Pham v Minister for Immigration
[2017] FCCA 3272
•22 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHAM v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3272 |
| Catchwords: MIGRATION – Migration Review Tribunal – Partner (Residence) (Class BS) (subclass 801) visa – non-judicially determined claim of family violence – whether issues determined by Tribunal were jurisdictional facts – whether errors made by Tribunal warrant remittal when the Tribunal reached the only conclusion that it could have as a matter of law. |
| Legislation: IMMI 12/116 Migration Act 1958, s.376 Migration Regulations 1994, regs. 1.22(1), 1.23, 1.24, 1.25, cl. 801.221(6) of Schedule 2 Migration Legislation Amendment Regulation 2012 (No.5), item 4 of Schedule 6 |
| Cases cited: Minister for Immigration and Border Protection v Hossain [2017[ FCAFC 82 Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; (2011) 120 ALD 259; (2011) 278 ALR 474; [2011] FCA 233 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105; (2001) 22(11) Leg Rep 2; [2001] HCA 30 Patel v R (2012) 247 CLR 531; (2012) 290 ALR 189; (2012) 86 ALJR 954; [2012] HCA 29 Shrestha v Minister for Immigration and Border Protection [2017] FCCA 69 |
| Applicant: | NGOC TIEP PHAM |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1532 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 4 December 2017 |
| Date of last submission: | 18 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 22 December 2017 |
REPRESENTATION
| Counsel for the applicant: | Adam McBeth |
| Solicitors for the applicant: | Wimal & Associates |
| Counsel for the first respondent: | Nick Wood |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The application filed on 3 July 2015 and amended on 23 August 2017 and further amended on 23 November 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1532 of 2015
| NGOC TIEP PHAM |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa.
The applicant applied for the visa on the basis of his relationship with his sponsor, Ms Jennifer Le. However, that relationship ended. Under cl.801.221(6) of Schedule 2 of the Migration Regulations 1994 (“the Regulations”), an applicant can continue to meet the requirements for a partner visa, notwithstanding that the relationship had ended, if the applicant has suffered family violence committed by the sponsor.
The applicant claimed that Ms Le had committed family violence against him. The Regulations contain prescriptive methods for establishing that family violence has occurred. Subregulation 1.22(1) of the Regulations provided that:
A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
Subregulation 1.23(1) of the Regulations provided that:
For these Regulations, this regulation explains when:
(a)a person (the alleged victim) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Subregulations 1.23(2) to (14) of the Regulations set out the various methods by which an applicant can establish that family violence had been committed against him or her. In the present case, the method by which the applicant sought to establish that he had suffered family violence was the method described in the regulations as a non-judicially determined claim of family violence.
Relevantly, reg.1.23(9) of the Regulations provided that:
(9)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
…
(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.
As can be seen, reg.1.23(9) of the Regulations required the applicant to present evidence in accordance with reg.1.24 of the Regulations. Regulation 1.24 of the Regulations[1] provided that:
[1] As amended by Migration Legislation Amendment Regulation 2012 (No. 5), Schedule 6, item 4
The evidence referred to in paragraph 1.23 (9) (c) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b)the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
The type and number of items of evidence specified by an instrument in writing specified for the purposes of reg.1.24 of the Regulations were set out in the instrument, IMMI 12/116. That instrument provided that:
1.SPECIFY for the purpose of paragraph 1.24(b) the types of evidence as acceptable evidence at Schedule 1.
2.SPECIFY that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b).
…
Schedule 1
Type of Evidence includes the following detail Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is:
· registered as a medical practitioner and is performing the duties of a medical practitioner, or
· registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse.
· Identifies the alleged victim, and
· Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.
Either a report, record of assault, witness statement or statutory declaration that is made by:
· a police officer of a State or Territory
· a police officer of the Australian Federal Police
OR
A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation.· Identifies the alleged victim, and
· Identifies the alleged perpetrator, and
· Details an incident/s of family violence.
Report or statutory declaration made by an officer of:
· a child welfare authority, or
· a child protection authority of a State or Territory.
· Details fears for the dependent childs’ safety due to family violence within the household, and
· Identifies the alleged perpetrator.
Letter or assessment report made by:
· a women’s refuge, or
· family/domestic violence crisis centre
on the organisation’s letterhead.
· States that the alleged victim has made a claim of family violence, and
· States whether the alleged victim was subject to family violence, and
· Identifies the alleged perpetrator, and details any evidence used to form the opinion.
Statutory declaration made by:
· a member of the Australian Association of Social Workers, or
· a person who is eligible to be a member of that Association
who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.
· States in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
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. · States in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website. · States that the alleged victim has been treated or counselled, by the family consultant or family relationship counsellor, and
· States that in their opinion the alleged victim was subject to family violence, and
· Details the reasons for the opinion, and
· Identifies the alleged perpetrator.
Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity. · States that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims that they were subject to family violence, and
· Identifies the alleged perpetrator, and
· Provides details of those observations.
The Regulations went on to provide, in reg.1.23, that:
(10)If an application for a visa includes a non‑judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.
…
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non‑judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
The applicant sought to make a claim of non-judicially determined family violence by means of his own statutory declaration, a statutory declaration made by a clinical psychologist, Mr Kleynhans, and a report made by a credentialed mental health nurse, Mr Tung Le.
The Tribunal was satisfied that the applicant and the sponsor had been in a partner relationship which had ended. The Tribunal was satisfied that the applicant’s own statutory declaration met the requirements of reg.1.25 of the Regulations.
However, the Tribunal was not satisfied that the statutory declaration made by the clinical psychologist met the requirements of reg.1.24 of the Regulations. That was because the Tribunal was not satisfied that the clinical psychologist had treated the applicant prior to making the statutory declaration, as required by IMMI 12/116.
After making some enquiries, the Tribunal was satisfied that Mr Le, as a credentialed mental health nurse, was a registered mental health nurse. However, the Tribunal was not satisfied that the report of Mr Le met the requirements of reg.1.24 of the Regulations. That was because the Tribunal was not satisfied that the report provided details of any physical injuries sustained by the applicant or details of any mental health treatment or therapy undertaken by the applicant, as required by IMMI 12/116.
Consequently, the Tribunal concluded that a non-judicially determined claim of family violence had not been made. It was therefore unnecessary for the Tribunal to consider whether the applicant had suffered relevant family violence. The Tribunal affirmed the delegate’s decision.
In this case, a certificate was issued pursuant to s.376 of the Migration Act 1958. The documents to which it applied were provided to the court in an envelope. However, neither of the applicant’s grounds concerned the certificate or the documents to which it applied. Consequently, it has not been necessary to consider the certificate or the documents to which it applied.
Ground 1
The first ground of review in the application filed on 3 July 2015 and amended on 23 August 2017 and further amended on 23 November 2017 is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal applied the incorrect test to whether the applicant's visa application was taken to include a non-judicially determined claim of family violence as provided by reg 1.23 of the Migration Regulations 1994.
Particulars
(a)The Tribunal erred in finding that the statutory declaration prepared by psychologist Mr Kleynhans was not made by a person “who has treated the alleged victim while performing the duties of a psychologist” within the meaning of instrument IMMI 12/116.
(b)The Tribunal erred in finding that the report by registered mental health nurse Mr Le was not a report that complied with the requirements of instrument IMMI 12/116.
(c)The Tribunal’s consequent finding that a non-judicially determined claim of family violence had not been made was therefore affected by jurisdictional error.
In relation to particular (a) of this ground, the Minister conceded that it would be open to the court to conclude that the statutory declaration of the clinical psychologist did meet the requirements of IMMI 12/116, on the basis that the statutory declaration, contrary to the Tribunal’s findings, did indicate that the applicant had accepted treatment prior to the statutory declaration being made. In view of that concession, and having examined the statutory declaration in question, I conclude that it did meet the requirements of IMMI 12/116.
The applicant argued that the Tribunal’s erroneous reasoning in relation to the clinical psychologist’s statutory declaration was a jurisdictional error, and the matter should be remitted to the Tribunal for that reason alone.
The Minister said that the matter should not be remitted, because whether the statutory declaration of the clinical psychologist and the report of the nurse satisfied IMMI 12/116 were jurisdictional facts which the court could and should determine for itself. If either the statutory declaration or the report did not satisfy IMMI 12/116, the Minister argued, the applicant would not have made a claim of non-judicially determined family violence.
The Minister argued that the nurse’s report did not satisfy IMMI 12/116 and therefore the applicant had not made a claim of non-judicially determined family violence. Consequently, the Minister argued, regardless of any errors made by the Tribunal in relation to the clinical psychologist’s statutory declaration or otherwise, the matter should not be remitted.
The parties were given leave to file post-hearing written submissions on the question of the discretion to remit and they did so. This question of remittal is considered below.
In relation to particular (b) of this ground, the Minister conceded that a medical report could be made by a registered nurse.[2] I have reservations about that. I would have thought that it is arguable that a medical report could only be prepared by a medical doctor. However, for present purposes, I accept the Minister’s concession in this regard. Thus, the nurse’s report could potentially have satisfied the requirements in the left column of the first row of Schedule 1 of IMMI 12/116.
[2] Tr, p.30, ll.14-15
However, the Minister argued that the nurse’s report did not satisfy the requirements in the left column of the first row of Schedule 1 of IMMI 12/116 because it did not express a medical opinion. Most of the nurse’s report was a summary of what the applicant had told the nurse. However, the report also contained the statement that:
At interview Mr Pham presented as a mildly anxious gentleman, whose mood was assessed as being at the lower end of euthymic (or normal mood range). There was no evidence of any psychotic symptoms or any similar illness that may impact on the reliability of the history he presented.
That seems to me to be a medical opinion, dealing with mental health, because it consists of an assessment of the applicant’s mood, and expresses the opinion that he was not psychotic. Consequently, I do not accept the Minister’s arguments in this regard. That is, I consider that the nurse’s report was a medical report, taking into account the Minister’s concession that a registered nurse can provide a medical report.
However, the Minister also argued that the nurse’s report did not satisfy the requirements in the right column of the first row of Schedule 1 of IMMI 12/116, because it did not:
[Detail] the physical injuries or treatment for mental health that is consistent with the claimed family violence.
The applicant argued that the nurse’s report did detail the applicant’s physical injuries because it said that the sponsor had physically slapped and physically abused the applicant. However, I do not accept that saying that a person was physically slapped is giving detail of a physical injury. A slap may cause a physical injury, such as a bruise, but it is not a physical injury in itself. Similarly, saying that a person was physically abused is not giving details of any physical injuries. Indeed, physical abuse does not necessarily result in physical injury.
In the alternative, the applicant argued that the nurse’s report:
[detailed] treatment for mental health that is consistent with the claimed family violence.
The nurse’s report, at CB248 to CB252, does not, at first blush, detail any treatment for mental health, whether consistent with the claimed family violence or otherwise. The nurse’s report consists of a history, as supplied by the applicant, the medical opinion set out above, and an assessment that the applicant appeared to meet the criteria for having been subjected to significant family violence as set out in the Family Law Act 1975. The report also said that, due to the applicant’s lack of involvement with services, it was difficult to corroborate the history he had provided. The nurse’s report did not set out details of any treatment, in the sense of counselling, psychotherapy or the administration of psychoactive drugs.
However, the applicant urged on the court an expansive definition of the word treatment. The applicant relied on Patel v R (2012) 247 CLR 531; (2012) 290 ALR 189; (2012) 86 ALJR 954; [2012] HCA 29, at [136] where Heydon J said:
“Treatment” in ordinary usage. Treatment is “[m]anagement in the application of remedies; medical or surgical application or service”. It is “[t]he course of action adopted to deal with illness, and the control of the patient”. It is “management in the application of medicines, surgery, etc.” It is “medical care for an illness or injury”. The process involved in “management”, a “course of action” or “medical care” is a process which includes typical steps like taking a history, assessing symptoms, conducting a physical examination and procuring tests. Then, often later, the process can involve diagnosing the relevant condition, and giving advice as to how to deal with it, as well as carrying out any surgical or medical procedures, or supplying any drugs or medicines, conforming to that advice. As the respondent submitted, the duty to have reasonable skill and to use reasonable care arises not when surgery begins, for example, but at an earlier moment when a person “undertakes” to administer surgical or medical treatment, which occurs before those typical steps are taken. (citations omitted)
The applicant argued, based on that passage, that the nurse had given the applicant treatment for his mental health because the nurse had taken a history, expressed a medical opinion and made an assessment. However, that seems to misunderstand Patel. That case says that, essentially:
Treatment is “[m]anagement in the application of remedies …”
Importantly, and primarily, treatment requires the application of remedies. Heydon J went on to describe what is involved in management in the application of remedies as including taking a history and making an assessment. However, his Honour did not say that those things without more are treatment.
Obviously, Patel is not legislation. And one must avoid placing a judicial gloss on the words of a statute. Patel concerned the infamous case of a surgeon in Queensland who was convicted of manslaughter. It concerned a very different legislative scheme to the present case.
In my view, the words in the right column of the first row of Schedule 1 of IMMI 12/116 are ordinary English words. The requirement that a medical report give details of treatment requires details of what remedies were given. Remedies for mental health problems include such things as counselling, psychotherapy and psychoactive drugs.
The nurse’s report did not suggest that the nurse had given the applicant any such remedies, or any remedy at all. Indeed, the nurse’s report noted that the applicant had not engaged with services that would have been appropriate to meet his needs. That implied that the applicant did not receive any treatment, or any remedy, from anyone at all. The nurse’s report did not detail any treatment for mental health, much less any treatment for mental health that is consistent with the claimed family violence.
The Minister did not seek to support the process of reasoning adopted by the Tribunal in concluding that the nurse’s report did not meet the requirements of IMMI 12/116. Rather, the Minister said that whether the nurse’s report met the requirements of IMMI 12/116 was a jurisdictional fact, which the court should determine for itself. The Minister argued that the nurse’s report did not meet the requirements of IMMI 12/116 and therefore the applicant had not made a claim of non-judicially determined family violence, and therefore, the Tribunal’s ultimate conclusion was correct.
In making that argument, the Minister relied upon Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; (2011) 120 ALD 259; (2011) 278 ALR 474; [2011] FCA 233, where Jagot J said:
18.The principal issue for determination is whether, on the facts as indicated, s 359C(2) applied to Saba Bros as provided in s 360(2)(c) of the Migration Act. If s 359C(2) applied to Saba Bros, as the Tribunal considered it did, Saba Bros was not entitled to appear before the Tribunal and the Tribunal was bound to proceed with the review as it did (ss 360(3) and 363A). If s 359C(2) did not apply to Saba Bros, the Tribunal was obliged to invite Saba Bros to appear before it in accordance with s 360(1). Breach of this obligation, the effect of which would be to deny Saba Bros a hearing, would constitute a jurisdictional error (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 and Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [34] and [36]).
19.The Minister acknowledged that the question whether s 359C(2) applied to Saba Bros is a jurisdictional fact. As explained in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 (Enfield) at [28]: (emphasis added)
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.
…
22.While the Tribunal was bound to determine that these jurisdictional facts existed (in order to proceed to one of the two mandated outcomes), its determinations regarding those facts are not final. If a fact is a jurisdictional fact, the Court on review is bound to determine for itself whether it existed based on the evidence before it (Enfield at [38] and [50]).
In the present case, the Minister argued that whether the nurse’s report met the requirements of IMMI 12/116 was a jurisdictional fact because, if the nurse’s report did not meet the requirements of IMMI 12/116, then the applicant had not made a claim of non-judicially determined family violence, and it was therefore unnecessary for the Tribunal to determine the question posed by reg.1.23(10) of the Regulations.
The applicant argued that whether the nurse’s report met the requirements of IMMI 12/116 was not a jurisdictional fact because the Tribunal was required to consider, in the ordinary exercise of its jurisdiction, whether the applicant had made a claim of non-judicially determined family violence. The applicant argued that, if the Tribunal had made a jurisdictional error in considering that issue, it made a jurisdictional error in the ordinary exercise of its discretion and the matter should be remitted for determination accordingly to law.
The applicant’s argument does not deal with the point made in Saba Bros. In Saba Bros, in the process of determining an application, the Tribunal was required to consider whether the applicant had been invited to comment on information and, if so, whether he had failed to comment on information within the time allowed. If the applicant had so failed, the Tribunal was required to determine the matter without giving the applicant a further opportunity to comment on the information and without giving the applicant a hearing. The Federal Court held that the questions of whether the applicant had been invited to comment and had failed to comment within the time allowed were jurisdictional facts.
It seems to me that the position is a relevantly similar in the present case. Here, in the process of determining an application, the Tribunal was required to consider whether the applicant had made a claim of non-judicially determined family violence. If not, the Tribunal had to dismiss the application. If the applicant had made such a claim (in the requisite way), the Tribunal had to follow the steps in reg. 1.23 of the Regulations.
Based on Saba Bros, it can be seen that the fact that the point in issue must be determined along the way, in the process of determining a matter for which the Tribunal clearly has jurisdiction, does not prevent the point from being a jurisdictional fact. It seems to me that Saba Bros is relevantly indistinguishable from the present matter, and accordingly, the question of whether the nurse’s report met the requirements of IMMI 12/116 is a jurisdictional fact. Consequently, the Tribunal reached the correct conclusion, though for the wrong reasons.
However, for completeness, and in the alternative, it seems to me that the question of whether the nurse’s report, as a matter of law, was capable of meeting the requirements of IMMI 12/116 is a question that this court can determine, regardless of whether it is a jurisdictional fact. For the reasons given, as a matter of law, the nurse’s report was not capable of meeting the requirements of IMMI 12/116. Therefore, the Tribunal was correct to find that the applicant had not made a non-judicially determined claim of family violence.
The Minister did not seek to support the Tribunal’s reasoning in relation to the nurse’s report, and, as noted above, the Minister conceded that the Tribunal was in error in relation to its conclusions in relation to the clinical psychologist’s statutory declaration.
The applicant argued that, in these circumstances, the matter should be remitted to the Tribunal for reconsideration according to law, regardless of whether the nurse’s report was capable of meeting the requirements of IMMI 12/116. In making this argument, the applicant relied on Shrethsa v Minister for Immigration and Border Protection [2017] FCAFC 69 at [12] and [13], where Bromberg J said:
12.As Griffiths and Moshinsky JJ recently observed in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [96], where jurisdictional error is demonstrated, considerable caution must be exercised before a remedy is withheld on the ground of lack of utility. Their Honours cited with approval the following observation made in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Law Book Co, 2017) at [17.150] as follows:
There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal clear, a consideration of the likely outcome might shade into a consideration of the desirable outcome, which is something that must be left to the primary decision-maker.
13.In each case, it is crystal clear that on the unchallenged facts as found by the Tribunal, circumstances material to the grant of the visas, namely, enrolments in particular courses, no longer existed at the time of the decision to cancel those visas. If the Tribunal had asked the correct question, the inevitable result was that s 116(1)(a) was enlivened and the precondition necessary for cancellation of the visa existed. (emphasis added)
The applicant also relied on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105; (2001) 22(11) Leg Rep 2; [2001] HCA 30, where McHugh, Gummow and Hayne JJ said at [82]:
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (citations omitted) (emphasis added)
It was not disputed that the Tribunal had made errors of those types in relation to both the statutory declaration of the clinical psychologist and the report of the nurse. There was debate as to what flowed from those jurisdictional errors.
It seems to me that, in the absence of other considerations, where there has been a jurisdictional error, a matter should be remitted to the Tribunal unless it would be futile to do so. Futile means pointless. In the present case, it would not be pointless to remit the matter to the Tribunal because the applicant could mend his hand by providing other documents that would meet the requirements of IMMI 12/116.
However, there is another consideration in this case. That consideration is that, on the material that was before the Tribunal, as a matter of law, only one result was possible. That was the result that the Tribunal came to. In those circumstances, it would not, in my view, be proper to remit.
In the alternative, although the Tribunal may have made jurisdictional errors along the way, its ultimate conclusion about the jurisdictional fact that the applicant had not made a claim of non-judicially determined family violence was correct. For that reason as well, it would not be proper to remit the matter.
That conclusion is supported by the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82 at [25] where Flick and Farrell JJ said:
No conclusion should be reached that an administrative decision should be set aside in circumstances where the applicable legislation precluded any other decision being made.
The applicant argued that the court should await the hearing of an appeal to the High Court in Shrestha, special leave having been granted on 14 September 2017. It seems to me, in all the circumstances, of this case, that it is appropriate to determine the matter on the basis of the existing authorities.
Ground 2
The second ground of review in the application filed on 3 July 2015 and amended on 23 August 2017 and further amended on 23 November 2017 is:
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal took into account an irrelevant consideration in determining whether the applicant’s visa application was taken to include a non-judicially determined claim of family violence as provided by reg 1.23 of the Migration Regulations 1994.
Particulars
(a)The Tribunal erroneously took into account concerns about the reliability of the evidence in determining whether the evidence met the criteria in IMMI 12/116.
As discussed above, even if the error as alleged had been made, it could not have altered the outcome.
Conclusion
It seems to me that, although the Tribunal may well have made a number of errors that would amount to jurisdictional error, ultimately, the Tribunal reached the correct conclusion in relation to a jurisdictional fact, and reached the only conclusion that it could have reached, as a matter of law, on the material before it. In these circumstances, it is not appropriate to remit the matter. The application will be dismissed. I will hear the parties on the question of costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 22 December 2017
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