Oyeniyi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1035
•21 August 2023
FEDERAL COURT OF AUSTRALIA
Oyeniyi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1035
Appeal from: Oyeniyi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 440 File number: VID 377 of 2022 Judgment of: RARES J Date of judgment: 21 August 2023 Catchwords: MIGRATION – application for leave to rely on new ground of appeal – where delegate of Minister and Administrative Appeals Tribunal obtained independent expert reports under reg 1.23(10) of Migration Regulations 1994 (Cth) as to whether partner visa applicant suffered family violence – where reg 1.23(12) required Minister to be satisfied family violence occurred during relationship – where Tribunal found none of alleged violence occurred before relationship ended – where new claims of domestic violence made in Tribunal – whether Tribunal erred by failing to refer new claims to third independent expert – where referral to third independent expert would not affect result – where not in interests of justice to grant leave to allow appellant to rely on new ground – Held: leave refused, appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5F(2)(b), 375A, 476
Migration Regulations 1994 (Cth) regs 1.23(10), (12)
Cases cited: Coulton v Holcombe (1986) 162 CLR 1 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 18 Date of hearing: 21 August 2023 Counsel for the Appellant: Dr D Gang Solicitor for the Appellant: Visatec Legal Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz
ORDERS
VID 377 of 2022 BETWEEN: ADEGBOYEGA CYRUS OYENIYI
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
1.Leave be refused to the appellant to rely on the ground of judicial review raised in the amended notice of appeal filed on 24 July 2023.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
INTRODUCTION
This is an appeal from the decision of the Federal Circuit and Family Court of Australia
(Division 2) (the Division 2 Court) refusing to grant constitutional writ relief to the appellant in respect of the decision of the Administrative Appeals Tribunal made on 14 June 2018 to affirm a decision of a delegate of the Minister not to grant a partner (migrant) class BC visa to the appellant: Oyeniyi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 440.
BACKGROUND
The appellant is a citizen of Nigeria. He appeared and represented himself before the trial judge. His Honour found that he presented as an honest and decent man who simply expressed his desire to remain in Australia and was entirely unsure why his relationship with his visa sponsor wife had failed.
His Honour found that, in 2005, the appellant had sought, but failed to obtain, a protection visa. He and his wife had met in June 2007 and began a de facto relationship in that year. They married in May 2009 and commenced a spousal relationship. The couple moved in with the wife’s mother and remained at her home in Mansfield in Victoria until October 2009 when the appellant departed Australia for Nigeria against the wishes of his wife, who wanted to go with him. In May 2010, the appellant applied for a partner visa and nominated his wife as sponsor.
Critically, the Tribunal found that the relationship between the appellant and his wife had come to an end by February 2011 and that, at that time, she was in a new relationship with another male, named Michael, which the appellant learned at that time. The problem posed for the appellant’s case by that finding was that the appellant had asserted, in statutory declarations that were before the delegate and then the Tribunal, that the relationship had come to an end later, on either 26 April 2011 or 27 May 2011, and that, in the period immediately proceeding those dates, but after February 2011, he had been the subject of family violence by his wife and her mother.
Regulation 1.23(12) of the Migration Regulations 1994 (Cth) provided that the Minister, or the Tribunal standing in his shoes:
must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(emphasis added)
THE NEW GROUND OF APPEAL
The appellant challenged the decision of the Tribunal in the Division 2 Court on a number of grounds, each of which the trial judge rejected, but none of those is now relied on to support the appeal. Instead, the appellant, now represented by counsel and solicitors, seeks leave to argue one substantive ground of judicial review not raised before the trial judge. The new ground is that the Tribunal made a jurisdictional error by failing to comply with reg 1.23(10)(c) of the Regulations because it did not seek or obtain a further independent expert report after the first two independent expert reports had found adversely to him.
The history of what happened was as follows. The delegate had obtained, as reg 1.23(10) required, the first independent expert report as to whether the appellant had suffered family violence. The first independent expert concluded that he had not. When the matter first came before the Tribunal, there was new information before it. It decided to refer that new information to a second independent expert. The second independent expert report, dated 9 January 2017, was also before the Tribunal.
However, the appellant was unaware of certain other material before the Tribunal before it made its first decision on 2 February 2017. That was because of a certificate issued on 18 May 2015 under s 375A of the Migration Act 1958 (Cth). That certificate suppressed certain documents, including the instructions that the delegate had given to the first independent expert in part A of the standard family violence referral form used by delegates and the Minister to obtain independent expert reports under reg 1.23(10).
On 18 July 2017, the Federal Circuit Court, by consent, set aside the decision of the Tribunal made on 2 February 2017 and remitted the matter to it for consideration according to law. The consent order noted that the parties agreed that the s 375A certificate and its existence, together with at least some of the documents the subject of the certificate, had suppressed material, including part A of the first referral form, which had not been disclosed to the appellant in the review.
The same Tribunal member as before constituted the Tribunal to complete the review. After the remitter, the member decided to disclose part A of the first referral form to the appellant and invited him, through his lawyer and migration agent, to comment on it, which he did through, first, providing a further statutory declaration and, later, his lawyer’s submissions. Those submissions suggested that the two independent experts had not correctly understood in their reports when the spousal relationship had ended and, accordingly, had not been able to be satisfied that there was sufficiently precise information to enable them to make findings in favour of the appellant on his claim to have suffered family violence while the relationship existed.
THE TRIBUNAL’S DECISION
In its second decision, the Tribunal found that, in late 2010 or early 2011, when the appellant was attempting to telephone his wife, she advised him that she no longer loved him and the relationship was over. The Tribunal accepted the appellant’s evidence that he had tried to call his wife from Nigeria and, on occasions, Michael had answered the call, who advised the appellant that he was his wife’s new partner. The Tribunal accepted the appellant’s argument that he believed that his wife had a new partner, being Michael, and that she had commenced a new relationship at this time.
It found that, at the very latest, in February 2011:
·the wife had commenced a new relationship; and
·from then, the appellant and his wife did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others so that, first, the appellant and his wife were not in a spousal relationship within the meaning of s 5F(2)(b) of the Act and, secondly, once the relationship had ended, any acts relied on as constituting family violence could not be considered in the review.
CONSIDERATION
The Tribunal found that the spousal relationship had come to an end by, at latest, February 2011 and that none of the alleged violence on which the appellant relied before the Tribunal had occurred prior to that time. Accordingly, it follows that, even if the Tribunal had referred to a third independent expert, any further information provided by the appellant as to when he alleged the relationship had ended, in particular, either on 26 April 2011 or 27 May 2011, it could not possibly have affected the result, since any alleged violence occurred too late to have satisfied reg 1.23(12).
For those reasons, it would not be appropriate to grant the appellant leave to rely on the proposed new sole ground of appeal. Moreover, the consequence of granting that leave would create potential unfairness for the Minister. That is because, were I to uphold the ground, he then would not have an appeal of right but would have to seek special leave to appeal to the High Court as the only means of reversing the decision.
The scheme of the Migration Act is to confer a right to seek judicial review from a migration decision of an administrative decision‑maker under s 476 in the Division 2 Court. The appeal of right to this Court enables a hearing de novo to examine the correctness of the trial court’s decision. In Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ said:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
Obviously, here, considerations of the interests of justice arise because the appellant represented himself below and could not be expected to have understood the complexities of the Migration Act and the Migration Regulations which, in this particular respect, are somewhat arcane.
However, I am not satisfied that, first, the new ground is sufficiently arguable to warrant the grant of leave and, secondly, it is in the interests of justice to grant leave. That is because of the need to consider the new material before the Tribunal and the evidence before his Honour in a completely different light.
CONCLUSION
For these reasons, I am of opinion that I should refuse the appellant leave to raise the new ground and that, since no other error in the trial judge’s decision is now asserted, the appeal must fail. I will order that the appeal be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 29 August 2023
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