result.
On 15 March 2019, the Tribunal invited the applicant to attend a hearing on 4 April 2019[13]. The hearing was subsequently rescheduled – at the request of the representative – to 2 May 2019[14].
[13] CB 230-237.
[14] CB 240-243.
On 1 May 2019, the representative provided a statutory declaration of a registered psychologist Mr Bill Efremidis[15] dated 30 April 2019. Mr Efremidis:
(a)stated that he had conducted an assessment the applicant’s psychological health approximately one week earlier, on 24 April 2019;
(b)briefly outlined the applicant’s history with the sponsor;
(c)stated that the applicant provided an account of instances of the domestic violence he experienced, including details of verbal, physical, psychological, emotional, social, financial and sexual abuse; and
(d)concluded that the applicant is “currently experiencing an Adjustment Disorder, with mixed anxiety and depressed mood, at an ‘extremely severe’ level of intensity”, which is in response to the breakdown of her marital relationship due to domestic violence and the ongoing uncertainty of her future in Australia.
[15] CB 250-255.
On 2 May 2019, the applicant attended the hearing before the Tribunal with her representative, and the assistance of a Mandarin interpreter.
An exchange occurred at the beginning of the hearing, after addressing some preliminary matters, as follows:
MEMBER: Now, you are claiming that you suffered family violence committed by Mr Mackay, and it appears that you are making a non-judicially determined claim of family violence and you have submitted two documents in support of your claim. …Now, the Tribunal must be satisfied that - of a few matters. First of all that you were in a genuine spousal relationship prior to the end of that relationship. Secondly, if the Tribunal is satisfied of that matter, the Tribunal also needs to find the relationship has ceased and that the relevant family violence has taken place. Now, the law requires you to make a valid claim of family violence. What that means is, you must provide certain documents in certain forms in order for your claim to be validly made. These requirements are set out in the Migration Regulations 1994 and in the legislative instrument referred to as IMMI, that's I-M-M-I 12/116.
THE INTERPRETER: Thank you.
MEMBER: So this legislative instrument contains information on the number and type of documents that are required to constitute the required evidence required under the migration regulations. Do you understand the requirements of - that I've just outlined?
THE INTERPRETER: Yes
MEMBER: Okay. Do you have any questions you'd like to ask me about what I've said so far, particularly in relation to the requirements?
THE INTERPRETER: No.
MEMBER: Okay. All right. Now, if you do not provide the number and type of documents that are required in the form required by the law, the Tribunal cannot make a favourable decision. In such a case, the Tribunal must affirm the decision that is under review.
Later in the hearing, the Tribunal asked questions about other treating practitioners the applicant had consulted. The applicant confirmed that she had seen a psychologist in 2018, but she was unable to get a report from that psychologist because she could not afford the report.
At the conclusion of the hearing there was a further exchange about the information required from the applicant to support her claim of family violence:
MEMBER: …We only have five minutes left of this hearing, so I think I'll just go outline a few things. Thank you very much for coming to the Tribunal today and giving your evidence, and I can appreciate it would have been very difficult for you. The Australian Government does take family violence very seriously. It also takes claims of alleged family violence seriously in the case where there's not a court making orders. Because Mr Mackay is not party to these proceedings and is probably unaware that this claim is being made about his alleged behaviour, the Government requires certain documents to be provided to corroborate your claims.
At the start of this hearing, I outlined those requirements with you, and you said that you understood that. Prior to the adjournment of the hearing, you had told me that you had seen another psychologist, for which I have no evidence. Your representative provided and submitted a copy of a report made by Johnny Leung Sek Nin who is a clinical counsellor and mental health social worker. … I would urge you, if there are any other documents that have not been provided to the Tribunal that relate to treatment and assistance you have received in relation to your claim of having suffered family violence, please provide them to the Tribunal. Do you think there are any other documents that are relevant that you have not already provided?
THE INTERPRETER: No, no further documents because all the information I had was from my husband, and I - even not until this moment, I just haven't realised that what I have gone through, what I have suffered, can be deemed as family violence.
The Tribunal’s record of the two and a half hour hearing records that no additional documents were received during the hearing[16]. However, consistent with the members comments above, a letter from a Dr Leung, a clinical counsellor and mental health social worker, dated 5 July 2018, is stamped “received at hearing”[17].
[16] CB 256.
[17] CB 259.
The applicant was invited to provide further information by 16 May 2019.
On 16 May 2019, the representative provided the following documents to the Tribunal[18]:
1. Copy of the child’s passport
2. Copy of the child’s birth certificate
3. Copies of Centrelink payments for the child Albert
4. Medical records of Ms. Liu (part of)
5. History of land title former matrimonial home Liu and her husband
6. Incident report on recent sexual assault by roommate
[18] CB 284-285.
The email accompanying the documents also contained brief submissions in support of the visa application. The applicant’s representative claimed that the applicant had been subjected to violent conduct from her husband, that her living conditions with her son were very poor and that she had been raped in China in 2009 and again in Australia in 2019.
On the same day, the representative sent a further email to the Tribunal[19]. That email advised the Tribunal that they were in the progress of seeking further records regarding the applicant’s medical treatments in the following terms[20]:
At hearing Ms. Liu stated that she has sought medical treatments on her depression from local clinics in Box Hill since early 2018. Ms. Liu attended the clinic asking for evidence of her cash payments for consultation, medical records on 3 May 2019 and 4 May 2019, however the medical practitioners could not release her records to her.
We enclose the relevant correspondence for your kind attention. We have received some documents from the clinic. But Ms. Liu informed that the medical documents provided by the clinic have not included history of her medical treatments.
We are in the progress of seeking further evidence from the clinic as they are very vital on her current claim at review.
We seek tribunal’s permission for us to seek independent medical practitioner’s expert evidence on Ms. Liu’s medical condition after December 2017.
[19] CB 286.
[20] CB 286.
On 31 May 2019, the Tribunal invited the applicant, via her representative, to comment on or respond to adverse information on the Department’s file and requested further information[21]. Relevantly, amongst other information, that letter made a request in the following terms (emphasis added)[22]:
The Tribunal requests information about and evidence in support of any exception, other than cl.801.221(6)(c)(i), that you may be seeking to rely upon. For example, if you are claiming that you meet cl.801.221(6)(c)(ii), the Tribunal requests an up to date copy of [the applicant’s child]’s registered birth certificate and any relevant Court orders pertaining to the child.
[21] CB 293-297.
[22] CB 297.
The applicant’s representative responded to this invitation in a series of emails over the next month or so:
(1)on 14 June 2019, the representative provided two documents in relation to the applicant and sponsor’s divorce proceedings – an affidavit deposed by the applicant along with an order of this Court dated 16 May 2019 which terminated their marriage and declared that the applicant’s child was a child of their marriage. The representative also sought an extension of time to provide a further response – which the Tribunal granted.
(2)on 15 July 2019, the representative wrote to the Tribunal with further information and submissions, including information about the applicant’s divorce proceedings, the applicant’s movement records, and her statements as to the parentage of her child. The submissions annexed numerous documents.
(3)on 17 July 2019, the representative provided further submissions and records of communications between the applicant and the sponsor, and medical records in relation to the applicant’s abortion in China; and
(4)on 19 July 2019, the representative provided three translations for three documents which they provided to the Tribunal.
Tribunal’s decision
On 29 January 2020, the Tribunal affirmed the decision not to grant the applicant the visa. The applicant was notified of the refusal the following day[23].
[23] CB 395-410.
In her outline of submissions the applicant summarised the Tribunal’s decision as follows (which the Minister accepted as accurate):
27. On 30 January 2020, the Tribunal notified the Applicant it had affirmed the delegate’s decision. The Tribunal was satisfied that the Applicant and the sponsor were in a partner relationship, which had ceased. The Tribunal identified that the issue before it was whether the Applicant had suffered family violence committed by the sponsor.
28. The Tribunal noted that, in support of her claim of non-judicially determined family violence, the Applicant submitted her statutory declaration, a statutory declaration from Mr Efremidis, and two letters from Mr Leung.
29. The Tribunal found that:
a. The Applicant’s statutory declaration met the requirements of reg 1.25.
b. Mr Efremidis’ statutory declaration did not meet the requirements of IMMI 12/116 (and therefore did not satisfy reg 1.24) because it did not clearly state that he holds the opinion that the Applicant was subject to family violence by the sponsor or the reasons for holding that opinion, and because the evidence did not indicate he had ‘treated’ the Applicant.
c. Mr Leung’s evidence did not meet the requirements of the IMMI 12/116 or reg 1.24 because his letters were not statutory declarations, and did not clearly state his opinion that the Applicant was subject to family violence by the sponsor or clearly detail reasons for holding such an opinion.
30. Accordingly, the Tribunal found a claim of non-judicially determined family violence had not been made, the Applicant did not meet the requirements of cl 802.221(6)(c) for the grant of the visa, and so it was required to affirm the decision under review.
JUDICIAL REVIEW
The applicant’s amended application filed on 24 February 2025, advanced two grounds of judicial review as follows:
1. The Second Respondent (the Tribunal) acted unreasonably in failing to put to the Applicant that the Tribunal considered evidence provided by the Applicant did not comply with the Migration Regulations 1994 (the regulations).
Particulars
a. The Applicant made a claim of non-judicially determined family violence.
b. Regulation 1.24 set out the kinds of evidence required to make out a valid claim of non-judicially determined family violence, being a statutory declaration under reg 1.25 and the type and number of items of evidence specified by the Minister by instrument in writing. The relevant ministerial instrument was IMMI 12/116.
c. In support of her claim of non-judicially determined family violence, the Applicant provided the Tribunal a statutory declaration from a psychologist and two letters from a social worker.
d. The Tribunal found in its decision that the three items of evidence referred to in paragraph (1)(c) did not satisfy the requirements of reg 1.24, which was the dispositive issue in the Tribunal's review of the Applicant's case.
e. The Tribunal did not put to the Applicant that it considered the supplied evidence was non-compliant with the regulations.
f. The Tribunal's failure to put the dispositive issue to the Applicant was legally unreasonable. This error is of the same kind as that which was identified in Chu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 83 at [79].
2. The Tribunal constructively failed to exercise its jurisdiction in failing to afford procedural fairness by denying the Applicant a proper hearing as required by s 360 of the Migration Act 1958 (the Act).
Particulars
a. The Tribunal was required to 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 (s 360 of the Act).
b. One of the issues arising in relation to the decision under review was that the Applicant had provided evidence that was defective in the sense that it did not comply with the requirements in reg l .24(b) and IMMI 12/116.
c. The Tribunal did not inform the Applicant that it considered the evidence to be noncompliant with the regulations before making an adverse finding on that basis, which was dispositive of the review. This deprived the Applicant of an opportunity to understand the issue arising in her case and respond to it.
d. The Tribunal failed to offer the Applicant a meaningful opportunity to present her case pursuant to s 360 of the Act and so failed to provide procedural fairness. This error is of the same kind as that which was identified in Chu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 83 at [90].
The applicant and Minister’s representatives each filed an outline of submissions, and the Minister filed a Court Book, in accordance with Court orders. The applicant also filed a reply, after having the benefit of considering the Minister’s outline of submissions.
I heard the application for judicial review on 28 April 2025. Mr Mutton of counsel appeared on behalf of the applicant and Ms McInnes of counsel appeared for the Minister.
SUBMISSIONS
The applicant
Section 360 of the Act provides as follows:
360 Tribunal 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.
The two grounds of review advanced by the applicant, being unreasonableness or alternatively a failure to comply with s 360 of the Act, are interrelated and both arise out of the manner in which the Tribunal conducted its review.
The essence of the applicant’s argument is that the Tribunal failed to put the applicant on notice of a dispositive issue, namely that the evidence she provided in support of her claim of family violence did not comply with the statutory requirements and was therefore procedurally invalid. The failure to give the applicant a real and meaningful opportunity to address the shortcomings in her evidence is said to be a failure by the Tribunal to comply with s 360 and thus legally unreasonable.
The two alleged errors are said to be of the same kind as those identified in Chu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 83 (Chu) at [79] and [90] respectively.
In Chu, as in the present case, the applicant claimed that her sponsor perpetrated family violence against her and submitted evidence including her own statutory declaration, a report from a psychologist and a report from an accredited social worker. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor and gave no consideration to the family violence claim. On review, the Tribunal was satisfied the applicant had been in a genuine relationship with her sponsor, but found, again as here, that the reports of the psychologist and social worker did not meet the evidentiary requirements prescribed in the regulations and so the applicant had not made a valid claim of family violence. On this basis, the Tribunal affirmed the decision under review.
On judicial review, her Honour Judge Kirton found that the Tribunal had acted unreasonably by failing to put the applicant squarely on notice of the dispositive issue thereby not affording her an opportunity to provide further evidence or address it. Judge Kirton found that despite the applicant being represented at the hearing, the failure of the Tribunal was legally unreasonable having regard to the procedural fairness requirements in the Act and the purpose of the Tribunal in conducting its merits review. Her Honour stated that it was unreasonable to have made the decision without ensuring the applicant understood what the dispositive issue is and providing a meaningful opportunity for the applicant to make submissions in relation to them.
I now turn to the grounds advanced by the applicant.
Ground 1
First, by ground 1, the applicant contends that the Tribunal acted unreasonably in failing to inform her that it considered evidence she provided in support of her claim of non-judicially determined family violence did not comply with the regulations. The applicant contends that legal unreasonableness arose in the manner that the Tribunal conducted itself on the review, in particular in communications to the applicant in the letter of 31 May 2019, and at the Tribunal hearing.
The applicant contends that legal unreasonableness is fact dependent and can arise in a wide range of circumstances and can be made out on a number of bases[24].
[24] see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 per Allsop CJ.
Whilst conceding that there may not be any legal obligation to inform an applicant of non-compliance of evidence, the applicant says that the Tribunal, acting reasonably, should have informed the applicant that the evidence she provided in support of the claim was deficient. The applicant contends that here the Tribunal gave the impression that the supplied evidence was sufficient and thus led the applicant to believe that no further evidence was required.
The Tribunal hearing on 2 May 2019
The applicant says that the explanation given to her of what was required to meet the legislative requirements for a valid claim of family violence at the Tribunal hearing was very general. It is submitted that the applicant’s acknowledgement of the explanation cannot be taken as a thorough understanding of the technical requirements required to be met, in circumstances where she was participating in the hearing through an interpreter.
The applicant says that the Tribunal told her during the hearing that it would consider the evidence before it, write to her representative to seek the applicant’s comment in relation to any adverse information, and otherwise, either make a decision or request further information. The applicant says it was incumbent from that representation for the Tribunal, acting in a reasonable manner, to have put her on notice about any deficiencies in her evidence in relation to what would be a dispositive issue. In essence, she submits that that obligation arose from the Tribunal’s indication to the applicant that she would have the opportunity to respond to adverse matters or provide further evidence, if it was required.
The Tribunal’s letter of 31 May 2019
The applicant further contends that the Tribunal’s letter of 31 May 2019, which expressly did not seek further information in relation to the family violence claim, created the impression that the evidence which had been provided was sufficient to meet the relevant requirement and that nothing else was necessary. The applicant contends that by creating that false impression, the Tribunal conducted itself unreasonably.
The applicant is critical of the Tribunal’s letter of 31 May 2019 for conveying an impression that the issue on which the review turned was whether she was in a “married relationship”.
Importantly, in written submissions, the applicant submits that the conduct of the Tribunal caused or significantly contributed to the applicant and her representative’s misunderstanding of what further evidence was needed. The applicant submits that it can also be inferred, given the significant further submissions and evidence submitted by the applicant in response to issues raised by the Tribunal, that the applicant would have sought to address defects with the supplied evidence, had she been made aware of them.
Ground 2
By ground 2 the applicant contends that the Tribunal constructively failed to exercise its jurisdiction by denying the Applicant a proper hearing as required by s 360 of the Act.
The applicant submits that one of the “issues” arising in relation to the decision under review was whether the supplied evidence complied with the regulations. As such, the applicant contends that s 360 imposed a statutory duty on the Tribunal to invite her to give evidence and present arguments in relation to that issue. Relying on Chu, the applicant submits that by not extending that opportunity to her, the Tribunal denied her procedural fairness and fell into jurisdictional error.
The Minister
The Minister’s written and oral submissions addressed the two interrelated grounds in reverse order, as counsel submitted that the statutory context, to which s 360 of the Act (ground 2) is central, must be the context in which to determine the question of unreasonableness (ground 1).
Response to ground 2
The Minister submits, and I agree, that the decision in Chu is inconsistent with Federal Court authority and was incorrectly decided.
It is submitted that the decision of Siopsis J in Minister for Immigration and Citizenship v [2008] FCA 320 (Pham) is a complete answer to ground 2. The Minister submits that the finding of unreasonableness made at [88] of Chu, could not have been made if the Court had followed Pham.
In Pham, a Vietnamese citizen, arrived in Australia on a temporary visa in December 1997 and applied for a spouse visa in March 1998 after marrying an Australian citizen. The sponsor withdrew support for the visa in 2000, stating the relationship had ended. The applicant, Ms Pham then sought to rely on a non-judicially determined claim of domestic violence under what was then Division 1.5 of the Migration Regulations 1994 (Cth), submitting statutory declarations from herself, a psychologist and a welfare worker. The Minister’s delegate refused the visa, citing a lack of a genuine spousal relationship and did not consider the domestic violence claim. The Migration Review Tribunal affirmed the refusal, finding both the relationship and the domestic violence claim unsupported—specifically, that statutory declaration of the welfare worker did not meet regulatory requirements.
In Pham Siopsis J was required to consider the very argument raised by the applicant in this case, namely whether the Tribunal had acted in contravention of s 360 by not identifying a deficiency in the form of evidence as “an issue” in relation to the decision to refuse the visa. In that case the visa applicant argued that the Tribunal had not advised her either before, at, or after the hearing, that the statutory declaration of the welfare worker was inadequate to meet the evidentiary requirements of the regulations. There, as here, the applicant argued that if the Tribunal was going to rely on deficiencies in the evidence, the Tribunal should have informed her to that effect and invited her to remedy the defects.
The visa applicant in Pham sought to rely on the (then recent) High Court decision in SZBEL Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), in particular the Court’s observations at 163 that:
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”.
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.
However, Siopsis J found that the facts in SZBEL were distinguishable and that properly understood the obligation on the Tribunal to raise issues with an applicant only extends to those “which are not apparent from the nature or terms of the statute” under which the decision is made; the Tribunal is only required to advise of any adverse conclusion “which would not obviously be open on the known material”[25].
[25] SZBEL at 160 approving the observations of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
The Minister submits that the decision in Pham clearly articulated the scope of the Tribunal’s natural justice obligations under s 360 of the Act and that Chu reflects a misconstruction of the statutory context as explained in Pham. It appears that the Court in Chu was either not aware of or was not taken to the decision in Pham.
In the present case, the Minister submits that the applicant must self-evidently be taken to have been on notice of the dispositive issue and to have been afforded procedural fairness. It was the applicant who sought to raise and press the family violence exception in relation to her review application. The regulations and the ministerial instrument expressly set out what is required for such an exception to be considered. It was for the applicant and her legal representative to present a valid claim to the Tribunal and to meet the statutory requirements of the claim. It is not a precondition to the valid exercise of the Tribunal’s jurisdiction for the Tribunal to put the applicant on notice of a determinative issue which she herself has raised for consideration.
Response to ground 1
In response to the applicant’s contention of unreasonableness by the Tribunal, the Minister says the bar for unreasonableness is set high. Just because the Tribunal “could have” drawn the applicant’s attention to deficiencies in her evidence provided in support of the family violence claim, it does not follow that was unreasonable not to do so. To establish unreasonableness, the Minister submits that the applicant would need to demonstrate that there was no intelligible rationale or justification for the Tribunal’s failure to inform her of the deficiencies in her evidence.
The Minister submits that the Tribunal’s representation to draw “adverse information” to the applicant’s attention for further comment, cannot reasonably be construed as a representation to inform her of evidentiary deficiencies in her claim. In all the circumstances of the case, the Minister submits that it was a matter for the applicant, not the Tribunal, to ensure that the evidence was compliant.
CONSIDERATION
Whether a failure to exercise a power is unreasonable is assessed by reference to the purpose of the power. That which is reasonable is informed by the subject matter, scope, and purpose of the legislation under which it is conferred[26]. The procedural fairness obligations set out in s 360 of the Act are central to that statutory context.
[26] e.g. BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71].
In circumstances such as the present, the scope of the Tribunal’s obligation under s 360 was examined and dealt with in Pham, a decision I am bound to follow.
Section 360 of the Act requires the Tribunal to identify the ‘issues’ arising on the review to the applicant in order to provide the applicant with a real and meaningful hearing[27]. However, in Pham, the court held that s 360 of the Act did not require the Tribunal to inform the applicant of the deficiencies in her evidence as an ‘issue’ arising in the review. This is because the nature of the applicant’s claim and the relevant statutory requirements for the claim dictated that it was an issue before the Tribunal. It should come as no surprise to an applicant who seeks to prosecute a claim of family violence that an issue before the decision-maker would be whether the evidence on which he relies complied with the regulations[28].
[27] SZBEL at 163.
[28] Pham at [52] citing Commissioner for Australian Capital Territory Review v Alphaone Pty Ltd (1994) 49 FCR 576.
In Pham, Siopis J found that it was “apparent” from the terms of the Regulations themselves that an issue before the decision-maker would be whether the evidence relied on in support of the claim complied with the Regulations. His Honour concluded that there was no requirement on the Tribunal to provide an advisory opinion on the evidence prior to the hearing or to advise the applicant of the deficiencies in the evidence during the hearing or afterwards. It is for the applicant to make his or her case[29].
[29] Abebe v Commonwealth (1999) 197 CLR 510 at 576.
Pham compels a conclusion that the Tribunal is not required to point out what evidence is required to meet the family violence provisions or to disclose its thought processes in advance of its decision as to why or whether the evidence provided is deficient. I agree with the Minister that it is not for the Tribunal to point the applicant in the “right direction”[30].
[30] Ghansham v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2023] FedCFamC2G 633 at [156]-[158] per Judge Riley.
In any event, the transcript of the Tribunal hearing makes plain that the applicant and her representative were on notice that an issue arising on the review was whether the supplied statutory declarations met the requirements prescribed in the regulations. The Tribunal member informed the applicant that she was required to provide the number and type of documents specified in the ministerial instrument and informed her of the consequences of not doing so. The requirement to provide statutory declarations that complied with the ministerial instrument is readily apparent from the nature of the applicants claim in the terms of the Regulations that she sought to satisfy, which the legally represented applicant confirmed she understood.
In this case, counsel for the applicant urged the Court to find that the manner in which the Tribunal conducted its hearing and review caused her to believe that either her evidence was sufficient or that there was no longer an issue of whether her evidence met the statutory requirements. The applicant asserts a misunderstanding arose from the Tribunal’s letter of 31 May 2019 which the Tribunal unreasonably failed to correct before proceeding to make a decision on the review.
While there is no obligation under s 360 for the Tribunal to point the applicant in the ‘right direction’, I accept that unreasonableness could arise if the Tribunal pointed the applicant in the wrong direction. But that is not the case here. While I accept some ambiguity in the Tribunal’s correspondence of 31 May 2019, I do not accept that it unreasonably led the applicant and her representative to conclude that the issue is no longer live.
It is one thing to submit that the conduct of the Tribunal at its hearing and/or in its correspondence was capable of being misunderstood by a self-represented, non-English speaking applicant who has little familiarity with the migration system. It is quite another step to assert that an experienced and legally qualified migration representative would also have been misled. It must be assumed that the representative had sufficient familiarity with the requirements of the nonjudicially determined family violence exception to have advised the applicant about it and assist her with the prosecution of the claim. Indeed, it appears that the representative organised for the applicant to be assessed by the psychologist, Mr Efremidis shortly before the hearing for the purpose of supporting the claim. The Tribunal, acting reasonably, would expect a representative to have sufficient familiarity with the legislative requirements to be able to point the client in the ‘right direction’.
Although the legislative scheme for the making of a family violence claim is legally complex, it does lay out the circumstances in which a claim may be advanced and the nature of the evidence which must be produced to support it. The applicant’s representative should well know what was required and would be expected to exercise caution before acting on an impression taken from Tribunal correspondence. It is for the applicant to put on her evidence, and it is not for the Tribunal to correct it.
If there was a misunderstanding by the applicant which caused the applicant to believe that evidentiary compliance with the family violence claim was no longer in issue, that misunderstanding was not the product of jurisdictional error on the part of the Tribunal. While it may have been helpful to the applicant for the Tribunal to have identified deficiencies in her evidence before proceeding to make a decision, s 360 did not require the Tribunal to do so and the Tribunal did not unreasonably fail to do so.
In my view, the applicant was afforded an opportunity to press her claim, and she was given a proper hearing. There was no further obligation on the Tribunal to assist the applicant to understand the issues arising or to provide guidance or a running commentary as to whether she was meeting the compliance requirements. She was not deprived a real and meaningful opportunity to give evidence and present arguments.
The applicant has failed to make out any jurisdictional error.
DISPOSITION
For the reasons set out above, the application for judicial review of the Tribunal’s decision must be dismissed.
I will hear that parties on the question of costs.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 5 September 2025
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