SARAVANAN v Minister for Immigration

[2020] FCCA 1673

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARAVANAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1673

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Migrant) (Class BC) visa – whether the Tribunal took into account irrelevant considerations and/or failed to take into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 375A, 376, 476

Migration Regulations 1994 (Cth), reg. 1.23

Applicant: REKHA SARAVANAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 215 of 2017

Judgment of: Judge Street

Hearing date: 23 June 2020

Date of Last Submission: 23 June 2020

Delivered at: Sydney

Delivered on: 23 June 2020

REPRESENTATION

The applicant appeared in person via audio link.

Solicitors for the Respondents: Ms E Tattersall via video link, Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The hearing is to proceed by video and or audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

3. The oral application for an adjournment is refused.

4. The application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 23 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 215 of 2017

REKHA SARAVANAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 10 April 2017, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Migrant) (Class BC) visa. 

2. The relationship was not ongoing at the time of the Delegate's hearing, and the applicant alleged that she had experienced family violence. The Delegate sent the applicant a copy of the expert report before the Delegate identifying that the expert had found the applicant had not suffered the relevant family violence. 

3. On 15 January 2015, the Delegate found that the applicant failed to meet the criteria for the grant of the visa. 

4. The applicant applied for a review on 29 January 2015. The applicant was sent a number of invitations to attend a hearing, and eventually appeared before the Tribunal on 18 May 2016 to give evidence and present arguments. 

5. Consistent with the regulatory requirements, the Tribunal was not satisfied that the applicant had suffered the relevant family violence and referred the matter to an expert for determination in accordance with reg 1.23 of the Migration Regulations 1994 (Cth) (“the Regulations”). 

6. On 14 March 2017, an expert found that the applicant had not suffered relevant family violence. The applicant was given an opportunity to comment in relation to the expert's report. The Tribunal considered whether or not the report complied with the requirements of the Regulations. The Tribunal found that an appropriate expert had made a finding that the applicant had not suffered the relevant family violence within the meaning of the Regulations. The Tribunal found the report was made by an expert who was suitably qualified and was properly made within the requirements of the rules. 

7. The Tribunal correctly identified that it was required to accept as correct the opinion of the independent expert made under those Regulations.  Accordingly, the Tribunal found that the applicant had not suffered family violence, and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 18 April 2017 and on 19 July 2017 a Registrar made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. On 6 November 2019, this Court made orders fixing the matter for hearing today. 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed she understood the explanation given by the Court. 

4. After the identification of the evidence, the applicant indicated that she wanted an adjournment so that she could put on further material about the family violence she alleged she had suffered. The adjournment was opposed by the first respondent and, given the history of the proceedings, the Court is satisfied that the applicant has had ample opportunity to put on any relevant material, if she had such material. 

5. The applicant also suggested that she was overwhelmed and could not participate in the hearing. The Court is satisfied from the exchanges with the applicant both before and after the adjournment application that it is apparent that the applicant had an ability to meaningfully participate in the hearing. Indeed, the applicant acknowledged that she had had ample opportunity to put on material in respect of her proceedings. The Court was not satisfied, given the history of the matter, that an adjournment was warranted in the interests of the administration of justice. 

6. The Court has also taken into account in that regard the want of any substantive merit in the originating application. The applicant's original oral submissions were that she had text messages that she had not provided to the expert or the Tribunal. It is apparent from the expert's report that there was a proper intellectual engagement with the text messages provided by the applicant. The applicant then suggested there may be additional messages that she had not provided. The applicant otherwise alleged that she had been treated unfairly. 

7. It is apparent that the applicant had a real and meaningful hearing before the Tribunal and had a proper opportunity to put submissions, if she wished, in relation to the expert's report. It is relevant in that regard that no response was provided by the applicant in answer to the letter of 22 March 2017 within the time period identified. 

8. The applicant's submissions otherwise enlivened impermissible merits review. Nothing said by the applicant orally identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1.The Tribunal made jurisdictional error by irrelevant considerations and/or relevant in the evidence I provided including but not limited to the threatening text messages and reference letters/report from mental health experts.

   2.The Tribunal ignored relevant considerations and/or took into account irrelevant considerations particularly my cultural backgrounds. I could not open myself to the Tribunal and/or the independent expert. This was affected because of my various psychological and physical issues.

   Ground 1

2. In relation to ground 1, it is apparent under the statutory scheme in the Regulations that the Tribunal was required to take as correct a report made in accordance with the requirements of the Regulations.

3. For the reasons already given, it is apparent that the expert took into account the texts provided by the applicant and also referred to the applicant's assertions of being distressed. 

4. There is no basis to find that the Tribunal took into account an irrelevant consideration, or failed to take into account a relevant consideration. 

5. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the applicant complains that she was not able to open up before the Tribunal. The delays by the applicant in participating in the interview with the expert have been identified in the Tribunal's reasons. 

2. The Tribunal referred to the expert identifying the contradictory claims by the applicant of verbal and financial abuse and that the applicant did not report fear or apprehension in relation to claims of verbal and financial abuse. The Tribunal does not have to refer to every piece of evidence before the Tribunal. 

3. No relevant consideration or irrelevant consideration as alleged in ground 2 is made out. No jurisdictional error as mentioned in ground 2 is made out. 

4. There is a reference under Ground 2 to psychological and physical issues which is in reality an invitation to engage in impermissible merits review and does not identify any jurisdictional error in the conduct of the review or in the Tribunal’s reasons. The Tribunal’s reasons are consistent with the applicant having a real and meaningful hearing and it is apparent that the Tribunal changed the hearing date because of evidence as to the applicant’s health, and that the appointments with the expert were also rescheduled for when the applicant felt better. No jurisdictional error arises from the reference to the applicant’s psychological and physical issues.

5. There were two certificates issued, one under s 376 and one under s 375A of the Act, both of which were disclosed to the applicant, and the applicant suffered no practical injustice by reason of the certificates or the documents or the information the subject of the certificates. 

6. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 23 June 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 27 August 2020