Revollo v Minister for Immigration
[2011] FMCA 899
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REVOLLO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 899 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of temporary spouse visa – where applicant claimed to be victim of domestic violence – where visa cancelled on other grounds – where domestic violence claim not considered by Tribunal – whether domestic violence claim expired – inferences – where no reference to relevant information in Tribunal’s decision – whether Tribunal failed to consider relevant information. |
| Migration Regulations 1994 Migration Act 1958 (Cth), ss.5F(2)(c), 109(1)(c) |
| Minister for Immigration and Citizenship v Khadgi & Anor (2010) 190 FCR 248 Burton v Minister for Immigration [2005] FCA 1455 Maman v Minister for Immigration & Anor [2011] FMCA 426 Gama v Qantas Airways Limited (No. 2) [2006] FMCA 1767 Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 Alexander and Others v Australian Community Pharmacy Authority and Others (2010) 265 ALR 424 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 Craig v South Australia (2005) 184 CLR 163 |
| Applicant: | LUIS ALBERTO ZAMBRANA REVOLLO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1323 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 November 2011 |
| Date of Last Submission: | 11 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Phillip Silver & Associates |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 30 May 2011.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1323 of 2011
| LUIS ALBERTO ZAMBRANA REVOLLO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Revollo is a Bolivian citizen who married Ms Frances Martinez on 2 April 2007 in Bolivia. It was his second marriage. On 5 April 2007 Mr Revollo lodged an application for a sub-class 309/100 spouse visa at the Australian Embassy in Chile. The scheme under which spouse visas are granted is that an application for a sub-class 309 visa is also an application for a sub-class 100 spouse visa, a permanent visa. The sub-class 100 can only be granted after two years have passed since the original application was made. Under Schedule 2 Class 100.221(2)(b) of the Migration Regulations 1994 (Cth)[1] a sub-class 100 visa can only be granted if the applicant is still the “spouse” of the sponsor in a relationship which is genuine and continuing.[2] The exception to this provision is where the relationship has ceased because the visa applicant has suffered domestic violence committed by the sponsoring spouse.[3] Although Mr Revollo claims that he has been the victim of domestic violence his visa cancellation was made on other grounds and before his application to have the temporary visa made permanent on domestic violence grounds was determined.
[1] “Regulations”.
[2] Migration Act 1958 (Cth) (“Act”) s.5F(2)(c), Regulation 1.15A(1),(2) and (3)).
[3] Regulations, Schedule 2 Clause 100.221(4)(c)(i)(A)).
The history of the applicant’s dealings with the department and its grounds for considering the cancellation of and then cancelling his visa are contained in the applicant’s helpful written submissions reproduced below. It is my understanding that this history is not disputed by the respondent:
“9.On 2 August 2009 an unidentified third party wrote to the first respondent enclosing a birth certificate of the applicant’s eldest son Diego.[4]
[4] CB 1 (the letter is not reproduced).
10.On 14 May 2010 the applicant, though [sic] his solicitor, notified the first respondent that he had separated from Ms Martinez because he had been subjected to domestic violence, and that he therefore sought his permanent subclass 100 visa on the grounds of the exception relating to domestic violence.[5] Accompanying this letter were statutory declarations made by the applicant and other “competent persons” as required by Division 1.5 of the regulations which included:
[5] Affidavit of Phillip Silver (Silver affidavit) dated 1 September 2011, Exhibit “A”.
(a)A statutory declaration of the applicant made on 10 May 2010[6] setting out the history of his relationship with Ms Martinez, including the violence, threats and humiliation that she had directed towards him. He stated:
[6] CB 147-154.
“I suffered from sever [sic] psychological trauma which caused me to fear for my personal well being and safety. I became anxious and depressed. I am apprehensive to form another relationship. I feel humiliated, ashamed and embarrassed as a result of the abuse I endured in my marriage with Frances Martinez. After I left my wife I was prescribed anti-depressant medication to deal with my depression. The abuse has made me anxious and depressed and has caused me to have low self esteem. I have felt helpless and worthless. l have difficulty sleeping and I am sometimes moody. I feel isolated after leaving my wife.[7]”
(b)A statutory declaration of Ms Veronica Salinas, Social Worker and Senior Clinician with Fairfield Health Services, made on 15 April 2010[8], who recounted the applicant’s history and concluded as follows:
“After assessing Mr. Zambrana-Revollo I have concluded that his presentation and complaints are consistent with those of a person who has suffered domestic violence. His complaints were about emotional, psychological, physical, financial and social abuse. Mr. Zambrana-Revollo became very anxious and distressed when he described the abuse perpetrated by his wife. Mr. Zambrana-Revollo reported that his self-esteem and confidence were highly deteriorated. He experienced a strong sense of hopelessness, helplessness and worthlessness. He has also reported suffering from sleeping problems and depressed mood. He isolated himself because he felt very ashamed being abused by his wife.
According to my professional opinion domestic violence has been suffered by Mr. Zambrana-Revollo committed by Ms. Frances Martinez and has caused Mr. Zambrana-Revollo to fear for his safety and general well being.
Based on my assessment, I believe that Mr. Zambrana-Revollo with the assistance of professionals and appropriate services will continue to recover from the trauma he has experienced as victim of domestic violence. Currently he is working fulltime as a painter and attending a training course at TAFE. Granting Mr. Zambrana- Revollo permanent residency will enable him to rebuild his future in Australia.”
[7] CB 148 [5].
[8] CB 164-169.
(c)A statutory declaration of Mr Hugo Rodriguez, psychologist, made on 20 October 2009[9], noting that the applicant had been referred to him by a Dr Sabag for treatment for depression and emotional trauma resulting from his relationship with Ms Martinez, and relating his history. Mr Rodriguez assessed the applicant as follows:
[9] CB 155-163.
“Mr Zambrana reported a multiplicity of emotional and psychological difficulties and symptoms arising from the episodes of abuse and what he felt as mistreatment and humiliation. His primary symptoms were depression, anxiety and fear. A formed the opinion that at that stage, and as a result of the persistent episodes of domestic violence, Mr Zambrana was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Moods. His condition fulfilled, in my opinion, relevant provisions for this disorder as set down in clause 309.28 in the Diagnostic and Statistical Manual Of Mental Disorders (DSM;-IV) and contained some features of Post Traumatic Stress Disorder (PTSD) including fear of being hurt and recurrent traumatic recollection of the violent incidents.[10]
[10] CB 161.
…
There are, in my view, strong indications that Mr Zambrana was the victim of domestic violence and abuse, both psychological and physical, perpetrated by Ms Martinez. This violence was perpetrated with threats and intimidation and caused Mr Zambrana to fear for his personal wellbeing and safety.
Assessment of Mr Zambrana indicated that as a result of the persistent episodes of domestic violence, he suffered from severe psychological trauma. His condition fulfilled as a result, the relevant criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Moods and contained features of Post Traumatic Stress Disorder.[11]”
11.On 21 May 2010 the first respondent wrote to the applicant requesting information, apparently about omissions in the spouse visa application[12], and on 11 June 2010 the applicant’s solicitor provided the first respondent with a Form 1023 setting out some minor corrections but with no reference to the children of his previous relationship.[13]
12.On 16 September 2010 the first respondent again wrote to the applicant advising him that it had come to its attention that some of the information in his spouse visa application might have been incorrect. Enclosed with the letter was a Form 1023 Notification of Incorrect Answers which was provided to give an opportunity to correct any previous answers. It does not appear that the applicant responded to this letter.
13.On 19 November 2010 the first respondent sent the applicant a Notice of intention to consider cancellation of his subclass 309 visa on the basis that he had not complied with s 101(a) and s 105(1)(a) of the Act because of his failure to include his eldest child Diego in the visa application.[14]
14.On 15 December 2010 the applicant’s solicitor provided a letter and supporting documents in response to the Notice.[15] The solicitor noted that the applicant conceded he had failed to include any of his four children in the Form 47SP and provided a statutory declaration of the applicant and birth certificates for the children. The solicitor contended that the visa would have been granted even if the correct information had originally been given. In the statutory declaration[16] the applicant explained that he had left the children out of his application form because he relied on Ms Martinez and her friend, who had told him that he should not disclose the children as they were all remaining in Bolivia with their mother and not migrating to Australia. The applicant explained his current circumstances in Australia, that he was working as a painter and studying at TAFE to obtain formal qualifications as a painter, that he had given up everything in Bolivia to come to Australia, and that he was supporting his children in Bolivia.
15.By a decision dated 18 January 2011 the first respondent cancelled the applicant’s visa.[17] The essential basis of the decision was that the applicant had failed to provide information about his children in his spouse visa application.[18]”
16.On review the matter was listed for hearing before the MRT on 4 May 2011.[19] Just prior to the commencement of the hearing[20] the applicant’s solicitor provided the Tribunal member with a detailed submission addressing the relevant issues under reg 2.41.[21] In relation to “the present circumstances of the visa holder” in reg 2.41(e) detailed reference was made to the circumstances of the marital breakdown with Ms Martinez[22], and copies of the applicant’s statutory declaration of 10 May 2010 and the statutory declarations of Mr Rodriguez and Ms Salinas were annexed.”
[11] CB 162.
[12] The letter is not reproduced.
[13] CB 2-6
[14] CB 9-15.
[15] CB 19-42.
[16] CB 23-24.
[17] CB 43-54
[18] CB 53-54.
[19] CB 88.
[20] Transcript p 3, Q4, Silver affidavit, Exhibit “B”.
[21] CB 93-103.
[22] CB 100-101.
At the Tribunal hearing the member asked the applicant:
“How does a man from Bolivia end up in a relationship with an Australian citizen or permanent resident. How does that come about?
…
How soon after the breakdown of [your marriage] did you end up in a relationship with an Australian citizen that sponsored you down to Australia?
The applicant responded that the period was two years and that he had known his second wife since they were children as she was a neighbour. The Tribunal then asked the applicant where his wife was and why she was not with him that day to which the applicant responded:
“Yes, well she’s not here because it has been two years since her and I have been living together. Immigration knows we haven’t been living together for two years because of the mistreatment on her behalf.”[23]
[23] Aff Phillip Silver T7 Q30 and 31
This series of questions indicates that the Tribunal was not aware when it commenced the interview of the applicant’s claim to have been the victim of domestic violence and not to have read the information provided by his solicitors. The Tribunal questioned the applicant about the timing of the marriage breakdown very shortly and indicated that she would get hold of the file relating to the visa application:
“Q55M: You arrived on the – sorry, sir, you arrived here on 1 July 2007, and you just told me that you’ve probably been apart from three years. So, if you do the maths you couldn’t have been together for two years.
A:The problem started in 2008, so I would have left her house in about 2007, I assume. With the date problem, I don’t really know.
Q56M: All right, okay. Well, I can get a hold of the departmental file with regard to the 309. because I’ve only got the cancellation file before me, and I can get that information from that file.
A:Yes, I guess there would be no problem with that, it’s just really that I’m completely useless with dates that I can’t really remember things properly.”
The Tribunal returned to the matter towards the end of the interview:
“Q134M: Sorry, I’m just having a quick look at the submission that I received this morning, because I didn’t have an opportunity to look at it before I got to the hearing.
Mr Silver:My apologies on that basis, Mr Cipolla.
Q135M: So I’m assuming from the evidence that the applicant, Mr Silver, that if the Tribunal was to exercise its discretion and set the cancellation aside and he’s reinstated with a visa, that the circumstances with regard to the issue of that visa have now changed because of the breakdown of the relationship. You’re going to be pursuing the exceptions for the grant of the visa on the basis that the gentlemen being a victim of relevant domestic violence?
Mr Silver:Correct. Any statutory declarations were submitted to the Department of Immigration in support of all those contentions, and I have annexed them to the submission.
Q136M: To this submission, yes.
Mr Silver:Yes, now, there’s three statutory declarations there; there’s one from Mr Revollo, that actually sets up the chronology, and quite well, which would assist you in understanding the chronology.
Q137M: Yes, and ---.
Mr Silver:Because he didn’t come across - - -
Q138M: - - - two from, you know, well a psychologist or - - -
Mr Silver:Correct, there’s one from a psychologist, Mr Rodriguez, who confirms the domestic violence and also says he’s satisfied that it was a natural and genuine relationship.
Q139M: Yes.
Mr Silver:And then there’s one from the social worker and they both confirm that, according to their opinions, he was the victim of domestic violence.
Q140M: Yes, okay. Well, sir, I’ve got a lot that if I need to consider in this pile of documents and, as I said at the outset of the hearing, I’ll be considering all of that very carefully before I proceed to decision, and I’ll be considering what was said today. Mr Silver, I said at the beginning of the hearing that if there was anything that you wanted to raise that I would give you an opportunity. Is there anything that you want to raise, or was it all - - -
Mr Silver:It’s all covered in the stat decs and the submission. It’s really – our submission is really for you to exercise your discretion.”
In its findings and reasons at [CB 219] the Tribunal noted that its duty was first to decide whether there was non-compliance by the applicant in a way described in the s.107 notice, in this case the provision of incorrect answers to questions in the spouse visa application form lodged on 5 April 2007, namely that he was the father of Diego Luis Zambrana. There was a second non-compliance, that was with s.105, because the applicant had not advised the department of the incorrect information and provided the correct information. The Tribunal noted that in a letter to the department, the applicant, through his representative, conceded the non-compliances on 15 December 2010. At that stage he also provided the department with details of three other children. The applicant had told the department and the Tribunal that the reason that he did not give details of his children was that the person who helped him fill in the form had told him it was not necessary as it was not intended that any of those children would be joining him in Australia.
The Tribunal, having accepted that there was non-compliance in the way described in the notice, turned to consider whether the visa should be cancelled pursuant to s.109(1). It referred to the prescribed circumstances for the purposes of s.109(1)(c) of the Act set out in Regulation 2.41 of the Regulations. Section 109(1)(c) and Reg 2.41 are set out below:
Section 109
“Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.”
Reg 2.41
“Whether to cancel visa -- incorrect information or bogus document (Act, s 109 (1) (c))
For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.”
The Tribunal had indicated the approach it intended to take towards these criteria at [15] and [16] [CB 203]:
“[15]The weight to be given to any one factor or group of factors is a matter for the decision-maker and will vary from case to case. Further, it is for the applicant to shape the decision-maker’s consideration of those factors by reference to his or her individual circumstances, and the extent to which the decision-maker is required to engage with each factor will depend largely on the matters put forward by the applicant: MIAC v Khadgi [2010] FCAFC 14.”
[16]While r.2.41 contains all of the considerations that must be taken into account, it is not an exhaustive statement of the factors that might properly be considered to be relevant in any given case: MIAC v Khadgi [210] FCAFC 14. The Tribunal may have regard to lawful government policy, and any other matter that the Tribunal considers relevant. The Tribunal will ordinarily apply lawful government policy unless there are cogent reasons against its application: see Drake v MIEA (1979) 24 ALR 577 per Bowen CJ & Dean J at 590, Re Drake and MIEA (No 2) (1979) 2 ALD 634 per Brennan J at 645. The relevant policy when cancellation is being considered under s.109(1) is set out in the Department’s PAM 3 ‘Visa Cancellation – General cancellation powers (s109, s116, s128 & s140).”
It then proceeded to deal with each of the criteria in turn. Under the heading “The correct information” the Tribunal opined that the correct information that should have been provided was that the applicant had four children from a previous marital relationship. She noted the applicant’s reasons for not putting details of those children in the form but remarked that the form did provide for the children who would be migrating and those who would not be migrating to be indicated. She thought it was odd that the children had not been included given that there was a capacity to note them as non migrating relatives. In the Tribunal’s view the applicant’s lack of English language skills as an excuse for not completing the form properly were circumvented by the fact that his second wife and the person who assisted in the completion of the forms were both fluent in English. However, the Tribunal did say at [92] [CB 221]:
“[92]In the Tribunal’s view, the decision to grant the applicant a Subclass 309 visa would not have been affected had the correct information been disclosed to the Department, because the relevant assessment was whether the applicant and his second wife and sponsor were in a genuine and continuing spousal relationship at the time of application, and continued to be in a genuine and continuing spousal relationship at the time of the decision with regard to the grant of the visa. The evidence before the Tribunal indicates that the Department was satisfied of the fact, and had the applicant listed his four children as non-migrating non-dependent children, the Tribunal is of the view that this would have had no bearing on the outcome of the visa application based on the relevant consideration as to what constitutes a spousal relationship. The Tribunal notes the applicant’s contention that had his children been listed in the application and been subject to relevant public interest criteria such as 4001, 4002, 4003, 4007 and 4009 that they all would have satisfied and continued to satisfy public interest criteria and there is nothing before the Tribunal to counter this contention.”
The Tribunal did not consider that the content of the genuine document was applicable in this case. In regard to the likely effect on a decision of the correct information the Tribunal stated:
“[94]The Tribunal accepts the submission that has been made by the applicant’s representative on his behalf that, “The failure to provide information on the Applicant’s children was not central to the grant of the 309 visa. If the correct information had been provided, the applicant would have been granted the 309 visa.”
In its consideration of the circumstances in which the non-compliance occurred the Tribunal shortly set out the history and noted that:
“The evidence suggests that the applicant was cognisant of the need to include the children in the application but was concerned about the prospective outcome of the application had they been included.”
In regard to the present circumstances of the visa holder the Tribunal dealt with his accommodation, his work history, his network of friends in Australia, his social life in Australia and his continued support of his children in Bolivia before saying:
“[102]There is no evidence before the Tribunal that suggests that the applicant is sufficiently embellished [sic] in Australia to the extent that he will suffer hardship if he had to return to Bolivia.”
The Tribunal then went on to consider the subsequent good behaviour of the visa holder and noted his regret for providing the incorrect information. The Tribunal noted there were other instances of non-compliance, the failure to include the child named in the anonymous tip off, and that the non-compliance occurred four years ago. The Tribunal noted there was no evidence of any breaches of the law since non-compliance and whilst noting that the applicant had not been involved in any voluntary work or paid work in the community he had been working on a full time basis for a painting company for the last twelve months and that a reference to the Tribunal had indicated that the applicant was honest, hardworking and a competent painter. The Tribunal then made reference to the provisions of PAM 3 but did not consider these relevant and it finally concluded at [112]:
“[112]The Tribunal has considered all of these matters as they go to its determination of the correct or preferable decision in this case. In the Tribunal’s view, it is the correct decision in this case that the applicant’s visa should be cancelled. The applicant since the grant of his Subclass 309 visa has been in Australia for a relatively short period of time, and while the evidence indicates that since the applicant’s arrival in June 2007 to date, the applicant has been able to establish a life for himself in Australia, undertaking work as a Painter, the Tribunal is confident that the applicant will be able to re-establish himself when he returns to Bolivia..”
In the application filed with this court on 24 June 2011 seeking judicial review of the Tribunal’s decision the applicant gave as his grounds of application:
“The second respondent failed to carry out the task required of it under s 109(1)(c) of the Act and regulation 2.41 of the Migration Regulations 1994), in that it failed to give any consideration to the evidence provided by the applicant about his psychological health as a result of the breakdown of his marriage since arriving in Australia; in particular:
(a)The applicant’s statutory declaration made on 10 May 2010 setting out the history of his relationship with his former wife and claiming that he has suffered severe psychological trauma.
(b)A statutory declaration of Ms Veronica Salinas, Social Worker and Senior Clinician with Fairfield Health Services, made on 15 April 2010, who concluded that the applicant had suffered domestic violence and permanent residency would enable him to rebuild his future in Australia.
(c)A statutory declaration of Mr Hugo Rodriguez, psychologist, made on 20 October 2009, who concluded that the applicant was suffering from an adjustment disorder with mixed anxiety and depressed moods, containing some features of Post Traumatic Stress Disorder including fear of being hurt and recurrent traumatic recollection of the violent incidents.”
As Mr Poynder says in his helpful written submissions at [43] – [46]:
“[43]The error in this case was the failure of the Tribunal to give any consideration to evidentiary material and submissions that it was required to take into account in relation to criterion 2.41(e), being the present circumstances of the visa holder. It is contended that the Tribunal failed to take into account the evidence and submissions of the applicant’s solicitor, set out under this sub-heading in the letter of 4 May 2011, of the applicant’s experience as the victim of domestic violence and his resulting psychological condition.
[44]Under the heading, “The Present Circumstances of the Visa Holder”, the Tribunal at [96]-[102] did refer to the applicant’s living circumstances, his employment, his friends and family and his social life and other links to Australia and Bolivia. However nowhere did the Tribunal make any reference to the matters arising from the domestic violence that had been referred to by the applicant’s solicitor.
[45]The [sic] is no evidence elsewhere in the decision that the Tribunal gave any consideration to this matter. While the Tribunal did reproduce the letter of 4 May 2011 in its entirety at [28][24], no reference was made by the Tribunal to the matters arising from the domestic violence, either in the Tribunal’s recitation of the hearing, which made no reference to the discussion about this issue at pp 22-23 of the transcript, nor in the Findings and Reasons section of the decision.
[46]Yet this evidence was potentially of critical importance. The applicant had referred to the severe psychological trauma that he had experienced as a result of the domestic violence, and this had been corroborated by Ms Salinas. He been [sic] observed by Mr Rodriguez as showing primary symptoms of depression, anxiety and fear, and Mr Rodriguez had diagnosed him as having an Adjustment Disorder with Mixed Anxiety and Depressed Moods as well as some features of Post Traumatic Stress Disorder. This had been put forward by the applicant’s solicitor as being of primary relevance to the applicant’s present circumstances, yet there was no acknowledgement at all of the existence of this evidence by the Tribunal, let alone any consideration of the material.”
[24] CB 208-213.
The applicant contends that this case can be distinguished from the circumstances which pertained in Minister for Immigration and Citizenship v Khadgi & Anor [25] because in that case the Full Bench, Stone, Foster and Nicholas JJ, held that the consideration to be given to Reg 2.41 criteria by a Tribunal would be very much the product of an applicant’s submissions; so that if an applicant did not make particular submissions about one or other of the criteria it would be difficult to argue that the Tribunal had not given it proper consideration:
“In our view, it is incumbent on the visa holder who is engaged in the visa cancellation process envisaged by s 109 to articulate facts, matters and circumstances to which he or she suggests the Minister should have regard as required by reg 2.41. The reg 2.41 criteria direct the Minister’s attention to particular factors at a general level but it is for the visa holder to shape and mould the Minister’s consideration of those criteria by reference to his or her individual circumstances. Whilst the Minister must, of course, have regard to material, information and documentation in his possession which properly fall within the purview of the reg 2.41 criteria, irrespective of their source, it will largely fall to the visa holder to flesh out that material in order to enable the Minister’s discretion to be properly exercised. For example, consider the criteria in reg 2.41(a), (e), (f) and (k). If the visa holder does not address those criteria with evidentiary material and submissions, it is not likely that there will be much material (if any) before the Minister for him or her to consider and evaluate. In that event, it is not likely that there will be much for him or her to say about those criteria.”[26]
[25] (2010) 190 FCR 248 (“Khadgi”).
[26] Khadgi (at [83]).
The way in which the applicant says that Khadgi is distinguishable from his case is that the material relating to his mental condition as a result of the alleged family violence was clearly put before the Tribunal but was not considered. He says that in those circumstances the matter is more akin to that considered by Wilcox J in Burton v Minister for Immigration[27]:
“[59] There is no doubt about the principle enunciated by Gummow J in Broussard. The principle was well-established at that time and was subsequently endorsed by the High Court of Australia, in Minister for Immigration and Ethnic Affairs v Wu Shiang [sic] Liang (1996) 185 CLR 259. However, the principle does not operate to render non-reviewable a decision that completely overlooks material that the decision-maker is required by law to take into account. It was incorrect for the Tribunal member to say there was no information before the Tribunal in relation to the appellant’s contribution to the community. There was the work reference. With every wish to avoid a nitpicking approach, I cannot share the magistrate’s view that the Tribunal’s statement, of there being ‘no evidence’ about contribution, was intended to mean there was evidence but it was of insufficient probative value. If that had been the Tribunal member’s view, I would have expected him to say so and briefly to explain why the work reference lacked probative value.
[60] The magistrate thought the reference contained only ‘scant information’. I do not share that view, but it does not matter what weight either the magistrate or I would be minded to give to the reference. Weight was a matter for the Tribunal to determine. It would not have been a jurisdictional error for the Tribunal to conclude that the contribution disclosed by the reference was insufficient to swing the decision in her favour. But it was a jurisdictional error to fail to give it consideration at all.”[28]
[27] [2005] FCA 1455 (“Burton”).
[28] Burton (at 59-60).
The respondent accepts, as he has to, that there is no clear reference to these matters in the consideration of the Reg 2.41 criteria in the Tribunal’s findings and reasons but he has two answers to that argument. First, he reminds the court that the Tribunal extracted the material in full of the body of its reasons:
“That is every single word that the applicant contends was not considered was in fact extracted by the Tribunal in its written reasons. The contention that the Tribunal failed to consider the material might be arguable if there has been no such reference but the fact that the material was extracted in this way strongly suggests that the material was indeed considered in that it was not overlooked.”
The respondent also pointed out that the Tribunal, in the transcript, expressly undertook to look closely at the material and that the court should be slow to infer that it did not. Reference to the submission is found at [CB 212]. Mr Poynder argues that whilst the submission is reproduced the reports of the psychologist Mr Rodriguez, and the social worker Ms Salina, are not.
The respondent also argue that the criteria, in particular the criteria in question, “the present circumstances of the visa holder”, relate to the present circumstances and not to what might have occurred in the past. The respondent note that most of the acts and opinions expressed in each of the statutory declarations relate to the claim that the applicant had in the past been the victim of domestic violence and then state:
“The opinions expressed relate to the experiences of the applicant that occurred when he was in a relationship with his former wife; the applicant does not and did not claim at the Tribunal hearing that he remained a victim of domestic violence.”
The respondent noted that the views expressed by the experts seemed to indicate that the applicant would make a gradual emotional recovery from his experiences but it seems to me that the references to those statutory declarations made in [16] of their written submissions would indicate some continuing problem:
“[16]Indeed, to the extent the material relates to the applicant’s present circumstances (i.e. at the time of the decision) the material is overwhelmingly positive: Ms Salina’s opinion was that the applicant would continue to recover from trauma he has “experienced”: CB 168.5. Mr Rodriguez considered that the applicant had demonstrated “gradual emotion recovery. His Adjustment Disorder has resolved, although he still exhibits residual symptoms of anxiety, depression and PTSD) …. I believe that with the passing of time Mr Zambrana will continue to recover and his symptoms will eventually settle”: CB 162.7”
I would also take issue with the respondent’s suggestion that one cannot remain a victim of domestic violence after the violence has ceased. It seems to me that once one has been the victim of domestic violence one remains a victim of domestic violence although one may be able to get over the trauma. But perhaps this is only a matter of semantics.
A court should be hesitant before drawing an inference that the Tribunal has not taken a particular matter into consideration especially where there is reference to that matter in the decision record. Indeed, even where no reference has been made to a matter, as in the instant case, it would be incorrect to infer from that omission alone that the matter was not considered by the decision-maker. In Steed v Minister for Immigration and Ethnic Affairs[29], the Full Court held that:
“It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.”[30]
This is so even where there is an obligation to consider certain information: Alexander and Others v Australian Community Pharmacy Authority and Others.[31]
[29] (1981) 37 ALR 620 (“Steed”).
[30] Steed at 621 per Fox J.
[31] (2010) 265 ALR 424 at [84].
There is, however, a distinct inference flowing from the above that may be drawn. Whilst it may be incorrect to infer from an omission to refer to some matter that no consideration of it occurred, the court may reasonably infer from such an omission that the materials were not considered to be relevant by the Tribunal. Indeed, in SZMPT v Minister for Immigration and Citizenship,[32] Jacobson J opined:
“…[T]he Court, in making its assessment, may draw inferences from the Tribunal’s reasons as to whether the Tribunal considered the information to be a reason for affirming the decision. In the present case, not only was there no mention of the information at the Tribunal hearing, it was not mentioned in the Tribunal’s reasons or in any document generated by the Tribunal during the review process. The only inference therefore available was that the Tribunal did not consider the information to be relevant.”[33]
[32] [2009] FCA 99 (“SZMPT”).
[33] SZMPT at [18].
This conclusion is consistent with that drawn by the Full Bench in Khadgi where their Honours opined that:
“[…] a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case.”[34] [citation omitted]
[34] Khadgi at [59].
It seems to me from the manner in which the Tribunal phrased its reasoning and from its acknowledgment of the views expressed in Khadgi that it was intending to deal with all relevant considerations. The court does not have to guess at why the Tribunal may not have considered the matters raised in the submission concerning the applicant’s psychological state to be relevant, only whether they were relevant. In my view the applicant’s psychological state was relevant to the criteria of the visa holder’s present circumstances as argued by Mr Poynder. The Tribunal’s actual decision on the matter is confined to one paragraph, extracted at [11] of these reasons. The sole reason appears to be that the applicant has only been in Australia for 4 years and could therefore re-establish himself in Bolivia. No other reasons are given and the Tribunal’s consideration of the 2.41 criteria reveals nothing adverse to the applicant other than his failure to admit to his children, which would not have affected the grant of the visa. The confidence which the Tribunal expresses in this outcome must surely be informed by the applicant’s psychological state, which it would appear the Tribunal did not consider. To this extent the failure to deal with it constituted a jurisdictional error on the part of the Tribunal: Craig v South Australia.[35] I will make the orders requested in the application and order that the respondent pay the applicant’s costs assessed in the sum of $6,240.00.
[35] (2005) 184 CLR 163 at 177.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 25 November 2011
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