Quintana v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 481
•9 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Quintana v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 481
File number(s): SYG 2706 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 9 April 2025 Catchwords: MIGRATION – Where legislative instrument specifying types of evidence required to establish non-judicially determined claim of family violence repealed since decision of the Tribunal – whether on review Court should apply current legislative instrument in re-assessing evidence for itself Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) regs 1.23, 1.24
Cases cited: Cherkawi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 275
Dang v Minister for Immigration [2016] FCCA 1426
Fu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 161
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164
Pham v Minister for Immigration and Border Protection [2017] FCCA 3272
Pham v Minister for Immigration and Border Protection [2018] FCA 1946
Division: General Federal Law Number of paragraphs: 76 Date of hearing: 27 May 2024 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Turner Coulson Immigration Lawyers Counsel for the Respondents: Ms N Gollan Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2706 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSE LUIS ANDRES MEDEL QUINTANA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 18 October 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application made under s 476 of the Migration Act 1958 (Cth) (Act) seeking review of a decision made of the (then) Administrative Appeals Tribunal (Tribunal) on 23 September 2019 (decision) affirming a decision of a delegate of the Minister (delegate) to refuse to grant a Partner (Temporary) (Class UK) visa (visa).
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
The applicant is a citizen of Chile (Court Book (CB) 356 at [5]). On 4 October 2013, he applied for the visa, sponsored by his then partner (sponsor) who is an Australian citizen (CB 366 at [2]). On 27 January 2014, the sponsor wrote to the first respondent to advise that her relationship with the applicant had ceased and that, accordingly she was withdrawing the sponsorship (CB 356 at [6]).
In response to a letter from the delegate dated 23 September 2014, the applicant provided a number of statements by which he claimed to have suffered mental, physical and financial abuse from the sponsor “until she kicked him out” of the home in which they were cohabitating (CB 356 at [8]).
On 27 October 2014, the delegate wrote to the applicant requesting that he provide information to support his claim of family violence, noting the requirements for such evidence (CB 357 at [9]). The applicant provided no information in response to that request.
Decision of the delegate and remittal
On 24 August 2015, the delegate found that the applicant did not meet the criteria in cl 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) and refused the visa application (CB 357 at [10]). In doing so the delegate noted that, despite numerous requests to do so, the applicant had not provided any evidence to support his claim of family violence.
On 11 September 2015, the applicant applied to the Tribunal seeking review of the delegate’s decision, which decision was subsequently affirmed (CB 357 at [11]). Following an application for judicial review made to the (then) Federal Circuit Court of Australia, the decision was remitted by consent on the basis that the Tribunal failed to take into account certain statements (CB 357 at [12]).
On 19 February 2019, the applicant’s representative sent the Tribunal various documents, one of which appointed him as the applicant’s authorised recipient and another being a request for access to written to material (CB 260 to 263). The Tribunal responded to the latter in several parts (CB 264 to 273).
On 8 July 2019, the Tribunal invited the applicant (via his authorised recipient) to attend a hearing to give evidence and present arguments (CB 274 to 278), which invitation the applicant ultimately accepted after correspondence about the availability of his representative to attend (CB 279 to 280).
The Tribunal noted that in response to both the invitation to hearing and later correspondence confirming the eventual hearing date (CB 284 to 285) the applicant had acknowledged no longer being in a continuing relationship with the sponsor and his claim to suffer relevant family violence. The Tribunal invited the applicant to provide details of the information the applicant was relying upon to establish the claim that he had suffered relevant family violence (CB 284 to 285 and 357 at [13]).
In response to that invitation, the applicant provided the following documents:
(a)a statutory declaration made by him on 31 July 2019 (CB 306);
(b)a statutory declaration of Sonia Keller, social worker, made on 6 August 2019 (Keller declaration) (CB 309); and
(c)a report by a psychologist dated 30 July 2019 (psychologist report) (CB 357 at [16]).
On 4 September 2019, two emails were sent to the Tribunal from the offices of the applicant’s representative attaching:
(a)a written submission (CB 317 to 332); and
(b)a new form appointing a different practitioner from that office as the applicant’s authorised recipient (CB 333 to 334).
The applicant appeared before the Tribunal (differently constituted) on 5 September 2019 to give evidence and present arguments (CB 335 to 337 and 357 at [16]). The applicant’s new representative was also present (CB 335 to 337).
On 12 September 2019, the following documents were emailed to the Tribunal for the applicant:
(a)further written submissions (CB 340 to 341);
(b)statements of the applicant dated 10 September 2019 (CB 342 to 343) and 11 September 2019 (CB 344); and
(c)a statement of the applicant’s fiancée (being a person other than the sponsor) dated 10 September 2019 (CB 345 to 346).
The Tribunal’s decision
On 23 September 2019, the Tribunal notified the applicant (via his authorised recipient) of its decision which affirmed the decision to refuse the visa (CB 351 to 366).
The Tribunal accepted the applicant’s claims that he had been in a genuine relationship with the sponsor and that the relationship had broken down (CB 360 at [40]). However, the Tribunal concluded that the applicant had not made a valid claim of non-judicially determined family violence pursuant to the Regulations and therefore, refused to consider such a claim (CB 363 at [59]).
In making its decision, the Tribunal had regard to both the Keller declaration and the psychologist report. However, applying the requirements of IMMI12/116, the Tribunal found that neither the Keller declaration nor the psychologist report met IMMI12/116.
Specifically in respect of the Keller Declaration, the Tribunal noted the applicant’s evidence said that he went to see Ms Keller because he needed an assessment for domestic violence. The Tribunal observed that the applicant made the arrangements to see Ms Keller and obtain the report, but then made no efforts to see Ms Keller again since receiving it (CB 359 at [30]). The Tribunal found the following in respect of the Keller report (CB 362 at [53]):
The Tribunal finds that Ms Keller has not provided counselling or assistance to the applicant while performing the duties of a social worker. The only basis of the consultation was to obtain a report from a person that would otherwise be qualified to provide a report to support a claim of family violence. There is no information which would indicate the applicant was at any time in the past or has any intention to consult Ms Keller for counselling or assistance in relation to any claim of having suffered relevant family violence. The Tribunal finds the report from Ms Keller is not the type of evidence that is required to establish a claim that the applicant has suffered non-judicially determined family violence.
In respect of the psychologist report, the Tribunal went on to say at [56] (CB 362):
The Tribunal finds that Ms North has not treated the applicant while performing the duties of a psychologist. The only purpose of the applicant seeing Ms North has been for the purpose of obtaining the report. This was only done more than five years after he claimed his relationship with the sponsor had ended. There is no information which would indicate the applicant has received treatment from any medical professional at any stage in respect of the claims he has suffered relevant family violence.
The Tribunal explained this decision further at [59] to [60] (CB 360) thusly:
The Tribunal finds the statutory declaration by Ms Keller and the report of Ms North do not meet the criteria for the type of evidence required to establish a non-judicially determined claim that the applicant suffered relevant family violence. Therefore, the evidence presented does not meet the requirements of r 1.24. As such, a non-judicially determined claim of family violence has not been made under r 1.23.
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl 820.221(3) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.
APPLICATION TO THIS COURT
By an application to show cause filed on 18 October 2019, the applicant commenced the instant proceedings and was represented by the same firm as had represented him throughout the Tribunal proceedings. These proceedings were initially docketed to another Judge of this Court (first primary Judge). On 13 November 2019, a Registrar of the Court made orders for the preparation of the proceedings for hearing which included a grant of leave to the applicant to amend his application by 20 February 2020. The proceedings were later placed in the central migration docket, where they remained until they were re-docketed to me on 18 March 2024. I made orders on 18 March 2024 setting the matter down for final hearing and, in advance thereof, again granted the applicant leave to amend. The parties were ordered to file written submissions 14 and 7 days before the hearing (respectively).
At hearing, the applicant and first respondent were each represented by their respective Counsel. For the applicant was read the Affidavit of Renee Jane Quinn affirmed on 23 May 2024 annexing the transcript of the Tribunal hearing on 4 September 2019 (transcript Affidavit). The Court Book (prepared by the first respondent) was tendered by the applicant and marked as Exhibit “1A”.
Ground of review
Perhaps unsurprisingly given that the applicant has been represented by his lawyers throughout these proceedings, no amended application had been filed although the grounds developed at hearing were not strictly raised in the originating application. By his originating application, the applicant raises a single, particularised, ground of review as follows:
1. The Tribunal misapplied the law in forming the view that the evidence provided by the Applicant did not meet the criteria of evidence required to establish non-judicially determined family violence.
Particulars
a. The Applicant provided a statutory declaration from a social worker to the Tribunal as evidence of non-judicially determined family violence in accordance with regulation 1.24 of the Migration Regulations. The Applicant also provided a psychologist report as evidence specified by the Minister in IMMI12/116.
b. The Tribunal erred in finding that Sonja Keller had not provided counselling or assistance to the applicant while performing the duties of a social worker and as such formed the view that the statutory declaration from Sonja Keller did not meet the criteria for the type of evidence required to establish a non-judicially determined claim that the applicant suffered relevant family violence.
c. The Tribunal erred in finding that Kris North did not treat the applicant while performing the duties of a psychologist and as a result formed the view that the psychologist report from Kris North did not meet the criteria for the type of evidence required to establish a non-judicially determined claim that the applicant suffered relevant family violence.
d. The Tribunal misapplied the law by finding that the evidence provided did not meet the evidentiary requirements of regulation 1.24.
In short, the applicant alleges that the Tribunal erred by concluding that he had not made a “non-judicially determined claim of family violence” for the purpose of reg 1.23(9) of the Regulations.
The ground of review as expressed in the originating application came to take on a different emphasis by the time of the applicant’s written submissions, and evolved again during the hearing. At hearing, Counsel for the first respondent was correct to observe that the applicant’s arguments significantly departed from the ground expressed in the originating application. In particular, there is no reference in the ground or its particulars to the contention, which now seems central to the applicant’s case, that the Court should find for itself that the evidence submitted by the applicant to the Tribunal satisfies the definition of a “non-judicially determined claim of family violence” because:
(a)the question of whether the Keller declaration and psychologist report constituted acceptable evidence is a question that the Court can, and should, determine for itself as a jurisdictional fact; and
(b)crucially, the Court should undertake that consideration by reference to the current legislative instrument (LIN23/026) and not by reference to IMMI112/116, being the legislative instrument which applied at the time of the Tribunal’s decision.
It is not in dispute that Legislative Instrument LIN23/026 was not in force at the time of the Tribunal’s decision having only been introduced in 2023.
The first respondent relies on the fact that LIN23/026 was not in force to say that the applicant’s contention is wholly misconceived. The first respondent also says that the applicant has not demonstrated any error in the Tribunal’s application of the legislative instrument which was in force at the time of the Tribunal’s decision, being IMMI12/116.
At hearing, Counsel for the first respondent also highlighted that particular 1(a) of the originating application expressly refers to IMMI12/116 and observed that oral submissions made for the applicant at hearing suggested that this allegation had been abandoned. Counsel for the applicant clarified that while not being formally abandoned, if the Court were to find against the applicant on the central premise of the ground (namely that IMMI112/116 applied), then the applicant would have to accept that the psychologist report would not satisfy those requirements.
Legislative framework
At the time of the Tribunal’s decision (and at the time the applicant applied for the visa), 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.
Regulation 1.24 of the Regulations provided as follows (emphasis added):
The evidence mentioned 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.
There is no dispute between the parties that, at the time of the Tribunal’s decision, the “instrument in writing” referred to in reg 1.24(b) was IMMI12/116.
In relation to evidence from a social worker or a psychologist, IMMI12/116 prescribed that which constituted “acceptable evidence” for the purposes of reg 1.24(b) of the Regulations in Schedule 1 in the following terms:
Type of evidence includes the following detail 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.
In 2023, IMMI12/116 was repealed and replaced by LIN23/026, which prescribed the following as constituting “acceptable evidence”:
Types of evidence Items of evidence Information that must be concluded Social worker Any of the following made by a social worker who is acting in their professional capacity:
(a) report;
(b) letter;
(c) statutory declaration.
The item of evidence must:
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Psychologist (a) Any of the following made by a psychologist who is acting in their professional capacity: report;
(b) letter;
(c) statutory declaration.
(a) state that the alleged victim has made a claim of family violence; and
(b) state in their professional opinion whether the claims of the alleged victim are consistent with them having been subject to family violence; and
(c) identify the alleged perpetrator or provide information from which the identity of the alleged perpetrator can reasonably be inferred.
Included in LIN23/026 are the following two relevant definitions:
(a)“psychologist” means a person registered under the Health Practitioner Regulation National Law Act 2009, as enacted and in force in each State and Territory, to practice in the psychology profession.
(b)“social worker” means a member of the Australian Association of Social Workers, or a person who is eligible to be a member of that Association, and who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.”
Clause 6 of LIN23/026 has the effect of repealing IMM112/116, and says:
Repeal
Migration Regulations 1994—Evidentiary Requirements—IMMI 12/116 (F2012L02237) is repealed.
Clause 7 of LIN23/026, which deals with savings and transitional matters, says:
Anything done under the Migration Regulations 1994—Evidentiary Requirements—IMMI12/116 (F2012L02237) continues to be in effect as if it had been done under this instrument.
Applicant’s submissions
The applicant says that the effect of the savings and transitional clause of LIN23/026, clause 7, is that the Tribunal’s determination in relation to whether the applicant’s evidence met the requirements of reg 1.24(b) (in accordance with IMMI12/116) continues in effect, but is to be treated as though it had been made under LIN23/026, such that the Court should now undertake any assessment of the evidence in question by reference to LIN23/026.
The first limb to this argument is that the Tribunal’s own reasons for concluding that the reports in the instant case did not meet the relevant description in IMMI12/116 is not determinative, and that this Court is obliged to consider the question for itself, citing Pham v Minister for Immigration and Border Protection [2018] FCA 1946 (Pham).
Pham was an appeal from a Judge of this Court (see Pham v Minister for Immigration and Border Protection [2017] FCCA 3272) considering a decision of the Tribunal in which the applicant had, in similar circumstances, submitted a report by each of a psychologist and a nurse. Before the primary Judge in Pham, the Minister had conceded it was open to the Court to conclude that the report of the psychologist did not meet the requirements of IMMI12/116. The Court agreed with that characterisation and went on to say at [19]:
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.
However, the Court declined to remit the matter notwithstanding that error because, having also considered for itself the report of the nurse which, it was concluded did not satisfy IMMI12/116, the applicant could not be taken to have made a claim on non-judicially determined family violence because in order to do so, both reports would need to satisfy the definition of acceptable evidence.
In Pham on appeal, Middleton J said the following at [32] to [34] (emphasis added) (errors in original):
[32] Accordingly, the primary judge was correct to conclude that:
(1) Mr Le’s report “does not, at first blush, detail any treatment for mental health, whether consistent with the claimed family violence or otherwise” ([28]).
(2) reatment” [sic], in this context, requires “the application of remedies” ([31]).
(3) Accordingly, “[t]he requirement that a medical report give details of treatment requires details of what remedies were given”, including “such things as counselling, psychotherapy and psychoactive drugs” ([33]).
(4) “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 treatment for mental health, much less any treatment for mental health that is consistent with the claimed family violence” ([34]).
[33] It follows, therefore, that the appellant’s visa application did not include a “non-judicially determined claim of family violence”, and the primary judge was correct to dismiss the application for judicial review of the Tribunal’s decision.
[34] In addition, I make the following observations in relation to the notice of appeal:
(1) With respect to particular (a), the proposition that Mr Kleynhans report met the relevant in IMMI 12/126 does not assist the appellant. In accordance with the Regulations, in order for the application to include a “non-judicially determined claim of family violence”, the applicant needed to provide two items of evidence from the list in Sch 1 to IMMI 12/116.
(2) With respect to particular (b), because the question of whether the application included a “non-judicially determined claim of family violence”, the Tribunal’s own reasons for concluding that Mr Le’s report did not meet the relevant description in IMMI 12/116 is not determinative. The Court is obliged to consider the question for itself, informed correctly by the law, on the evidence before it. On that basis, the primary judge correctly concluded that Mr Le’s report did not meet the description in IMMI 12/116, and therefore the application did not include a “non-judicially determined claim of family violence”.
(3) Particular (c) adds nothing to particular (b).
(4) As to particular (d), it was entirely within the primary judge’s discretion to determine the application for review on the law (including the case law) as it stood at the time, rather than waiting for an indefinite period for the High Court to determine another case. Furthermore, the ultimate decision of the High Court in Shrestha v Minister for Immigration and Border Protection (2018) 359 ALR 22; [2018] HCA 35, which the applicant asked the primary judge to wait for, would not have assisted the appellant’s case or led to any different result.
The applicant says that, when considered cumulatively, the first instance and appeal judgments in Pham are clear authority for the proposition that the question of whether the reports meet the definition of acceptable evidence for the purposes of the legislative instrument are jurisdictional facts and that it is for this Court to determine on the evidence before it, correctly informed by the law, citing Cherkawi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 275 at [53] per Judge Forbes and Fu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 161 at [36], [38] and [64] per Judge A Kelly.
However, in contending that the Court should undertake the determination for itself “correctly informed by the law”, the applicant then moves to the second limb of his argument contending that the correct law by which the Court is to be informed is the application of LIN23/026 and not IMM12/116. On this question, Pham (both first instance and on appeal) is not of assistance because it was decided at a time prior to the repeal of IMM12/116 and commencement of LIN23/026. As such, no such question arose.
The applicant contends that the language employed in clause 7 of LIN23/026 is a matter of moment because LIN23/026 does not contain language to say that any application made before a certain date (or the instrument as it applied before a certain date) shall continue to apply to any application made before the date of the instrument. The applicant says that it would be incongruous for the Court to use the repealed instrument IMMI12/116 and not LIN23/026 because of the absence of a common transitional provision, combined with the nature of jurisdictional fact review.
Lastly, the applicant says that when LIN23/026 is applied, the Keller declaration and psychologist report would have met its requirements. The corollary of this is said to be that this Court must therefore be satisfied that the applicant can therefore be taken to have made a non-judicially determined claim of family violence, which warrants remittal to the Tribunal to be redetermined as part of the visa application.
Submissions of the first respondent
The first respondent essentially says that because LIN23/026 was not in force at the time of the Tribunal’s decision, the applicant’s contentions must be rejected.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 per Beach, Thawley and Cheeseman JJ said the following at [28] (emphasis added):
The question whether the IAA’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision‐making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision‐making authority, is answered by reference to the circumstances as they existed at the time the decision‐making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] HCA Trans 118:
In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision‐making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made
and by Mortimer J in Parker v Minister for Immigration & Border Protection[2016] FCAFC 185; (2016) 247 FCR 500 at [77] (see also at [60] per Griffiths and Perry JJ):
The appellant’s submission that the “outcome” of the Minister’s cancellation decision is, after the annulment, legally unreasonable misunderstands the Court’s function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister’s decision, that could not be the case.
This aspect of the decision in Parker was, unlike other aspects of the decision, not doubted by the High Court in Minister for Immigration & Border Protection v Makasa[2021] HCA 1; 95 ALJR 117; 386 ALR 200, see in particular at [59].
The applicant, while accepting the aforementioned principle that error is not to be assessed by reference to circumstances which did not exist at the time of the decision is correct, submitted that it was not applicable in the instant case by reason of the type of jurisdictional error he alleges occurred. The first respondent says that proposition must be rejected because it is clear that the Full Federal Court in EGZ17 (supra) was emphasising that a court engaged in judicial review is concerned with whether or not the decision-maker exceeded the decision-making authority that was conferred upon them by the relevant statute at the time.
In relation to the operation of clause 7, Counsel for the first respondent submitted at hearing, that clause simply provides for anything done under the previous legislative instrument (IMMI12/116) to continue to be in effect, such that it does not lapse. The first respondent says that nothing in clause 7 gives rise to a retrospective application of LIN23/026.
Consideration
Principles on judicial review
It is not in dispute between the parties that, where an applicant contends the Tribunal erred in its assessment of evidence as failing to be of a kind which can give rise to a non-judicially determined claim of family violence, the Court has power to assess that question for itself, and that such assessment is to be determined afresh. I accept that is so and that it is open to the Court to assess, for itself, whether the Keller declaration and the psychologist report met the requirements of the relevant legislative instrument: see Pham (supra) at [34] per Middleton J and Cherkawi (supra) at [53]. The question then arises as to which legislative instrument that is.
Applicable law
The first respondent submitted that it would be a highly anomalous circumstance for this Court, in judicial review, to not have regard to the law as it was in force at the time of the Tribunal’s decision, but to instead reconsider the matter with respect to a legislative instrument that came into force many years after the decision. I agree.
I accept the first respondent’s submission that, by reference to clause 2 of LIN23/026, there is no provision for retrospective effect of that legislative instrument for the following reasons:
(a)the date on which LIN23/026 was registered is included in the footer thereto as being 30 March 2023, being three and a half years after the Tribunal’s decision made on 20 September 2019;
(b)clause 6 of LIN23/026 had the effect of repealing IMMI12/116; and
(c)clause 7 of LIN23/026 provides nothing more than that anything done under the IMM12/116 continues to be in effect as if it had been done under LIN23/026.
I accept the submission of the first respondent that clause 7 of the LIN23/026 goes no further that to preserve acts under the previous legislative instrument so that they continue in force, despite the repeal of IMMI12/116.
Despite the applicant’s contentions,[1] Pham says nothing more than that the assessment should be undertaken afresh. There is nothing in Pham (nor any other authority upon which the applicant relied) which supports the proposition that the Court should apply law which did not exist at the time of the Tribunal’s decision. I agree that, at their height, the authorities relied on by the applicant stand for the proposition that where a jurisdictional fact/s are in issue, the court is empowered to consider for itself whether or not the fact/s exists.
[1] Transcript dated 27 May 2024 at T13.9 to 12
Reliance was placed by the first respondent on the decision Cherkawi (supra), LIN23/026 had commenced and was in force by the time the learned primary Judge came to consider for himself whether the acceptable evidence met the definitions contained in the legislative instrument. In Cherkawi, that assessment was undertaken by the Court by reference to IMMI12/116 and not be reference to LIN23/026. The applicant says that the case cannot be taken to mean that IMMI12/116 was the appropriate legislative instrument to apply to the evidential assessment because it was not argued before the Court that LIN23/026 was the correct law to apply. I disagree.
Applying the principles set out in EGZ17, and unless I am otherwise of the view that Judge Forbes’ approach was plainly wrong (which I am not), I will undertake the same assessment as did his Honour in which he consistently identified IMMI12/116 as being the applicable legislative instrument: see Cherkawi (supra) at [3], [31], [46], [55], [61] and [68]. That his Honour did not expressly refer to the repeal of IMMI12/116 by LIN23/026 does nothing to alter this view, given that the Court can be taken to have plainly been aware of the fact of the repeal where, at [31], his Honour said (emphasis added):
Instrument IMMI 12/116, in force at the time of the Tribunal’s decision, provides that a minimum of two items of evidence from a list in the Schedule to the instrument must be presented and that no more than one of each type may be presented.
To the extent that the applicant contends that the Court should apply LIN23/026 to its assessment of the Keller declaration and the psychologist report, I decline to do so. For the foregoing reasons, the proper exercise of this Court’s jurisdiction in such an evidential assessment where IMMI112/116 applied at the time of the Tribunal’s decision is that the Court must also apply IMMI112/116 to its consideration of the reports in question, notwithstanding that LIN23/026 has replaced it.
Assessment of evidence
IMMI12/116
As noted above, the applicant has conceded that if the Court were to reach the conclusion expressed in the preceding paragraph, then he would necessarily accept that the psychologist report would not satisfy the requirements of IMMI12/116. That concession is appropriately made and it is therefore unnecessary to consider the psychologist report further in respect of that legislative instrument.
For the reasons set out in Pham (supra) at [34(1)] per Middleton J and Cherkawi (supra) at [31] per Judge Forbes, in circumstances where the psychologist report did not satisfy the definition of acceptable evidence by reference to IMMI12/116, the application must fail. That is because to be taken to have included a non-judicially determined claim of family violence, the applicant needed to provide two items of evidence from the list in Schedule 1 to IMMI 12/116, and simply did not.
However, in the interests of completeness, I am also of the view that the Keller declaration substantively failed to satisfy the IMMI12/16 requirements which required that the social worker have particular qualifications and have:
provided counselling or assistance to the alleged victim while performing the duties of a social worker
It is now well established that in order for a statutory declaration by a social worker (or a psychologist) to meet the requirements of IMMI 12/116 the relationship between the applicant and that person must have been essentially a therapeutic one: see Pham (supra) and [23] and Cherkawi (supra) at [34] each of which cite Dang v Minister for Immigration [2016] FCCA 1426 per Judge McNab, with approval.
The applicant contends that in the present case such a therapeutic relationship existed because, while he conceded at the Tribunal hearing that he had initially seen Ms Keller for the purpose of obtaining the report for the purpose of the assessment of his visa, that the relationship should be construed as being one in which Ms Keller should be taken to be providing counselling or assistance to him. That was said to arise from the following exchange with the Tribunal at hearing (emphasis added):[2]
[2] Annexure “AB-1” to the Transcript Affidavit at 32.Q304 to 32.Q310A
Q304 Okay. How was it that you arranged to see Ms Keller?
A I just look for her on the internet.
Q305 Okay. Did you ring up and said, I need to see you for a reason, or what did you do?
A Yeah. I said that I need an assessment for domestic violence.
Q306 Did you tell her what it was for?
A Yeah.
Q306 Did you tell her long ago – or when you made the arrangement, so you just did it yourself.
A I went to the social worker page on the internet, like the government one. And I put my address and – sorry, my postcode. And the website told me where was the nearest one. So I just contact them and I went.
Q308 Did she know that it was just to prepare a report for today’s purposes?
A Yeah.
Q309 So it wasn’t for counselling or anything else like that?
A Yeah. I think it was as well.
Q310 Well, have you made any arrangements to see her again?
A No but she will come at me to see her again after the hearing.
For the applicant it was contended that the applicant’s response to a direct question from the Tribunal about counselling should be taken to be demonstrative of an ongoing counselling relationship.
However, given the context in which the statement comes, and the fact that the applicant did not suggest that counselling or assistance (other than the fact of the provision of the report) had taken place at all, I am not satisfied on the material before me that that is so. That conclusion is reinforced by the fact that the applicant took no further steps to see the social worker again as at the date of the Tribunal hearing, in respect of which the following chronology is relevant:
(a)the applicant attended on Ms Keller for a consultation on 24 July 2019 (CB 309);
(b)the Keller declaration was made on 6 August 2019 (CB 313);
(c)the Tribunal hearing was held on 5 September 2019 (CB 357);
(d)the evidence given by the applicant at the Tribunal hearing was to the effect that as at the date of the Tribunal hearing, there had been only one meeting between the applicant and Ms Keller.[3] That is despite there having been the effluxion of approximately 6 weeks since that meeting;
(e)the applicant was given a further opportunity to provide material at the conclusion of the hearing (CB 337), with any such information to be given by 12 September 2019;
(f)the applicant availed himself of that opportunity to provide additional materials to the Tribunal;
(g)none of the materials made reference to any further counselling, assistance or indicia of a therapeutic relationship nor that between the hearing and 12 September 2019 that any subsequent appointment took place between the applicant and the social worker.
(h)the Tribunal did not make its decision until 20 September 2019, being almost 3 months since the applicant saw Ms Keller to obtain the Keller declaration.
[3] Annexure “AB-1” to the Transcript Affidavit at 32.Q304 to 32.Q310A
Essentially, there was ample opportunity for the applicant to not only obtain the report, but also to have engaged in a therapeutic relationship (including on an ongoing basis) with Ms Keller constituted by counselling and/or assistance, including to give credence to the suggestion that there was to be a post-hearing meeting between them. In respect of the latter observation, it might be open to infer that such a meeting would reinforce that the purpose of the relationship between the applicant and Ms Keller was only directed to migration outcomes. However, even giving the applicant the benefit of the doubt that it would genuinely have been utilised for counselling, there is no evidence that such an event took place.
Accordingly, based on the evidence as a whole, I am satisfied that the Tribunal’s conclusion that “it appeared that Ms Keller had not provided counselling or assistance to the applicant” (CB 362 at [53]) as at 20 September 2019, was a finding open to it.
As such, the Keller declaration did not satisfied the definition of acceptable evidence for the purposes of IMMI12/116.
Accordingly, the applicant did not provide one, let alone two, items of evidence from the list in Schedule 1 to IMMI12/116.
LIN23/026
Lastly, even if I am wrong in my conclusion expressed in the paragraph [56] above, the ground of review could not succeed.
That is because, while LIN23/026 is structured slightly differently than IMMI12/116, insofar as the words “who has provided counselling or assistance to the alleged victim while performing the duties of a social worker” is not included in the body of the table of acceptable evidence (see [33] above), that definition is still included in LIN23/026 in the definition of “social worker” (see [34] above).
In this regard, the applicant submitted that it is evident from the Keller Declaration that:[4]
at the very least, she has assisted the applicant by listening to and engaging with his claims, considering those claims, and advancing an opinion as to whether he has been subject to family violence and therefore the Keller declaration satisfies the requirements of LIN 23/026.
[4] Applicant’s written submissions filed on 13 May 2025 at [25]
However, as a matter of logic any social worker providing a written report would first need to listen to, engage with and consider claims in order to then advance an opinion. All the applicant is describing in the submission above is the preparation of a report for the purpose of the application. Listening and engagement does not necessarily constitute counselling. It is clear from the language of the instrument, as considered in Dang (supra) (cited with approval by Pham and Cherkawi) that the import of providing counselling and/or assistance such as to constitute the existence of a therapeutic relationship is not met merely by provision of the report.
By reason of this, and the reasons given at [69] to [71] above, I am satisfied that the Keller declaration would also not have met LIN23/026.
Accordingly, the applicant would still not have provided two, items of evidence from the list in LIN23/026.
CONCLUSION
In all the circumstances of this case, the applicant has not succeeded in establishing error as alleged by his ground of review (as developed in written and oral submissions). The decision is therefore a privative clause decision, and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 9 April 2025
0
9
2