Pomenti, Stefano v Minister for Immigration and Multicultural Affairs
[1998] FCA 1400
•3 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION – spouse visa – whether nominator satisfied definition of “de facto spouse” at both time of application and time of decision – turbulent relationship – nominator (supposed de facto wife) informed Immigration Review Tribunal (“IRT”) that she had obtained interim Apprehended Violence Order (“AVO”) against applicant and no longer supported his application – at hearing however, gave evidence that she no longer feared violence from applicant, had not pressed her application for “full” AVO, and supported his application for visa – between hearing and delivery of decision, nominator contacted IRT to advise further violence and relationship ended – IRT advised applicant’s solicitor who said he assumed applicant would not get the visa “and that’s that” – IRT gave decision without giving applicant further opportunity to be heard – whether IRT failed to “act according to substantial justice and the merits of the case” as required by s 353 (2) (b) of the Migration Act 1958 – definition of “spouse” in Migration Regulation 1.15A
Migration Act 1958 (Cth) ss 353, 476(1)(a),(g).
Migration Regulations reg 1.15A, Sch 2 sub-cll 801.221, 820.211, 820.221
STEFANO POMENTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 348 OF 1998
LINDGREN J
SYDNEY
3 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 348 of 1998
BETWEEN:
STEFANO POMENTI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
3 NOVEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Immigration Review Tribunal dated 23 March 1998 be affirmed.
The applicant pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 348 of 1998
BETWEEN:
STEFANO POMENTI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
3 NOVEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Mr Pomenti”) applies under s 476 (1) of the Migration Act 1958 (“the Act”) for review by the Court of a decision of the Immigration Review Tribunal (“IRT”) dated 23 March 1998 affirming a decision of a delegate of the respondent (“the Minister”) not to grant him a subclass 820 (spouse) visa or a subclass 801 (spouse) visa.
LEGISLATIVE BACKGROUND
When the decision was made, the requirements for a subclass 820 visa were set out in Part 820 of Schedule 2 to the Migration Regulations (“the Regulations”) and were, relevantly, as follows:
“820.21 Criteria to be satisfied at time of application
820.211
(1) The applicant:
(a)…
(b)meets the requirements of subclause (2)...
(2)An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse of a person who: .
(i)is an Australian citizen…; and
(ii) ...; and
.(c) the applicant is nominated by that Australian citizen, ...”
“820.22 Criteria to be satisfied at time of decision
820.221(1) In the case of an applicant referred to in subclause 820.211 (2) ..., the applicant ... :
(a)continues to meet the requirements of the applicable subclause…”
Accordingly, at both the time of his application for the visa and the time of the decision on that application, Mr Pomenti had to be “nominated” by a person falling within one of the three classes specified.
A subclass 820 visa permits the holder to:
“travel to and enter Australia until:
(a)the holder is notified that his or her application for a subclass 801 (Spouse) visa has been decided; or
(b)that application is withdrawn.”
The requirements for a subclass 801 (Spouse) visa were set out in Part 801 of Schedule 2 to the Regulations and were, relevantly, as follows:
“801.21 [No criteria to be satisfied at time of application.]
801.22Criteria to be satisfied at time of decision
801.221(1) The applicant meets the requirements of subclause (2), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of this subclause if:
(a)the applicant is the holder of a subclass 820 visa; and
(b)the applicant continues to be nominated for the grant of the subclass 801 visa by the nominating spouse; and
(c)the applicant is the spouse of the nominating spouse; and
(d)… at least 2 years have passed since the application was made.
...”
Subclauses (3), (4), (5), (6) and (8) are not presently relevant.
The term “spouse” is defined in reg 1.15A, which provided, relevantly, as follows:
“(1)For the purposes of these Regulations, a person is the spouse of another person if:
(a) the 2 persons are:
(i) married to each other under a marriage that is recognised as valid for the purposes of the Act; or
(ii)de facto spouses of each other, as set out in subregulation (2); and
(b) the Minister is satisfied that:
(i)the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between the 2 persons is genuine and continuing; and
(c) the Minister is satisfied that the 2 persons are:
(i)living together; or
(ii)not living separately and apart on a permanent basis.
(2)A person is the de facto spouse of another person:
(a)if the persons:
(i)are of opposite sexes; and
(ii)are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(ii)are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961; and
(b)if:
(i)either of the persons is domiciled in Australia—both of them have turned 18; or
(ii)neither of the persons is domiciled in Australia—both of them have turned 16.
(3)In forming an opinion for the purposes of paragraph (1) (b) or (c) in relation to an application for a visa of subclass ... 820 ..., the Minister must have regard to all the circumstances of the relationship, including, in particular:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one party to the relationship owes any legal obligations in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses;
(b)the nature of the household including:
(i)any joint responsibility for care and support of children, if any; and
(ii)the parties’ living arrangements; and
(iii)any sharing of responsibility for housework;
(c)the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint activities;
(d)the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long-term one.”
Mr Pomenti’s case is that at both the time of his application and the time of the decision on it he was “nominated” by his de facto spouse, an Australian citizen, Ms Marilyn Lean (“Ms Lean”).
PROCEDURAL BACKGROUND
Mr Pomenti was granted a subclass 300 (Prospective Marriage) visa to enter Australia in June 1996. That visa was valid until 28 March 1997. On 19 March, he lodged an application for a subclass 801 and 820 (spouse) visas. His “nominator” was Ms Lean. She was an Australian citizen. On 26 June, a delegate of the Minister decided to refuse the application. Mr Pomenti applied for internal review of that decision by the Migration Internal Review Office. On 3 November, a review officer affirmed the delegate’s decision.
On 28 November, Mr Pomenti applied for review to the IRT. The IRT conducted a hearing on 2 February 1998 at which counsel for Mr Pomenti was present. Oral evidence was given by Mr Pomenti, Ms Lean and Mr Robert De Santis, a cousin of Mr Pomenti. Statutory declarations by two close friends of Ms Lean and letters from friends and former employers of Mr Pomenti were taken into account. As noted above, on 23 March the IRT affirmed the decision not to grant a subclass 801 or 820 visa. Mr Pomenti filed his present application for review of the IRT’s decision on 22 April.
BACKGROUND FACTS
The following account, necessarily somewhat detailed, of the background facts is based on the Reasons for Decision of the IRT and the material in the Departmental and IRT files which are in evidence.
Mr Pomenti was born in Italy on 11 November 1963. He has been a Canadian citizen since 1973. While visiting Australia in 1992, he met Ms Lean. He returned to Canada in 1993, but he and Ms Lean corresponded with each other for the next two years. In 1995, he applied to visit Australia but his application for a visa was refused. In 1995, he and Ms Lean decided to marry. As noted earlier, in June 1996 he was granted a “prospective marriage” visa.
Mr Pomenti arrived in Australia on 3 July 1996 and commenced living with Ms Lean. However, within a few weeks the relationship ended. On 19 July, Ms Lean wrote to an officer of the Department of Immigration and Ethnic Affairs (“the Department”) stating that she did not wish to marry Mr Pomenti, and that “by mutual consent” he would be returning to Canada. On 23 July, Ms Lean signed a statutory declaration in which she confirmed that she no longer wanted to marry Mr Pomenti or have a relationship with him. She added that because he had no money, she had offered to buy him a ticket to return to Canada but that he had refused the offer and indicated that he wanted to stay in Australia. The statutory declaration continued:
“I no longer want any responsibility for him – for any medical expenses or expenses of any kind – legal or otherwise. I will let him stay in my home for a period of no longer than one week to give him time to find other accommodation.”
Ms Lean attached to the declaration a copy of a receipt dated 22 July 1996 issued by Harvey World Travel to Ms Lean for $1,702.00 for a “CP ticket” (no doubt a Canadian Pacific airline ticket).
On 2 August 1996, the Department wrote to Ms Lean as follows:
“I refer to your statutory declaration withdrawing your nomination for Permanent Residence for Mr Stefano POMENTI received in this office 24/07/1996.
This letter acts as acknowledgement of withdrawal of your nomination and your statutory declaration is now placed on the personal file for Mr Stefano POMENTI.
Your information is now on file with the Immigration Department.
Please do not hesitate to call if there is any further information you wish to add.” (emphasis added)
On 12 August, Mr Pomenti spoke to an officer of the Department, claiming that he was still in a relationship with Ms Lean although they were not living together. He said that they saw each other every day and were working on their relationship but that he did not think he was yet ready to live with Ms Lean or to marry her.
On 13 January 1997, Ms Lean telephoned the Department. She said that she wanted Mr Pomenti “out of her house and out of her life and out of Australia” and that she feared for her physical safety. She inquired whether she had any financial responsibility for Mr Pomenti. The Departmental officer said he thought not and reminded Ms Lean that she had “withdrawn her nomination/sponsorship for him.” Ms Lean informed the officer that the police had “just been around” and would be returning in about an hour. The file note also records that Ms Lean gave a Constable Turk from Ashfield police station the Departmental officer’s telephone number.
On the same day, the Departmental officer telephoned Constable Turk who had attended Ms Lean’s house at her request, and later in the day Ms Lean called the Departmental officer again to inform him that the police had returned and removed Mr Pomenti from inside the house, that he was “sitting on the step outside”, and that the police had no grounds on which to arrest him.
Despite the foregoing, a little over two months later, on 19 March, when Mr Pomenti’s subclass 300 (Prospective Marriage) visa had only nine days to run, Mr Pomenti lodged an “Application to remain permanently in Australia” and Ms Lean signed the document nominating him for such permanent residence on the ground that he was her spouse. In doing so, she made a declaration that she and Mr Pomenti intended “to maintain a lasting interdependent/marital relationship”.
A little over three months afterwards, on 23 June, Ms Lean attended the offices of the Department and spoke to an officer. She was tearful and distressed and described violent behaviour towards her by Mr Pomenti the previous day and evening. She showed the officer a facsimile copy of an interim Apprehended Violence Order (“interim AVO”) which she had obtained the previous day, 22 June, by telephone from Parramatta Local Court. A photocopy of the interim AVO was made and placed on the Departmental file. The interim AVO had an expiry date of 6 July. The associated summons required Mr Pomenti to appear at Burwood Local Court on Friday 27 June. Ms Lean told the Departmental officer that she had ended the relationship with Mr Pomenti two weeks earlier and that she had paid the bond money and two weeks’ rent on an apartment for him to ensure that he moved out of her house. She claimed that Mr Pomenti had a drug problem and had threatened to kill her. She said, however, that she would not withdraw her nomination of him for fear of provoking more violence from him. It was agreed that Ms Lean would contact the Department after the hearing on 27 June before the Local Court, at which time it was thought a “full” AVO might be made providing Ms Lean with greater protection.
A Departmental file note records that two days later, on 25 June, Ms Lean telephoned the Department and advised that Mr Pomenti had been arrested by the police two evenings earlier, charged with “larceny, malicious damage and stalking”, and released on bail to appear at court “within the next few weeks”. Ms Lean also told the Departmental officer that she had been awarded “a full AVO”. She gave the Departmental officer details of officers at Ashfield police station to contact if further information was required. (Mr Pomenti disputes that “a full AVO” was ever made against him and apparently none was in fact ever made.)
On 26 June, the Departmental officer contacted Senior Constable Wheeler at Ashfield police station to inform him that Mr Pomenti’s application for permanent residence was to be refused. This was apparently done because of the officer’s concern for Ms Lean’s safety once Mr Pomenti learned of the decision. Senior Constable Wheeler informed the officer that the pending charges against Mr Pomenti were to be heard in September 1997. The file note of the conversation does not record any discussion about a “full AVO” against Mr Pomenti. The Departmental officer then telephoned Ms Lean who asked to be advised when the letter was to be posted to Mr Pomenti advising him of the refusal of his application as she intended to have someone stay with her at her house (no doubt to protect her against the possibility of a further violent visit by Mr Pomenti).
On the same day, 26 June, a Departmental officer decided to refuse to grant Mr Pomenti subclass 801 and 820 (spouse) visas, and the Department sent a letter to Mr Pomenti informing him of these decisions. The decision record noted that there was “no information held on file to establish that the relationship between Mr Pomenti and nominator is genuine, nor that it is continuing”.
On 1 July, Ms Lean contacted the Department to inquire whether Mr Pomenti had collected from Australia Post the letter notifying him of the decision to refuse his application.
As noted earlier, on 31 July Mr Pomenti applied for internal review of the decision. In his application for internal review he stated:
“I will present letters, bills and evidence of an ongoing relationship with my fiance Marilyn Lean…”
Mr Pomenti also applied for access to “all documents regarding [his] first entrance in Australia and applications made overseas” pursuant to the Freedom of Information Act 1982 (“the FOI Act”). On 2 September, he was granted access to the Departmental file, but he was also informed that certain folios and parts of folios were claimed to be exempt from disclosure on the ground that disclosure under the FOI Act would involve “unreasonable disclosure of personal information about [a] person”. Those folios and parts of folios were file notes and other documents relating to Ms Lean’s discussions and correspondence with the Department, many of which had been marked “CONFIDENTIAL INFO” within the Department. On 30 October, Mr Pomenti was granted access to an overseas file of the Department which had been obtained from Canada. Again, however, he was informed that certain folios and parts of folios were claimed to be exempt from disclosure on the same basis.
As noted earlier, the decision to refuse the application for subclass 801 and 820 (spouse) visas was affirmed by a review officer on 3 November.
THE HEARING BEFORE THE IRT
At the hearing before the IRT, Ms Lean gave evidence about her relationship with Mr Pomenti. The presiding Member said that her understanding had been that Ms Lean had withdrawn her nomination of Mr Pomenti and that it was most unusual that she had not let the Department know that the relationship had changed. Ms Lean said that she no longer feared Mr Pomenti, that she had dropped the charges against him, that they had resumed their relationship, and that it was simply an oversight on her part that she had neglected to inform the Department. She gave evidence about the nature of their relationship. She said she could not provide supporting evidence such as evidence of a sharing of rent or household expenses, because she owned her own home and the expenses were paid for by her business which she ran from home. She said that although she would marry Mr Pomenti if it was necessary for her to do so in order for him to be granted permanent residency, she would prefer to remain in a de facto relationship with him.
Mr Pomenti gave evidence that he spent most of his time with Ms Lean, that they had worked out their differences, and that he had asked her to marry him as he loved her and wanted to spend the rest of his life with her.
Mr Pomenti’s cousin, a Mr De Santis, gave evidence as to his perception of the relationship between Mr Pomenti and Ms Lean, and said that he considered that their relationship was genuine and that they loved each other.
Finally, the IRT was given five letters from employers and friends of Mr Pomenti attesting to his personal and professional qualities. Two statutory declarations from friends of Ms Lean were also received. They referred to regular conversations with her about her relationship with Mr Pomenti from 1993 onwards, and claimed that the two had acted “as a couple”.
EVENTS AFTER THE IRT HEARING
On 13 March, after the hearing before the IRT but before its decision was given, Ms Lean wrote a letter addressed to the IRT as follows:
“To whom it may concern. I wish to advise you that my relationship with Stefano Pomenti has ended after another violent incident where Police were called.”
On the same day, Ms Lean telephoned the IRT. A file note of her telephone conversation with the officer of the IRT was as follows:
“Marilyn who is the partner of Mr Pomenti rang to say that she is no longer supporting the application for Mr Pomenti. Apparently he is supposed to be leaving the country this morning for Canada on a one way ticket.
After speaking to the member I again rang Marilyn who stated that at the time of the hearing she did want to spend her life with him.” (emphasis supplied)
A further file note of the same day reads as follows:
“Marilyn Lean rang to say that Mr Pomenti has not left the country. Ms Lean then went on to say that Mr Pomenti demanded that he leave the country yesterday but she could only get a ticket for today. Mr Pomenti turned up at her house today 6.30am for her to take him to the airport. As Ms Lean was starting to drive him to the airport another altercation arose and he smashed the windscreen of her car. She then stopped the car and Mr Pomenti got out of the car to drive, when he got out she drove away. Ms Lean then stated that she called the police and that when they went to meet her at home Mr Pomenti was there. Ms Lean was asked by Police if she wanted to press charges, she said yes, but Mr Pomenti begged her not too [sic], and that if she did not press charges he would leave the country. It seems as though Mr Pomenti has not left the country. Ms Lean is concerned for her welfare and is about to hire an armed guard. Ms Lean wanted to know what would happen to him, how soon would he be removed from the country? I told her I was not sure that this would be a matter for compliance, but as I was speaking to compliance later on today I would ask for her and ring her back at a later date.” (emphasis supplied)
Finally, there is in evidence a file note by the same officer of the IRT referring to her conversation the same day with Mr Tim Young, the solicitor for Mr Pomenti. The file note is as follows:
“Mr Tim Young rang, I asked him if had any contact with Mr Pomenti, he said no. Ms Lean did ring him this morning but he has had not [sic] contact with Mr Pomenti. Mr Young said that he has been through this all before then they have made up. Mr Young said that he assumes that Mr Pomenti will not get the visa so that is that.” (emphasis supplied)
The Reasons for Decision of the IRT gave the following account of this telephone conversation:
“The Tribunal contacted Mr Tim Young, Mr Pomenti’s adviser, on 13 March 1998. Mr Young advised the Tribunal that Ms Lean had telephoned him that morning advising him of the withdrawal of her sponsorship. Mr Young stated that he had not heard from Mr Pomenti and indicated he would not be making further submissions on the matter.” (emphasis supplied)
It will be noted that the file note of the conversation does not record that Mr Young said in terms that he would not be making further submissions.
THE REASONS FOR DECISION OF THE IRT
The IRT began the “Findings” section of its Reasons for Decision by noting that it was permissible for it to have regard to the course of the relationship after the making of the application on 19 March 1997 for the visa, for the purpose of testing whether the required relationship was genuine and continuing at that time. (As noted earlier, however, the relationship must also exist at the date of the decision on the application in any event.) It continued as follows:
“It was with some surprise that the Tribunal learned on the morning of the hearing that the parties had reconciled and had been reconciled for some months, yet no evidence was received by the Department in this regard. The Tribunal, whilst accepting Ms Lean’s evidence that she had ‘presumed’ the Department knew of the dropping of the AVO charges against Mr Pomenti, is somewhat surprised that she did not make an effort to inform departmental officers of this event. It is apparent from the evidence on file that departmental officers acted in a most exemplary fashion in their efforts to protect Ms Lean from what appeared to them, from her exhortations, to be a dangerous situation.
The Tribunal notes that the parties separated for short periods more than once during 1996 and 1997. The latest submissions from Ms Lean show they have separated again. The Tribunal notes also that the circumstances of the relationship were somewhat unusual to the extent that Mr Pomenti and Ms Lean have separate residences and that Mr Pomenti spends some week nights in his own apartment.
The issue for the Tribunal is to determine whether or not the relationship is a genuine and continuing one, given the problems encountered by the parties and the times of separation.
At the hearing Ms Lean told the Tribunal she regretted withdrawing her support for Mr Pomenti, that she feels that she acted too hastily in doing so and that she sought him out just days after separating from him. The parties stated that they loved each other and they wish to be together. However, the evidence obtained after the hearing shows that the parties had split up once more and Ms Lean had withdrawn her nomination of Mr Pomenti.
Despite considering this decision at great length and despite acknowledging that many successful relationships can be undertaken outside society’s norms, I am unable to conclude that Mr Pomenti satisfies the definition of spouse. The parties have already separated several times since the date of application and the evidence now is that the relationship is finished.
Given the material now before it the Tribunal finds that there is no evidence to enable the Tribunal to conclude that the relationship is genuine and continuing and that they are living together as described in regulation 1.15A of the Regulations. Mr Pomenti is therefore unable to satisfy clauses 820.211(1) and 820.221(1) of the Regulations.
As Mr Pomenti does not satisfy the criteria for a subclass 820 visa he therefore can not be granted a subclass 801 visa.” (emphasis supplied)
For these reasons, the Tribunal affirmed the decision under review.
GROUNDS OF REVIEW RELIED ON BY MR POMENTI
The grounds of review relied on by Mr Pomenti are apparently to be found in both his original application filed on 22 April 1998 and his amended application filed in Court on 11 August 1998. That is, although the amended application does not incorporate the grounds of review set out in the original application, Mr Pomenti apparently seeks to rely on the grounds set out in both. I proceed accordingly.
The following seem to be the matters about which Mr Pomenti complains:
The failure of the IRT to make known to Mr Pomenti adverse information on the file;
The failure of the IRT to give Mr Pomenti an opportunity to be heard in relation to the “late evidence” of Ms Lean, and the IRT’s “assumption”, on the basis of that late evidence, that the relationship between him and her was “finished”, despite sworn evidence to the contrary;
The failure of the IRT to decide that the decision of the internal review officer was invalidated by the assumption that the case needed to be expedited in order to ensure Ms Lean’s safety;
The failure of the IRT to interpret correctly the expressions “spouse” and “genuine and continuing” in reg 1.15A;
The failure of the IRT to hold a preliminary hearing; and
The fact that the IRT based its decision on the assumption that Mr Pomenti had had an Apprehended Violence Order made against him when in fact he had not.
I will address these matters in turn.
REASONING
Failure to make known adverse information
The Minister submits that none of the grounds of review assert a failure to make known adverse information and that any submissions relating to this complaint should be ignored. However, Mr Pomenti’s original application for an order of review asserts that the IRT failed to comply with the procedures laid down in s 353 of the Act, in that it “failed to make known to Mr Pomenti adverse material on the file”.
I take the present ground to depend on ss 476(1)(a) and 353 of the Act. Relevantly, those provisions are as follows:
“476 (1) Subject to subsection (2), application may be made for review by the Federal court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; …..”
“353 (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case.”
The material in question is the folios and parts of folios on the Departmental domestic and overseas files which were not disclosed to Mr Pomenti in response to his request pursuant to the FOI Act.
There was some discussion about this undisclosed material at the IRT hearing. The transcript records the presiding Member as saying:
“some evidence has been kept back from …[Mr Pomenti’s name omitted in original] in the Freedom of Information, but the fact is now that I’ve seen it it is obviously going to have a bearing on my decision, as you would realise as lawyers …. I’ve actually seen it now and in fairness to your client, because Ms Lean is not your client, Mr Pomenti [is], in fairness to your client obviously he has to know of this sort of thing, so we’ll see how we go from here.”
In fact, the material was never shown to Mr Pomenti or to his legal advisers, and they did not request to see it. There was no further discussion about the matter, apart from the Member’s comment a little later that:
“the fact is that you haven’t seen the file, I understand your problems. I have seen the file and of course the Federal Court would say if I’ve seen the file, I’ve at least taken it into consideration, which there’s no doubt that this sort of evidence…”
Mr Pomenti had been notified in writing on 2 September and 30 October 1997 when he was granted access under the FOI Act that certain folios and parts of folios were claimed to be exempt from release under subs 41 (1) of the FOI Act. At no time did he seek to challenge this claim. Mr Pomenti had apparently never applied for review of the Department’s decision as he was entitled to do under Part VI of the FOI Act. By the time of the hearing before the RRT, he was advised by solicitors and counsel. Not even when the presiding Member raised the matter at the hearing was access to the undisclosed documents sought for Mr Pomenti or for his legal advisers. I do not accept counsel’s present submission that “there was no real and proper opportunity at the IRT hearing [to apply for access] because of the nature of to apply [sic] for material on the file”. It would have been a simple matter for Mr Pomenti’s counsel to make an application for access and, if a particular difficulty arose, to seek an adjournment.
The Minister also submits that the IRT did not rely on the undisclosed documents in reaching its decision. As those documents contained the substance of Ms Lean’s earlier withdrawals of her nomination of the applicant, it is hard to say that they were not relied on at all. On the other hand, as the Minister submits, the substance of the effect of the documents, at least in so far as they were relevant, was either already known to Mr Pomenti (for example, the Member asked his counsel whether he “knew about this apprehended violence [order]” and he replied “yes”) or was disclosed through the Member’s questioning of Ms Lean. What was important was that, by the time of the hearing, Ms Lean had twice notified the Department that she was withdrawing her support for Mr Pomenti’s application and at one point had feared him enough to obtain an interim AVO. There is no suggestion that Mr Pomenti, and his legal advisers, were unaware of these matters.
In all the circumstances, I do not think that in the present respect the IRT failed to observe the requirements of s 353 of the Act.
Communications between Ms Lean, her solicitor and the IRT after the hearing
Mr Pomenti makes several submissions about the events recounted earlier, which occured between the conclusion of the hearing and the delivery of the IRT’s Reasons for Decision. He submits that the IRT should have held a further hearing for the purpose of giving him an opportunity to make submissions, and, if necessary, to adduce any further relevant evidence. He submits that the IRT’s failure in this respect was a failure to act according to “substantial justice and the merits of the case”. Mr Pomenti contends, further, that the IRT in fact indicated at the hearing that it accepted Ms Lean’s evidence (of the restoration of the relationship) and that if it intended to make a decision adverse to Mr Pomenti, he would be notified.
In response, the Minister points to the fact that Mr Pomenti’s solicitor was contacted by the IRT after Ms Lean’s post-hearing withdrawal of her support, and, according to the file note of the conversation, said that “he assume[d] that Mr Pomenti [would] not get the visa so that is that”. Before me, Mr Pomenti did not dispute that Mr Young had said words to that effect. While, as Mr Pomenti points out, the file note does not record, as the Reasons for Decision do, that Mr Young said in terms that he “would not be making further submissions on the matter”, in my view the words that Mr Young did say show that he was taking the stance that Ms Lean’s withdrawal of her support made his client’s position hopeless and rendered any question of further submissions otiose. The Minister submits that while it may have been preferable for the IRT to offer Mr Pomenti an opportunity to make further submissions, its failure to do so does not, in the unusual circumstances, amount to a failure to act according to “substantial justice and the merits of the case” as required by par 353 (2) (b) of the Act. Indeed, so the Minister’s submission goes, to hold another hearing would not, in the circumstances, have been “economical, informal and quick” as required by subs 353 (1) of the Act.
The Minister also submits that there was no need for a further hearing, as the IRT was not satisfied on the evidence as at the end of the hearing, that the relationship between Mr Pomenti and Ms Lean was continuing and genuine, and that the post-hearing communications only confirmed the Member in that view. However, a fair reading of the IRT’s “Findings” set out earlier, shows at least that the Member’s understanding that after the hearing, Mr Pomenti and Ms Lean had “split up once more”, that Ms Lean had “withdrawn her nomination of Mr Pomenti”, and that “the evidence now [was] that the relationship [was] finished”, was of some importance in her “Findings”.
For two related reasons, I think that Mr Pomenti’s present submission should not be accepted. The first concerns the requirements of the Regulations in respect of “nomination”. It appears that both the Member and Mr Pomenti’s solicitor assumed that Ms Lean’s withdrawal of support was fatal to Mr Pomenti’s application. If Ms Lean’s statements to the IRT are properly seen as amounting to a withdrawal of her nomination, Mr Pomenti did not meet one of the “criteria to be satisfied at the time of the decision” laid down in par 820.221 (1) (a) of Schedule 2 to the Regulations, because he no longer met the requirement of par 820.211 (2) (b) that he be nominated by a person falling within one of the designated classes at the time of the decision.
The provisions of Part 820 of Schedule 2 to the Regulations set out earlier contemplate that an applicant may be “nominated” at the time of application but have ceased to be “nominated” by the nominating spouse by the time of decision (in the circumstances here, the time of decision of the IRT). The word “nominated” is not defined in the Regulations but the word “nominator” is defined in reg 1.13 as:
“a person who puts forward, on the relevant approved form, the name of the applicant as an applicant for a visa of a particular class.”
(There are express exclusions which are not presently relevant.) The Regulations do not deal with the notion of “ceasing to nominate”. The notion of nomination itself has been treated as one of substance not form: Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 (FC) at 358 (Davies J, with whose reasons Sheppard and Burchett JJ agreed); Young v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 (Moore J) at 181-183. In Hamilton, Davies J described nomination as “a positive act proposing, sponsoring or supporting an application for the entry permit sought” (at 358). In my opinion, a person ceases to nominate an applicant for a visa by making it clear, by a positive act, that he or she no longer proposes, sponsors or supports the applicant’s application for that visa.
Ms Lean’s post-hearing communications to the IRT were unequivocal:
“my relationship with Stefano Pomenti has ended ...”;
“she is no longer supporting the application for Mr Pomenti ...”;
“...Ms Lean wanted to know .... how soon he would be removed from the country”.
These communications signified that Mr Pomenti did not “continue to meet the requirement” of par 820.211 (2) (b) of being nominated by, relevantly, an Australian citizen and did not “continue to be nominated ... by the nominating spouse”. Accordingly, he did not satisfy the criteria required to be satisfied at the time of decision for the grant of a sub-class 820 (spouse) visa, noted at the outset.
In my view, in these circumstances, subs 353 (1)’s requirement that the IRT pursue the objective of providing a mechanism of review that is “fair” and “just” and par 353 (2) (b)’s requirement that the IRT “act according to substantial justice and the merits of the case” did not require that it hold a further hearing against the possibility that Ms Lean might somehow seek to “re-nominate” or “reinstate her earlier nomination of”, Mr Pomenti; cf Li v Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 568 (Hill J) at 574-578.
The second reason to which I referred is that the stance taken by Ms Lean after the hearing and communicated by her to the IRT made any further hearing on the issue of a “genuine and continuing” de facto spousal relationship with Mr Pomenti futile. Mr Pomenti appears to submit that the IRT should have waited to see whether Ms Lean would persist in withholding her support for him, and at some time which the submission does not identify, but it seems, necessarily, when requested to do so by Mr Pomenti, that it should have held a further hearing.
There are several things to be said in answer to this submission. First, Mr Pomenti was not entitled to have a hearing at a time chosen by him when he might perceive Ms Lean to be again favourably disposed towards him. Second, the only timing of an hypothesized further hearing worth considering is between 13 March 1998 when Ms Lean telephoned the IRT and 23 March 1998 when it gave its decision, and it would have been futile to hold a further hearing in that period because Ms Lean’s position, as communicated to the IRT at the beginning of it, would inevitably have been decisive; it is unthinkable and would have been perverse for the Member to have preferred the evidence of Mr Pomenti and his cousin and the statutory declarations of Ms Lean’s two friends, to the up to date evidence of Ms Lean herself that any previous relationship between herself and Mr Pomenti was not “continuing”. (It is noteworthy, in passing, that Mr Pomenti has not led evidence before me that Ms Lean has, since contacting the IRT on 13 March 1998, in fact had a further change of heart and decided again to support his remaining in Australia.) Third, on a fair reading of the Reasons for Decision, the evidence before the IRT at the time of the hearing on 2 February 1998 clearly did not establish, by reference to virtually all the circumstances mentioned in reg 1.15A (3) set out earlier, the required genuine and continuing de facto spousal relationship. There was no financial sharing, pooling or reciprocity and no “household” (Ms Lean and Mr Pomenti lived at different addresses). There was virtually no evidence of mutual commitment and no basis on which the two individuals intended to undertake joint activities. And there were the violent visits which Mr Pomenti had paid to Ms Lean. I think it clear that even if Ms Lean had, at a further hearing, again expressed support for Mr Pomenti and again expressed a lack of fear of him, the IRT’s decision and essential reasoning would have remained unchanged. Accordingly, a further hearing would have been futile.
For the above two reasons, ground 2 is not established and it is unnecessary for me to say anything further. But I will refer briefly to three further submissions made on behalf of Mr Pomenti.
Mr Pomenti points to certain statements made by the Member towards the end of the hearing which are said to show that she accepted Ms Lean’s evidence and undertook to convene another hearing if she intended to make a decision adverse to Mr Pomenti. In fact, the Member said, inter alia:
“I wouldn’t make any decision on, you know, if I feel other evidence is required, I’ll do that, but certainly I wouldn’t make a decision which isn’t in your favour without – ”
“Now if there was something, this is what I mean about me having a hearing, if there was something that I found I should have asked you, I can call another hearing or do the telephone, it’s really now me going away and considering the credibility of the witnesses, Ms Lean and Mr Pomenti…” (emphasis supplied)
“I was rather concerned about Ms Lean’s safety to be quite honest, that’s why it’s taken, well we’ve been shuffling around all over the place, as far as I can see Ms Lean, I’m accepting her evidence, unless of course I - …”
“if there was something I found, oh I didn’t ask that question or that doesn’t appear to be answered, and it was not in the applicant’s favour, I would be inclined to get in touch.”
“I accept your [Ms Lean’s] evidence that you thought it [the “dropping of charges” by Ms Lean] was already reported [to the Department], so don’t give that another thought. Okay? I accept your evidence.”
“I had a problem because I was worried about Ms Lean’s safety, and that was very important to me, okay? I’m not worried about it now.”
Several observations may be made about these passages. First, the IRT accepted Ms Lean’s evidence that her failure to inform the Department that she had “dropped charges” against Mr Pomenti was an oversight and that she no longer feared violence from Mr Pomenti. However, as the emphasised passage shows, the Member did not say that she accepted the whole of Ms Lean’s evidence.
Second, the Member said she would hold a further hearing or communicate with Mr Pomenti if she felt that further evidence was required to enable her to make a decision adverse to him. She did not say that she would hold a new hearing in any event before making such a decision.
Third, the Member’s statement that she was no longer worried about Ms Lean’s safety is not, of course, equivalent to a statement that she was satisfied that she and Mr Pomenti were in a de facto spousal relationship.
The case is not one in which the Member required further evidence to enable her to make a decision adverse to Mr Pomenti. The subsequent communication from Ms Lean was not solicited by the IRT. That gratuitous and unexpected communication from Ms Lean simply lay outside the scope of the assurances given by the Member to Mr Pomenti.
Mr Pomenti attacks a statement in the Reasons for Decision that there was “no evidence to enable the Tribunal to conclude that the relationship was genuine and continuing”. But I do not think the IRT was there drawing upon the distinction that is sometimes made between the question whether there is any evidence of a fact (a question of law) and the question whether, if there is, that evidence ought to be accepted as sufficient evidence to establish a fact (a question of fact): cf McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155. Rather, I think it is possible and proper, as Gummow J did in Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 479, to treat the reference to “no evidence” in the passage quoted as a reference to “a lack of probative material confirmatory of what Mr Pomenti had put”.
Finally, in support of his submission that the IRT should have waited to see if Mr Pomenti and Ms Lean were reconciled, Mr Pomenti referred to certain provisions of the Family Law Act 1975 (Cth), including subs 48 (3) which provides as follows:
“A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.”
The Family Law Act 1975 does not have direct application to this case. Moreover, the fact that Mr Pomenti and Ms Lean were not married deprives the provision of any relevance.
For the above reasons, I do not think that the second ground of review is made out.
Expedition by the internal review officer
Mr Pomenti submits that the IRT should have found that the internal review officer erred by
“incorrectly assuming without proper inquiry or justification the existence of a particular material fact, that fact being that Mr Pomenti had an apprehended violence order against him and the need to have the case expedited due to concern for the nominator’s welfare when that fact did not exist”.
However, as the Minister submits, this misconstrues the nature of the proceeding before the IRT. The role of the IRT was not to consider whether the internal review officer had erred, but to reconsider the case afresh on its merits. Therefore, any error on the part of the internal review officer was irrelevant unless the IRT made the same error. It did not.
Incorrect interpretation by the IRT of the expressions “spouse” and “genuine and continuing” in reg 1.15A
Mr Pomenti has not explained in what way he says the IRT erred in its interpretation of these expressions. He submits that
“[t]he Tribunal failed to direct attention and properly consider the oral and documentary evidence and other material it had before it at the hearing and this in turn caused the Tribunal to err in interpreting and applying the law to the facts as found and to adopt an incorrect construction of the expression ‘spouse’”.
In substance, Mr Pomenti appears to be attacking the findings made by the IRT on the ground that it ignored the written and oral evidence given at the hearing. In the circumstances, I do not think it necessary to refer to the written and oral evidence which was before the IRT at the hearing or to attempt to show how it took that material into account. It suffices for me to say that I do not think that the present submission is supported.
Failure of the IRT to hold a preliminary hearing
Mr Pomenti submits that the IRT erred in not holding a preliminary hearing, and that this error led to its beginning the hearing under the mistaken assumption that Mr Pomenti and Ms Lean were still estranged. The Member was, indeed, surprised to find that Ms Lean was supporting the application, given that the last indication on the file was that she had terminated her relationship with Mr Pomenti and obtained an interim AVO against him. It is also true, however, as Mr Pomenti points out, that he had nominated her as a witness by whom he wished evidence to be given at the hearing.
There are several answers to Mr Pomenti’s submission. First, the Act itself does not refer to the holding of preliminary hearings by the IRT. It is a matter for the IRT to decide whether a preliminary hearing will lead to a “fair, just, economical, informal and quick” mechanism of review. Second, it is not suggested that the IRT was asked to hold a preliminary hearing and refused to do so. Despite the fact that Mr Young, the solicitor for Mr Pomenti, had indicated in writing to the IRT before the hearing that Ms Lean would give evidence to the effect that her relationship with Mr Pomenti was genuine and continuing, it is perfectly understandable, on the material before the IRT, that the Member should have been surprised to find that Ms Lean was once again supporting Mr Pomenti. In any event, it is not shown in what way the Member’s “surprise” in any way diminished the effectiveness of the hearing or the correctness of her decision.
The IRT did not fail to observe procedures required by the Act to be observed by failing to hold a preliminary hearing.
The non-existent final AVO
Mr Pomenti submits that the IRT’s decision was based on a particular fact which did not exist, namely, that a final AVO had been made against him. He submits that although an “interim AVO” was made, no “full AVO” was ever made. What the IRT’s Reasons for Decision stated was that Ms Lean had
“advised that she had been granted a full Apprehended Violence Order and that should further information be required, the Department should call Ashfield Police Station”.
Mr Pomenti also complains not only that the material on the file relating to the AVO was not disclosed to him, but also that the IRT did not ask questions of any witnesses relating to the matter.
The relevant ground of review is that provided for in par 476 (1) (g) of the Act, “that there was no evidence or other material to justify the making of the decision”. That ground must be read in the light of subs 476 (4) which provides:
“(4) The ground specified in paragraph (1) (g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
The IRT was not required to find that a “full AVO” had been made against Mr Pomenti in order to reach its decision. The relevant provision is therefore par (4) (b).
In my opinion, the Member did not “base” her decision on the existence of a “full” AVO against Mr Pomenti. She did not make any finding relevant to Mr Pomenti’s present submission. The passage from the IRT’s Reasons for Decision referring to an AVO issue set out earlier stated no more than that Ms Lean had informed the Department that an AVO had been made. That Ms Lean had so advised the Department is borne out by the relevant Departmental file note. Moreover, the reference to Ms Lean’s reporting of her obtaining of a “full AVO” occurs in a section headed “Background”. There is no reference to the matter in the “Findings” section, which does, however, refer to Ms Lean’s “dropping of the AVO charges against Mr Pomenti”. The Member seems, therefore, to have proceeded on the understanding that a “full AVO” was never made. It suffices, however, to say there is no suggestion in the Reasons for Decision of a finding or assumption by her that one had been made.
The IRT’s decision was based on the uncontroverted facts that Mr Pomenti and Ms Lean had separate residences, that, prior to the hearing, their “relationship” had “ended” at least twice and that it had ended again after the hearing. The record of Ms Lean’s several complaints of violence by Mr Pomenti and of her fear of him may have borne to some extent on the Member’s conclusion that there was not a “genuine and continuing” de facto spousal relationship between them. However, so much would have also been supported by the obtaining of the interim AVO. Even if the IRT had been under the impression that a “full” AVO had been made, that fact would have been of peripheral, if any, relevance to its decision.
Mr Pomenti refers to the following exchanges on the hearing.
“MEMBER: I am actually rather afraid that, first of all, I have to tell you, you’ve sworn to me that you’ll tell the truth, now it is a criminal offence to lie to me Ms Lean. By the same token I can see where you’ve had a few problems, but in all fairness to Mr Pomenti, I can honestly say that it could very well have a bearing on my decision whether I knock back – I grant him the visa, you see? I’m required, as far as I’m concerned, I’m required to let him to know certain things that have happened. Now I haven’t asked him yet about the apprehended violence order, but there was one, is it still - ?
MS LEAN: No.
MEMBER: And was it withdrawn?
MS LEAN: I don’t remember the date I’m sorry but I dropped all charges.
MEMBER: But roughly when?
MS LEAN: Six weeks after that.
MEMBER: Are you telling me now you have no fear - …”
Mr Pomenti submits that this passage shows that the Member thought that the existence of an AVO might lend support to a decision to refuse a visa. However, the important fact was that the Member correctly appreciated that although Ms Lean had brought charges against Mr Pomenti, she had subsequently dropped them.
The ground of review provided for in par 476 (1) (g) of the Act is not made out. The documents relating to this issue were of no particular importance to the decision, nor was it essential that the IRT question the witnesses about it. This issue therefore does not affect the reasons given earlier in relation to ground 1 concerning the more general issue of non-disclosure of documents.
CONCLUSION
The application should be dismissed with costs.
I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.
Associate:
Dated: 3 November 1998
Counsel for the Applicant: Mr P Gwozdecky Solicitors for the Applicant: Tim Young & Associates Counsel for the Respondent: Mr R Beech-Jones Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 26 August, 4 September 1998 Date of receipt of last submission: 15 September 1998 Date of Judgment: 3 November 1998
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