Naikar v Minister for Immigration
[2018] FCCA 2689
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAIKAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2689 |
| Catchwords: MIGRATION – Partner visa – applicant’s spouse withdraws support for application – applicant invited to comment on spouse’s advice that the parties are no longer in relationship – applicant denies spouses claim – applicant then admits failure of relationship but claims to be victim of domestic violence – applicable principles – whether evidence of non-judicially determined domestic violence made out – application bound to fail – Tribunal failed to observe the requirements of ss 359A or 359AA – availability of relief – failure in the observance of obligations could not have had a material effect on the outcome or occasioned any practical injustice to the applicant – failure could not have deprived the applicant of the possibility of a successful outcome – application for relief denied – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Migration Regulations 1994, regs.1.03, 1.21, 1.23, 1.24, 1.25, Sch 2 cl 801.21, 801.22, 801.221 |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioners of Territory Revenue (NT) (2009) 239 CLR 27 AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 BRF038 v The Republic of Nauru [2017] HCA 44 BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 HFM043 v The Republic of Nauru [2018] HCA 37 Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 MZARG v Minister for Immigration and Border Protection[2018] FCA 624 Nobrani v Maricote [2018] HCA 36 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 92 ALJR 798 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190 SZJMG v Minister for Immigration [2008] FCA 1145 SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399 WZAVW v Minister for Immigration and Border Protection[2016] FCA 760 |
| Applicant: | RITESH NAIKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2103 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 29 January 2018 |
| Date of Last Submission: | 29 January 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
The applicant be granted an extension of time, now for then, in which to file the application for judicial review filed on 28 September 2017.
The application filed on 28 September 2017 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2103 of 2017
| RITESH NAIKAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 28 September 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 August 2017, affirming a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a Fijian national aged 37 years, first arrived in Australia in 2012. On 13 February 2013, he lodged his Partner visa application. By his application, he disclosed that he had previously been married for a period of six years but was now divorced, having fathered two children during that marriage. A certificate of final dissolution provided with the application showed that the applicant had been divorced from his first wife in early 2012.
By his application, details were provided of his fiancé, Ms Vijay Latchmi Kamchi Reddy, an Australian citizen, whom he identified as having two children and who had been divorced in 2004.
Both the applicant and his fiancé had been born in Lautoka, Fiji.
The applicant stated that the parties had first met in Fiji in October 2011 and that their relationship commenced in January 2012. He stated that the parties began living together on 22 September 2012, and that they had been married on that date. The application also disclosed that the applicant had been convicted of a crime or offence.
The sponsor’s application provided information that was essentially corroborative of much that was contained in the applicant’s application.
Two statutory declarations were made in support of the application by persons who had known the applicant for some time.
A national police certificate dated 14 February 2013, stated that there was no disclosable court outcomes known in respect of the applicant.
By a document entitled Partner visa application – information for permanent processing dated 13 February 2015, the applicant provided further detail, including that he had been convicted in Fiji of an assault for which he had been placed on a bond to be of good behaviour for a period expiring on 5 March 2015.
Further statutory declarations were provided at this time.
A Veritas check dated 19 January 2015, disclosed that on 5 March 2014, the applicant had been convicted of an offence of recklessly causing injury and placed on a 12 month bond to be of good behaviour.
By letter dated 8 February 2016, the Department of Immigration and Border Protection wrote to the applicant requesting further documents from him for the purposes of his application.
By letter dated 19 April 2016, the Department wrote to Ms Reddy, acknowledging her notification that she wished to withdraw her nomination in support of the visa application on the ground that her relationship with the applicant had ceased.
On the same date, the Department wrote to the applicant, informing him of the information which it had received from Ms Reddy respecting the withdrawal of her nomination of the applicant and of her support for his partner visa. The applicant was invited to comment on this information.
By email dated 19 April 2016, the applicant responded to the Department stating in part that he was shocked by its letter and claimed that the information which it had received was “evidence . . . falsely given and not true. Vijay Reddy and my self (sic) are still happily married and living together. . . . Both myself and Vijay are very happy and we love each other very much.” The email restated the assertion as to the falsity of the information contained in the Department’s letter and requested that the matter be re-investigated. Contextually, the applicant’s email was notable for the absence of any reference to his having been the target of any domestic violence.
On 2 August 2016, a Delegate of the Minister refused the application.
The Delegate refused the application by reason that, at the time of the Delegate’s decision, the applicant did not satisfy cl 801.221(2), Sch 2 of the Migration Regulations 1994 (Regulations) in that Ms Reddy had withdrawn her sponsorship for the application.
The Delegate’s decision record informed the applicant of circumstances in which the visa application could be continued, including if the applicant had been the victim of family violence.
On 12 August 2016, the applicant lodged an application for a merits review of the Delegate’s decision by the Tribunal.
On 23 August 2016, a Delegate of the Minister furnished a certificate to the Tribunal under s 375A of the Act (Certificate), stating that “As s 375A applies to the documents . . . the AAT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the AAT . . . pursuant to s 375A(2)(b). . .”
On 4 July 2017, the Tribunal wrote to the applicant’s lawyers inviting them to provide any information in support of the proposition that the applicant was currently in a spousal relationship with his sponsor.
On the same date, the Tribunal wrote a further letter to the applicant’s lawyers informing them of, and inviting them to comment on the validity of, the Certificate. The letter stated in part:
Please note that the Tribunal will in any event have regard to its obligations under s 359A of the Act – amongst other things, to give you clear particulars of information that the Tribunal considers would be the reason or part of the reason to affirm the decision under review.
The Tribunal invited the applicant’s solicitors to respond to the invitation to comment upon the validity of the Certificate.
On 10 July 2017, the applicant’s solicitors responded, advising that although they had ceased acting for the applicant, they had been re-instructed by him to continue to act and further that, as he had been placed in detention since 10 July 2017, a request for an extension of time was made so as to address the validity of the Certificate. The Tribunal agreed to the request for an extension of time.
On 24 July 2017, the applicant’s solicitors provided further information confirming the breakdown of the parties’ spousal relationship. However, the letter advanced a new claim that the applicant had suffered family violence committed on him by his spouse, Ms Reddy:
The family violence included threats made to [the applicant] abusive and humiliating language, emotional and psychological manipulation and physical violence including kicking and hitting.
The applicant’s solicitors furnished various documents with their letter.
On 9 August 2017, the Tribunal invited the applicant to attend a hearing scheduled for 24 August 2017 to present arguments and adduce evidence relating to the issues arising on the Delegate’s decision. The Tribunal underlined the importance of the very specific requirements of cases where a claim of family violence had been made.
The hearing was conducted on 24 August 2017 at which time evidence was given by the applicant, his sister and his new partner.
At the conclusion of the hearing, by an oral decision, the Tribunal affirmed the Delegate’s decision to refuse the partner visa application.
Following the hearing, the applicant’s current partner contacted the Tribunal, informing it that the applicant had provided his former solicitors with a copy of an intervention order and seemingly requested that it be taken into account. The Tribunal responded that the document would have to be provided if it was to be taken into account.
As at 4 September 2017, the Tribunal had received nothing further from the applicant.
On 23 October 2017, the Tribunal provided a decision record containing its written reason for the oral decision that had been given on 24 August 2017 (Reasons).
Procedural History
On 28 September 2017, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 24 August 2017.
The applicant affirmed an affidavit to which he exhibited, amongst other things, a statutory declaration, the content of which may be construed as a statement of the grounds of the application. The applicant also exhibited a copy of a letter from the Tribunal to the applicant, dated 4 September 2017 confirming that an oral decision was made on 24 August 2017 and that the reasons for the decision had been explained at the hearing.
By a Response filed on 12 October 2017, the Minister contended that the application for judicial review should be dismissed on the ground that the decision under review was not affected by jurisdictional error.
The applicant has filed a series of affidavits in the proceeding.
On 19 October 2017, the applicant affirmed an affidavit by which he deposed that the Tribunal member had ordered him to produce documents in support of his application within 7 days but that due to being held in detention, he was under immense pressure and unable to produce the required documents within the time fixed by the Tribunal. The applicant deposed that he was now in possession of the required documents.
On 7 November 2017, the applicant affirmed an affidavit to which he annexed a series of documents in support of his application for a partner visa. The applicant affirmed a further affidavit dated 9 November 2017, which was in near identical form to his affidavit affirmed two days earlier. Several of the annexed documents post-dated 9 November 2017. In chronological order, they included:
a)a statutory declaration dated 9 September 2016 in which the applicant provided a more detailed outline of his claim, including the history of his spousal relationship, its failure, and the violence which attended it;
b)an undated document entitled Additional Information in which the applicant explained the circumstances of him having been incarcerated for 55 days in 2017;
c)an application for an intervention order dated 21 September 2016, in which the applicant was named as respondent to a claim of domestic violence at the suit of his former spouse;
d)a letter dated 24 July 2017, from the applicant’s lawyers to the Tribunal advising that the applicant was no longer in a spousal relationship but that it was he who was the victim of domestic violence and relied upon cl 801.221(6)(c) of the Regulations;
e)a brief report from a psychologist and a mental health plan;
f)sundry other documents.
The applicant also provided the Court a USB containing a copy of the audio recording of the Tribunal hearing on 24 August 2017 and the oral decision delivered by the Tribunal.
The Minister objected to reliance upon many of the documents annexed to these affidavits on the basis that they had not been before the Tribunal and could not, as it was submitted, have any bearing upon the applicant’s ground of review.
On 21 November 2017, orders were made by consent listing the application for final hearing. By this order, the applicant was afforded the opportunity to file an amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions in support of his application.
On 15 January 2018, a solicitor and legal assistant respectively acting for the Minister affirmed affidavits as follows:
a)the first affidavit annexed a copy of the transcript of the Tribunal hearing that had been held on 24 August 2017;
b)the second affidavit exhibited a copy of the Certificate and the documents covered by that Certificate (which had been placed in a sealed envelope). The Minister made no claim for privilege over those documents;
c)the third affidavit, exhibited correspondence from the applicant’s sponsor to the Department. This correspondence had also been placed in a sealed envelope and marked confidential. The Minister deposed that these documents were not relevant to the proceeding, adding, however, that if the Court required the documents be produced they would seek to make a claim of public interest immunity over the documents.
The matter was listed for final hearing on 29 January 2018.
On 17 January 2018, the applicant transmitted an email to the Court seeking an adjournment on the basis of a medical condition. He attached a certificate and other medical records relating to his condition. A copy of that email was sent to the Minister’s solicitor.
On 24 January 2018, the applicant sent a further email indicating that he would now proceed with the hearing, accompanied by his current partner.
On 29 January 2018, the applicant appeared via video link and was assisted by a Fijian interpreter. The hearing time was changed to facilitate the hearing at a convenient time for the applicant.
Tribunal decision
The Tribunal recorded that the applicant’s first claim that he had been a victim of domestic violence by his sponsor, Ms Reddy, was made in July 2017, a month before the scheduled hearing: Reasons, [12].
While the Tribunal questioned the veracity of the claims of family violence as recounted to the Tribunal by the applicant’s sister, it expressly disavowed making a decision on that basis: Reasons, [13].
Instead, the Tribunal turned to a consideration of the requirements for establishing a claim of family violence, which it characterised as being very strict and prescriptive: Reasons, [14]. It noted the applicant’s evidence that there were no orders in his favour respecting family violence and, to the contrary, that there were such orders in place against him in favour of his former spouse: Reasons, [14].
Having regard to the circumstances in which the new claim had been made, the Tribunal was concerned to consider whether the applicant had a non-judicially determined claim of family violence within the meaning of the Regulations: Reasons, [15].
The Tribunal reasoned, correctly, that the dispositive issue in the application was whether a claim of non-judicially determined family violence was made out: Reasons, [15]. The Tribunal concluded that such a claim had not been made out by reason that the applicant had not satisfied the evidence requirements as prescribed by the Regulations. In particular, the Tribunal concluded that the applicant had not furnished a statutory declaration or the other items of evidence required by and in accordance with reg 1.25: Reasons, [18]-[19].
The Tribunal also took into account that, despite the applicant’s claims to having been hospitalised and to having telephoned police, there were neither hospital, nor police records of any such incidents: Reasons, [20]. Further, the Tribunal noted that, at a time when the applicant had been represented by experienced migration lawyers, the response to the invitation to comment upon the cessation of the spousal relationship had been to assert that the relationship was continuing rather than to suggest that it had been afflicted by family violence: Reasons, [21].
The Tribunal also considered to be noteworthy both the applicant’s continuing failure to provide evidence of such family violence and the discrepancies between the accounts of family violence as had been given to the Tribunal by the applicant and his sister respectively: Reasons, [21]-[22]. The Tribunal concluded that the preponderance of evidence favoured a conclusion that the applicant’s sponsor had been the victim of family violence: Reasons, [23].
The Tribunal otherwise discounted the oral evidence that had been given by the applicant and his new partner as to allegations of family violence by his former wife: Reasons, [24].
The Tribunal concluded that as the applicant could not satisfy the requirements of a non-judicially determined claim of family violence, it must affirm the Delegate’s decision to refuse the visa application: Reasons, [24]-[25].
The Tribunal also considered the issues arising in relation to the s 375A Certificate, however it is convenient to address those issues below.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth.[1]
[1] (2003) 211 CLR 476.
Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia: s 29. A visa to remain in Australia for a specified period is one form of temporary visa: para 30(2)(a). By sub-s 31(3), the Regulations may prescribe criteria for a specified class. One class of visa is a Partner visa, certain criteria for which are set out in Part 801 of Sch 2 of the Regulations.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[2] Minister for Immigration and Citizenship v SZMDS.[3] If the criteria for the grant of a Partner visa are satisfied, the decision-maker must grant the application. If not so satisfied, the visa application must be refused.
[2](2004) 78 ALJR 992, [37]-[38].
[3](2010) 240 CLR 611, [40], [102].
By para 65(2)(b) of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[4]
[4]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
As the applicant was self-represented on the hearing of the application for judicial review, I have re-examined the Reasons, his visa application and the other materials comprising the Court Book.
Consideration
Although the application confirmed that no application for an extension of time was sought, the Minister noted that an extension of time was necessary and consented to such extension. The extension was required because the application was three days out of time: s 477(1).
An annexure to the applicant’s affidavit made on 28 September 2017 stated what might be seen as a ground of review:
I am seeking to lodge a review of my migration decision to refuse the grant of a Partner (Residence) (class BS) visa, which was held at the Administrative Appeals Tribunal in Melbourne on the 24th August 2017.
My reasons being that I am not satisfied with the decision made by the AAT to refuse Permanent Residence.
I am currently in Immigration Detention in Christmas Island.
At first sight the ground of review may be seen to be no more than disagreement with the decision of the Tribunal.
As the applicant has not taken the opportunity to file a supplementary Court Book or any submissions, the Minister and in turn the Court are left to discern the existence of jurisdictional error from a ground which is devoid of particulars. In WZAVW v Minister for Immigration and Border Protection[5] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed (Citations omitted)
See also MZARG v Minister for Immigration and Border Protection.[6]
[5] [2016] FCA 760, [35].
[6] [2018] FCA 624 at [25], (McKerracher J).
Although the application was open to dismissal on the basis that the ground of review is devoid of particulars, I have considered for myself the reasons of the Tribunal and the materials before it. The applicant appeared before me with the assistance of an interpreter and I recognise that he was unfamiliar with Court process.[7]
[7] Cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)].
Partner visas – family violence
The criteria for a Partner visa are set out in Sch 2 to the Migration Regulations 1994. Sub-class 801 in Sch 2 prescribes the primary and secondary criteria that must be satisfied in relation to a Partner visa application at the time of the decision. By sub-cl 801.21, no criteria are to be satisfied at the time of application. Sub-clause 801.22 prescribes the criteria which must be satisfied at the time of the decision. Where the criteria prescribed for such a visa have not been satisfied, the application must be refused.
Relevantly, criteria are prescribed which must be satisfied where the applicant’s relationship with their sponsor has ceased: par 801.22(6)(b). In the present case, the applicant needed to satisfy the requirement that he had suffered family violence that was committed by his sponsor: para 801.221(6)(c)(i)(A).
The expression ‘family violence’ is not defined by reg 1.03. However, Div 1.5 of the Regulations which comprises regs 1.21 – 1.29 contains Special provisions that relate to family violence.
As there was no judicial determination which turned upon an allegation that the applicant had been the victim of or subjected to domestic violence by his sponsor, for the applicant to obtain a Partner visa based upon him having been the subject of domestic violence by his sponsor it was necessary for him to satisfy the criteria applicable to a non-judicially determined claim to family violence.
Relevant family violence means conduct, whether actual or threatened, towards an alleged victim that causes them to reasonably fear for, or to be reasonably apprehensive about, his or her well-being or safety: reg 1.21. Regulation 1.23 addresses the circumstances in which a person is taken to have suffered or committed family violence.
Clauses 1.23(8)-(14) prescribe the circumstances in which, for the purposes of the Act, family violence is suffered or committed in cases where a non-judicially determined claim of family violence is made. The expression non-judicially determined family violence bears the respective meanings that are given to it by reg 1.23(8)-(9): reg 1.21. The meaning of the expression that is provided by reg 1.23(8) is not material. By operation of reg 1.23(9), an application for a Partner visa is taken to include a claim of non-judicially determined family violence where each of the criteria in that regulation was met.
By reg 1.23(9)(c), the alleged victim, or a person on his or her behalf, is required to present evidence in accordance with reg 1.24 that the applicant had suffered family violence (as defined), and that the applicant’s sponsor had committed that violence.
Regulation 1.24, which is titled Evidence, required the applicant to furnish a statutory declaration under reg 1.25 together with the “type and number of items of evidence specified by the Minister by instrument in writing” for the purposes of para 1.24(b).
The further criterion to be satisfied required the applicant to furnish the type and number of items of evidence as specified by the Minister.
For this purpose, Ministerial Instrument IMMI 12/116 specifies the types of evidence that are required together with the number of items of evidence which are required for the purposes of para 1.24(b). Schedule 1 to IMMI 12/116 requires that a minimum of two items of evidence from that schedule (and not more than one item of each type of evidence) be presented for the purposes of reg 1.24(b).
The Tribunal found, correctly, that the applicant had not furnished:
a)a statutory declaration under reg 1.25, [18];
b)the items in evidence in accordance with IMMI 12/116: [19].
It was clearly open to the Tribunal to find that the applicant had not satisfied the requirements for a claim for non-judicially determined family violence. Absent some other consideration, the Tribunal was bound to affirm the Delegate’s decision to refuse the Partner visa: Reasons, [18]-[24].
It follows that I reject the ground on which judicial review is sought and that the application must be dismissed.
Other matters
Following the hearing, the applicant filed a further affidavit on 8 March 2018, to which he exhibited two letters addressed by his solicitors to the Department. Those letters, dated 13 and 28 September 2016, contained submissions made to the Department respecting the application for the grant of a Partner visa.
Insofar as the applicant’s complaints may be understood as directed either at the Department or the Minister’s delegate, any decisions that may be the subject of complaint are primary decisions which are not reviewable by this Court: ss 476(2)(a), 474(4).
Upon becoming aware of the applicant’s communication, the solicitor for the Minister wrote to chambers objecting that the affidavit was filed without leave of the court and objected to the admissibility of the annexures to the affidavit on the basis that the material was not before the Tribunal and so did not bear on his grounds of review, citing SZJMG v Minister for Immigration.[8] There McKerracher J accepted[9] that fresh evidence that had not been before the Tribunal should not be admitted on an application for judicial review unless it bore on some form of jurisdictional error. His Honour cited MZXHY v Minister for Immigration and Citizenship[10] in support of that proposition; see also Gupta v Minister for Immigration and Border Protection.[11] In the latter case, Perry J stated:
. . . it is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal unless it bears on a jurisdictional error. (citing SZJMG; MZXHY).
[8] [2008] FCA 1145.
[9] [2008] FCA 1145, [27]-[28].
[10] [2007] FCA 622, [8] (Nicholson J).
[11] [2016] FCA 1004, [27] (Perry J).
For those reasons, I also accept the submission that the applicant’s further affidavit should be rejected.
Moreover, as noted at [40(c)], an affidavit had been filed exhibiting certain documents in respect of which a claim for public interest immunity was claimed. The affidavit sworn by the solicitor for the Minister identified certain folios in the Department’s file said to contain correspondence from the applicant’s sponsor. Those documents were not contained in the Court Book and had been placed in a sealed envelope.
In producing those documents, the Minister submitted that they were not relevant but contended further that if they were considered to be so, they were protected from disclosure by public interest immunity.
When giving an oral decision, the Tribunal was obliged to provide a statement which contained findings on any material question of fact and to refer to the evidence or any other material on which the findings of fact were based: s 368D(2)(iii)-(iv).
The Reasons contain no reference to documents of the kind described in the Minister’s affidavit. Speaking of the scope of the obligation to afford procedural fairness, in Minister for Immigration and Border Protection v SZSSJ,[12] the Full Court of the High Court held there is ordinarily no requirement that a person be notified of information which is in the possession of, or accessible to, the decision-maker but which it has chosen not to take into account at all in the conduct of the inquiry.
[12] (2016) 259 CLR 180, [83].
I accept the submission that the documents were not relevant.
S 375A Certificate – procedural fairness
The Minister brought to the Court’s attention, a matter not raised by the applicant in relation to the Certificate. I have set out above the communications from the Tribunal respecting the Certificate.
In the absence of any submissions on the point, the Tribunal concluded that the Certificate was invalid, stating at [16]:
The Tribunal has ultimately concluded that the certificate was invalid, but because of concessions made in evidence by Mr Naikar about relevant criminal history, it was unnecessary for the Tribunal to make disclosure or to give Mr Naikar particulars under ss 359A or 359AA of the Act.
Before me, the Minister accepted that the Tribunal was correct to do so and for that reason accepted also that the obligations in ss 359A or 359AA were engaged with respect to the material otherwise covered by the Certificate. In short, the Minister submitted that because the applicant had made admissions when giving his evidence to the Tribunal concerning his criminal history (including his conviction for domestic violence against his sponsor) this obviated the need to put those convictions to him pursuant to ss 359A or 359AA.
Compliance with s 359A-359AA
By force of s 359A(1), subject to sub-s (2) and (3), the Tribunal was obliged to give the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision under review. This obligation is not absolute and is not engaged, for example, where an applicant is given such particulars orally by the Tribunal in the course of a hearing and invited to comment upon it: s 359AA. Section 359AA applies where an applicant has been invited pursuant to s 360 to appear before a Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. By s 359AA(1), the Tribunal may orally give an applicant clear particulars of such information. If it does so, the Tribunal must comply with paras 359AA(1)(b)(i)-(iv) which contain a series of cumulative obligations to be observed by the Tribunal.
Before the Tribunal hearing, the applicant was not given the records relating to his criminal convictions. However, as he was given a s 360 invitation and did appear before the Tribunal, s 359AA was engaged. While the applicant gave evidence of his criminal convictions, it was not submitted that the Tribunal had complied with the cumulative obligations cast upon the Tribunal by para 359AA(1)(b)(i)-(iv).
For the purposes of ventilating this issue, a transcript of the proceedings before the Tribunal was exhibited to an affidavit made by a solicitor for the Minister, from which it is apparent that the applicant had been questioned in relation to his criminal convictions. In the course of his evidence the applicant admitted to that conduct.
It seems clear that a failure to put the criminal record to an applicant may constitute a failure to provide information within the meaning of, and so breach the requirements of, ss 359A or 359AA as the case requires. Whether the circumstances of a case engage ss 359A-359AA is a fact specific inquiry: BQL15 v Minister for Immigration and Border Protection;[13] SZUXO v Minister for Immigration and Border Protection.[14]
[13] [2018] FCAFC 104, [24].
[14] [2016] FCA 1399 [31]-[33].
In the present case, the applicant had appeared at the Tribunal and was given clear particulars of his criminal record. He was offered an opportunity to comment in relation to it. The applicant took that opportunity and gave evidence in relation to those issues. However, the other requirements of para 359AA(1)(b) were not complied with.
As the applicant’s criminal records constituted information that was specifically about the applicant and had not been given to the Tribunal by him personally (being accessed by the Tribunal itself), those circumstances engaged an obligation under s 359A(1) to invite the applicant to comment on or respond to, that information unless those obligations were not engaged by operation of s 359A(3) or (4). In the present case, no such invitation was given.
Alternatively, it was open to the Tribunal to address the matter in the course of a hearing as provided by s 359AA(1). As noted, it was not submitted that the Tribunal had complied with the cumulative requirements of para 359AA(1)(b).
Instead, attention was drawn to the Tribunal’s conclusion that the obligation to provide the applicant with clear particulars of that information was not engaged because of the concessions made by the applicant when giving evidence. The Tribunal’s reasoning may be taken to have relied upon the exception created by s 359A(4) of the Act, having regard to the evidence which was given to the Tribunal. Sub-section 359A(4) reads:
(4) This section does not apply to information:
(a) . . .
(b) that the applicant gave for the purpose of the application for review; or
(ba)-(c) . . .
In my opinion, it would be a significant step to read the scope of para 359A(4)(b) expansively, so as to exempt information falling squarely within s 359A(1), merely because an applicant had later admitted or conceded to knowing or holding the same information. The clear purpose of s 359A(1) is to impose a mandatory obligation on a Tribunal to give the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision under review. By contrast, the work to be done by para 359A(4)(b) is to exempt from s 359A(1) an obligation to disclose to an applicant, information that the applicant has himself or herself given to the Tribunal for the purposes of the review.
In my opinion, the circumstance that the same information might fall within both s 359A(1) and the exemption in para 359A(4)(b) should not be permitted to obscure the distinct nature of those provisions. Sub-section 359A(1) imposes a significant obligation on a Tribunal to give an applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. To give the phrase ‘would be’ in s 359A(1) a prospective operation would mean that the obligation was engaged immediately upon a Tribunal holding information that answered the description of information that would be the reason, or a part of the reason, for affirming the decision under review. It would subvert the object and purpose of s 359A(1) to give the phrase ‘would be’ a construction that meant the obligation was not engaged where a Tribunal later found itself able to conclude that the information did not meet the requisite description only by reason that it had, by then, recourse to the same information from some other source. If, for example, the same information later emerged from the applicant’s evidence, this would, as the argument made : (1) obviate the need to use the information derived from the original source; (2) retrospectively remove an obligation under s 359A(1) that had crystallised at the moment the Tribunal obtained that information. In my opinion, once the obligation imposed by s 359A(1) is engaged, it would be contrary to the purpose and object of that provision to read the exception in para 359A(4)(b) as disengaging what is a presently existing mandatory obligation. It would also apparently have a corresponding effect upon the parallel obligations that are imported by s 359AA.
It would also be contrary to the objects and purposes of the Act if the Tribunal could be placed in a position where, in effect, it could suspend the making of decisions on whether to: (a) disclose the information to an applicant; (b) ensure that the applicant understood why it was relevant; (c) allow the applicant the opportunity to comment upon and respond to it, until all the evidence was in. An applicant is to be afforded an opportunity to present evidence and make arguments in relation to the decision under review. These opportunities may be diminished where information which would be the reason or a part of the reason to affirm the decision under review was held by a Tribunal but not supplied and not made the subject of an invitation for comment or response by the applicant until after the Tribunal hearing.
From this perspective, the procedure set out in s 359AA may be seen to operate as a safeguard to reinforce the obligations of procedural fairness which underpin the manner of administrative decision-making.
In Minister for Immigration and Border Protection v SZSSJ[15], the Full Court of the High Court stated:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.[16]
[15] (2016) 259 CLR 180, [83].
[16]Citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32]; see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59].
Section 359A distils an obligation to observe procedural fairness in the context of a merits review of a visa application under the Act. There may well be circumstances where the obligation is not observed. In such an event, s 359AA reinforces the obligation of procedural fairness as to the manner in which a Tribunal should act where it has identified any information which it considers would be the reason or a part of the reason for affirming the decision under review. Upon those principles, it would be wrong to construe the exception in para 359A(4)(b) as stripping the content of the primary obligation to invite comment, simply because an applicant disclosed the same matter to the Tribunal while giving his or her evidence. Such a construction would, in my opinion, be antithetical to the obligation of procedural fairness.
The task of statutory construction is to ascertain the meaning of the words as employed in that statute: HFM043 v The Republic of Nauru.[17] I decline to construe para 359A(4)(b) as giving the exemption which it contains the wide effect which was contended for in this case. Instead, a broad construction of the mandatory obligation contained in s 359A(1) is to be preferred. Such a construction would best achieve, and harmonise, the objects and purposes of the Act.[18]
[17] [2018] HCA 37, [24] (Kiefel CJ, Gageler and Nettle JJ).
[18]See s 15AA, Acts Interpretation Act 1901 (Cth); Alcan (NT) Alumina Pty Ltd v Commissioners of Territory Revenue (NT) (2009) 239 CLR 27, [47]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
It follows that I consider the Tribunal did not discharge its several obligations to the applicant in relation to his criminal records conformably with the mandatory obligations imposed by s 359A(1). In those circumstances, it was open to the Tribunal to address the issue in the manner regulated by s 359AA(1)(b) in the course of the hearing. I have concluded that the Tribunal did not do so. Indeed, the Tribunal recognised that it had not done so, taking the view that it was unnecessary to observe the requirements of s 359AA(1)(b) in light of the applicant’s concessions in the course of giving his evidence.
Inutility of relief
Despite the error on the part of the Tribunal identified above, the grant of relief may be denied on discretionary grounds where it would be inutile to do so: SZBYR v Minister for Immigration and Citizenship.[19]
[19](2007) 235 ALR 609, [28]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [88] (Kirby J), [91] (Hayne J).
In the present context, I conclude that the applicant should be denied relief. It would be pointless to do so in circumstances where the appellant could not have satisfied the statutory criteria for the grant of a Partner visa: cf Kaur v Minister for Immigration and Border Protection;[20] Shrestha v Minister for Immigration and Border Protection.[21]
[20] (2016) 245 FCR 296 at [6], [45]-[47] (Perry J).
[21][2018] HCA 35; 92 ALJR 798, [10] (Kiefel CJ, Gageler and Keane JJ), [30] (Edelman and Nettle JJ).
The applicant could not have established the factual circumstance required by cl 801.221 to support his claim to be a victim of non-judicially determined family violence by reason that he had not complied with the evidentiary requirements prescribed by regs 1.24 and 1.25. It is therefore clear that the applicant could not have complied with those criteria which are essential to ground satisfaction that a Partner visa should be granted. Notwithstanding a want of compliance with s 359A or s 359AA, there would be no utility in the grant of relief.
Any failure in the observance of those obligations could not have had a material effect on the outcome,[22] or occasioned any practical injustice,[23] to the applicant. That is so because, had the Tribunal observed the requirements of ss 359A or 359AA, this could not have deprived the applicant of the possibility of a successful outcome.[24]
[22]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [52]-[59].
[23]Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, [38] (Gleeson CJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [57] (Gageler and Gordon JJ).
[24]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-147 (per curiam); Nobrani v Maricote [2018] HCA 36, [38]-[39] (per curiam).
Conclusion
As the Tribunal could not have been satisfied that the criteria for the grant of the visa were met and so would have been obliged to refuse the visa application in accordance with para 65(2)(b), the application for judicial review should be dismissed.
I certify that the preceding one-hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 September 2018
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