Manga v Minister for Immigration
[2015] FCCA 501
•18 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANGA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 501 |
| Catchwords: MIGRATION – Judicial review – whether spouse or de facto partner of sponsor – whether relationship ceased in specified circumstances – whether member of family unit suffered family violence by sponsoring partner – whether refusal to grant a further adjournment to provide a statutory declaration from a psychologist as to family violence was an unreasonable exercise of discretion – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 363(1)(b), 425, 427(1)(b) Migration Regulations 1994, regs.1.21(1)(a)(ii), 1.23, 1.24, Sch.2 |
| Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314 NBMB & Anor v Minister for Immigration and Citizenship & Anor (2008) 100 ALD 118 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 |
| Applicant: | MAAN SINGH MANGA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 433 of 2014 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 1 December 2014 |
| Date of Last Submission: | 1 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 18 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowen |
| Solicitors for the Applicant: | Vernon Da Gama & Associates |
| Solicitors for the Respondents: | Mr D. Brown of Australian Government Solicitor |
ORDERS
The application for judicial review filed 12 March 2014 and amended application filed 5 November 2014 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 433 of 2014
| MAAN SINGH MANGA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 21 February 2014 (Court Book “CB” p.217). That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant applied for a visa 8 December 2011, on the basis of his relationship with his sponsor. At the time that the application was lodged, Class UK contained Part 820. The criteria for the grant of a visa were set out in subclass 820 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). Regulation 820.211 was required to be satisfied at the time of application, and reg.820.221 was required to be satisfied at the time of the decision.
At the time of application , reg.820.211 provided as follows:
(1)The applicant:
(a)is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
(2)An applicant meets the requirements of this subclause if:
(a)the applicant is the spouse or de facto partner of a person who:
(i)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii)is not prohibited by subclause (2B) from being a sponsoring partner; and
(c)the applicant is sponsored:
(i)if the applicant’s spouse or de facto partner has turned 18 — by the spouse or de facto partner; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
A. has turned 18; and
B. is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)in the case of an applicant who is not the holder of a substantive visa — either:
(i)the applicant:
A. entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
B. satisfies Schedule 3 criterion 3002; or
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(2A)An applicant meets the requirements of this subclause if:
(e)the applicant is:
(i)a SOFA member; or
(ii)a SOFA forces civilian component member; or
(f)the applicant:
(i)is a dependent child of a person referred to in paragraph (a); and
(ii)holds a valid national passport and certificate that he or she is a dependant of a SOFA forces member or a SOFA forces civilian component member, as the case requires.
(2B)The spouse or de facto partner of the applicant is prohibited from being a sponsoring partner if:
(g)the spouse or de facto partner is a woman who was granted a woman‑at‑risk visa within the 5 years immediately preceding the application; and
(h)on the date of grant of that visa:
(i)the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or
(ii)the applicant was the spouse or de facto partner of that woman, and that relationship had not been declared to Immigration.
(3)An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b)the applicant last entered Australia before 19 December 1989; and
(c)at the time the applicant entered Australia, he or she was engaged to be married to an Australian citizen or an Australian permanent resident; and
(d)the applicant has married that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(e)the applicant is the spouse of the sponsoring partner; and
(f)the applicant is sponsored:
(i)if the applicant’s spouse has turned 18 — by the spouse; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
A. has turned 18; and
B. is an Australian citizen, an Australian permanent
(4)An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b)the applicant last entered Australia on or after 19 December 1989 as the holder of a Subclass 300 (Prospective Marriage (Temporary)) visa that authorised a stay in Australia of 3 months; and
(c)the applicant has married the Australian citizen, Australian permanent resident or eligible New Zealand citizen whom the applicant entered Australia to marry; and
(d)the applicant ceased to hold a substantive visa before marrying that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(e)the applicant is the spouse of the sponsoring partner; and
(f)the applicant is sponsored:
(i)if the applicant’s spouse has turned 18 — by the spouse; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
A. has turned 18; and
B. is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
(5)An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b)the applicant last entered Australia on or after 19 December 1989 as the holder of a prospective marriage (temporary) visa; and
(c)the applicant has married the Australian citizen, Australian permanent resident or eligible New Zealand citizen whom the applicant entered Australia to marry; and
(d)the applicant ceased to hold a substantive visa after marrying that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(e)the applicant is the spouse of the sponsoring partner; and
(f)the applicant is sponsored:
(i)if the applicant’s spouse has turned 18 — by the spouse; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
A. has turned 18; and
B. is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
(6)An applicant meets the requirements of this subclause if the applicant:
(a)is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b)has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c)the applicant is sponsored:
(i)if the applicant’s spouse has turned 18 — by the spouse; or
(ii)if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
A. has turned 18; and
B. is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d)continues to be the spouse of the sponsoring partner.
(7)An applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b)the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c)the sponsoring partner has died; and
(d)the applicant satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died; and
(e)the applicant has developed close business, cultural or personal ties in Australia.
(8)An applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b)the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(c)the relationship between the applicant and the sponsoring partner has ceased; and
(d)any 1 or more of the following:
(i)the applicant;
(ii)a member of the family unit of the applicant who has made a combined application with the applicant;
(iii)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner.
(9)An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b)the applicant has been the holder of a Subclass 300 (Prospective Marriage) visa; and
(c)while that visa was valid, the applicant married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and
(d)the relationship between the applicant and the sponsoring partner has ceased; and
(e)any 1 or more of the following:
(i)the applicant;
(ii)a member of the family unit of the applicant who has made a combined application with the applicant;
(f)a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner.
Note For special provisions relating to family violence, see Division 1.5.
At the time of the decision reg.820.221 provided as follows:
(1)In the case of an applicant referred to in subclause 820.211 (2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b)meets the requirements of subclause (2) or (3).
(2)An applicant meets the requirements of this subclause if the applicant:
(a)would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the sponsoring partner has died; and
(b)satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c)has developed close business, cultural or personal ties in Australia.
(3)An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b)either or both of the following circumstances applies:
(i)either or both of the following:
A. the applicant;
B. a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii)the applicant:
A. has custody or joint custody of, or access to; or
B. has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
C. has been granted joint custody or access by a court; or
D. has a residence order or contact order made under the Family Law Act 1975; or
E. has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note For special provisions relating to family violence, see Division 1.5.
(4)The sponsorship mentioned in paragraph 820.211 (2) (c), (3) (f), (4) (f), (5) (f) or (6) (c) has been approved by the Minister and is still in force.
As can be seen reg.820.211(2) required that the applicant be the spouse or de facto partner of the sponsor, unless the relationship has ceased and specified circumstances exist. Those circumstances include that the applicant or a member of the family unit has suffered family violence committed by the sponsoring partner [reg.820.211(8) and (9)]. Regulation 820.221 contains similar provisions [reg.820.221(3)(a) and (b)(i)].
The applicant claims that the relationship had ceased but that there had been family violence. The Tribunal found that the applicant and sponsor had been in a de facto relationship which had ceased to exist (CB p.219.5). The issue before the Tribunal was whether the applicant suffered family violence committed by the sponsor.
The Court refers to the Tribunal’s decision as follows:
(13)Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21… The tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).
(14)In the present case the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.
Has a claim of family violence been made under the regulations?
(15)Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.
(16)The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes IMMI 12/116.
(17)A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
(18)At the conclusion of the hearing on 23 January 2014 the tribunal granted the applicant 22 days to provide further evidence in support of his application including evidence required by the regulations to make a non-judicially determined claim of family violence.
(19)On 14 February 2014 the tribunal received a letter from the applicant’s representative enclosing a statutory declaration from the applicant dated 14 February 2014 outlining the inception and then deterioration of his relationship with the sponsor in compliance with r.1.25, a Medical Certificate from Dr Deepa Nappally dated 1 February 2014 noting the applicant has attended a clinic and has been referred to a psychologist, a copy of a Better Access Mental Health Care Plan for the applicant dated 1 February 2014, and a letter from Randolph Monteiro, Psychologist/Clinical Counsellor stating the applicant has attended two counselling sessions and further psychotherapy and assessments are required to make a proper diagnosis and a detailed report will be completed in a couple of months. The applicant’s representative’s letter requested a further 12 weeks so the psychologist can make a total assessment in regards to the applicant’s stress and anxiety and depression and produce a full report.
(20)The tribunal has considered the applicant’s request for a further 12 weeks to provide a full psychologist’s report. The tribunal notes that in its invitation to appear before the tribunal dated 29 November 2013, the tribunal requested any additional documents or information that the applicant may wish to rely on during the hearing be provided to the tribunal by 16 January 2014. At the hearing on 23 January 2014 the tribunal granted the applicant a further 22 days to provide any further evidence, in particular the evidence required by the regulations to make a non-judicially determined claim of family violence. On 19 February 2014 the tribunal notified the applicant’s representative by facsimile that it would not grant the applicant a further 12 weeks to provide a psychologist’s report. The tribunal noted that the regulations in relation to non-judicially determined claims of family violence do not require a psychologist’s report, and in the circumstances of the matter the tribunal is not prepared to grant the request for further time and would proceed to make a decision on the evidence before it. The tribunal finds the applicant has been given a reasonable amount of time in order to provide the evidence required to make a non-judicially determined claim of family violence under r.1.23 and has failed to do so.
The granting of an adjournment is at the discretion of the Tribunal: see s.427(1)(b) of the Migration Act 1958 (the “Act).
The power in s.363(1)(b) of the Act is couched in permissive and not mandatory terms. In NBMB & Anor v Minister for Immigration and Citizenship & Anor (2008) 100 ALD 118, Flick J observed at [14] that:
“The tribunal unquestionably has a discretionary power to adjourn proceedings… Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick”. Procedural decisions of tribunals… should not be lightly disturbed.”
Flick J went on to say at [22]:
“The opportunity was extended to the appellants to “give evidence and present arguments relating to the issues arising in relation to the decision under review” within the meaning of s 425(1). That section confers upon an applicant an opportunity to “appear before the tribunal to give evidence and present arguments”; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence of a witness is in fact available. So long as an applicant has been given a meaningful opportunity to “give evidence and present arguments”, even if it is not the particular evidence which an applicant may prefer, there has been no breach of s 425.”
The Court finds that the decision in NBMB should be applied to s.427(1)(b).
The Tribunal found that “while the applicant has provided a statutory declaration in accordance with r.1.25, the applicant has not provided evidence of a type and number specified by the Minister for these purposes IMMI 12/116.” (CB p.220 [21]).
The Tribunal found that “the evidence presented does not meet the requirements of r.1.24. As such, a non-judicially determined claim of family violence has not been made under r.1.23”(CB p.220.9).
The Tribunal then concluded that the relationship between the applicant and sponsor had ceased, and at the time of the decision the applicant was not the de facto partner of the sponsor as defined by s.5CB of the Migration Act 1958 (the “Act”) and therefore does not satisfy the requirements of cl.820.221(1) (CB p.220.10). As the applicant has not provided evidence that the sponsor has died, the Tribunal found that the applicant does not satisfy cl.820.221(2) (CB p.221.1).
The Tribunal concluded:
(23)As the tribunal has found that the relationship between the applicant and sponsor had ceased, the tribunal finds at the time of decision the applicant is not the de facto partner of the sponsor as defined by s.5CB and therefore does not satisfy the requirements of cl.820.221(1), and as the applicant has not provided any evidence that the sponsor has died, the tribunal finds the applicant does not satisfy cl.820.221(2).
(24)The application [sic ‘applicant’] has provided a copy of an Intervention Order made against him in relation to family violence perpetrated against the sponsor. The applicant has not provided any evidence that a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the applicant from violence, or that a court has convicted or recorded a finding of guilt against the alleged perpetrator of an offence of violence against the applicant, and as the visa application does not include a non-judicially determined claim of family violence the tribunal finds the applicant does not satisfy cl.820.221(3)(b)(i).
(25)As the applicant has not provided any evidence or made any claim that he has custody or joint custody of, or access to, or a residence order or contact order made under the Family Law Act 1975 relating to, a child in respect of whom the sponsor has been granted joint custody or access by a court or a residence order or contact order made under the Family Law Act 1975, or has an obligation under a child maintenance order under the Family Law Act 1975 or any other formal maintenance obligation, the tribunal finds the applicant does not satisfy cl.820.221(3)(b)(ii) and therefore does not satisfy cl.820.221(3).
(26)Given the above, the tribunal finds the applicant does not meet the requirements of cl.820.221 for the grant of the visa. As the applicant does not meet an essential criterion for the visa, the tribunal must affirm the decision under review.
DECISION
(27)The tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa
The applicant’s ground for judicial review is set out in his amended application filed on 2 November 2014 as follows:
(1)The Migration Review Tribunal exercised its discretion under section 363(1)(b) of the Migration Act 1958 unreasonably such as to constitute a jurisdictional error.
At the hearing before the Court on 1 December 2014, Ms Bowen of Counsel appeared for the applicant and Mr Brown appeared for the first respondent.
Submissions for the Applicant
Ms Bowen referred to the Transcript of the hearing before the Tribunal, which is Annexure ‘JDB-1’ to the Affidavit of John David Brown affirmed 26 November 2014. Ms Bowen noted that the Tribunal had allowed a further 22 day adjournment in order for the applicant to put further evidence in support of his claim of family violence (CB p.220 [18]).
Ms Bowen referred to the letter from the applicant’s migration agent to the Tribunal on 14 February 2014 requesting 12 weeks to produce a full report from a psychologist in regards to the applicant (CB p.212). The response from the Tribunal stated that “…the regulations in relation to non-judicially determined claims of family violence do not require full reports from psychologists”, and that the Tribunal was “not prepared to grant your request for further time.” (CB p.214).
The Tribunals reasons for that refusal are set out on CB p.220[20] (supra).
Ms Bowen asserts that the Tribunal fell into jurisdictional error by unreasonably refusing the request for the further adjournment.
Ms Bowen referred to para.13 of the applicant’s Outline of Submissions filed 5 November 2014 and to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] to [65] as follows:
“63. Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably[1].
64. A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of "Wednesbury unreasonableness" in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[2]. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[3], McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield[4]. In Re Refugee Review Tribunal; Ex parte Aala[5], Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development.
65. In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be "exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself"[6]. It is pointed out in Wade and Forsyth[7] that the legal conception of discretion dates from at least the 16th century. In Sharp v Wakefield[8], Lord Halsbury LC had referred to Rooke's Case[9] of 1598, in which it was stated that the discretion of commissioners of sewers "ought to be limited and bound with the rule of reason and law". “
[1] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36; [1990] HCA 21; Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 [126]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [15]; [2009] HCA 39; 259 ALR 429 at 433; [2009] HCA 39.
[2] [1947] EWCA Civ 1; [1948] 1 KB 223.
[4] [1891] AC 173.
[5] [2000] HCA 57; (2000) 204 CLR 82 at 100-101 [40], referring to Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36.
[6] Sharp v Wakefield [1891] AC 173 at 179.
[7] Wade and Forsyth, Administrative Law, 10th ed (2009) at 293-294.
[8] [1891] AC 173 at 179.
[9] [1572] EngR 141; (1598) 5 Co Rep 99b at 100a [77 ER 209 at 210].
The Court refers also to [66] as follows:
“66. This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness[10]. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power[11]. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.”
[10] Wade and Forsyth, Administrative Law, 10th ed (2009) at 302.
[11] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36-37.
Ms Bowen asserts that the psychologist report is an acceptable form of evidence for the purposes of satisfying reg.1.24 (Outline of Submissions [18]). Ms Bowen complains that the Tribunal did not consider whether the psychologists report would support the applicant’s claim (Outline of Submissions [20]).
Ms Bowen submits that the evidence required to satisfy the Tribunal is set out in reg.1.24 of the Regulations.
Ms Bowen submits that reg.1.24 also required the applicant to submit two statutory declarations from competent persons [as defined in reg.1.21(1)(a)(ii)].
Ms Bowen asserts that the two consultations with the psychologist on
1 and 11 February were “not adequate for a professional person to finalise an informed view about whether in fact the applicant has suffered family violence and prepare a statutory declaration.” The Court totally rejected that contention during the hearing (Transcript “T” p.9, l.17), on the basis that Ms Bowen is not a psychologist and was not qualified to give that expert opinion. That contention was withdrawn (T p.9, l.29).
Ms Bowen asked the Court to bear in mind that the reason the delegate refused the visa was the non-satisfaction that the applicant had been in a defacto relationship for 12 months prior to the date of application. The Court is aware of that. The Tribunal stated that the issue before it was whether the applicant has suffered family violence committed by the sponsor (CB p.219 [12]).
Ms Bowen submits that the Tribunal gave little weight to the applicant’s need to present further evidence (T p.10, l.32).
Ms Bowen submits that the applicant was not afforded a reasonable amount of time to produce evidence in support of his application
(T p.13, l.4).
Ms Bowen submits that the Tribunal fell into jurisdictional error by failing to given sufficient weight to the applicant’s need to present further evidence.
Submissions for the First Respondent
Mr Brown submits that the delegates decision was based on the finding that the de facto relationship was not in existence 12 months prior to the visa application being lodged (CB p.128.2).
Mr Brown submits that at the time of the Tribunal hearing on
(23 January 2014) the applicant had not made a claim of “non-judicially claimed family violence” as the requirements of the Regulations had not been met by providing the prescribed statutory declarations (T p.14, l.42). The Court accepts that submission.
Regulation 1.23(9) has effect that if an applicant “seeks to satisfy a prescribed criterion” and other factors exist, “an application for a visa is taken to include a non-judicially determined claim of family violence if (c) “the alleged victim has presented evidence in accordance with reg.1.24” That had not been done here. Mr Brown referred to [6] and [7] of the first respondent’s Contentions of Fact and Law filed 26 November 2014 in support of his contention.
Mr Brown submits that the applicant’s migration agent was satisfied with 3 weeks to provide the required information (Annexure ‘JDB-1’ p.12, l.39, p.47, l.17-31, and p.48, l.5-9).
Mr Brown submits that in the application for an extension of 12 weeks (CB pp.211 and 212) there was no reference to the time being needed to produce a statutory declaration from a psychologist. That is correct; that was the time need to produce a ‘letter’.
Mr Brown submits that at the end of the 22 days, the only statutory declaration that had been provided was by the applicant, and there were no statutory declarations from competent persons. That also is correct.
Mr Brown submits that the circumstances are quite different from those in Li (supra) where the issue was whether Trades Recognition Australia (“TRA”) had made an error in its assessment, and if so the applicant would be entitled to a visa. In Li, the Tribunal decided not to wait; the High Court found that to be unreasonable.
Here, there was not an application based on non-judicially determined family violence, and the Tribunal’s decision [at [20] (supra)] sets out the circumstances leading to the refusal of the additional 12 weeks to provide a psychologists report. As decided in Li (supra) at [66]:
“This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness[12]”.
[12] Wade and Forsyth, Administrative Law, 10th ed (2009) at 302.
The Court referred the parties to the decision by Justice Flick in NBMB & Anor v Minister for Immigration and Citizenship & Anor (2008) 100 ALD 118, and to the following passages therein:
At [14]:
“The tribunal unquestionably has a discretionary power to adjourn proceedings… Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick”. Procedural decisions of tribunals… should not be lightly disturbed.”
And at [22]:
“The opportunity was extended to the appellants to “give evidence and present arguments relating to the issues arising in relation to the decision under review” within the meaning of s 425(1). That section confers upon an applicant an opportunity to “appear before the tribunal to give evidence and present arguments”; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence of a witness is in fact available. So long as an applicant has been given a meaningful opportunity to “give evidence and present arguments”, even if it is not the particular evidence which an applicant may prefer, there has been no breach of s 425.”
The Court does not find anything done by the Tribunal to be unreasonable with the decisions in Li and NBMB (above).
Submissions in Reply
Ms Bowen submits that a 12 week adjournment would have been reasonable.
Findings
The Court finds that the circumstances in Li are distinguishable. There, it was apparent that TRA had made an error and that a favourable assessment would be forthcoming, which would entitle the applicant to a visa. Here, only one statutory declaration had been supplied, notwithstanding an extension of 22 days. There was no indication that the psychologists report would be about family violence.
The circumstances here fit comfortably within the situation described in NBMB at [22] (supra). That decision concerned s.425 of the Act, but the Court finds the decision of useful guidance here.
The Court finds that the Tribunal was not required to consider whether the report by the psychologist would support the applicant’s claim, and a failure to do so does not show jurisdictional error.
The Court refers to the following decisions:
·Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24.
·Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J.
·Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8.
·Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68].
·MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314 at [13]-[15] per Middleton J.
The Court rejects the applicant’s contention that the applicant was not given a reasonable amount of time to present evidence. Paragraph 20 of the Tribunal’s decision (supra) sets out that notice was given to the applicant on 29 November 2013 that the Tribunal could not make a decision on the information before it (CB p.145); and the applicant was given a 22 day extension on 23 January 2014 to provide information (CB p.220 [18]).
The Court finds that the applicant was given a reasonable amount of time to present evidence. The Court finds that the denial of the 12 week extension was “within the bounds of legal reasonableness”: see Li (supra).
The Court finds no error in the exercise of the discretion given in s.363(1)(b) of the Act.
The application for judicial review as amended, is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 18 March 2015
[3] [2003] HCA 30; (2003) 77 ALJR 1165 at 1178 [67]- [68]; [2003] HCA 30; 198 ALR 59 at 75; [2003] HCA 30.
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