Saleh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 619
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saleh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 619
File number(s): SYG 1210 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 19 July 2022 Catchwords: MIGRATION – Partner visa – non-judicially determined claim of family violence Legislation: Migration Act 1958 (Cth) ss 5F, 359A, 362A, 375A, 376, 476
Federal Circuit Court Rules 2001 (Cth) rr 13.03C, 16.05
Migration Regulations 1994 (Cth) regs 1.15A, 1.23, 1.24, 1.25, cl 820.221
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 19 July 2022 Place: Sydney The Applicant: The applicant appeared in person Solicitor for the Respondents: Ms A Wong of Mills Oakley ORDERS
SYG 1210 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASSAN SALEH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
19 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 30 April 2018 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause pursuant to s 476 of the Migration Act 1958 (Cth) (Act) filed with this Court on 30 April 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 April 2018, which affirmed a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a Partner (Temporary)(Class UK)(subclass 820) visa (visa).
Background
On 15 September 2015, the applicant made an application for a combined Partner (Temporary) (Subclass 820) visa and Partner (Residence) (Subclass 801) visa on the basis of his marriage to his wife (sponsor) (Court Book (CB) 1-21).
On 24 November 2016, the sponsor wrote to the Department withdrawing her sponsorship on the basis that the parties’ relationship had ceased. This correspondence (later marked folio 118) was later subject to certificates issued under s 375A of the Act.
On 11 July 2017, a delegate of the Minister issued a s 375A non-disclosure certificate in relation to a number of folios on the Department file (the first s 375A certificate) on the basis that disclosure of those folios would be contrary to the public interest (CB 390-391). On 25 September 2017, the first s 375A certificate dated 11 July 2017 was revoked. It was determined that the non-disclosure certificate was invalid as it “did not provide sufficient reasons for non-disclosure on ‘public interest’ grounds” (CB 392).
On 27 September 2017, a delegate of the Minister issued two further non-disclosure certificates pursuant to s 375A (the second s 375A certificate) and s 376 (the s 376 certificate) (collectively the certificates) on the basis that the documents the subject of those certificates contained information provided in confidence by an informant (CB 393-394).
On 1 December 2016, the Department wrote to the applicant inviting him to comment on information it had received which indicated the relationship with the sponsor had ceased (CB 345-347). On 13 December 2016, the applicant responded to the invitation to comment and said that he and the sponsor were living together again, having resumed their relationship (CB 369).
Between 16 and 25 December 2016, the sponsor sent the Department numerous emails and documentary evidence confirming that the parties’ relationship had ceased (this information is contained in Folios 114-115 which is subject to the s 376 certificate dated 27 September 2017 (CB 394)). On 6 January 2017, the Department wrote to the applicant inviting him this time to comment on information it had received which indicated that, since the time of his email dated 13 December 2016, the parties’ relationship had ceased (CB 371-374).
By an email dated 31 January 2017, the applicant replied and informed the Department that he and the sponsor had divorced through a religious process on 17 November 2016 and he also made a number of allegations against the sponsor. The applicant said that the sponsor withdrew the application, changed her mind and then shortly after this, “withdrew the application for real” because the applicant had left the house as he could not “stand living in such bad conditions” (CB 375).
On 15 June 2017, the delegate refused to grant the applicant the visa on the basis that, at the time of the decision, the applicant was no longer the spouse of the sponsor and therefore did not meet cl 820.221(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) or any of the remaining subclauses (CB 377-383).
The Tribunal decision
The applicant applied to the Tribunal seeking review of the delegate’s decision refusing to grant the applicant a Subclass 820 visa on 22 June 2017 (CB 384).
On 4 December 2017, pursuant to s 359A of the Act the Tribunal invited the applicant (via his authorised recipient) to comment on information sourced from the Department file which indicated that the applicant’s relationship with the sponsor had ended, and she had subsequently withdrawn her sponsorship of the applicant (s 359A letter) (CB 395-398).
On 15 December 2017, the applicant’s migration agent replied to the s 359A letter seeking an extension of the time in which to respond to it and attaching Statutory Declarations made by each of the applicant and the sponsor. These Statutory Declarations said that the sponsor’s brother had passed away and that the applicant had been supporting her during this time (CB 399-410). The Statutory Declaration of the sponsor said that she and the applicant had “got back together since last 2-3 months” and that the parties had given their relationship “another chance” (CB 405).
On 15 January 2018, the Tribunal invited the applicant (via his authorised recipient) to attend a hearing scheduled for 28 February 2018 (CB 413-415).
On 19 January 2018, the Tribunal wrote to the applicant (via his authorised recipient) disclosing the existence of the certificates (copies of which it enclosed) and inviting the applicant to comment on the validity of them (CB 421-423).
On 23 January 2018, the applicant’s migration agent made a request for access to written material under s 362A of the Act which included material the subject of the certificates (CB 424).
On 14 February 2018, the Tribunal responded to the applicant’s migration agent (as his authorised recipient) providing partial access to the documents sought but refusing to release the documents that were covered by the certificates (CB 426-428).
On 23 February 2018, the applicant’s migration agent made a request for a postponement of the hearing on the basis that they had only just received the material requested under s 362A (CB 429). On 27 February 2018, the Tribunal refused that postponement request. That same day, the applicant’s migration agent withdrew their representation of the applicant (CB 430-443).
On 28 February 2018, the applicant attended a hearing before the Tribunal which was adjourned to 29 March 2018 (CB 444-449). This later hearing date was adjourned by the Tribunal on the basis of the applicant’s medical conditions and the applicant attended a second hearing on 11 April 2018 (CB 462). Relevantly, the applicant gave the following evidence:
(a)the sponsor “at some point” called the police (CB 468 at [11]);
(b)he found out that the sponsor was now in a relationship with another person and confirmed the parties’ relationship had ended (CB 467 at [7]); and
(c)he was a victim of family violence because the sponsor “used to call him names and sent him abusive messages” (CB 468 at [11]).
The sponsor did not attend either of the Tribunal hearings (CB 467 at [7]).
On 11 April 2018, the Tribunal affirmed the delegate’s decision on the basis that it was not satisfied that at the time of its decision, the parties were in a spousal relationship and therefore the applicant did not meet cl 820.221(1)(a) of Schedule 2 to the Regulations (CB 466-469).
The Tribunal found, on the basis of the applicant’s oral evidence, that the applicant’s relationship with the sponsor had ended (CB 468 at [8]). Accordingly, the Tribunal found (at CB 468, [9]) that at the time of its decision there was no evidence that the applicant and sponsor:[1]
(a)continued to live together or not apart on a permanent basis or that they maintained a joint household or shared housework: reg 1.15A(3)(b)(ii)-(iii);
(b)shared finances, had joint liabilities or jointly contributed to expenses: reg 1.15A(3)(a)(ii)-(iii) and (v);
(c)continued to represent themselves to others as being in a relationship or that they socialised together: reg 1.15A(3)(c)(i) and (iii); or
(d)continued to have a mutual commitment to the relationship or that the parties drew companionship and support from each other or that they viewed the relationship as a long term one: s 5F of the Act and reg 1.15A(3)(d)(iii)-(iv).
[1] The relevant legislation has been added for ease of reference
The Tribunal found, on the basis of the applicant’s evidence that the sponsor was in another relationship, that it was not satisfied the parties’ relationship was genuine and continuing or that they had a mutual commitment to a shared life together to the exclusion of all others. Accordingly, it was not satisfied that at the time of its decision that the applicant was the spouse or the de facto partner of the sponsor (CB 468 at [10]).
The Tribunal considered the applicant’s claims to have been a victim of family violence because the sponsor used to “call him names” and sent him abusive messages. However, the Tribunal found the applicant had not provided the prescribed evidence required to make a claim of family violence, despite being given the opportunity to do so by the Department and the Tribunal. Accordingly, the Tribunal was not satisfied the applicant suffered family violence (CB 468 at [11]). Further, it found the applicant did not meet the other exceptions in cl 820.221(2) or cl 820.221(3) (CB 468 at [11]-[12]). The Tribunal was not satisfied the applicant met cl 820.221 of Schedule 2 to the Regulations (CB 468 at [13]).
The Tribunal noted that the applicant’s oral evidence was that he wanted to stay in Australia but found it had no discretion to recommend the grant of the visa on this basis and affirmed the delegate’s decision (CB 468 at [14]).
Current Proceedings
On 28 May 2018 a Registrar of this Court made orders by consent, which provided inter alia for the applicant to file and serve an amended application by 9 July 2018. This did not occur. Nor did the applicant file written submissions 14 days before the final hearing of this matter, as required. The matter was initially docketed to Judge Baird and was listed for a callover before a Registrar of the Court on 12 March 2019, which the applicant failed to attend. The matter was dismissed on that occasion, pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth), due to that failure to appear. The first respondent was ordered to provide the applicant with written notice of the dismissal and to inform him of his rights under r 16.05(2)(a) of the then Federal Circuit Court Rules.
On 5 April 2019 the applicant filed an application in a case with a supporting Affidavit seeking reinstatement. The circumstances of the applicant’s non-attendance at the callover involved the death of his newborn child, and the first respondent consented to the reinstatement. Accordingly, on 11 April 2019 the Court made orders by consent, setting aside the dismissal orders, and listing the matter for hearing before Judge Baird on 1 August 2019. That fixture ultimately vacated and the matter was placed in the central migration docket. On 3 May 2022 the matter was docketed to me and listed for hearing at 10.15am today in person. A listing notice was sent to the parties by email on that date, including to the applicant at the email address provided in the originating application.
By his originating application the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Act, and raises a single ground of review which states:
The Tribunal Member was kind but failed to consider my request as a victim of family violence as it was established in the file and failed to consider the domestic violence issue.
The applicant appeared before me today and, in accordance with the request that he made in his originating application that an interpreter be provided in the Arabic language, one was arranged by the Court. The interpreter has been present throughout the hearing.
At the outset of the hearing the applicant informed me that he speaks English and did not require the interpreter. However, I requested that the interpreter remain for the duration of the hearing in case it ultimately became necessary to utilise her services. On one occasion, while the documents before the Court were being identified and the applicant was asked if he had any objection to the Court Book, he used the services of the interpreter. However, that was the only occasion during the hearing where he did so. The Minister was represented at hearing by a solicitor.
Having explained to the applicant the limitations on this Court’s jurisdiction, and the matters that I could decide today, I asked the applicant to make submissions to me about his ground of review, given that he did not file written submissions, and also to tell me anything else he wished to about his case.
In relation to the ground of the review, the applicant commenced by making submissions about the nature of his relationship with his former spouse and the situation that had occurred. He indicated that he had “a horrible time” in the relationship and started to address the types of messages that the sponsor had sent him. I reminded the applicant of the limitations on the Court’s jurisdiction and asked him to focus his submissions instead on the decision of the Tribunal and what error he says the Tribunal made.
After being taken by the Court to the relevant part of the Court Book which sets out those requirements, being a copy of the criteria for the relevant visa which was sent to the applicant under cover of letter by the Department at the time of his visa application, the applicant asked me to give him further time to arrange witnesses so he could establish a claim of non-judicially determined family violence.
In relation to the request that the matter be adjourned so that the applicant could obtain further witness statements to establish his claim of family violence, I declined that adjournment request on the basis that, as explained to the applicant at the outset of the hearing, it is not a matter for this Court to determine the claim of family violence for itself.
Accordingly, because the Court could not have regard to such evidence, I explained to the applicant that there seemed little utility in an adjournment for that purpose, and he indicated that he understood. The applicant also asked me if it was possible for him to “re-open” his case in the Tribunal, such that he could obtain those witnesses and put that evidence before the Tribunal. It was explained to the applicant that the appropriate time to have raised those matters, and to have provided that evidence, was before the Tribunal and (absent a jurisdictional error) the Court does not have power to remit his case to the Tribunal. It was also explained to the applicant that he could not apply to the Tribunal to “re-open” the matter because the Tribunal was functus officio from the time it made its decision.
By the ground of review the applicant expresses dissatisfaction with the outcome of the Tribunal’s decision. So much is understood also from the submissions that he made to me today. In particular, it is evident that the applicant takes issue with the Tribunal not having accepted his claim of family violence, which according to the applicant’s ground of review was “established on the file.” The difficulty with that proposition is the applicant’s subjective view about the question of the existence of family violence, or the existence of sufficient evidence, while understandable, was not relevant.
Rather, if the applicant did not otherwise meet the criteria for establishing that the spousal relationship existed then, in order to satisfy the exception pertaining to family violence, the applicant had to satisfy the requirements of Division 1.5 of the Regulations. Regulation 1.23 provides various circumstances in which a person is taken to have suffered or committed family violence.
If it is not established “judicially”, meaning for example by a Court order, injunction or a conviction, then in order to establish a claim of non-judicially determined family violence the applicant would have to provide evidence in accordance with reg 1.25 which provides:
Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by the spouse or de facto partner of the alleged perpetrator.
(2) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that he or she is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant family violence; and
(c) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25(1) who alleges that another person is the victim of relevant family violence (within the meaning of regulation 1.21) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant family violence; and
(e) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
Accordingly, for the Tribunal to determine whether a non-judicially determined claim of family violence is made out the applicant was required to present evidence in accordance with reg 1.24 which requires, among other things, a statutory declaration by or on behalf of an alleged victim under reg 1.25, and two items of evidence from Schedule 1 of IMMI 12/116.
It is not in dispute that the applicant made no attempt to provide any such evidence, despite the fact that [11] of the Tribunal’s decision specifically records that the applicant was given that opportunity, both by the delegate (CB 345 to 368, in particular CB 346.5 and CB 365 to 367) and also before the Tribunal.
Further, the delegate’s decision put the applicant on notice that the delegate had no evidence before her that family violence had occurred (CB 382.9). Accordingly, the allegation raised by the ground of review that the Tribunal failed to consider the issue of domestic violence fails at a factual level.
There is a difference between failing to consider a claim and failing to accept it. In circumstances where the Regulations are prescriptive about the kind of evidence required to make out such a claim, there was nothing unusual or arbitrary in the Tribunal not being satisfied that evidence was not provided. This was not a qualitative assessment. The applicant had failed to even attempt to meet the requirements of the regulation in order to establish a claim of non-judicially determined family violence.
In my view there is no error established as alleged by the ground of the application for review.
I have also given consideration as to whether there was any aspect of the Tribunal’s review process which could otherwise be said to give rise to a jurisdictional error, and I am satisfied there is not. The applicant was given ample opportunity to engage with the review. There is nothing arising from the Tribunal’s processes or its treatment of matters pertaining to non-disclosure certificates which gives rise to that error. The applicant sought adjournments of the Tribunal hearing on a number of occasions and the Tribunal acceded to a number of those requests. Absent a jurisdictional error the decision is a privative clause decision and should be dismissed, and I will so order.
Consequent upon the dismissal of the matter, the Minister sought an order that the applicant pay some part of their costs, fixed in the amount of $5,000. The applicant made submissions to me to the effect that he realises that he has to pay this amount and that he does not have any option, but asked whether he could do so by instalment payments. I explained to the applicant that he would receive correspondence in due course from the solicitors who represent the Minister, which would explain to him the contact details of whom, at the first respondent’s Department, he can speak to in order to arrange time to pay.
Otherwise, I am satisfied in this matter that costs should follow the event, and I am further satisfied that the amount sought is reasonable.
Lastly I explained to the applicant that I would make an order the effect of which was that the time in which he could appeal from my decision would not start to run until these reasons were published to the parties.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 8 August 2022
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