Mohsin v Minister for Immigration
[2019] FCCA 3731
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHSIN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3731 |
| Catchwords: MIGRATION – Visa – partner visa – where sponsorship withdrawn – invalid s.375A certificate – non-disclosure of letters provided to Department by sponsor – where applicant alleged domestic violence perpetrated by the sponsor – where sponsor made undisclosed allegations of fraud by applicant – whether practical injustice to applicant caused by non-disclosure – non-compliance with s.359A – where failure to disclose documents could possibly have deprived applicant of successful outcome – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA, 375A and 438 Migration Regulations 1994 (Cth), regs.1.22, 1.23(10)(c)(ii) and cl.100.221(4)(b) & (c) |
| Cases cited: BNJ16 v Minister for Immigration and Border Protection (2017) 253 FCR 21 BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 |
| Applicant: | ESSA MOHSIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 111 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Eaton |
| Solicitors for the Applicant: | Bourne Lawyers |
| Counsel for the Respondents: | Mr D F O'Leary |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
There be an order in the nature of certiorari that the decision of the Administrative Appeals Tribunal dated 2 March 2017 affirming the decision of the delegate of the first respondent made on 26 August 2015 rejecting the applicant’s application for a Partner (Migrant) (Class BC) visa.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of the delegate of the first respondent dated 26 August 2015 rejecting the applicant’s applications for a Partner (Migrant) (Class BC) visa.
The first respondent do pay the applicant’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 111 of 2017
| ESSA MOHSIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 2 March 2017. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Migrant) (Class BC) Visa (‘the visa’). The matter proceeded before me on the Amended Application which raised two grounds. Both were particularised in detail. The grounds are as follows:
“1.The decision of the Administrative Appeals Tribunal (the Tribunal) made on 2 March 2017 was affected by jurisdictional error in that it did not give to the Applicant documents, or particulars of information contained within the documents, that were given to the First Respondent's Department (the Department) from Ms Farah Dawood Chaudhry (the Sponsor) and therefore failed to comply with its obligation pursuant to sections 359AA or 359A of the Migration Act 1958 (the Act), and/or in the alternative, under section 362A of the Act.
Particulars:
a.A certificate pursuant to section 375A of the Act was issued by the Minister’s delegate, and applied to documents, or some of the documents, that the Sponsor gave to the Department (the Certificate).
b.The Certificate was not valid because the disclosure of the matters contained in the document (or documents), or of the information subject to the Certificate, would not be contrary to the public interest.
c.As the Certificate was not valid, the Tribunal failed in its obligations pursuant to sections 359AA or 359A of the Act by failing to provide sufficient (or any) particulars of the documents that the Sponsor gave to the Department.
d.In addition to, or in the alternative, the Tribunal failed in its obligation to provide access to the documents that the Sponsor gave to the Department when requested pursuant to section 362A of the Act.
2. The decision of the Tribunal made on 2 March 2017 was affected by jurisdictional error in that there was no opinion within the meaning of Sub-Clause l.23(10)(c)(i) of the Migration Regulations 1994 (the Regulations) and therefore the Tribunal erred in relying on that opinion in finding that the Applicant is not taken to have suffered family violence (at [49]), relying upon Sub-Clause 1.23(10)(c)(ii) of the Regulations.
Particulars:
a.Sub-Clause 1.23(10)(c)(i) required the Tribunal (as substitute for the Minister) to seek an opinion of an independent expert about whether the Applicant had suffered the relevant family violence (as defined) if the Tribunal was not satisfied that the Applicant had suffered the relevant family violence.
b.An opinion was provided to the Tribunal by Dr Astrid Birgden, dated 8 November 2016 (the second opinion). In coming to her opinion, Dr Birgden relied upon an opinion by Dr Lillian S Edmands dated 23 July 2015 (the first opinion).
c.Dr Birgden did not provide the Aplicant with procedural fairness because she:
i. did not put sufficient (if any) particulars of information relating to the claims made by the Sponsor as set out in the first opinion; and/or
ii. Relied upon the first opinion where the Applicant was not provided procedural fairness by a failure to provide sufficient particulars of information relating to claims made by the Sponsor; and/or
iii. Relied upon material facts found in the first opinion where the Applicant was not provided procedural fairness by not using an interpreter at a time where the Applicant’s English and understanding of English required the use of an interpreter.
d.For the purposes of Sub-Clause 1.23(10) of the Regulations, where an opinion is reached which arose from a denial of procedural fairness, there is no opinion for the purposes of Sub-Clause 1.23(10) of the Regulations (Minister for Immigration and Citizenship v Mamen [2012] FCAFC 13, 63-65).”
As can be seen, ground one basically asserts a lack of procedural fairness. Ground two asserts that the opinion provided by the independent expert was not a valid opinion for the purposes of reg.1.23(10) of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The applicant relied on the materials in the Court Book as well as his affidavit filed on 31 July 2018 however, in the face of objection from the first respondent, did not seek to rely on paragraphs 21, 22 or 24 of that affidavit. In addition to the materials in the Court Book, the first respondent relied on the affidavit of Clare Susan Stokes sworn 30 July 2018 (‘the Stokes affidavit’).
Background
The applicant is a national of Pakistan and married an Australian citizen in December of 2012. He applied for the Partner Visa on 28 October 2013. His sponsor was, of course, his wife. On 30 September 2014, the sponsor advised the Department that the relationship had broken down and that she wanted to withdraw her sponsorship. That letter alleged family violence perpetrated on her by the applicant. It also alleged that he had told her that he only married her to obtain an Australian visa and that he would injure himself, take photos of the injuries, and threatened to tell people, including the government, that he had caused the injuries to her.[1]
[1] Stokes affidavit, Exhibit ‘CSS-2’, p 11.
The Department wrote to the applicant on 3 November 2014 and asked him for his comment on the information it had received to the effect that the relationship had broken down. That letter simply advised him that it had received information that the relationship between him and the sponsoring partner, upon which his visa application was based, had ended. It did not enclose a copy of the sponsor’s letter of 30 September 2014.
On 28 November 2014, the applicant replied to the Department with a brief letter which advised that the relationship had broken down as a result of family violence that had been perpetrated by his wife (the sponsor). It also stated that the matter had been referred to the Magistrates Court of South Australia for a hearing later that year. He put the Department on notice of the fact that he would provide further information and evidence to be considered at a later stage for a permanent visa based on family violence provisions.[2]
[2] Court Book (‘CB’) p 123.
On 16 December 2014, the sponsor wrote a second letter to the Department. In that letter, she advised that she had applied for a divorce in Pakistan and enclosed copies of relevant papers. It also told the Department that the applicant had contacted the Immigration Department and found out somehow that he could still remain in Australia if the parties were no longer together and that he had been advised by the Department as to the circumstances under which he would be able to remain in Australia.[3]
[3] Stokes affidavit, op cit, p 33.
The letter further advised that during a brief attempt at reconciliation in June 2014:
“It was evident that Mr Mohsin was only trying to gather evidence to remain in Australia. He repeatedly told me he knew the ways to stay back in Australia and he does not need me any more, using abusive language and throwing things, being aggressive, hitting himself against the wall and banging his foot against the bed and then he would take photos to say I injured him and he has the evidence to prove it…”[4]
[4] Ibid.
The letter repeated that the applicant had threatened to kill her and her repeated request that the Department take action to secure her safety and wellbeing.
On 12 February 2015, the applicant provided a statutory declaration to the Department. Annexed to that were letters from three doctors and photographs which purported to show injuries that he had sustained.[5]
[5] CB pp 151 to 168.
On 5 May 2015, the applicant provided to the Department an intervention order issued by the Magistrates Court of South Australia on 3 March 2015 in favour of the sponsor as the protected person and against the applicant. That order restrained him from assaulting, threatening, harassing, intimidating or being within 50 metres of the sponsor, together with other conditions.
On 25 June 2015, the sponsor wrote to the Minister directly.[6] That letter advised that the sponsor and the applicant had separated in May 2014, within one month of his arrival in Australia, that he had been demanding she sell her jewellery in order to send significant sums of money to his family in Pakistan, and that he was physically and verbally abusing her. The letter informed the Minister that even during an attempt at reconciliation in June 2014, the applicant continued to abuse her verbally, physically and financially. It informed the Minister that she had withdrawn her sponsorship of the applicant. When describing the fact that the applicant did not attend for the divorce hearing in Pakistan or send a legal representative, the sponsor told the Minister:
“At this point, it became extremely evident that Mr Mohsin was never interested in a genuine relationship with me and his sole motivation for marriage was entry into Australia … it is evident to me that Mr Mohsin married me under false pretences. I have previously sent to the Immigration Department letters regarding the events, copies of intervention orders and divorce papers. Enclosed are copies of these documents which show his character, creditability. I feel that Mr Mohsin’s deportation back to Pakistan is justified and requires review. Mr Mohsin was fraudulent towards the Immigration Department and myself to gain entry into Australia utilising misleading and deceptive conduct.”[7]
(Reproduced verbatim)
[6] Stokes affidavit, op cit, p 14.
[7] Ibid p 15.
On 26 June 2015, the applicant was advised that pursuant to paragraph 1.23(10)(c) of the Regulations, the Minister was required to refer his claims of family violence to an independent expert (‘IE’) for assessment.[8] On the same day, the Department sent a Family Violence Referral Form to the IE. Included with that form were the materials provided to the Department by the applicant as well as those provided by the sponsor to the Department dated 16 December 2014.
[8] CB pp 192-193.
It can be seen that at this point in the narrative that the Department had two letters from the sponsor and that the Minister was in possession of a third, none of which had been disclosed to the applicant.
On 23 July 2015, the IE provided a report which concluded that the applicant was not a victim of family violence that caused him to reasonably fear for his own wellbeing or safety.[9] The IE’s report made clear that some of its findings referred to information provided to the IE which had been subject to a s.375A certificate, including that the sponsor had claimed the applicant had threatened to kill her and that he was the perpetrator of family violence. The report did not make mention of the allegation by the sponsor that the applicant had only been trying to gather evidence to remain in Australia or that he was prepared to falsify injuries in order to do so.
[9] CB pp 194-208.
The Department invited the applicant to comment on the findings of the IE on 24 July 2015. He responded on 24 August 2015 by way of a statutory declaration. In that document, he asserted that the IE had not understood cultural sensitivities and made a complaint about the quality of the translation and the conduct of the expert during the course of the assessment.[10]
[10] CB p 214.
A delegate of the Minister refused the application for the visa on 26 August 2015. On 22 September 2015, the delegate issued a certificate under s.375A of the Act with respect to certain information on the departmental file.[11] The certificate covered the three letters referred to above.
[11] CB p 226.
The applicant applied to the Tribunal for a review of the delegate’s decision and a hearing took place on 2 August 2016 with the applicant being assisted by a migration agent and an interpreter. At the conclusion of the hearing, the applicant was referred to a second IE for assessment.
The Tribunal affirmed the decision of the delegate after a second hearing on 1 February 2017.
The Tribunal hearing and decision
The decision of the Tribunal can be summarised as follows. As can be seen from the paragraphs above, the decision making process occurred in two phases. First, the hearing on 2 August 2016 and then the hearing conducted on 1 February 2017 after the second IE report had been obtained. At the first hearing, it concluded that the s.375A certificate complied with legislation and for that reason the information covered by the certificate could not be provided to the applicant.[12] Further, the Tribunal found that the information concerning the deterioration and break-up of the marriage and the fact that the sponsor had obtained an intervention order against the applicant had been provided to the Tribunal by the applicant himself and for that reason it was not necessary to disclose that information to him under s.359A. The Tribunal concluded for itself, based on all of the information before it, the applicant was not a victim of family violence.[13]
[12] CB p 420.
[13] CB p 420 at para [12], p 423 at para [44].
However, the Tribunal found that a non-judicially determined claim of family violence had been made and that it was required to consider it. Not being satisfied that the applicant had been a victim of family violence, it sought an opinion, as it was required to do, of a second IE pursuant to reg.1.23(10)(c) of the Regulations.
Amongst the materials provided to the second IE was a copy of the report of the first IE. The second IE was not provided with a copy of the materials that had been provided to the first IE.
On 8 November 2016, the second IE provided a report that concluded the applicant had not been the victim of family violence that caused him to reasonably fear for his own safety or wellbeing.
The second IE’s report was provided to the applicant for comment pursuant to s.359A of the Act. The applicant chose to respond and a further hearing was conducted on 1 February 2017.
In the second phase of the hearing on 1 February 2017, the Tribunal confirmed that it had read the opinion of the second IE and regarded it as relevant that the IE had concluded the applicant had not suffered family violence.[14] The Tribunal was satisfied that the opinion was authorised by the Regulations. In other words, it was provided by an independent expert, suitably qualified to make the assessment, being an employee of an organisation specified for the purpose of such report. That being the case, the Tribunal noted the terms of reg.1.23(10)(c)(ii) of the Regulations, which required it to take the IE’s opinion as being correct and properly made. On the basis of that opinion, the Tribunal found that the applicant was not taken to have suffered family violence committed by the sponsor for the purposes of reg.1.22. As a result, the applicant could not meet the requirements of cl.100.221(4)(b) and (c) for the grant of a visa and for that reason, the Tribunal affirmed the decision of the delegate.
[14] CB p 423 at para [46].
The Section 375A Certificate
The first respondent has accepted that the certificate issued under s.375A of the Act was not valid. It does not accept, however, that the invalidity of the certificate gives rise to a jurisdictional error in this case. It is submitted that this is so because on the facts of this case, there was no practical injustice which arose from the non-disclosure of the information covered by the s.375A certificate. It is well-established that relief may be refused on discretionary grounds in such circumstances. It is submitted that this is because the applicant was aware of the information provided by the sponsor and had an opportunity to, and did, address the substance of the information provided to the delegate and the IE.[15]
[15] BJN16 v Minister for Immigration and Border Protection (2017) 253 FCR 21; BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36.
Submissions
Submissions of applicant
I note that on 6 July 2018 the Minister confirmed that the 30 September 2016 letter was covered by the certificate and that this produced the response of the applicant filing a Notice to Produce requesting its production.
Much of the applicant’s written submissions with respect to ground one were predicated on matters that pertained before the swearing of the Stokes affidavit. That affidavit has now disclosed the relevant folios of the Department record which were covered by the s.375A certificate.[16] In her oral submissions, Ms Eaton adapted her arguments as to procedural unfairness specifically with respect to the content of the documents that were covered by the s.375A certificate.
[16] Stokes affidavit, Annexure ‘CSS-2’.
I will preface my summary of Ms Eaton’s submissions with the observation that, given the first respondent has conceded that the s.375A certificate was not valid, the procedural fairness obligations of the Tribunal with respect to the documents covered by the invalid certificate are those set out in s.359A of the Act. That section provides as follows:
“359A Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
In the applicant’s submission, the failure to disclose information covered by the invalid s.375A certificate cannot simply be explained away on the basis that the ‘gist’ of the information was put to the applicant at various stages. Ms Eaton submitted that the documents disclosed allegations that were not put to the applicant by the Department or the first IE, the AAT or the second IE. It was submitted that the first respondent approached the matter on the basis that the applicant was taken to have understood that his former spouse was alleging that he had been violent to her and that this was the context in which his claim to have been a victim at her hands was to be assessed.
Whilst the applicant accepts that he was aware that the sponsor had made allegations against him, it being obvious that she had applied for and obtained an intervention order, the documents covered by the invalid s.375A certificate disclosed that the sponsor was alleging a deliberate course of dishonesty or fraud by fabricating evidence of the alleged violence against him perpetrated by the sponsor.
Further, one of the letters asserted that the relationship was engaged in for the collateral purpose of gaining an Australian visa and that the allegations of violence by the sponsor were part of that fraudulent plan.
The relevant documents which the applicant says were not disclosed were the initial letter of 30 September 2014; the second letter of 16 December 2014; the letter to the Minister of 25 June 2015; and the Part A referral form. The applicant submitted that this is a different situation simply to the sponsor disagreeing with the details of circumstances surrounding the applicant’s allegations of domestic violence perpetrated by her. It is an allegation that the applicant’s claims have been the product of deliberate male fides.
The non-disclosure meant that the applicant had proceeded on the basis that there were oath versus oath counter-allegations of violence by him against the sponsor but not that there had been deliberate dishonesty underpinning the entirety of his allegations against her. It was submitted that it made no difference that this aspect was not referred to in the reasons provided by the Tribunal. The fact was that what the sponsor did went well beyond withdrawal of sponsorship. The pertinent fact is that highly prejudicial information was before the decision-maker and it would be unrealistic to suggest that it had no influence on the reasoning of the decision-maker or the ultimate outcome.
The second facet of the applicant’s argument relates to the “contamination” of the opinion of the second IE by virtue of that person having had regard to the opinion of the first IE who, in turn, had been provided with the second letter sent by the sponsor, which made allegations of fraud on the part of the applicant. In that context, it was submitted that it did not matter that the materials covered by the s.375A certificate were not provided to the second IE.
Submissions of the first respondent
For the first respondent, Mr O’Leary submitted with respect to ground one that the documents covered by the certificate did not allege migration fraud. Further, it was submitted that clear particulars were provided to the applicant under s.359A. This was done by providing the applicant with a copy of the report of the second IE.[17]
[17] CB pp 386-387.
In inviting the applicant to comment on the second report, the first respondent submits that there can be no complaint that the applicant was deprived of an opportunity to comment on the relevant information. The first respondent submits that the applicant was at all material times aware that the sponsor had withdrawn her sponsorship because of alleged violence perpetrated against her by him. For that reason, he was in a position to make any submission or comment upon that issue before the Tribunal.
For that reason, it is submitted that no practical injustice arises from the failure of the Tribunal to provide the information covered by the certificate. The substance of the relevant information was already disclosed and well-known to the applicant and he had anticipated its significance by providing comments upon that information.
In the alternative, the first respondent submitted that it should be inferred from the basis of the Tribunal’s reasons and the terms of the second IE’s assessment that there had been compliance with s.359AA. I have some difficulty with that submission. The paragraphs to which I was referred as supporting that submission[18] deal with the applicant’s allegations towards the sponsor but are clearly a reference to him providing that information to the Tribunal himself.
[18] CB pp 422-424 at paras [37] to [47].
Nowhere does it even hint at the possibility that the sponsor had provided information asserting from both herself and on behalf of others that the applicant was embarking upon a deliberate campaign of falsification of evidence. The first respondent accepted that it was the Minister who needed to persuade the Court that the non-disclosure issue had not given rise to a practice injustice because of the invalidity of the certificate.
Consideration
I accept the submission of the first respondent in light of the decisions in BJN16 and BEG15 which dealt with the non-disclosure of the existence of a s.438 certificate, the relevant question is whether the invalidity of the s.375A certificate and consequent non-disclosure of relevant documents created a practical injustice in the sense of depriving the applicant of the possibility of a successful outcome.[19]
[19] BJN16, op cit, at para [64].
As was accepted by counsel for the first respondent in this hearing and discussed in BJN16,[20] the invalidity of the certificate having been demonstrated, a respondent faces a significant hurdle in being able to establish that the undisclosed documents contained material which on no view could be thought to have prejudiced the interests of an applicant and which could not even possibly have undermined the applicant’s prospects of a favourable decision by the Tribunal.
[20] Ibid at para [66].
In my view, it is not a sufficient answer to the complaint of the applicant to submit that no practical injustice could be demonstrated by the invalidity of the s.375A certificate because once the report of the IE had been received by the Tribunal, it was bound to act upon the conclusion as being correct where the opinion was validly made. That ignores the fact that prior to referral to the IE, the Tribunal had already conducted a hearing on 2 August 2016 at which the applicant attended to give evidence and present arguments.
On that day and on the basis of considering “all of the evidence before it”[21] the Tribunal itself was not satisfied that the alleged victim had suffered the relevant family violence. For that reason by virtue of reg.1.23(10)(c), it was bound to refer the applicant to the IE. However, had the Tribunal been satisfied that the applicant had been a victim of the relevant family violence, then it was required to consider his application on that basis. In other words, no IE report would have been obtained because it would not have been necessary.
[21] CB p 423 at para [45].
Given the binding effect of the IE report properly made once requested, the significance of the Tribunal’s preliminary finding on 2 August 2016 becomes obvious. There is no reason to conclude that the Tribunal did not have regard to the documents that were not disclosed as a result of the invalid s.375A certificate when reaching the preliminary finding. It cannot be inferred, simply because they had not specifically been addressed in the decision record, that they were not considered. The Tribunal said that it had reached its preliminary finding on the basis of all of the evidence before it. As a result, the inference to be drawn is that it considered the undisclosed documents in reaching that conclusion. Further, it does not take much forensic skill to conceive of different ways in which the applicant might have chosen to conduct his case at the hearing of 2 August 2016, had he known the allegations of deliberate falsification by him of the evidence of his injuries. It would, for example, have been open to him to call oral evidence from his medical witnesses. Such evidence in turn could possibly have influenced the report of the second IE.
I am not satisfied that the first respondent has demonstrated that no practical injustice was occasioned to the applicant by the non-provision of the documents the subject of the invalid certificate. The import of the information provided by the sponsor was that the applicant had been violent towards her and in that context; had told her that he knew how he could secure an Australian visa; that he was prepared to injure himself and take photographs of those injuries for the purpose of making it known that she was assaulting him; that he was prepared to use those photographs and his false claims as evidence for the consideration of his application; that all of this had occurred in the suspicious context of having had an apparently happy marriage prior to moving to Australia from Pakistan and the applicant’s equally suspicious constant demands for money once they arrived in this country. It further opined that on the basis of the sponsor’s experience, she had reached the conclusion that the applicant had never been interested in a genuine relationship with her and that “Mr Mohsin was fraudulent towards the Immigration department and myself to gain entry into Australia utilising misleading and deceptive conduct.”[22]
[22] Stokes affidavit, p 15.
The effect of the letters sent by the sponsor was not simply to withdraw sponsorship on the basis that she had been the victim of domestic violence and that she denied perpetrating domestic violence on the applicant. It involved the assertion, based on her observations and knowledge, that he was prepared to fabricate evidence in order to advance his claim. Given the applicant was relying not merely on his own account but on medical reports, a psychologist’s report, and photographs of the very type which the sponsor had alleged he had falsified, it is not possible to say that the undisclosed documents contained no information which on any view could possibly have impacted upon the decision of the Tribunal that it was not satisfied that he had been the victim of relevant family violence and that therefore a report was required. In particular, given the information provided by the applicant, the result may very well have been different. There is nothing in the decision record of the Tribunal, or any other communication with the applicant, that suggests that it at least disclosed the ‘gist’ of the sponsor’s claims about him. I am satisfied that the applicant has demonstrated that s.359A was not complied with and that jurisdictional error has occurred.
With respect to ground two, I am not satisfied that the applicant has demonstrated that jurisdictional error has been demonstrated because of the reliance by the Tribunal on the second report. The argument advanced is that because the second expert had been given a copy of the first expert’s report, it was somehow tainted by the fact that the first expert had been provided with a copy of one of the documents that was not disclosed and subject to the s.375A invalid certificate. I am not satisfied that that demonstrates that the report was not properly made for the purpose of the Regulations.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 18 December 2019
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