Sagwal v Minister for Immigration

[2014] FCCA 1794

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAGWAL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1794

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – refusal to grant temporary partner or partner residence visas – partner relationship ended – alleged family violence – requirements to be satisfied where family violence alleged – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5CB, 65(1), 349(2)(a), 474, 476

Migration Legislation Amendment Regulation 2012 (No.5) (Cth), Sch.6, Item 4, Sch.7
Migration Regulations 1994 (Cth), regs.1.09A(3), 1.23, 1.24, 1.25, 1.26, 2.03A, Sch.2, cll.820.211, 820.221

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Applicant: VIPIN SAGWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 64 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 31 July 2014

Date of Last Submission: 31 July 2014

Delivered at: Perth

Delivered on: 15 August 2014

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr P Macliver

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS (made on 31 July 2014)

1. The application be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $6646 by 1 September 2014.

3. Reasons for judgment to be published from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 64 of 2014

VIPIN SAGWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Refugee Review Tribunal.[2] The Tribunal affirmed a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] to refuse to grant a Partner (Temporary) (Class UK) Subclass 820 visa and a Class BS Partner (Residence) Subclass 801 visa [5] to the applicant.

   [1] “Migration Act”.

   [2] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is dated 20 February 2014 and is at Court Book (“CB”) 227-233.

   [3] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 127-131.

   [4] “Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship.

   [5] “Temporary Partner Visa” and “Partner Residence Visa” respectively.

2. When the matter was called for hearing on 31 July 2014 there was no appearance by the applicant. The matter was called outside the Court and there was still no appearance by the applicant. The Minister sought that the matter be dealt with on its merits notwithstanding the failure of the applicant to appear, and the Court acceded to that request. The Court, having heard from the Minister, and read the Minister’s outline of submissions, made the following orders:

   1.The application be dismissed.

   2.The applicant pay the first respondent’s costs in the sum of $6646 by 1 September 2014.

   3.Reasons for judgment to be published from Chambers at a later date.

   These Reasons for Judgment are the Reasons for Judgment referred to in order 3 above.

Background

The applicant

1. The applicant:

   a)is a citizen of India who first arrived in Australia on a Subclass 572 Student visa[6] on 6 August 2009;[7]

   b)currently holds a Bridging Visa Class A which is unrestricted in time, his Student Visa having ceased on 12 October 2011;[8]

   c)lodged an application for a Temporary Partner Visa and Partner Residence Visa[9] on 5 April 2011with the then Department of Immigration and Citizenship, now the Department of Immigration and Border Protection;[10] and

   d)was sponsored in his Partner Visa Applications by his then partner, Ms Amber Dwyer.[11] It would appear that, on the applicant’s account the relationship with his sponsor, Ms Dwyer, ended later in 2011 or early in 2012.[12]

   [6] “Student Visa”.

   [7] CB 193.

   [8] CB 192.

   [9] “Partner Visa Applications”.

   [10] “Department”; CB 1-24.

   [11] “Ms Dwyer”; CB 25-33.

   [12] CB 88.

Advice from the Department

1. The Department advised the applicant by letter dated 22 May 2012 that it had received information that the relationship upon which the applicant’s Partner Visa Applications was based was no longer continuing, but that eligibility might still be demonstrated in certain circumstances.[13]

   [13] CB 80-81.

Statutory Declarations

1. The applicant responded to the Department’s letter by providing two statutory declarations made on 29 May 2012[14] and 13 June 2012[15] to the Department. The applicant claimed that he had suffered emotional, psychological and verbal abuse by Ms Dwyer.[16] The Applicant’s May 2012 Statutory Declaration includes a statutory declaration by Dr Stephen Paul Renwick Adams,[17] a general medical practitioner. Dr Adams responded to the question as to “What evidence is there that indicates to you that the alleged victim is the victim of relevant family violence?”[18] as follows:

   [14] “Applicant’s May 2012 Statutory Declaration”.

   [15] “Applicant’s June 2012 Statutory Declaration”.

   [16] CB 82-124.

   [17] “Doctor’s Statutory Declaration”.

   [18] CB 85.

   Mr Sagwal attended my surgery on 9.5.2011.

   He received counselling after his fiancé / de facto partner had cheated on him.

   He described her behaviour as unpredictable and at times irrational. It included drinking alcohol and promiscuous behaviour as well as verbal and emotional abuse.

   He stated that his family disapproved of his relationship and as a result of it had “disowned him”.

   From his description of his partner’s behaviour I suggested that she may have Borderline Personality Disorder.[19]

   [19] CB 85.

2. The above description of the evidence was in response to the question set out above, but which also required that details be given, as follows:

   Please give details, citing:

   ·specific incidents of family violence, including details of physical violence and threats of violence; and, if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

   -    the name of the person whom the conduct of the alleged perpetrator was towards; and

   -    identification of the relationship between the alleged victim and the person whom the conduct was towards;

   ·dates on which the incidents occurred;

   ·the impact of these incidents on the alleged victim including physical, emotional and state of mind.[20]

   [20] CB 85.

3. The Doctor’s Statutory Declaration also sought the following information:

   12.What conclusions have you reached?

   Please support your conclusion with regard to:

   ·   how you became aware of the family violence;

   ·   the evidence provided; and

   ·   your own observation.[21]

   [21] CB 86.

4. In response to the question asking what conclusions had been reached Dr Adams wrote as follows:

   - Consultation and history given by Mr Sagwal.

   - Emotional distress -[22]

   [22] CB 86.

Delegate’s Decision

1. In the Delegate’s Decision on 24 July 2012 the Delegate found that the applicant did not meet the criteria for a Temporary Partner Visa, and made a decision refusing his Temporary Partner Visa application. The Delegate further found that the applicant consequently could not meet the criteria for a Partner Residence Visa, and also refused his Partner Residence Visa application. The Delegate concluded that she was not satisfied that the applicant and Ms Dwyer had been in a de facto partner relationship for twelve months immediately preceding the lodgement of the Partner Visa Applications.[23]

   [23] CB 130.

2. The Department advised the applicant of the refusal of his Partner Visa Applications by letter dated 24 July 2012.[24]

   [24] CB 132-135.

The application to the Tribunal for review of the Delegate’s Decision and Tribunal proceedings

1. On 7 August 2012 the applicant applied to the Tribunal for review of the Delegate’s Decision.[25] By letter dated 6 September 2013, the Tribunal invited the applicant to a Tribunal hearing to give evidence and present arguments relating to his case. The applicant was advised that the Tribunal hearing had been arranged for 2 October 2013.[26]

   [25] CB 168-178.

   [26] CB 195-197.

2. The applicant advised the Tribunal on 1 October 2013 that he was unable to attend the Tribunal hearing on 2 October 2013 for medical reasons.[27] On 8 October 2013 a Tribunal officer requested the applicant to provide a medical certificate advising when he would be fit to attend a Tribunal hearing.[28] The applicant provided a medical certificate dated 9 October 2013 advising that the applicant:

   a)had “anxiety and depression” and was being treated with medication to be taken each evening; and

   b)was “not fit for interview for immigration visa”.[29]

   [27] CB 204-205.

   [28] CB 206.

   [29] CB 207 (emphasis in original).

3. By letter dated 14 October 2013 the Tribunal invited the applicant to attend a Tribunal hearing on 22 January 2014.[30] On 7 January 2014 the applicant advised the Tribunal that he was not fit for the Tribunal hearing on 22 January 2014. On 8 January 2014 a Tribunal officer advised the applicant that the Tribunal did not agree to any further postponement of the Tribunal hearing. The Tribunal officer further advised that the Tribunal could accommodate the applicant’s medical condition by conducting the Tribunal hearing by telephone at which he might have the assistance of a support person.[31]

   [30] CB 208-209.

   [31] CB 210-213.

4. On 20 January 2014 the applicant provided the Tribunal with his telephone number, and advised that because the Tribunal had not agreed to postpone the Tribunal hearing, he would try to appear by telephone.[32]

   [32] CB 214.

5. The applicant attended the Tribunal hearing on 22 January 2014 by telephone.[33] By letter dated 23 January 2014 the Tribunal invited the applicant to provide evidence in writing to support his claim that his de facto relationship with Ms Dwyer had ceased as a result of family and domestic violence.[34] The letter attached “Evidentiary Requirements” as specified by the Minister on 22 November 2012 in the following terms:

   I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under paragraph 1.24(b) of the Migration Regulations (‘the Regulations’):

   1.SPECIFY for the purpose of paragraph 1.24(b) the types of evidence as acceptable evidence at Schedule 1.

   2.SPECIFY that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.22(b).

   This instrument, IMMI 12/116, commences on 24 November 2012, immediately after the commencement of Migration Legislation Amendment Regulation 2012 (No.5).[35]

   [33] CB 216-218.

   [34] CB 219-220.

   [35] CB 221.

6. The types of evidence set out in Schedule 1 to the Migration Regulations were as follows:

Schedule 1

Type of Evidence

includes the following detail

Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is:

·   registered as a medical practitioner and is performing the duties of a medical practitioner, or

· registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse.

·   Identifies the alleged victim, and

·   Details the physical injuries or treatment for mental health that is consistent with the claimed family violence.

Either a report, record of assault, witness statement or statutory declaration that is made by:

·   a police officer of a State or Territory

·   a police officer of the Australian Federal Police

OR
A witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation.

·   Identifies the alleged victim, and

·   Identifies the alleged perpetrator, and

·   Details an incident/s of family violence.

Report or statutory declaration made by an officer of:

·   a child welfare authority, or

·   a child protection authority of a State or Territory.

·   Details fears for the dependent childs’ safety due to family violence within the household, and

·   Identifies the alleged perpetrator.

Letter or assessment report made by:

·   a women’s refuge, or

·   family/domestic violence crisis centre

on the organisation’s letterhead.

·   States that the alleged victim has made a claim of family violence, and

·   States whether the alleged victim was subject to family violence, and

·   Identifies the alleged perpetrator, and details any evidence used to form the opinion.

Statutory declaration made by:

·   a member of the Australian Association of Social Workers, or

·   a person who is eligible to be a member of that Association

who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.

·   States in their opinion the alleged victim was subject to family violence, and

·   Details the reasons for the opinion, and

·   Identifies the alleged perpetrator.

Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist

·   States in their opinion the alleged victim was subject to family violence, and

·   Details the reasons for the opinion, and

·   Identifies the alleged perpetrator.

Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website.

·   States that the alleged victim has been treated or counselled, by the family consultant or family relationship counsellor, and

·   States that in their opinion the alleged victim was subject to family violence, and

·   Details the reasons for the opinion, and

·   Identifies the alleged perpetrator.

Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their
professional capacity.

·   States that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims that they were subject to family violence, and

·   Identifies the alleged perpetrator, and

·   Provides details of those observations.

1. On 12 February 2014 the applicant emailed to the Tribunal a letter to him dated 6 February 2014 from Kids Helpline which included a “Summary of Counselling Contacts” in relation to counselling of the applicant during the period of time when family violence allegedly occurred.[36] The 6 February 2014 letter from Kids Helpline was as follows:

   Dear Vipin,

   Thank you for the provision of the Statutory Declaration and Consent to Release Information forms in relation to your request to access information in regards to your counselling contacts with Kids Helpline.

   Attached is a “Summary of Counselling Contacts” from 2011 for your records.

   Counselling Contact Notes are required to be written in an objective, succinct manner, and contain information that is relevant to the individual counselling session.

   A specific Case File was not created due to the processes and systems in place at the time. The following information was utilised to identify the counselling contacts you had with Kids Helpline as provided by you:

   [36] CB 223-226.

Names Used to Contact:	Phone Numbers Used to Contact:	Additional Information:
Vipin	[Deleted]	The names recorded as “Allan” and “Allen” were also found.
Shaggy	[Deleted]
Saggy	[Deleted]
Sonu	[Deleted]
Rahul	[Deleted]
Aditya	[Deleted]

If you have any questions please do not hesitate to let me know.

Yours sincerely,

Mark Simmons

Assistant Manager Clinical Practice

Counselling Services

Kids Helpline/BoysTown[37]

[37] CB 224.

1. The “Summary of Counselling Contacts”[38] provides as follows:

   [38] CB 225-226.

Date	Time	Session Duration	Counselling Contact Summary
01.05.2011	23:28	16 mins	Stated he was engaged to girlfriend and discovered she was having another relationship with a 31 year old male. Session dropped out unexpectedly due to poor mobile phone reception
01.05.2011	23:47	36 mins	Stated he had been residing with older cousin up until 9 months ago when he moved in with his current fiancé. Reported his cousin was against this relationship and had not spoken to him since that time. Reported his fiancé was telling him she would continue to go out clubbing and ‘hook up’ with other men. Stated he had lost his job a few weeks ago after having an argument with his fiancé. Considered referral to go see a General Practitioner due to ongoing stress caused by relationship.
02.05.2011	00:44	11 mins	Reported his fiancé had let him know she wanted to be a prostitute. Vipin agreed to see a General Practitioner tomorrow and would stay at a friend’s house this evening.
06.05.2011	01:34	68 mins	Stated his fiancé is having sex with other men and talks with men online. Also reported his fiancé will swear at him and run away at night. He said he would go out and look for her at night.
13.05.2011	04:27	35 mins	Reported he had been to a Doctor about his fiancé’s behaviours. Reported the Doctor had advised his fiancé required psychological help.
14.05.2011	02:27	20 mins	Presented as anxious and confused in relation to his relationship. Stated his fiancé’s behaviours are sending him a mixed message and he is unable to make decisions about his future.
17.05.2011	05:25	25 mins	Counselling summary unavailable
01.07.2011	01:13	60 mins	Presented as still unhappy and anxious in regards to his current life as triggered by the circumstances and breakdown of relationship with his former fiancé. Would like for his former fiancé to receive appropriate psychological support but also recognising negative impact on his life of maintaining the relationship.

Tribunal Decision

1. The Tribunal Decision was made on 20 February 2014 affirming the Delegate’s Decision not to grant the applicant a Temporary Partner Visa or a Partner Residence Visa. The applicant was advised of the Tribunal Decision by letter dated 24 February 2014.[39]

   [39] CB 227, 232, 234.

2. The Tribunal commenced its consideration of the claims and evidence by referring to the relevant provisions of Schedule 2 of the Migration Regulations, namely cll.820.211(2)(a) and 820.221, and the requirement that the applicant be the spouse or de facto partner of an Australian citizen, permanent resident, or an eligible New Zealand citizen, and the applicant’s claim that he was the de facto partner of the sponsor, Ms Dwyer, who was an Australian citizen, and noted that the applicant claimed that his relationship with Ms Dwyer had ended as a result of family violence committed by her.[40]

   [40] CB 228 at para.5.

3. The Tribunal examined the relevant provisions of s.5CB of the Migration Act, and the test of all of the circumstances of the relationship in reg.1.09A(3) of the Migration Regulations, together with the evidence, before arriving at a view based on that evidence, that the applicant and Ms Dwyer were in a de facto relationship with each other at the time of the Partner Visa Applications and in the year immediately prior to them being lodged on 5 April 2011 and that the additional criteria in reg.2.03A of the Migration Regulations was met.[41] In relation to the finding of a de facto relationship, the Tribunal came to a different conclusion to the Delegate in the Delegate’s Decision where the Delegate concluded that the applicant and Ms Dwyer were not in a de facto relationship.[42]

   [41] CB 228-229 at paras.6-10.

   [42] CB 130.

1. The Tribunal then went on to examine the critical issue in these proceedings, namely whether the applicant had, in circumstances where the sponsorship of Ms Dwyer was said to have been withdrawn, made out a claim of family violence under the Migration Regulations. The Tribunal identified the fact that such a claim was made by the applicant.[43]

   [43] CB 229 at para.11.

2. At the Tribunal hearing on 22 January 2014 the Tribunal advised the applicant that there were legislative provisions applicable to a claim of family violence, and that evidence submitted by the applicant from a medical practitioner (presumably the Doctor’s Statutory Declaration) did not meet the evidentiary requirements. The Tribunal then wrote to the applicant inviting him to submit further evidence to support the claim of family violence, and in response to that request received from the applicant the Kids Helpline letter of 6 February 2014 and “Summary of Counselling Contacts” set out above.[44]

   [44] See paras.17-18 above.

3. The Tribunal then indicated that it was referring to “the relevant provisions of the law as they relate to the circumstances of this case”.[45] The Tribunal referred to the relevant provisions of the Migration Regulations, and in particular to the provisions of regs.1.23, 1.24, 1.25 and 1.26 of the Migration Regulations.[46]

   [45] CB 229 at para.13.

   [46] CB 229-230 at paras.13-18.

4. The Tribunal went on to conclude that:

   21.The Tribunal notes that the law in relation to the evidentiary requirements for non-judicially determined claims of family violence has altered as from 24 November 2012. The applicable law in considering the current application is that operating prior to 24 November 2012. This is because the visa application was made prior to that date and the statutory declaration under 1.25 as first supplied to the Department was prior to that date, on 13 June 2012.

   22.The Tribunal finds that the applicant has provided only one statutory declaration from a competent person, being the medical practitioner Dr Adams. The evidence of the applicant’s communication with the Kids Helpline does not meet the evidentiary requirements and cannot be considered in this regard. The applicant has not provided any record of assault.

   23.The Tribunal is satisfied that Mr Sagwal was aware of the specific requirements of the evidence to be supplied to make out a non-judicially determined claim of family violence. He was also aware that the consequence would be that the Tribunal could not make a favourable determination on his application for review.

   24.The Tribunal finds that the evidence provided by the applicant does not meet the statutory requirements; r.1.24, r.1.25 and r.1.26. The Tribunal concludes that the application for the visa cannot be taken to have included a non-judicially determined claim of family violence. There was no evidence before the Tribunal of court determined family violence contemplated by r.1.23(2) or r.1.23(4). Consequently the Tribunal cannot conclude that the applicant has suffered family violence committed by the sponsoring partner. Consequently the Tribunal is not able to find that the criteria for the grant of the visa are satisfied.

   25.Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements 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.

   26.For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.[47]

   [47] CB 231 at paras.21-26.

5. The Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Temporary Partner Visa or a Partner Residence Visa.[48]

   [48] CB 232 at para.27.

The application for judicial review

1. On 11 March 2014 the applicant made an application to this Court seeking judicial review of the Tribunal Decision under s.476 of the Migration Act.

2. The grounds of application for judicial review are stated to be:

   1.[M]igration asked me report from social worker.

   2.Provided them Report and they haven’t accepted.

   3.[O]n Interview with Hayley Pearce on 22 Jan 2014 I was told to provide them Counselling Report from social worker.

3. On 16 April 2014 the Court ordered the applicant to file and serve on or before 11 June 2014 an amended application giving particulars of the grounds of review and any affidavits upon which he intended to rely at the hearing of the matter. The applicant has not filed and served any amended application or affidavits.

4. As indicated above,[49] when the matter was called for hearing on 31 July 2014 the applicant did not appear.

   [49] See para.2 above.

Consideration

1. This Court may only review decisions of the Tribunal for jurisdictional error.[50]

   [50] Migration Act, ss.474 and 476(1); Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506-507 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at paras.76-78 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

2. Rather than raise any jurisdictional error, the present grounds of review appear to seek to have the Court review the material provided by him to the Tribunal, asserting, at least impliedly, that the Tribunal ought to have accepted the content of a report from a social worker provided by the applicant. The report is not particularised, but on the basis of the materials before the Court, it can safely be assumed that it is a reference to the 6 February 2014 letter from Kids Helpline, together with the attached “Summary of Counselling Contacts”. For this Court to make findings of fact in relation to the 6 February 2014 letter from Kids Helpline and attached “Summary of Counselling Contacts” would involve the Court in impermissible merits review.[51]

   [51] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

3. The grounds of review set out by the applicant in his application do not raise any ground, or particularisation, of jurisdictional error, and in the absence of an amended application giving particulars of the grounds of review, the application must be dismissed.

4. In any event, on the evidence and material before the Tribunal, the Tribunal was correct in concluding that the applicant had not met the evidentiary requirements necessary for the Partner Visa Applications to be taken to include a non-judicially determined claim of family violence. Consequently, the Tribunal was correct in finding that the applicant did not satisfy the criteria for the grant of a Temporary Partner Visa or a Partner Residence Visa.

5. As the relationship between the applicant and Ms Dwyer had ceased, and Ms Dwyer had not died, the applicant had to meet the time of decision criteria in cl.820.221(3) of Schedule 2 to the Migration Regulations 1994 (Cth)[52] on the basis that he “suffered family violence committed by the sponsoring partner”. Under reg.1.22(1) of the Migration Regulations a reference to a person having suffered family violence is a reference to “a person being taken, under regulation 1.23, to have suffered family violence.” The applicant would only be a person taken to have suffered family violence under reg.1.23 of the Migration Regulations if under reg.1.23(11)(a) his Partner Visa Applications included “a non-judicially determined claim of family violence”. Under reg.1.23(9) of the Migration Regulations an application for a visa is taken to include a non-judicially determined claim of family violence if paragraphs (a), (b) and (c) of reg.1.23(9) of the Migration Regulations are satisfied. Relevantly, reg.1.23(9)(c) of the Migration Regulations requires the alleged victim or another person on their behalf to have “presented evidence in accordance with regulation 1.24 [of the Migration Regulations]” that the alleged victim has suffered relevant family violence and the alleged perpetrator committed that relevant family violence.

   [52] “Migration Regulations”.

6. The Tribunal noted that while the law in relation to evidentiary requirements for non-judicially determined claims of family violence, that is, reg.1.24 of the Migration Regulations, had altered as from 24 November 2012, the applicable law in considering the applicant’s application was that operating prior to 24 November 2012 because the applicant’s Partner Visa Applications had been made prior to 24 November 2012, and the Applicant’s May 2012 and June 2012 Statutory Declarations under reg.1.25 of the Migration Regulations were first supplied to the Department prior to 24 November 2012.[53]

   [53] CB 321 at para.21.

7. The evidentiary requirements in reg.1.24 of the Migration Regulations were amended with effect from 24 November 2012 by Item 4 of Schedule 6 to the Migration Legislation Amendment Regulation 2012 (No. 5) (Cth).[54] The transition arrangements in Schedule 7 of the Migration Legislation Amendment Regulation in relation to the amendments provide that:

   (6) The amendments of these Regulations made by Schedule 6 to the Migration Legislation Amendment Regulation 2012 (No. 5) apply in relation to an application for a visa made, but not finally determined, before 24 November 2012 if both of the following apply:

   (a) on or after 24 November 2012, the alleged victim, or another person on the alleged victim’s behalf has provided a statutory declaration under regulation 1.25;

   (b) the alleged victim, or another person on the alleged victim’s behalf, has not previously provided a statutory declaration under regulation 1.25 in relation to that application.

   [54] “Migration Legislation Amendment Regulation”.

8. The applicant provided a statutory declaration under reg.1.25 of the Migration Regulations in relation to his claims that he suffered relevant family violence before 24 November 2012, namely the Applicant’s May 2012 and June 2012 Statutory Declarations (the former including the Doctor’s Statutory Declaration), referred to above.[55] The applicable law at the time of the Tribunal Decision in relation to the evidentiary requirements for non-judicially determined claims of family violence was therefore that applicable under reg.1.24 of the Migration Regulations prior to its amendment by the Migration Legislation Amendment Regulation. Prior to its amendment by the MigrationLegislation Amendment Regulation, reg.1.24 of the Migration Regulations provided that:

   [55] See paras.5-8 above.

   1.24 Evidence

   (1) The evidence referred to in paragraph 1.23 (9)(c) is:

   (a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:

   (i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and

   (ii) a copy of a record of an assault, allegedly committed by the alleged perpetrator on:

   (A) the alleged victim; or

   (B) a member of the family unit of the alleged victim; or

   (C) a member of the family unit of the alleged perpetrator;

   that is a record kept by a police service of a State or Territory (other than a statement by the alleged victim or by the person allegedly assaulted); or

   (b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.

   (2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:

   (a) the same subparagraph of paragraph (a) of the definition of “competent person”; or

   (b) subparagraph (b)(ii) of that definition.

9. The applicant did not meet the requirements of the Migration Regulations prior to its amendment on 24 November 2012, as he did not provide:

   a)any police service record of an assault under reg.1.24(1) of the Migration Regulations; or

   b)two statutory declarations by competent persons under reg.1.26 of the Migration Regulations.

10. The Tribunal’s letter to the applicant of 23 January 2014[56] referred the applicant to the evidentiary requirements following the amendment of reg.1.24 of the Migration Regulations by the Migration Legislation Amendment Regulation effective on 24 November 2012. Even if the family violence evidentiary requirements of reg.1.24 of the Migration Regulations, following its amendment by the Migration Legislation Amendment Regulation, had been applicable to the applicant’s Partner Visa Applications (which they were not), the applicant would not have met those amended evidentiary requirements. In addition to a statutory declaration under reg.1.25 of the Migration Regulations, reg.1.24 of the Migration Regulations now requires the type and number of items of evidence specified by the Minister in writing, and the Minister has specified a minimum of two items of evidence of certain types in the Evidentiary Requirements of 22 November 2012, and no more than one of each type of evidence.[57] The Evidentiary Requirements relevantly included a report, record of assault, witness statement or statutory declaration from a police officer or a witness statement made to a police officer during the course of a police investigation by a person other than the alleged victim of family violence, and for various reports or statutory declarations or letters or assessments made by child welfare or protection officers, family or domestic violence crisis centres, social workers, psychologist or family consultants or family relationship counsellors, to be made to support any allegation of family violence.

    [56] CB 219-220.

    [57] CB 221-222.

11. The only evidence provided by the applicant to the Tribunal in response to the invitation in the Tribunal’s letter of 23 January 2014 was the Kids Helpline letter of 6 February 2014 and attached “Summary of Counselling Contacts”.[58] This evidence in relation to counselling provided to an alleged victim does not satisfy the Evidentiary Requirements, which require:

    a)a letter or assessment report made by a family or domestic violence crisis centre on the organisation’s letterhead which must state “whether the alleged victim was subject to family violence” and which “details any evidence used to form the opinion”. The Kids Helpline letter and attached “Summary of Counselling Contacts” do not specify that the applicant was subject to family violence, but rather merely records the allegations made by the applicant; and

    b)a statutory declaration by a member of the Australian Association of Social Workers, or a person eligible to be a member of that Association, who has provided counselling or assistance while performing the duties of a social worker. The Kids Helpline letter of 6 February 2014 and attached “Summary of Counselling Contacts” do not satisfy this requirement as they are not either in form or substance a statutory declaration, and there is no indication that the person or persons involved in providing the counselling or assistance were persons who were members of the Australian Association of Social Workers, or eligible to be so, or that whilst providing the counselling or assistance they were performing the duties of a social worker.

    [58] CB 223-226.

12. It was for the applicant to satisfy the Tribunal that the alleged family violence had occurred. The only evidence submitted by the applicant does not meet the relevant evidentiary requirements whether before or after 24 November 2012. There was no evidence that any other evidentiary requirements applicable prior to 24 November 2012 were able to be met by the applicant. The applicant was simply unable to satisfy the relevant evidentiary requirements applicable either before or after 24 November 2012, and there was therefore no practical injustice[59] arising from the Tribunal’s letter to the applicant of 23 January 2014.

    [59] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ.

13. The applicant’s Partner Visa Applications could not therefore be taken to have included a non-judicially determined claim of family violence in accordance with reg.1.23(9) of the Migration Regulations. The applicant cannot therefore be taken to have suffered family violence under reg.1.23(11) of the Migration Regulations, as he did not satisfy the evidentiary requirements of reg.1.24 of the Migration Regulations either before or after its amendment on 24 November 2012. The applicant was therefore unable to meet the time of decision criterion in cl.820.221 of Schedule 2 to the Migration Regulations for the grant of either a Temporary Partner Visa or a Partner Residence Visa.

14. The Tribunal Decision did not therefore involve any jurisdictional error. The Tribunal was therefore, as a matter of law, bound to refuse to grant the visa pursuant to s.65(1) of the Migration Act, and therefore required to affirm the Delegate’s Decision under s.349(2)(a) of the Migration Act.

15. The application should therefore be dismissed with costs.

Conclusions

1. It was for the above reasons that the Court ordered on 31 July 2014 that the application be dismissed and that the applicant pay the first respondent’s costs in the sum of $6646 by 1 September 2014.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  15 August 2014