Rokonaitaka v Minister for Immigration
[2020] FCCA 2049
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROKONAITAKA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2049 |
| Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – where independent expert found applicant had not suffered family violence – where Tribunal accepted expert opinion to be correct – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359A, 359AA, 360, 376, 476 Migration Regulations 1994 (Cth), regs.1.23, 1.24, cl.801.221 of Sch.2 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Bala v Minister for Immigration & Border Protection [2019] FCA 600 |
| Applicant: | ILIAME ROKONAITAKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 255 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 July 2020 |
| Date of Last Submission: | 27 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 255 of 2019
| ILIAME ROKONAITAKA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Fiji. On 28 April 2014, he applied for a combined Partner (Temporary) (class UK) (subclass 820)/Partner (Residence) (class BS) (subclass 801) visa (Court Book (“CB”) 1-40). The applicant was sponsored by his wife.
On 3 July 2015, the applicant was granted the Partner (Temporary) (class UK) (subclass 820) visa (the “temporary visa”) (CB 58-59). On 12 May 2016, the applicant sent through various supporting documents for the Partner (Residence) (class BS) (subclass 801) visa (the “residence visa” (CB 60-91).
On 26 May 2016, the applicant was sent a letter by the Minister’s Department inviting him to comment on information received about a change of circumstances (CB 92-94). Specifically, the invitation stated:
Information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before a decision is made on your Subclass 820/801 visa application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
On 29 May 2016, the applicant responded with a statutory declaration stating that the information was incorrect and that he and his wife were still together (CB 96).
The Minister’s Department then requested further information on the status of the applicant’s relationship (CB 97-101).
The applicant provided further statutory declarations in response to this request (CB 102-103).
On 26 September 2016, the Minister’s Department again invited the applicant to respond to information (CB 104-105). On or around 24 October 2016, the applicant responded to the request and conceded that his relationship was “broken” (CB 128-103).
On 12 January 2017, the applicant’s migration agent provided written submissions and supporting documents to the Minister’s Department (CB 132-183). Those written submissions stated that the reason for the relationship breakdown was “family violence”.
On 14 July 2017, the applicant was asked to attend a meeting with an independent expert for an assessment of his claims of family violence (CB 184-185). On 18 August 2017, the Minister’s Department invited the applicant to comment on the independent expert’s opinion that he was not a victim of family violence as defined by the Act (CB 186-190).
On 15 September 2017, the applicant’s migration agent provided written submissions in response to the invitation to comment dated 18 August 2017 (CB 208-214).
On 19 September 2017, a Ministerial delegate refused to grant the residence visa (CB 215-228). The delegate found that the applicant did not meet cl.801.221 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was no longer in a relationship with his wife (the sponsor). The delegate also found (based on the independent expert’s report) that the applicant had not suffered family violence.
On 4 October 2017, the applicant sought review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 229-230).
The applicant was invited to attend a hearing on 25 February 2019 (CB 236-237). At the hearing, the applicant provided a Mental Health Treatment Plan (CB 244).
The applicant was asked by the Tribunal to attend another meeting with an independent expert (CB 245). On 23 May 2019, the applicant was invited to comment on the independent expert’s report and the expert’s opinion that the applicant had not suffered family violence (CB 247-261).
On 5 June 2019, the applicant responded to the invitation to comment. Relevantly, he stated that he agreed with all of the statements made by the psychologist (CB 262).
On 10 June 2019, the Tribunal affirmed the decision not to grant the applicant the residence visa (CB 265-269).
On 11 July 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 8 pages long and spans 33 paragraphs.
At [1]-[6], the Tribunal summarised the background to the application. It was noted that the applicant had been granted a temporary visa, that the delegate had refused the residence visa and that the applicant had attended a hearing before the Tribunal.
The Tribunal noted the information that was before it and the fact that the applicant was now in a relationship with another person with whom he has a child (at [8]-[9]). The Tribunal also noted that there was information the subject of a s.376 certificate before it. However, that information related to the wife indicating that she no longer wished to sponsor the applicant and the applicant indicated that he was aware of this information and confirmed that the relationship had ceased (at [10]-[11]).
The Tribunal then explained that the issue before it was whether the applicant had suffered family violence committed by the sponsor (at [11]).
The applicant was seeking to establish “non-judicially determined family violence” (at [14]). The Tribunal set out how a claim of family violence must be made in accordance with the Regulations:
15. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking by the alleged victim and alleged perpetrator to a court has been made or evidence in accordance with r.1.24 is provided.
16. The applicant in this case is seeking to rely on evidence referred to in r.1.24 - namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).
17. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
The Tribunal was satisfied that the applicant’s statutory declaration dated 11 January 2017, the medical report of the applicant’s doctor and the statutory declaration of the applicant’s psychologist met the requirements of reg.1.24 of the Regulations. As such, a non-judicially determined claim of family violence had been advanced (at [18]-[21]).
The Tribunal then considered whether the applicant had suffered family violence. The Tribunal detailed the applicant’s evidence provided at the hearing (at [23]-[26]). This included:
a)the fact that the applicant was financially controlled by the sponsor. He was required to seek the sponsor’s approval for any spending. The sponsor required him to sign the house they jointly owned into the sponsor’s name;
b)the fact that the sponsor restricted the applicant’s interaction with his friends. The sponsor would contact others to find out whether the applicant was with his friends. The applicant had been having romantic conversations with two women and the sponsor told him to stop and she contacted the women; and
c)the fact that, when the sponsor was upset, she would stay in her room and not talk to the applicant for several days. Sometimes she would not cook him dinner. He was afraid that she might contact his family in Fiji who “would then talk to him”.
The Tribunal was not satisfied that the applicant had suffered family violence and referred the matter to an independent expert for an opinion (at [27]).
The Tribunal concluded as follows:
28. On 16 May 2019 the independent expert provided an opinion that the applicant had not suffered relevant family violence. The independent expert summarised the applicant described two incidents of verbal abuse he had suffered that did not cause him to reasonably fear for, or to be reasonably apprehensive about, his well-being or safety. The independent expert summarised an incident of financial abuse which did not cause the applicant to express reasonable fear or apprehension for his well-being or safety. The independent expert assessed these incidents as examples of general marital discord.
29. The Tribunal sent the applicant a copy of the independent expert’s opinion and invited him to comment on or respond to that information. The applicant responded by email and stated that he agreed with all the statements that had been made.
30. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
31. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
In circumstances where family violence had not been established, the Tribunal found that the applicant did not meet cl.801.221(6)(c) of the Regulations.
Accordingly, the Tribunal affirmed the delegate’s decision to refuse the residence visa (at [32]-[33]).
Proceedings in this Court
The applicant’s judicial review application filed on 11 July 2019 contains three lengthy “grounds of review” as follows:
1. I, Iliame Roklonaitaka, Passport number [omitted] Date of Birth: [omitted] made an application for a combine Partner visa subclass 820/801 on 28 Apr 2014. At that time I was in a valid legal spousal relationship with [omitted]. Subclass 820 visa was granted to me on 03 Jul 2015. My then spouse informed immigration in Sep 2016 requesting a withdrawal of sponsorship and that our relationship had ended. However she was given an opportunity and benefit of withdrawing the sponsorship without my explanation or submission about what I had suffered in the relationship. Before I could give the available evidence of harm or mental and domestic violence, I received a notification of refusal by Department of Immigration and Border Protection on 19 Sep 2017, which stated that I did not satisfy cl. 801.221. According to the decision maker, I was unable to meet the requirements of clause 801.221 of the Migration Regulations and that rules and regulations do not support my claims and therefore they refused to grant me a visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 801.221 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 801.221 subclauses 4 and 6 which describes the eligibility criteria for grant of visa if the relationship has broken down and if the applicant has suffered family violence committed by the sponsor, whereas; I strongly believe that I have satisfied the same rule. I have provided the evidences and all the Same evidences can be again presented to the court, if needed, that justify that I had suffered mental breakdown and family violence in the relationship. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was not given a chance to speak further and provide any explanation or make request at the Tribunal. I do believe that the tribunal member had already made the decision against my claims and did not accept my explanations. Even at the time of AAT hearing I wasn’t provided the natural justice by the Tribunal member.
2. After the department refused my application I applied for the review of my application at the AAT with the expectation that they would understand and consider my scenario. I was invited to appear in the hearing scheduled on 25 Feb 2019. I attended the hearing and the tribunal asked me to provide evidence of my relationship, arguments, disputes and family violence. The Tribunal member at the AAT hearing did not give me a chance to explain the issue properly, rather the member interviewed me with the list of questions and did not give me enough time to explain in details. The Tribunal Member also did not provide procedural fairness in making a decision on my appeal application.
3. The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I had suffered traumatic metal breakdown and family violence. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents and supporting evidences that were proving I satisfied the subclause 801.221. I request the Federal Circuit Court please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine partner visa applicant while in the spousal relationship with Patricia Winyard. If there is anything else required to support my claims and application, please do contact me.
The applicant was given an opportunity to file an amended application, supporting affidavit evidence and an outline of submissions. No further materials were provided.
The materials before the Court are thus limited to the originating application, a Court Book numbering 279 pages (marked as Exhibit 1), the s.376 certificate (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 9 July 2020.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions. The Minister advised the Court that due to an administrative oversight, the applicant was only served the Minister’s written submissions three days prior to the hearing. The applicant indicated that he had read the submissions and the Court confirmed that, to the extent he needed anything clarified, he should simply ask for more time and/or clarification. The applicant indicated he was content to proceed on this basis.
At the hearing, the applicant appeared without legal representation. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal “was correct” but he had concerns about the expert report. He asked, in effect, how a psychologist could make an assessment that the information he gave was not true. The Court will address this issue below when addressing the applicant’s grounds of review.
Consideration
The applicant’s grounds of review are lengthy. Each arguably identifies a number of discrete complaints. To ensure that the Court does not overlook any relevant point, the Court will consider each passage in the grounds of review.
Ground 1
Ground 1 commences as follows:
I, Iliame Roklonaitaka, Passport number [omitted] Date of Birth: [omitted] made an application for a combine Partner visa subclass 820/801 on 28 Apr 2014. At that time I was in a valid legal spousal relationship with [omitted]. Subclass 820 visa was granted to me on 03 Jul 2015. My then spouse informed immigration in Sep 2016 requesting a withdrawal of sponsorship and that our relationship had ended.
These are factual matters that are not in dispute. They do not identify any jurisdictional error.
Ground 1 continues:
However she was given an opportunity and benefit of withdrawing the sponsorship without my explanation or submission about what I had suffered in the relationship. Before I could give the available evidence of harm or mental and domestic violence, I received a notification of refusal by Department of Immigration and Border Protection on 19 Sep 2017, which stated that I did not satisfy cl. 801.221. According to the decision maker, I was unable to meet the requirements of clause 801.221 of the Migration Regulations and that rules and regulations do not support my claims and therefore they refused to grant me a visa.
The applicant here takes issue with the delegate’s decision or, rather, the manner in which the delegate conducted the review. This Court has no jurisdiction to review the delegate’s decision: the Act, s.476(2) and (4).
Further, this complaint fails factually. The applicant was given a number of opportunities by the delegate to give evidence in relation to his claims of family violence and did, in fact, provide substantial evidence and submissions (CB 92-214).
Ground 1 continues:
According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 801.221 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 801.221 subclauses 4 and 6 which describes the eligibility criteria for grant of visa if the relationship has broken down and if the applicant has suffered family violence committed by the sponsor, whereas; I strongly believe that I have satisfied the same rule. I have provided the evidences and all the Same evidences can be again presented to the court, if needed, that justify that I had suffered mental breakdown and family violence in the relationship.
Again, the applicant is referring to the delegate’s decision, which this Court has no jurisdiction to review. In any event, the fact that the applicant “strongly believes” that he met the criterion amounts to no more than disagreement with the delegate’s decision.
Ground 1 then states:
I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was not given a chance to speak further and provide any explanation or make request at the Tribunal.
Even at the time of AAT hearing I wasn’t provided the natural justice by the Tribunal member.
Here, the applicant appears to be stating that he was not given a real and meaningful opportunity to participate in the Tribunal hearing. For the following reasons, the Court does not accept this to be the case:
a)there is no transcript before the Court to indicate that the applicant was not given a chance to speak or provide further explanations or make requests to the Tribunal;
b)the evidence that is before the Court indicates that the applicant was invited to attend a hearing before the Tribunal. He attended that hearing and was assisted by a Fijian interpreter. That hearing lasted for over 90 minutes (CB 241-244). It is difficult to understand how a hearing could last this long if the applicant was not given an opportunity to speak or explain;
c)the Tribunal’s decision records in great detail the applicant’s evidence at the hearing (at [10] and [22]-[26]). In particular, the Court notes that at [10] the Tribunal records that it put information to the applicant pursuant to s.359AA of the Act, the applicant indicated that he did not require any additional time to respond to the information and he was happy to proceed. This demonstrates that the Tribunal did provide the applicant the opportunity to speak. Further, the detail provided at [22]-[26] in the Tribunal’s decision suggests that the applicant was neither inhibited or prevented from explaining his concerns; and
d)the Tribunal invited the applicant to comment on the information it had received from the independent expert. This was an opportunity for the applicant to “speak further”, provide an “explanation” or make a “request”. He did not do so. He simply indicated that he agreed with the expert opinion.
On the materials before the Court, there is nothing to suggest that the applicant was prevented from engaging with the Tribunal and participating in the hearing.
Ground 1 continues:
I do believe that the tribunal member had already made the decision against my claims and did not accept my explanations.
The Court reads this to be an allegation of bias.
An allegation of bias must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the material before the Court to suggest that the Tribunal demonstrated actual or apprehended bias.
The fact that the Tribunal was not satisfied that the applicant had suffered family violence does not demonstrate bias. This is the only thing the applicant points to in order to demonstrate bias. It does not do so.
Once it was not satisfied that the applicant had suffered family violence, the Tribunal was required to refer the applicant to an independent expert. The Tribunal’s mind was not “closed” as to the outcome. The outcome was reliant upon the independent expert opinion.
Having received the independent expert opinion, the Tribunal then invited the applicant to comment on the information. This demonstrates that the Tribunal was open to persuasion. The applicant advanced no case and the Tribunal was, therefore, obliged (in the circumstances) to accept the opinion (for reasons explained further below).
The applicant has not satisfied the Court that the Tribunal was biased.
Ground 1 concludes:
I wasn’t provided the natural justice by the Tribunal member.
The Tribunal’s natural justice obligations are exhaustively contained in div.5 of pt.5 of the Act. Here, the Tribunal has adhered to its procedural fairness obligations as follows:
a)the Tribunal put information (namely, the independent expert opinion) to the applicant pursuant to s.359A of the Act and explained why it believed the opinion would be the reason for refusing the visa and invited the applicant to comment or respond to the information. The applicant did respond and the Tribunal considered that response . Accordingly, s.359 and 359A of the Act were satisfied;
b)the Tribunal notified the applicant of the existence of the certificate (Exhibit 2) (as it was required to do following the decision in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3) and put the substance of the information the subject of the certificate to the applicant for comment under s.359AA. The applicant indicated that he did not wish any further time to respond. The Tribunal thus adhered to the natural justice obligations pertaining to the certificate and s.359AA;
c)the applicant was invited to attend, and did attend, a hearing. For the reasons given in [46] above, that invitation was real and meaningful. The applicant was also on notice that the determinative issue was whether he had suffered family violence as this was the same issue that the delegate considered. As such, no breach of s.360, and more specifically the principles outlined in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 arises;
d)while there is information in the Court Book that the applicant suffered from mental health issues, there is nothing to suggest that the applicant was unable to participate in the hearing. Rather, the Tribunal’s decision clearly indicates that the applicant was able to participate actively and fully in the hearing; and
e)there is no indication that the applicant requested an adjournment or further time to provide any information so as to enliven any discretion.
Accordingly, the Court is satisfied that the applicant was afforded natural justice.
Ground 1 is dismissed.
Ground 2
Ground 2 commences:
After the department refused my application I applied for the review of my application at the AAT with the expectation that they would understand and consider my scenario. I was invited to appear in the hearing scheduled on 25 Feb 2019. I attended the hearing and the tribunal asked me to provide evidence of my relationship, arguments, disputes and family violence.
This is factual material that does not identify any error.
Ground 2 continues:
The Tribunal member at the AAT hearing did not give me a chance to explain the issue properly, rather the member interviewed me with the list of questions and did not give me enough time to explain in details. The Tribunal Member also did not provide procedural fairness in making a decision on my appeal application.
For the reasons given in relation to ground 1, the Court does not accept that the applicant was denied procedural fairness or was not given enough time to explain his situation.
Ground 2 is dismissed.
Ground 3
Ground 3 commences:
The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member at the AAT has not been fair and have not given natural justice to my particular case.
For the reasons given in relation to ground 1, the Court does not accept that the applicant has been denied natural justice.
Ground 3 continues:
I have a strong view that AAT should have considered the fact that I had suffered traumatic metal breakdown and family violence.
There is nothing in any of the materials before the Court to suggest that the applicant had suffered a “traumatic mental breakdown”. The materials do indicate that the applicant had suffered from anxiety and depression. The Tribunal specifically referred to this at [19] (when summarising the doctor’s reports that were before it).
In the absence of any evidence that the applicant suffered a “traumatic mental breakdown”, it cannot be said that the Tribunal should have considered this issue in detail. The Tribunal stated that it had considered “all of the evidence before it”. This included reports that indicated that the applicant had anxiety and depression. In the circumstances and on the evidence before it, the Court is satisfied that the Tribunal did what was required of it. Nor is there any evidence before the Court to suggest that the applicant’s medical condition prevented him from participating during the hearing process.
Here, family violence was the critical issue before the Tribunal. The Tribunal’s decision was directed towards whether the applicant satisfied the family violence provisions and the applicant’s evidence pertaining to this issue. It is clear that the Tribunal did consider whether the applicant had suffered family violence.
Ground 3 continues:
I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was having some documents and supporting evidences that were proving I satisfied the subclause 801.221.
The applicant appears to contend that the documents and evidence he provided prove that he satisfied cl.801.221. It is a matter for the Tribunal what weight it affords to the supporting documents and information provided by an applicant: Abebe v Commonwealth (1999) 197 CLR 510. Here, the applicant is simply expressing disagreement with the Tribunal’s findings.
The “documents” and “supporting evidence” were before both the Tribunal and the independent expert. In circumstances where the applicant agreed with the opinion of the independent expert, he cannot now claim that the opinion was erroneous or he does not agree. At the hearing, this is what the applicant’s submissions seemed to suggest. He wanted to know how the expert was able to say that he had been untruthful or that he had not suffered family violence. Unfortunately, the Court cannot answer the applicant’s question in this regard and his submissions do not identify jurisdictional error on the part of the Tribunal. The Tribunal was satisfied that the independent report was provided by a suitably qualified person who was an employee of an organisation specified for the purpose of providing opinions of this sort (at [30]). No error arises in this regard.
In light of the Tribunal’s findings at [30] of its decision, the Tribunal was required to accept the opinion as correct as per reg.1.23(10)(c)(ii) of the Regulations. Hence, while the applicant may now disagree with the expert opinion, the Tribunal had no choice but to accept the opinion as correct once it had formed the view that the expert opinion was properly made.
Finally, ground 3 concludes:
I request the Federal Circuit Court please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine partner visa applicant while in the spousal relationship with [omitted]. If there is anything else required to support my claims and application, please do contact me.
This passage is a plea for relief. It does not identify any jurisdictional error.
Ground 3 is, accordingly, dismissed.
Conclusion
The applicant’s grounds of review have failed to identify any jurisdictional error. The Court has also considered whether any jurisdictional error arises on the face of the decision. It is satisfied that none arises.
The application is, accordingly, dismissed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 28 July 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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