Mudiy v Minister for Home Affairs
[2022] FedCFamC2G 346
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mudiy v Minister for Home Affairs [2022] FedCFamC2G 346
File number(s): MLG 389 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 13 May 2022 Catchwords: MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Partner (Residence) Visa – allegations of family violence committed by sponsoring partner – consideration of whether the Tribunal failed to provide the applicant with a meaningful opportunity to obtain and produce evidence, and in failing to do so, acted unreasonably – circumstances distinguished from Minister for Immigration v Li (2013) 249 CLR 332 – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), s 360
Migration Regulations 1994, regs 1.22, 1.23, 1.24, 1.25, div 1.5, sch 2, cl 801.221
Cases cited: Minister for Immigration v Li (2013) 249 CLR 332 Division: Division 2 General Federal Law Number of paragraphs: 90 Date of last submission/s: 4 November 2021 Date of hearing: 4 November 2021 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitors for the Applicant: Clothier Anderson & Associates Counsel for the Respondent: Mr Tran Solicitors for the Respondent: Australian Government Solicitor ORDERS
MLG 389 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NISHANTHA MAHAKUMBURA HERATH MUDIY
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 10 January 2018 to affirm the decision of a delegate of the Minister for Home Affairs (‘the Minister’) to refuse to grant the applicant a Partner (Residence) Visa (‘permanent partner visa’).
The applicant’s application was filed outside the statutory timeframe and, consequently, the applicant sought an extension of time.[1] The first respondent ultimately conceded that the extension of time ought to be granted, therefore that issue was no longer live before this court.[2]
[1] Applicant’s Amended Application filed 7 October 2021.
[2] First Respondent’s written submissions filed 21 October 2021 at paragraph [2].
By his amended application filed on 7 October 2021, the applicant raises one ground of review:
The failure of the Tribunal to adjourn the proceeding to provide a meaningful opportunity for the applicant to obtain and provide the necessary evidence was unreasonable in the circumstances.
BACKGROUND
Before addressing the applicant’s submissions and the Minster’s response to this ground, I will set out the factual and procedural background which is not largely in dispute.
On 5 June 2013, the applicant applied for a permanent partner visa.[3] He and his then sponsor were married on 23 March 2013. It is common ground that the applicant’s relationship with his then sponsor broke down in or about September 2015. The applicant was then advised on 5 October 2015 that the sponsorship for his visa application had been withdrawn. The applicant was provided with a further opportunity to provide additional information. [4]
[3] Court book at page 15.
[4] Court book at pages 92 to 94.
By letter from his migration agent dated 23 October 2015, the applicant confirmed that the relationship had broken down and further stated that he had suffered family violence perpetrated by his former sponsor.[5] Relevantly, correspondence from his then representative, dated 23 October 2015, contained the following statement:
Mr Mudiy has been subjected to domestic family violence as his wife had abused him throughout the relationship with the support of his mother in law who has also encouraged his wife. … Additionally due to the abuse he has suffered, he has suffered severe anxiety and depression as outlined by Dr Mendis in the attached report.
[5] Court book at pages 92 and 101.
Attached to this letter is a letter from Dr Mendis, which relevantly provides that the applicant has been his patient since February 2013.[6] In his letter, Dr Mendis refers to the applicant’s marriage and goes on to say ‘… his partner has requested him to leave the house and does not wish to continue with the marriage. He has been having severe anxiety and depression due to separation, which has come as a surprise for him. …’
[6] Court book at page 104.
On 11 November 2015, the applicant’s representative provided further information to the delegate, including a report from the applicant’s psychologist dated 9 November 2015 and a statutory declaration from the applicant regarding his family violence allegations.[7]
[7] Court book at pages 105 to 106.
Requests for further information on 8 January 2016 and 9 May 2016
By letter dated 8 January 2016, the delegate requested further information from the applicant. Relevantly, in this correspondence, the delegate stated:
The items submitted to advance your family violence claims do not meet the minimum evidentiary requirements for a family violence claim.
The applicant was requested to provide this information in the appropriate form. A further request was made for this information by letter dated 9 May 2016.[8] It appears that no response was provided to these requests. I note that in the course of the hearing, the applicant complained that his previous solicitor had not appropriately represented his interest. I take it from this that this might explain the lack of response to the specific requests for further information about the applicant’s claims relating to family violence in the period between January and May 2016.
[8] Court book at page 276.
Refusal of partner visa application on 23 June 2016
In any event, it is clear from the delegate’s decision, made on 23 June 2016, that the applicant’s failure to provide ‘the minimum evidentiary requirements of legislative instrument IMMI 12/116’ led the delegate to conclude that he had not made a ‘non-judicially determined claim of family violence and therefore (had) not established that (he) suffered family violence committed by (his) sponsor’. It is clear from the delegate’s decision that the applicant therefore did not satisfy sub-clauses 801.221(4) and (6) of the regulations.[9]
[9] Court book at page 301.
Tribunal review application filed on 30 June 2016
The applicant filed a review application to the Tribunal on 30 June 2016.[10] On 2 August 2016, the applicant changed legal representatives, appointing the representative who appeared before the Tribunal. On 19 September 2016, the applicant’s new legal representative was provided with the bulk of the Department’s file.[11]
[10] Court book at pages 303 to 308.
[11] Court book at pages 321 to 322.
By letter dated 6 December 2017, some 12 months later, the applicant was invited to a hearing on 2 January 2018 to present evidence and make submissions. It is clear from the hearing request that on the available material, the Tribunal was not able to make a favourable decision.[12]
[12] Court book at pages 324 to 326.
It is common ground that on 14 December 2017, the applicant’s representative sought an adjournment of the hearing to 15 January 2018 on the basis of the representative’s business closure and her being overseas. Relevantly, in that letter the applicant’s representative stated:
… Prior to public holidays we will be able to prepare the necessary documentation and send it by post. Due to large volume of supporting evidence the documents will be send by post.[13]
[13] Court book at page 327.
By email dated 18 December 2017, the request for a postponement of the hearing was rejected.[14]
[14] Court book at page 329.
Ultimately, the applicant attended the hearing on 2 January 2018, together with his representative, and was also assisted by an interpreter. No documents were provided prior to the hearing, although the applicant provided additional documents at the hearing itself.[15]
[15] Court book at pages 339 to 457.
The only document in this bundle which addresses the central issue before the Tribunal, namely whether the applicant had been subjected to family violence, was a further letter from his treating GP dated 14 December 2017.[16] That letter does not refer to the applicant having been subjected to family violence.
[16] Court book at page 457.
No further material was received after the 2 January 2018 hearing. The Tribunal made its decision affirming the delegate’s decision on 10 January 2018.[17]
[17] Court book at pages 461 to 467.
STATUTORY FRAMEWORK
It is common ground that pursuant to the Migration Regulations 1994 (‘the Regulations’) applicable at the time, a partner visa may still be granted, even where an applicant’s relationship with his sponsor has come to end, if the applicant suffered family violence committed by the sponsoring partner and other relevant requirements are met.[18]
[18] Migration Regulations 1994 sch 2 cl 801.221(6).
At the relevant time, clause 801.221(6) of the Regulations provided:
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased: and
(c) either or both of the following circumstances applies:
(i) ..
(A) the applicant:
…
has suffered family violence committed by the sponsoring partner.
The only relevant issue in dispute in this case is whether the applicant has established that he suffered family violence committed by the sponsoring partner.
Division 1.5 of the Regulations at the relevant time contained special provisions governing claims of family violence.[19] Regulation 1.22 relevantly provides:
(1)A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
[19] Court book at pages 292 to 295.
Regulation 1.23 then goes on to say:
(1) For these Regulations, this regulation explains when:
(a)a person (the alleged victim) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Relevantly, regulation 1.23 provides that family violence is taken to have been committed, or suffered, in circumstances where court orders supporting such a finding have been made, including a conviction for family violence. None of those circumstances are said to apply here.
Regulation 1.23 also provides for certain circumstances in which family violence is said to have occurred where there has been no judicial determination of such violence. Relevantly, for the present purposes, at regulation 1.23(9), the regulations provide:
(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) the spouse or de facto partner of the alleged perpetrator: …
(ii) …
(iii) … and
(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 family violence; and
(ii)the alleged perpetrator committed that relevant family violence. (emphasis added)
The remainder of regulation 1.23 goes on to specify how the Minister is to consider evidence of non-judicially determined family violence. Those provisions are not relevant for the purposes of this application.
Regulation 1.24, however, goes on to relevantly state:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a)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.
The relevant instrument was IMMI 12/116.[20] That instrument specifies that two pieces of evidence were required of a type set out in the left hand column of the table in schedule 1 and containing details set out in the right hand column of that table.
[20] Court book at pages 296 to 297.
The evidence that the applicant relied upon in support of his application was:
·a statutory declaration of the applicant;[21]
·a letter from his psychologist;[22] and
·a report from the applicant’s medical practitioner (at page 104 of the Court Book and updated at page 457 of the Court Book).
[21] Court book at pages 111 to 116.
[22] Court book at pages 109 to 110.
It is common ground and not in dispute that the applicant provided a statutory declaration that complied with regulation 1.25, and by implication, regulation 1.24(a). It is also not in dispute that the applicant has not provided evidence in a form which would satisfy regulation 1.24(b).
The issue for determination in this proceeding is whether, by not agreeing to an extended adjournment, the Tribunal failed to provide the applicant with a meaningful opportunity to obtain and produce evidence of the type and in a form to satisfy regulation 1.24, and therefore, acted unreasonably such that its decision was affected by jurisdictional error.
APPLICANT’S CLAIMS OF FAMILY VIOLENCE
Evidence of the applicant
In his statutory declaration, the applicant refers to his former wife making offensive, belittling and derogatory statements to and about him, in particular, denigrating him because of his lack of income earning capacity. The applicant also refers to his former wife engaging in conduct which could be described as financially abusive and asserts that his former mother in law also engaged in belittling comments about and towards him, as well as encouraging the wife’s abusive conduct towards him.
The applicant’s treating doctor, Dr Mendis, does not expressly refer to family violence having occurred. Rather, his initial letter dated 14 December 2017 says:
… Patient had been married for the last two and a half years and now his partner has requested him to leave the house and does not wish to continue with the marriage. He has been having severe anxiety and depression due to separation, which has come as a surprise for him. … he is not coping with this difficult situation. He is suffering from insomnia and now on medication for his sleeping problems.[23]
[23] Court book at page 457.
In this letter, the applicant’s treating GP further said:
… Patient had totally of 10 sessions of psychotherapy over the last two years with Dr Terri Bartlett. Patient’s condition has improved after the psychological counselling and now he is working in an aluminium factory as a team leader.
The applicant also produced and relied upon a letter from his treating psychologist, Terri Bartlett.[24] The letter is dated 9 November 2015 and was initially produced to the delegate. As is clear from Schedule 1 to IMMI 12/116, not only did evidence of this type need to be in the form of a statutory declaration, but the statutory declaration needed to include a statement from the ‘psychologist that the alleged victim was subject to family violence, and details the reasons for the opinion and identifies the alleged perpetrator’.
[24] Court book at pages 109 to 110.
Ms Bartlett’s letter refers to the applicant experiencing changes to his relationship at the beginning of 2015 when the applicant’s wife started to complain about him not earning enough money. It also records that the applicant experienced increasing isolation and mistreatment, which came to a head in September when the applicant’s wife asked him for a divorce and then sent him a text message to leave the former family home. In closing, the psychologist stated:
Pradeep impresses me as an honest and genuine man who is trying to come to terms with the breakdown of his marriage and the lack of respect and consideration and mistreatment he reportedly received in his marriage.[25]
[25] Court book at page 110.
It is common ground that the applicant has been on notice of the deficiencies in the evidence he had submitted by the correspondence from the delegate dated 9 May 2016. Even if one accepts the applicant’s complaints about his previous representatives and their inaction on his behalf, the deficiencies in his evidence and the issue that he needed to address to progress his claim was squarely identified in the delegate’s decision dated 23 June 2016.
It was against this background that the matter proceeded before the Tribunal.
Tribunal hearing on 2 January 2018
The Tribunal’s reasons do not address the issue of the requested adjournment raised in the applicant’s ground of review. The court, however, has been provided with the transcript of the proceedings before the Tribunal member and both parties seek to rely upon that transcript as evidence in support of their respective positions. The transcript is annexed to the affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021 at CJF-2.
It is clear from the transcript of the hearing before the Tribunal member that the applicant was asked whether he was able to provide the necessary documents under the Regulations to make a valid claim of family violence. The applicant’s representative indicated that the applicant did not have those documents and went on to say:
… he does have two letters provided by his GP and a psychologist, which he has gone to about 12 sessions, but unfortunately they had not provided the statutory declaration. The letter identifies what he has gone through …[26]
[26] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 4.
In the course of the Tribunal hearing, the following exchange occurred between the Tribunal member and the applicant:
Tribunal:… for you to make a … successful claim of family violence, you have to make a valid claim … you need to make sure you provide certain documents. Without those documents, you can’t make a valid claim. Those documents are outlined in the legislation and the regulations, do you understand?
Applicant: Yes
The Tribunal member then explained in simple terms the process for making a valid claim and how the Tribunal is required to deal with a valid claim once made. The Tribunal member then clarified that he correctly understood the documents upon which the applicant sought to rely, including the letter from the treating psychologist, Ms Bartlett.
The applicant variously tried to explain the circumstances in which he found himself and why he could not return to his country of origin, but the Tribunal member redirected the applicant to the central issue in this proceeding before him, namely ‘[the] documents that we need to progress the case forward, they’re critical’.[27]
[27] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 9.
Relevantly, the Tribunal member said:
What I require to change the course of this decision is the documentation to establish a claim. Do you understand what I’m saying?’[28]
[28] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 9.
Later in the course of the hearing, and after the applicant had provided the additional documents referred to above, largely unrelated to the family violence issue, the member again reiterated the issue before him in the following terms:
… After this hearing, I’ll go and … make sure there’s nothing in there that I have not looked at and that I need to look at, and I’ll take that into consideration. I’ll consider whether there’s a valid claim for family violence. If there’s not a valid claim, I can’t go any further. I have no discretion. Okay. If there is a valid claim, then I’ll go on and consider it. Okay? If there’s a valid claim, then I might well call another hearing and we will look at that in more detail …
…
… depending on what your agent has to say today in her submission as well. Do you understand?[29]
[29] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 14.
The applicant’s representative was then asked if there was any submission she wished to make on the applicant’s behalf. In this context, the applicant’s representative said:
… I actually took over the case probably after he has applied to the tribunal … So we went through all the documentation … I did explain to him what is actually … I actually tried to contact Dr Terry a couple of times, and unfortunately she was not being very helpful. Of course, she has gone through … 10 sessions with him, and with the letter she has provided she has not specifically mentioned that the family violence has occurred.
… when I went through his story which, … you also see, the relationship, I noted that … they had a good relationship, but my client, because of his earning and maybe from comparing to the lifestyle with others and so on, and then they live in the same family unit because his partner or his ex-wife had more influence within his family members.
On numerous occasions, my client has been, according to him, has been humiliated with his salary itself, … So I don’t know as to what extent whether it has been constituted as family violence, even though we probably will agree … mental abuse could constitute a family violence. Now I understand that your power is very limited and probably best … my client … has not provided sufficient documentation to make a favourable decision.[30]
[30] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 19.
It was in the context of this exchange that the applicant’s representative then went on to ask for more time to provide further evidence. Relevantly, she said:
… I know it could be very late because we waited nearly eight months, nine months to get the hearing date. Is there any chance that we can reassess his mental plan with Dr Terry getting another psychiatrist or psychologist and get the documentation to another person and to reassess whether … any family violence has occurred?
Because she got all the notes of 10 session in which she has not of course get back to us with any of those telephone calls, and we’ve tried personally seeing her as well. So that was one request, whether you will allow us to provide. Whether there is any chance that we can provide these documents.[31]
[31] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 19.
It is common ground that the Tribunal allowed the applicant’s representative only a very short time to provide any further material. The issue before the court is whether the Tribunal, in not allowing a longer period, acted unreasonably.
The applicant says that it did and that the Tribunal refused the applicant’s request on the basis that the applicant had had ample opportunity to provide the necessary documents and that the request would cause delay to the resolution of the matter.
It was submitted for the applicant that there are two determinations made by the Tribunal which are relevant to the ground of review raised in this matter. The first was the Tribunal’s refusal to allow the applicant additional time to obtain evidence from an alternative psychologist or psychiatrist in support of his application. The second was imposing a time limit of just over one day to ‘obtain new evidence from the psychologist Ms Bartlett’.[32]
[32] Applicant’s Outline of Submissions filed on 11 October 2021 at paragraph [59].
It is submitted for the applicant that both determinations are legally unreasonable. In relation to the first determination, it is submitted that this is akin to the determination made in Minister for Immigration v Li (2013) 249 CLR 332 (‘Li’), and that the same finding is open to this court as was made in that decision.
The facts in Li are somewhat different to those presently before this court. First of all, in Li, the visa applicant had applied for a second skills assessment before the Tribunal hearing, and if successful, that assessment would allow the Tribunal to find that she met the relevant criterion. The applicant was provided with additional time to provide the updated skills assessment. Ultimately, the second skills assessment was received but was not favourable.
The applicant’s migration agent wrote to the Tribunal and advised of the unfavourable assessment but also advised that the applicant had sought a review of that skills assessment on the basis that there were fundamental errors in the assessment. The applicant sought additional time to provide the reviewed assessment before the Tribunal made its decision.
The Tribunal did not accede to this request and proceeded to make a decision which was not in the applicant’s favour:
The Tribunal said that it “considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further”. It found the first skills assessment to be affected by fraud and, therefore, Ms Li did not meet the criterion. The Tribunal concluded that it had “no alternative but to affirm the decision under review.[33]
[33] Minister for Immigration v Li (2013) 249 CLR 332 at [40].
It is common ground between the parties that a statutory discretion must be exercised reasonably. As noted by Hayne, Kiefel and Bell JJ in Li at [65] and [66]:
[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. … It is to be legal and regular, not arbitrary, vague and fanciful. …
[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. … 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.
In Li, it was conceded that if a further skills assessment was completed prior to the Tribunal’s decision, the Tribunal may have regard to it. At [79], Hayne, Kiefel and Bell JJ stated:
The discussion of the forthcoming second skills assessment of the Tribunal’s review while TRA reviewed the second skills assessment must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s 360 but it does not appear that it did so.
Moreover, the plurality went on to question the two reasons given for the decision not to permit the requested adjournment, namely delay and that the applicant had had enough time to put forward her case. In both cases, the plurality noted that no explanation was given as to why these reasons justified the refusal to grant an adjournment.
In relation to the former, the plurality noted that the only delay had been caused by the Tribunal in taking nine months to contact Ms Li after she lodged her application.
In relation to the latter, the plurality noted:
… Of course (the Tribunal) may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.[34]
[34] Minister for Immigration v Li (2013) 249 CLR 332 at [82].
The plurality went on to state by reference to the purpose of section 360(1) of the Migration Act 1958 (Cth) that:
It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The questions which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.[35]
[35] Minister for Immigration v Li (2013) 249 CLR 332 at [83].
Similarly, Gageler J stated at [101]:
The Minister … is correct to submit that the MRT has no general duty to adjourn a review because a review applicant believes that the passage of time will allow a visa criterion to be met. But a failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review.
Further, at [105], his Honour Gageler J went on to further say (citations excluded):
… Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
Applying these principles to the facts in Li, Gageler J said at [122]:
… Ms Li had been in Australia for some years. The review by the MRT had been on foot for nearly a year without any delay on her part. What she sought was an adjournment of the review for a highly specific purpose clearly articulated by her migration agent: to await the outcome of the review she had already sought of TRA’s second skills assessment, which she contended to have been made erroneous for reasons the migration agent explained to the MRT. Those reasons were, as the Minister concedes “coherent on their face and might well have justified an expectation that a favourable skills assessment would be obtained”. … Nothing in the MRTs reasons for decision suggests that the MRT took a different view of Ms Li’s prospects and there was no reason to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.
Ultimately, Gageler J also concluded that the Tribunal acted in a legally unreasonable manner, and consequently, its decision was affected by jurisdictional error.
CONSIDERATION
I have extracted various aspects of the judgment from Li in some detail given the reliance placed on it by the applicant in this case.
Unlike Li, in this case, no coherent reason was given for the adjournment request. Rather, and leaving aside the form of the letter not being contained in a statutory declaration, the applicant’s representative herself conceded on a number of occasions that the report prepared by the applicant’s psychologist did not itself refer to the applicant having suffered domestic violence.
At its highest, the applicant’s representative indicated that if more time was provided, she might be able to arrange an alternative psychologist who might be able to provide the necessary information.
It is clear from the submissions made by the applicant’s representative that:
(a)the information contained in the report from the applicant’s psychologist, Ms Bartlett, was not only not in a compliant form (i.e. a statutory declaration) but it did not itself state that the applicant had suffered family violence;
(b)attempts had been made to get more information from Ms Bartlett, but ‘she had not been particularly helpful’; and
(c)insofar as a request was made to have more time to seek an opinion from another expert psychologist or psychiatrist, there was no evidence given about steps taken to secure any such second opinion.
In considering whether the refusal by the member to allow additional time for the applicant to either obtain a second opinion or to seek further information in the requisite form from Ms Bartlett was unreasonable, regard must be had to the statutory task before the Tribunal member. At this stage of the proceeding, the Tribunal member had to consider whether the applicant had produced evidence in the requisite form that might establish that he had been subjected to family violence at the hands of his former wife.
In circumstances where the applicant, through his representative, conceded that he had not provided the necessary documents which might give rise to a finding of family violence, the issue is whether the Tribunal acted unreasonably in refusing additional time to allow the applicant to obtain such evidence in the appropriate form.
Ultimately, the Tribunal in its decision record found that in circumstances where neither the letter from the applicant’s treating doctor nor the letter from the applicant’s treating psychologist met the evidentiary requirements of the regulation, ‘a valid non-judicially determined family violence claim has not been made by the applicant’.[36] The Tribunal went on to therefore find that as there was no evidence of family violence in accordance with regulation 1.23, the ‘Tribunal has no valid claim to consider’.[37]
[36] AAT decision record dated 10 January 2018 at paragraph [15].
[37] AAT decision record dated 10 January 2018 at paragraph [16].
In circumstances where the applicant was on notice that the evidence of Ms Bartlett did not satisfy the evidentiary requirements of IMMI 12/116 from 23 June 2016 when the delegate handed down his decision, together with the applicant’s submissions that the applicant had made numerous attempts to obtain further information from Ms Bartlett but that that was not forthcoming, it was entirely reasonable for the Tribunal member to conclude that additional time would not assist the applicant to get that information from Ms Bartlett. Over 18 months had passed between the delegate’s decision and the hearing before the Tribunal.
In Li, the applicant had advised the Tribunal that a further assessment had been undertaken, which although unfavourable, was being challenged. The applicant in Li had also expressly identified the basis of the challenge to the assessment, and therefore, any adjournment would have allowed that process of review to be concluded.
In this case, the evidence before the Tribunal member was that attempts made to secure compliant information from Ms Bartlett over an 18 month period, both by the applicant himself and then by his new representative, had proved fruitless.
To the extent that the Tribunal member noted that the applicant had had ample opportunity to provide the relevant documents to establish his claims, it is clear from the transcript that this was in response to a comment from the applicant’s representative that she acknowledged that the applicant had had sufficient time to produce those documents.
Moreover, to the extent that the applicant sought additional time to obtain a second opinion, it is clear that the Tribunal member was concerned not only with the issue of further delay, but rather, the utility of providing additional time. In this regard, the member said:
I’m not sure where it will get your client by just having the same documents resubmitted in the same form, given that nobody has seen him previous, and that the current doctor won’t give any documents of the nature of which he is seeking. That’s what I’m hearing. If I’m wrong, let me know, but what I’m hearing is the doctor he has seen in the first instance hasn’t provided it in the form that’s required and is refusing to continue contact to discuss that. It’s not a good omen going forward, and so ... what I would hesitate in doing is just leaving this open-ended and this goes on for months and months and months.
… it’s certainly my intention to get on and look at each case and make a quick decision, unless there’s something new that’s going to be brought to the table.[38]
(emphasis added)[38] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 20.
The member was clearly inviting the applicant, through his representative, to raise any potentially new information that might be able to be brought forward in this matter. The representative did not do so.
Indeed, following this, the member went on again to invite the applicant to indicate whether it was likely that there would be new information if further time were provided. In this context the following exchange occurred:
Member:I’m not hearing that there’s something new that’s going to be brought to the table.
Applicant’s representative: Not at this stage, member.
Member: Not at this stage?
Applicant’s representative: No. Well actually only once Dr Terry returned my call. So I explained it to her at least to provide her material in the form of a statutory declaration. …
Member: And what did she say to you?
Applicant’s representative: She said she will look into that, but I tried to contact her a couple of times but she didn’t get back to us. …[39]
[39] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 20.
It was in this context that the Tribunal member agreed to provide a further day to provide anything else that the applicant considered relevant. In this context, he said ‘that gives you one last opportunity to make contact or not make contact …’.[40]
[40] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 22.
The member then concluded by saying:
I can do it on Thursday. Is that okay? If you have anything else you would like me to consider, by all means send it in by noon and then I’ll look at all this again. Okay.[41]
[41] Affidavit of Catherine Jane Farrell affirmed on 7 October 2021 and filed on 11 October 2021, Annexure CJF‑2, Tribunal transcript at page 22.
The applicant’s representative did not express any concern about that proposed time frame, not surprisingly in my view, having regard to the exchange that had occurred between them.
When regard is had to the totality of the exchange with the Tribunal, it is clear that the facts in this case are distinguishable from those in Li. In this case, unlike Li, no clear submissions were made about evidence which would be provided imminently and which could be determinative of the issue in dispute.
The position may well have been different in this case had the applicant already been assessed by another psychologist or psychiatrist and more time was required for a report of that assessment to be provided. That is not the case here.
It may also have been different if the applicant had obtained an indication from Ms Bartlett that she was prepared either to put her letter into the proper form, or provide further evidence in the proper form, that clearly addressed the key issue of whether the applicant had been the victim of family violence.
It may also have been different if there was even a realistic prospect that such further information could be obtained from Ms Bartlett, or indeed from another psychologist or psychiatrist. That was not the case here.
To the extent that the applicant was given one more day, it was clearly to try and make contact with Ms Bartlett. In circumstances where that was the purpose of the additional time, and in the context of the background set out above, the amount of time provided was not unreasonable so as to give rise to a jurisdictional error.
The authorities, including Li, make it clear that the test of legal unreasonableness is a strict one and that the courts will not lightly interfere with the exercise of a statutory discretion. Unlike the case in Li, this is not a case in which the decision to refuse more time was lacking in intelligible justification, nor was it arbitrary, vague or fanciful.
For each of these reasons, the applicant’s sole ground of review is not made out.
CONCLUSION
The first respondent sought costs. No submissions were made by the applicant that costs should not follow if the application were dismissed.
I therefore dismiss the applicant’s application with costs to be fixed if not agreed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 13 May 2022
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