Mudiy v Minister for Home Affairs
[2023] FCA 1402
•16 November 2023
FEDERAL COURT OF AUSTRALIA
Mudiy v Minister for Home Affairs [2023] FCA 1402
Appeal from: Mudiy v Minister for Home Affairs [2022] FedCFamC2G 346 File number(s): VID 331 of 2022 Judgment of: O'BRYAN J Date of judgment: 16 November 2023 Catchwords: MIGRATION – appeal from Federal Circuit and Family Court of Australia (Div 2) – where Administrative Appeals Tribunal (Tribunal) dismissed application for review of decision refusing to grant appellant’s partner visa application – appellant’s marriage had ceased and sponsorship was withdrawn – appellant made a non-judicially determined claim of family violence – appellant failed to provide evidence in support of claim as required under reg 1.24(b) of the Migration Regulations 1994 (Cth) and legislative instrument IMMI 12/116 – at hearing before the Tribunal, appellant requested adjournment to enable him to remedy deficiencies in his application – Tribunal refused to grant an adjournment – decision not legally unreasonable in the circumstances – appeal dismissed Legislation: Migration Act 1958 (Cth), Pt 5, Div 5, ss 360, 363
Migration Regulations 1994 (Cth), Div 1.5, regs 1.21, 1.22, 1.23, 1.24, Sch 2, cl 801.221
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen (2023) 297 FCR 162
Nathanson v Minister for Home Affairs (2022) 278 ALD 536
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 85 Date of hearing: 18 August 2023 Counsel for the Appellant: Dr A McBeth Solicitor for the Appellant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Ms J Lucas Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs ORDERS
VID 331 of 2022 BETWEEN: PRADEEP NISHANTHA MAHAKUMBURA HERATH MUDIY
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J
Introduction
This is an appeal from a decision of the Federal Circuit and Family Court (Division 2) made on 13 May 2022, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). On 10 January 2018, the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (the Minister) refusing to grant the appellant a Partner (Residence) Visa.
By his notice of appeal dated 9 June 2022, the appellant relies on a single ground of appeal:
The primary judge erred in failing to find that 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.
The appellant, a citizen of Sri Lanka, came to Australia in early 2013 and obtained a Partner (Temporary) Visa on 11 June 2013, pending consideration of his application for a Partner (Residence) Visa. The appellant’s visa application was sponsored by his wife. The appellant’s marriage subsequently broke down, following which the sponsorship was withdrawn.
The appellant claimed that he had been subjected to family violence perpetrated by his former wife. Such a claim, if validly made and substantiated, provides a basis on which the appellant may be granted a Partner (Residence) Visa in circumstances where the spousal relationship has ceased. It is common ground, however, that the appellant did not provide evidence substantiating the claim in the form required by law to the Minister’s delegate or to the Tribunal on review.
At the Tribunal hearing, the appellant was represented by a migration agent. In the course of the Tribunal hearing, the appellant’s representative asked whether the Tribunal would allow the appellant further time to seek to obtain the necessary evidence. A question arises on this appeal as to the proper characterisation of the Tribunal’s decision in response to that request. It is that decision which the appellant challenged before the primary judge and which the appellant now challenges before this Court.
For the reasons that follow, the primary judge was correct to find that the Tribunal’s decision to affirm the delegate’s decision was not affected by jurisdictional error. Accordingly, the appeal will be dismissed with costs.
Statutory framework
Central to this appeal is the criteria under the Migration Regulations 1994 (Cth) (Regulations) for the grant of partner visas and, in particular, the evidence required to substantiate the fulfillment of the criteria. What follows is based on the provisions of the Regulations as at the date of the Tribunal’s decision.
In general terms, the partner visa scheme requires an applicant first to obtain a Partner (Temporary) Visa (also known as a Subclass 820 visa) on the basis of a genuine spousal or de facto relationship between the applicant and the sponsor, who must be an Australian citizen or permanent resident. Once two years have passed, the applicant becomes eligible for a Partner (Residence) Visa (also known as a Subclass 801 visa, or a permanent partner visa) if the sponsorship and the relationship is continuing and if certain other criteria specified in the Regulations are satisfied.
In certain limited circumstances, a permanent partner visa may be granted even though an applicant’s relationship with their sponsor has come to an end. One of those circumstances is where the applicant has suffered family violence committed by the sponsoring partner and other relevant requirements are met. The relevant regulation is cl 801.221(6) of Sch 2 to the Regulations which stipulates the following criteria for the grant of a permanent partner visa:
(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 above criteria must be satisfied at the time of the decision. Accordingly, in the case of a review before the Tribunal, the time at which the relevant criteria must be satisfied is the time at which the Tribunal makes its decision.
As can be seen, cl 801.221(6) refers to subclause (2) or (2A). Relevantly, cl 801.221(2) requires that: the applicant holds a Subclass 820 visa; the applicant continues to be sponsored for the grant of a Subclass 820 visa by the sponsoring partner; the applicant continues to be the spouse or de facto partner of the sponsor; and at least two years have passed since the Subclass 820 visa was granted.
Division 1.5 of the Regulations contains provisions governing claims of family violence.
Regulation 1.21 defines “relevant family violence” as conduct, whether actual or threatened, towards (relevantly) the alleged victim or the property of the alleged victim that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
Regulation 1.22 relevantly provides that a reference in the Regulations to a person having suffered family violence is a reference to a person being taken, under reg 1.23, to have suffered family violence. Regulation 1.23 specifies when a person is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence. That regulation draws a distinction between judicially determined and non-judicially determined claims of family violence. It is common ground that, in the present case, the appellant made a non-judicially determined claim of family violence. Relevantly, reg 1.23(9) provides:
(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)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); 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 relevant family violence; and
(ii)the alleged perpetrator committed that relevant family violence.
Pursuant to reg 1.23(10), if an application for a visa includes a non-judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence. If the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis. If the Minister is not satisfied that the alleged victim has suffered the relevant family violence, the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence, and the Minister must take that expert’s opinion on the matter to be correct for the purpose of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the visa applicant (or another person mentioned in the criterion) to have suffered family violence. Regulations 1.23(11)-(14) further address the consideration by the Minister of a non-judicially determined claim of family violence. Those regulations are not relevant for present purposes.
Regulation 1.24 sets out the evidence required for the purpose of making a non-judicially determined claim of family violence in accordance with reg 1.23(9)(c), being:
(a)a statutory declaration made by the applicant in accordance with reg 1.25; and
(b)the type and number of items of evidence specified by the Minister by instrument in writing.
The relevant instrument for the purpose of regs 1.23(9)(c) and 1.24(b) was IMMI 12/116. That instrument stipulated that two pieces of evidence were required of a type, and containing the details, specified in Sch 1, with no more than one of each type of evidence. Relevantly, the instrument specifies (among others) the following types of evidence for the purpose of regs 1.23(9)(c) and 1.24:
(a)a medical report prepared by a registered medical practitioner performing the duties of a registered medical practitioner, which identifies the alleged victim and details the physical injuries or treatment for mental health that is consistent with the claimed family violence; and
(b)a statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist, which states in their opinion that the alleged victim was subject to family violence, details the reasons for the opinion, and identifies the alleged perpetrator.
Background
The appellant married his wife, an Australian citizen, in Victoria on 23 March 2013. On 6 June 2013, the appellant applied for a Partner (Temporary) Visa, together with a Partner (Residence) Visa, which application was sponsored by his wife. On 11 June 2013, the appellant was granted a Partner (Temporary) Visa for the period until a decision on the appellant’s permanent partner visa application was made.
The appellant’s relationship with his wife broke down in September 2015. On 5 October 2015, the Department informed the appellant that the sponsorship for his visa application had been withdrawn, and invited the appellant to provide further information regarding his current circumstances and the reasons for the breakdown in his relationship.
By letter from his then lawyer dated 23 October 2015, the appellant confirmed to the Department that his relationship had broken down and further stated that he had suffered family violence perpetrated by his wife and former sponsor. Pursuant to the Regulations in force at the relevant time, which are set out above, a partner visa may be granted even where the relationship has ceased if the appellant has suffered family violence committed by the sponsoring partner, and other visa criteria would otherwise be satisfied. The letter relevantly stated:
Mr. Mudiy has been subjected to domestic family violence as his wife has 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.
A report from Dr Roshan Mendis was attached to the letter of 23 October 2016. The report took the form of a letter dated 15 October 2015 in which Dr Mendis referred to the appellant as a “regular patient” and stated that, as a result of his separation from his wife, the appellant was suffering severe anxiety and depression, as well as insomnia, and had been referred for psychological assessment. The report of Dr Mendis does not refer to any allegation, or the occurrence, of family violence as between the appellant and his former wife.
On 16 November 2015, the appellant’s then lawyer provided further information to the Department, including a report from the appellant’s psychologist, Ms Terri Bartlett, dated 9 November 2015 and a statutory declaration from the appellant regarding his claim of family violence. In her letter, Ms Bartlett describes the mistreatment that the appellant (who is referred to in the letter by his first name, Pradeep) claims to have suffered at the hands of his former wife (who is referred to in the letter by her first name, Thushari) and the circumstances of their separation as follows:
Pradeep described changes in his marriage at the beginning of 2015 when Thushari would often complain that he was bringing in too little money to the household and that she would be better off financially if she hadn't married him. According to Pradeep, Thushari ill-treated him and started to complain to friends that he wasn't earning enough money, and criticized him in front of others which left him feeling humiliated. Pradeep reported that Thushari often went out to church alone and he began to feel increasingly more ostracized in the marriage. Pradeep stated when he was unwell, Thushari accused him of feigning his illness and would do nothing to assist him. According to Pradeep, the mistreatment he received in the marriage came to a head on September 13 this year, two and a half years after Pradeep and Thushari were married. On this occasion, Pradeep reported that Thushari asked him to meet her at Fountain Gate shopping centre where she told him that she wanted a divorce and suggested that he go to New Zealand. The following day, Thushari sent a text demanding that he leave the house within seven days. Pradeep stated that he received no explanation from Thushari as to why she was ending the marriage.
Ms Bartlett’s letter also stated that the appellant presented as “depressed and anxious”. Ms Bartlett’s letter concluded by saying:
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.
There is no dispute between the parties that the appellant’s statutory declaration satisfied the requirements of regs 1.24(a) and 1.25. There is also no dispute that the letter from Ms Bartlett was not provided in the form required by reg 1.24(b) and Sch 1 to IMMI 12/116. Specifically, the letter was not in the form of a statutory declaration, and it did not include a statement from Ms Bartlett that the appellant had been subjected to family violence, explaining the details for that opinion and identifying the alleged perpetrator. A question also arises as to whether the report of Dr Mendis satisfied the requirements of reg 1.24(b) and Sch 1 to IMMI 12/116. In communication with the appellant, however, the Minister’s delegate did not identify this as a deficiency in the documentation supplied by the appellant in support of his visa, and no point was taken in relation to this by the Minister in the present appeal.
On 8 January 2016, the Minister’s delegate informed the appellant that the documents submitted in support of his family violence claim did not meet the minimum evidentiary requirements for such a claim, and requested further information in the appropriate form. The Minister’s delegate also requested further evidence regarding the genuine and continuing nature of the appellant’s relationship with his former wife prior to the breakdown of their relationship.
On 5 February 2016, the appellant’s then lawyer responded in writing to the Minister’s delegate, providing a written submission outlining the nature of the appellant’s relationship with his former wife, together with supporting documents. That response did not include, however, documents in a form compliant with the Regulations and legislative instrument IMMI 12/116.
On 9 May 2016, the Minister’s delegate wrote again to the appellant’s representative. The delegate again advised that the evidence submitted on the appellant’s behalf in support of his family violence claim failed to meet the evidentiary requirements of the Regulations. The Minister’s delegate wrote that, although the appellant’s statutory declaration and the letter from Dr Mendis dated 15 October 2015 could be accepted, the letter written by Ms Bartlett could not be, and must be resubmitted in the form of a statutory declaration. There was no response to the delegate’s letter.
On 23 June 2016, the Minister’s delegate refused the appellant’s application for a permanent partner visa for the stated reason that the appellant had failed to meet the minimum evidentiary requirements under legislative instrument IMMI 12/116 to make a non-judicially determined claim of family violence. Accordingly, the appellant had failed to establish that he had suffered family violence committed by his sponsor, and did not meet the applicable criteria for the grant of a permanent partner visa pursuant to cl 801.221 of the Regulations.
On 30 June 2016, the appellant lodged an application for review of the delegate’s decision before the Tribunal. On 2 August 2016, the appellant appointed a new representative in respect of his application, being a registered migration agent.
On 6 December 2017, the Tribunal informed the appellant that it was unable to make a favourable decision based on the material provided to it in support of the appellant’s application for review, and invited the appellant to attend a hearing on 2 January 2018 to present evidence and to make submissions.
On 14 December 2017, the appellant’s representative requested that the hearing be adjourned until 15 January 2018. The request for an adjournment of the hearing was rejected on 18 December 2017. That decision is not the subject of challenge.
The Tribunal hearing and reasons
The Tribunal hearing took place on 2 January 2018 and was attended by the appellant and his representative. The appellant provided additional documents to the Tribunal at that hearing. Only one such document was relevant to the appellant’s claim of family violence, being a further letter from his treating GP, Dr Mendis, dated 14 December 2017. That letter, which provided an update on the appellant’s condition, was similar in content to the first letter provided by Dr Mendis on 15 October 2015. The second letter does not refer to the appellant having been subjected to family violence.
On 10 January 2018, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a permanent partner visa. In its reasons, the Tribunal found that the appellant was no longer in a spousal relationship with his sponsoring partner, and that he could not therefore meet the criteria specified by cl 801.221(2) unless he could satisfy cl 801.221(6), in circumstances where he claimed to have suffered family violence perpetrated by his former wife ([7]-[8]). The Tribunal found that, although the appellant had provided a statutory declaration made by him in relation to his claim of family violence ([11]), he had not provided the two pieces of evidence required by reg 1.24(b) ([15]). The letter from the appellant’s registered psychologist, Ms Bartlett, was not in the form of a statutory declaration, as required by the Regulations ([13]). Moreover, the two medical letters from the appellant’s treating GP, Dr Mendis, did not satisfy the requirements of legislative instrument IMMI 12/116 in so far as the letters did not identify the alleged victim and the details of physical injuries or treatment for mental health that is consistent with the claimed family violence. The Tribunal noted that no family violence was referred to in either letter from Dr Mendis (at [14]). Accordingly, the Tribunal concluded that the appellant had not made a valid non-judicially determined family violence claim pursuant to reg 1.23 and cl 801.221(6) and, in the circumstances, did not satisfy the criteria for the grant of a permanent partner visa ([15]-[19]).
The appellant’s application for judicial review concerns the Tribunal’s decision to refuse the appellant’s request for an adjournment of the hearing which was made by the appellant’s representative during the hearing on 2 January 2018. The request, and the Tribunal’s response, is recorded in the transcript of the hearing, which was before the primary judge.
At the outset of the hearing, the Tribunal member asked the appellant’s representative whether the appellant was able to provide the documents required by the Regulations to make a valid claim of family violence. The appellant’s representative informed the Tribunal that the appellant did not have those documents, but that the appellant relied on the two letters from Dr Mendis dated 15 October 2015 and 14 December 2017, and the letter from Ms Bartlett dated 9 November 2015. The Tribunal member then explained to the appellant that, without the documents required by the Regulations, the appellant could not make a valid claim of family violence and that the Tribunal would have “no alternative but to affirm the decision”. The Tribunal member explained the process for making a valid claim of family violence and how the Tribunal is required to consider a valid claim once made.
The Tribunal member then confirmed the documents on which the appellant relied for the purpose of establishing a claim of family violence. The appellant produced a volume of documents to the Tribunal, which largely concerned his professional background and the circumstances of his marriage. The appellant explained to the Tribunal his personal history and the circumstances in which he found himself. The appellant stated on a number of occasions that he had a strong relationship with his wife, but that his wife was critical of his earnings.
The Tribunal member reiterated to the appellant that the central issue was whether the appellant met the criteria that would allow him to remain in Australia on a permanent partner visa notwithstanding that his relationship with his wife had ceased, and that the documents provided, and the matters addressed, by the appellant at the hearing did not appear to assist the Tribunal member in the decision that he was required to make. The Tribunal member said, however, that he would read the documents provided again and that:
After this hearing, I’ll go and do that just to make sure there’s nothing in there that I have not looked at 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 ---
Later in the hearing, the appellant’s representative made the following submissions on the appellant’s behalf:
… I actually took over the case probably after he has applied to the tribunal (indistinct) sort of after his visa was refused. So we went through all the documentation and the story and everything as you have heard (indistinct) those things. I did explain to him what is actually (indistinct). 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 sort of, like, 10 sessions with him, and with the letter she has provided she has not specifically mentioned that the family violence has occurred.
…
On numerous occasions, my client has been, according to him, has been humiliated with his salary itself, and that he’s not earning and so on. So I don’t know as to what extent whether it has been constituted as family violence, even though we probably will agree that even though there’s no physical abuse the mental abuse could constitute family violence. Now, I understand that your power is very limited and probably best we – my client, to us, has not provided sufficient documentation to make a favourable decision.
After making those statements, the appellant’s representative made a request for additional time to provide further evidence. The following exchange took place between the Tribunal member and the appellant’s representative:
[APPELLANT’S REPRESENTATIVE]: … 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 psychiatric or psychologist and get the documentation to another person and to reassess whether there any family violence has occurred?
Because she got all the notes of 10 sessions 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.
[TRIBUNAL MEMBER]: Well, as you’ve said, though, you’ve had ample opportunity to provide those documents. That’s my concern, number 1…
…
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 requires and is refusing to continue contact to discuss that. It’s not a good omen going forward, and so it’s – what I would hesitate in doing is just leaving this open-ended and this goes on for months and months and months.
… But, in terms of the tribunal’s work, it’s certainly my intention to get on and to look at each case and make a very quick decision, unless there’s something new that’s going to be brought to the table.
[APPELLANT’S REPRESENTATIVE]: Okay.
[TRIBUNAL MEMBER]: I’m not hearing that there’s something new that’s going to be brought to the table.
[APPELLANT’S REPRESENTATIVE]: Not at this stage, member.
[TRIBUNAL MEMBER]: Not at this stage?
[APPELLANT’S REPRESENTATIVE]: No. Well, actually only once Dr Terry returned my call. So I explained it to her at least to provide her material finding in the form of a statutory declaration. We requested that one for ---
[TRIBUNAL MEMBER]: And what did she say to you?
[APPELLANT’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. …
After a further exchange, the following was said:
[TRIBUNAL MEMBER]: If you wish, I’m happy to give you until the end of the week to provide anything else you think might be relevant.
[APPELLANT’S REPRESENTATIVE]: Okay.
[TRIBUNAL MEMBER]: That gives you one last opportunity to make contact or not make contact.
[APPELLANT’S REPRESENTATIVE]: I appreciate that.
[TRIBUNAL MEMBER]: 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?
The hearing then concluded.
Reasons of primary judge
In careful and detailed reasons, the primary judge dismissed the appellant’s application for judicial review of the Tribunal’s decision.
The primary judge stated that it was common ground that the Tribunal allowed the appellant’s representative only a very short time to provide further material following the hearing on 2 January 2018. The primary judge framed the issue before the Court as whether the Tribunal, in not allowing a longer period, acted unreasonably (PJ [48]). For reasons discussed below, I do not consider that the relevant issue is properly framed in that manner.
The primary judge recorded that the appellant submitted that there were two decisions of the Tribunal which were legally unreasonable, relying on the principles stated in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). The first decision was the Tribunal’s refusal to allow the appellant additional time to obtain evidence from an alternative psychologist or psychiatrist in support of his application. The second decision was imposing a time limit of just over one day to obtain new evidence from the appellant’s existing psychologist, Ms Bartlett (PJ [50]-[51]).
The primary judge found that the present case was distinguishable from the facts in Li. First, unlike in Li, no coherent reason was given for the adjournment request in the present case (PJ [66]). During the hearing before the Tribunal, the appellant’s representative conceded that there were defects in the evidence provided to the Tribunal. At its highest, the appellant’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 (PJ [67]). Moreover, there was no evidence about steps taken to secure a second opinion from another psychologist (PJ [68]).
The primary judge concluded that (at [72]):
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.
The primary judge observed that, to the extent that the appellant sought additional time to obtain a second opinion, it was clear that the Tribunal was concerned not only with the issue of further delay, but also with the utility of providing additional time (PJ [76]). After referring to the exchanges that occurred between the Tribunal member and the appellant’s representative about the likelihood of obtaining further relevant evidence, the primary judge concluded as follows (at PJ [82]):
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 primary judge observed that the position may well have been different had the appellant already been assessed by another psychologist or psychiatrist and more time was required for a report of that assessment to be provided, or had the appellant received an indication from Ms Bartlett that she was prepared to put her letter in the proper form or provide further evidence, or had there been a realistic prospect the such further information could be obtained from Ms Bartlett or another psychologist or psychiatrist (PJ [83]-[85]). The primary judge concluded that the extension afforded to the appellant was for the purpose of making contact with Ms Bartlett and, in all of the circumstances, the amount of time provided was not unreasonable so as to give rise to jurisdictional error (PJ [86]).
Appellant’s submissions
By his ground of appeal, the appellant contends that the primary judge erred in failing to find that the failure of the Tribunal to adjourn the proceeding to provide a meaningful opportunity for the appellant to obtain and provide the necessary evidence was unreasonable in the circumstances.
In his written submissions, the appellant identifies two procedural decisions of the Tribunal that are said to be unreasonable: the first was the refusal to permit the appellant time to obtain evidence from another psychologist or psychiatrist to comply with the regulatory requirements; and the second was the imposition of a time limit of just over one day in the first few days of January to obtain new evidence from the psychologist Ms Bartlett in a compliant form. The appellant submitted that if either decision is found to be legally unreasonable, the Tribunal will have fallen into jurisdictional error and the appellant will succeed on his appeal. To a significant extent, the appellant relied on the principles and findings in Li. The appellant submitted that the unreasonableness of the Tribunal’s decisions in the present case are on all fours with the facts in Li.
In relation to the first decision, the appellant submitted that s 360 of the Migration Act 1958 (Cth) (Act) required the Tribunal to provide the appellant with a meaningful opportunity to present evidence to address the issue which was the basis of the delegate’s adverse decision, being the non-compliance of Ms Bartlett’s report with the form required by the Regulations and IMMI 12/116. The appellant, through his representative, gave evidence before the Tribunal of the multiple, unsuccessful attempts made to obtain evidence in a compliant form from Ms Bartlett and requested an adjournment to facilitate evidence from a different psychologist. The appellant argued that there was no reason to presume that the new psychologist would not provide a report with the necessary content and form, and that they would not do so in a timely fashion once engaged. However, instead of considering the adjournment request through the “prism” of whether an adjournment would serve the object of s 360 of the Act, the Tribunal adopted an approach of “enough is enough” (as it did, impermissibly, in Li) and refused the request. Underpinning the Tribunal’s approach was its determination to make a decision as a matter of urgency. The appellant contends that this was unwarranted in circumstances where whatever delays had occurred in the progress of the matter before the Tribunal were attributable to the Tribunal’s timetable and not to the appellant. In all the circumstances, therefore, the Tribunal’s refusal was legally unreasonable.
In relation to the second decision, the provision of such a short timeframe to secure compliant evidence from Ms Bartlett was unreasonable having regard to the time of year (being a time when most businesses are closed) and the repeated, unsuccessful attempts to contact Ms Bartlett. It could not reasonably be contemplated that an additional request to Ms Bartlett on 2 or 3 January to provide a report in the prescribed form by 12 noon on 4 January would have produced a different result. The additional time provided cannot be considered a “practically meaningful opportunity” to the appellant to obtain further evidence. It was, using the words of the plurality in Li (at [61]), an “empty gesture”. The appellant submitted that, had sufficient time been given to contact Ms Bartlett and to clarify the requirements of the Regulations and IMMI 12/116, and had Ms Bartlett cooperated, the result may well have been the provision of evidence in a compliant form.
The appellant further submitted that the primary judge’s reasoning distinguishing the present case from Li does not withstand scrutiny. First, the appellant did offer a “coherent reason” for the adjournment – being to continue to attempt to secure compliant evidence from Ms Bartlett or, failing that, from another psychologist. Second, while the appellant was aware at the time of the hearing that the evidence submitted to date was insufficient, the same was also true in Li. Third, similarly to Li, clear submissions were made as to the nature of the evidence that the appellant sought additional time to secure, being evidence from either Ms Bartlett or another psychologist in a form compliant with the Regulations. Fourth, it cannot be said that there was no realistic prospect that further information to support the appellant’s claim could have been obtained had the appellant received additional time to do so. That is so for the reasons set out above, and because such a proposition is “unknowable” in circumstances where the appellant had no practical opportunity to seek further information. The prospect of obtaining compliant evidence fell within the scope of “reasonable conjecture”, relying on Nathanson v Minister for Home Affairs (2022) 278 ALD 536 at [32] (Kiefel CJ, Keane and Gleeson JJ). Finally, the primary judge failed to grapple with how compliant evidence could practically have been obtained in the one additional day granted to the appellant. Irrespective of whether the facts in Li are truly analogous to those in the present case, the appellant contends that legal unreasonableness can be established in a wide range of circumstances that extend beyond those which arise in Li, relying on Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 (Singh).
Consideration
The nature of the decision made by the Tribunal
It is necessary to begin by identifying and properly characterising the decision that was made by the Tribunal at the hearing on 2 January 2018 that is the subject of challenge.
I do not accept the appellant’s characterisation that the Tribunal made two decisions: the first being to refuse the appellant’s request for time to obtain evidence from another psychologist or psychiatrist; and the second being to impose a time limit of just over one day to obtain new evidence from the psychologist Ms Bartlett. That characterisation does not reflect the request that was made by the appellant’s representative to the Tribunal, nor the Tribunal’s response to the request. The transcript shows that the Tribunal made a single decision to refuse the appellant’s application for an adjournment of the hearing to provide the appellant with further time to satisfy the requirements of the Regulations.
At the outset of the hearing the Tribunal member asked the appellant’s representative whether the appellant was able to provide the documents required by the Regulations to make a valid claim of family violence. The appellant’s representative informed the Tribunal that the appellant did not have those documents. The Tribunal member explained to the appellant that, without the documents required by the Regulations, the appellant could not make a valid claim of family violence and that the Tribunal would have “no alternative but to affirm the decision”.
Later in the hearing, the appellant’s representative asked the Tribunal for more time to obtain the required documentation. Although the representative’s request was not expressed clearly, two principal matters were communicated. First, Ms Bartlett had not provided a statutory declaration (as required by the Regulations). The representative had attempted to contact Ms Bartlett “a couple of times”, but “she was not being very helpful”. A little later, the representative clarified that he had spoken to Ms Bartlett on one occasion and requested that she provide her “material finding” in the form of a statutory declaration. Ms Bartlett said that “she would look into that”, but the representative tried to contact her “a couple of times” but “she didn’t get back to us”. Second, the representative enquired whether the Tribunal would give the appellant time to try and arrange for Ms Bartlett’s notes (of her sessions with the appellant) to be provided to another psychiatrist or psychologist to “reassess whether … any family violence has occurred”.
The Tribunal member’s response to the request was conveyed in a discursive manner. Nevertheless, it is clear that the Tribunal member refused the representative’s request for an adjournment. That is apparent from the following statements made by the Tribunal member:
(a)the representative had acknowledged that the appellant had had “ample opportunity to provide those documents”;
(b)the Tribunal’s understanding was that Ms Bartlett had not provided a statement in the form required by the Regulations and was refusing to continue contact with the appellant or the representative;
(c)the Tribunal was unwilling to leave the proceeding “open-ended”;
(d)the Tribunal member intended to make a decision quickly unless there was “something new that’s going to be brought to the table”;
(e)in response to the Tribunal’s question, the representative confirmed that “at this stage” there was nothing new that was going to be “brought to the table”.
At the end of the discussion, the Tribunal member indicated that he would be looking at the application on Thursday (4 January 2018) and stated that, if the appellant had anything else that he would like the Tribunal to consider, the appellant could provide it to the Tribunal by noon on that day. In my view, that indication cannot be characterised as an adjournment. By that indication, the Tribunal conveyed the opposite: that the Tribunal proposed to make a decision on the application promptly. The Tribunal did convey, however, that the appellant had liberty in that period to provide the Tribunal with any additional evidence that became available to the appellant, and the Tribunal would take such additional material into account. The liberty afforded to the appellant was very limited in time and provided the appellant with little if any opportunity to obtain and provide any additional material. In every practical sense, the effect of the Tribunal’s decision was that the request for an adjournment was refused.
It follows that the relevant decision of the Tribunal, which is challenged in this proceeding, is a decision to refuse the appellant’s request for an adjournment.
For those reasons, I reject the appellant’s characterisation of the Tribunal’s decision as involving two separate decisions, including a decision to afford the appellant a two day adjournment to obtain a further statement from Ms Bartlett. To that extent, I respectfully disagree with the manner in which the primary judge framed the issue for determination in the proceeding (PJ [48]). The relevant question is whether the Tribunal’s decision to refuse the request for an adjournment was legally unreasonable within the principles explained in Li and Singh.
The applicable principles in Li and Singh
It is well-established that the legislature is ordinarily to be taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: Li at [23]-[24] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[90] (Gageler J).
At issue in Li and in Singh, as well as in the present case, was the exercise by the reviewing tribunal of the discretionary power to adjourn the review pursuant to s 363(1)(b) of the Act, which appears in Div 5 of Pt 5 of the Act. Pt 5 of the Act provides for the review by the Tribunal of “Part 5-reviewable decisions”, which relevantly include decisions concerning visas of the kind at issue in this case. Section 360(1) of the Act requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review, save in limited circumstances. Section 363(1)(b) of the Act provides that, for the purpose of the review of a decision, the Tribunal may adjourn the review from time to time. In Li, the High Court authoritatively determined that the discretionary power to adjourn a review pursuant to s 363(b)(1) of the Act must be exercised reasonably.
As explained in Li, legal reasonableness is a multifaceted concept. Stated most simply, a discretion must be exercised according to the rules of reason and justice, consistently with the scope and purpose of the power, and not in an arbitrary or capricious manner: Li at [23]-[24] (French CJ), [65] (Hayne, Kiefel and Bell JJ, and [90] and [105] (Gageler J). In the reasonable exercise of its power to adjourn a review, the Tribunal must have regard to the statutory purpose expressed in s 360 of the Act, being to provide an applicant for review with a meaningful opportunity to present evidence and arguments with respect to the issues arising in the decision under review: Li at [61], [74], [83]-[83] (Hayne, Kiefel and Bell JJ).
The legal standard of unreasonableness is not “limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it”: Li at [68] (Hayne, Kiefel and Bell JJ). Nevertheless, in its supervisory role, the court does not undertake a review of the merits of a discretionary decision or seek to substitute its own view about how a discretion should be exercised: Li at [66] (Hayne, Kiefel and Bell JJ) citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37. The legal standard of unreasonableness remains stringent: Li at [108] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [11] (Kiefel CJ); Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen (2023) 297 FCR 162 (Lieu) at [82] (Mortimer CJ, with Anderson and Hespe JJ agreeing).
In each of Li and Singh, a conclusion was reached that the refusal by the Tribunal of a request for an adjournment of the hearing was legal unreasonable. The conclusion in each case depended upon the specific factual circumstances.
In Li, the visa applicant applied for a skilled independent overseas student residence visa, the grant of which required the applicant to have, at the time of the visa decision, an assessment that the applicant’s skills were suitable for their nominated occupation. Ms Li applied for the visa on 10 February 2007. The application was supported by a skills assessment made on 8 January 2007 by Trades Recognition Australia (TRA), a relevant assessing authority. The assessment was found to be based on false information submitted to TRA by Ms Li’s former migration agent. On 13 January 2009 the Minister’s delegate refused the application for a visa. On 30 January 2009, Ms Li sought review of the delegate’s decision in the Migration Review Tribunal (MRT) (which later became a division of the Administrative Appeals Tribunal). On 4 November 2009, Ms Li’s migration agent submitted a second skills assessment application to TRA. She had not received that second assessment by the time of the hearing on 18 December 2009. On 21 December 2009, following the hearing, the Tribunal wrote to Ms Li raising a number of issues with her application and seeking a response by 18 January 2010 (but advising that Ms Li could seek an extension of time). On 18 January 2010, Ms Li’s migration agent informed the MRT that the application for a second skills assessment had been unsuccessful. The migration agent pointed out “two fundamental errors” in TRA’s assessment and said that Ms Li had applied to TRA for review of its adverse decision. The migration agent requested the MRT to “forbear from making any final decision regarding her review application until the outcome of her skills assessment application is finalised”. He undertook to keep the MRT informed of the progress of the application. On 25 January 2010, the MRT affirmed the decision of the delegate.
The High Court unanimously found that the MRT’s decision to refuse Ms Li’s request to adjourn the review was legally unreasonable. The Court found that the adjournment was sought for a “highly specific purpose” that was clearly articulated by Ms Li: to await the outcome of the review she had already sought of the second skills assessment. The MRT did not reject or challenge those reasons, which the Minister accepted on appeal as coherent on their face and as providing a justification for the adjournment sought: at [122] (Gageler J); see also [31] (French CJ). The MRT did not suggest that the adjournment request was made due to any fault on the part of Ms Li or her migration agent: at [31] (French CJ). The MRT did not indicate (nor was there reason to infer) that it considered there to be no prospect of a favourable skills assessment, or that it was unlikely to be obtained in the near future: at [83] (Hayne, Kiefel and Bell JJ); [122] (Gageler J). A favourable assessment did in fact eventuate three months later: at [122] (Gageler J). There was no consideration that weighed in favour of an immediate decision: at [122] (Gageler J).
In Singh, Mr Singh applied for a visa which required him to have evidence of competent English. The application was made in June 2010. On 11 January 2012, the Minister’s delegate wrote to Mr Singh and asked him to provide an International English Language Testing System (IELTS) test report. Mr Singh’s migration agent wrote to the delegate on 1 February 2012 and informed the delegate that Mr Singh had registered for an IELTS test on 9 February 2012. The results of that test were provided to the delegate on 19 March 2012. On 4 April 2012, the delegate refused to grant the visa because Mr Singh failed to obtain the minimum score that was required by the relevant Regulations that were in force at that time. On 20 April 2012, Mr Singh sought review before the MRT. The MRT listed the matter for hearing on 9 November 2012 and informed Mr Singh that he was required to provide evidence of English language proficiency, an IELTS booking or, where unable to do so, good reason for additional time. In November 2012 (prior to the hearing), Mr Singh wrote to the Tribunal stating that he had sat a test on 3 November 2012 and would know the results on 16 November 2012. He also informed the Tribunal, and provided evidence, that he had booked tests on 17 November 2012 and 1 December 2012 and would receive results for those tests on 30 November 2012 and 14 December 2012 respectively. He requested that the Tribunal allow him additional time so that he could obtain and submit the results for the tests he had undergone or booked. At the hearing on 9 November 2012, the MRT agreed to wait until 31 December 2012 to receive the results of the two IELTS tests which had been booked but indicated that it would not wait thereafter for further evidence because Mr Singh had made his visa application two years previously and had many opportunities to sit English language tests.
On 1 January 2013, Mr Singh sent his test results for the 17 November and 1 December 2012 tests to the Tribunal by facsimile. Mr Singh stated that, in respect of the December test, he had achieved the requisite marks on all topics except for one (which he had passed on all previous occasions), and he intended to apply for a re-evaluation of that particular result. The MRT declined to grant Mr Singh more time and, some days later, affirmed the delegate’s decision, for the reasons that: Mr Singh had not provided documentary evidence that he had in fact applied for a re-evaluation of his latest test result; he had had reasonable time to obtain evidence of competent English; he had applied for his visa in June 2010; and he had sat several IELTS tests but had not obtained competent English.
The Full Court held that the MRT’s exercise of power was legally unreasonable in circumstances where: an adjournment was sought for a “highly specific” and limited purpose, being to provide Mr Singh with an opportunity to confirm or verify the results of his latest test – and not, for example, to sit another test (at [68], [72]); the MRT had already agreed to wait until the results of that test were known, which must be understood as an agreement to consider Mr Singh’s review application on the basis of test results confirmed to be accurate (at [2], [70]); there was an objectively reasonable basis to believe that the relevant mark for which re-evaluation was sought may not be an accurate reflection of Mr Singh’s performance (at [73]); it was unlikely in circumstances where Mr Singh’s other tests had been undertaken in a short space of time that the re-evaluation would be long or complex, and indeed the MRT did not address this in its reasons (at [74]); and there was no prejudice to anyone from a short adjournment of the review, but there was significant prejudice to Mr Singh if the adjournment were refused (at [76]).
As the Full Court emphasised in Singh (at [42]), the assessment of whether there has been a legally unreasonable exercise of a discretionary power requires the application of the principles stated in Li and the earlier authorities discussed in it; it is erroneous to engage in a process of factual comparison, identifying factual similarities or differences in some kind of checklist manner. Legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court.
Consideration of the present case
In the present case, the Minister’s delegate refused the appellant’s visa application because the appellant had not provided evidence in the form required to make a non-judicially determined claim of family violence, such that the appellant did not satisfy the criteria for the grant of a permanent partner visa. Specifically, the appellant was informed that the letter written by Ms Bartlett could only be accepted and taken into account if it was in the form of a statutory declaration. The appellant was made aware on two occasions by the Minister’s delegate of this deficiency in his application (in January and May 2016), before the Minister refused the application (in June 2016). The appellant then sought review before the Tribunal of the delegate’s decision. On the basis of the communications between the Minister’s delegate and the appellant, and the Minister’s decision, I infer that the appellant and/or his migration agent was aware that the appellant was required to submit a statutory declaration from a registered psychologist in support of his claim that he was the victim of family violence. The appellant did not obtain such a statutory declaration, despite having some 18 months to do so (being the period between when he applied for review of the delegate’s decision and the date of the Tribunal hearing on 2 January 2018).
The appellant’s representative acknowledged this failure at the Tribunal hearing, and further stated that she had explained to the appellant the importance of having the necessary documents. However, no satisfactory explanation for the failure was offered by the appellant or his representative. The appellant’s representative stated in submissions that she had made a couple of telephone calls to Ms Bartlett, had spoken to her once explaining the further documentation required, and had not since been able to speak to or contact Ms Bartlett. The attempts made to contact Ms Bartlett were not the subject of evidence. Nor was there any evidence of any attempts made by or on behalf of the appellant to consult a different psychologist. Moreover, the appellant’s representative expressly indicated in her correspondence with the Tribunal some months before the hearing that all documentation in support of the appellant’s case would be provided to the Tribunal ahead of the hearing.
The appellant suggested at the Tribunal hearing that he had encountered difficulties with his former lawyers. However, the appellant engaged a new migration agent a little more than one month after he filed his application for review with the Tribunal. The new migration agent represented the appellant throughout that process and appeared at the hearing.
It was in that context that the appellant’s representative made a request at the hearing for additional time to remedy the deficiency. As discussed above, although the request was not expressed clearly, the purpose of the request for additional time was to enable the appellant time to try and arrange for Ms Bartlett’s notes (of her sessions with the appellant) to be provided to another psychiatric or psychologist to “reassess whether … any family violence has occurred”. That request was refused.
In my view, the Tribunal’s refusal of the request for an adjournment was not legally unreasonable. There was no material before the Tribunal to suggest that, if an adjournment were granted, the appellant would be able to remedy the deficiency in his visa application by obtaining the required statutory declaration.
As set out earlier, regs 1.23(9)(c) and 1.24 (when read with legislative instrument IMMI 12/116) required the appellant to support his claim of family violence with a statutory declaration made by a registered psychologist in a State or Territory who had treated the appellant while performing the duties of a psychologist, which states in their opinion that the appellant was subject to family violence, details the reasons for the opinion, and identifies the alleged perpetrator. As far as the evidence at the Tribunal hearing revealed: the appellant had only ever been treated by Ms Bartlett; Ms Bartlett had not provided a statutory declaration containing the statements required by the legislative instrument; the appellant’s migration agent acknowledged at the hearing that Ms Bartlett had been asked to provide a statutory declaration but had not done so; and, even the letter provided by Ms Bartlett to the appellant did not contain a statement to the effect that, in Ms Bartlett’s opinion, the appellant was subject to family violence by his former wife.
At the hearing, the Tribunal identified the problem confronting the appellant in satisfying the visa criteria:
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.
Although not expressed with complete clarity, I understand the Tribunal to be adverting to the requirement that the appellant must support his claim of family violence with a statutory declaration made by a registered psychologist who had treated the appellant. It was not possible for the appellant to obtain an opinion from a psychologist who had not treated him. Accordingly, the request made by the appellant’s representative to be given time to provide Ms Bartlett’s notes to another psychologist would not enable the appellant to satisfy the visa criteria.
In relation to the prospect of the appellant obtaining a statutory declaration from Ms Bartlett, the Tribunal member stated:
… what I'm hearing is the doctor that he has seen in the first instance hasn't provided it in the form that's requires and is refusing to continue contact to discuss that.
That was an accurate statement of the evidence before the Tribunal. Despite a number of requests that had previously been made, Ms Bartlett had not, either in form or content, provided an opinion supporting the appellant’s claim of family violence as required by legislative instrument IMMI 12/116.
The Tribunal rejected the appellant’s request for an adjournment for reasons which disclose an evident and intelligible justification for its decision. I respectfully agree with the observation of the primary judge that the position may well have been different in this case had the appellant already been assessed by another psychologist or psychiatrist and more time was required for a report of that assessment to be provided (PJ [83]); and it may also have been different if the appellant 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 appellant had been the victim of family violence (PJ [84]).
The foregoing conclusion is not altered by the fact that, at the very end of the hearing, the Tribunal member indicated that he would not be making a decision for two days and that, if the appellant had anything else that he wanted the Tribunal member to consider, he could provide it to the Tribunal in that time. For the reasons given earlier, that indication was not a two day adjournment. The Tribunal merely afforded the appellant with liberty to provide any additional relevant material before the Tribunal made its decision, which the Tribunal estimated would be in two days’ time. The practical effect remained that the Tribunal refused the request for an adjournment. The Tribunal’s decision not to adjourn the hearing was not legally unreasonable.
Conclusion
In conclusion, the primary judge was correct to find that the Tribunal’s decision to affirm the delegate’s decision was not affected by jurisdictional error. Accordingly, the appeal will be dismissed with costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate:
Dated: 16 November 2023
1
6
2