SERFONTEYN v Minister for Immigration - [2004] FMCA 333

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SERFONTEYN & ORS v MINISTER FOR IMMIGRATION & ORS

[2004] FMCA 333

MIGRATION – Application for spouse visa – claim of domestic violence against dependent child – whether child must be dependent at time of decision – whether requirements for domestic violence satisfied – whether breach of natural justice when documentary evidence requested by Tribunal – whether tribunal required to inform applicant of regulation’s requirements for statutory declarations and police report.

Acts Interpretation Act 1901 (Cth), s.15AA

Migration Regulations 1994, r.1.03, 1.23, 1.24, sch.2 cl.820

Migration Amendment Regulations 1999 (No. 13), r.5

Grey v Pearson (1857) 6 H.L.C. 61
Ibrahim v Minister for Immigration and Multicultural and Indigenous and Affairs [2002] FCA 1279
Alim v The Minister for Immigration and Multicultural Affairs [2002] FCAA 1279
Du v Minister for Immigration and Multicultural Affairs [2000] FCAA 1115
Dietrich v R (1992) 177 CLR 292

Applicant:

ABDURAKIP SERFONTEYN & ORS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

File No:

MZ 795 of 2002

Delivered on:

28 May 2004

Delivered at:

Melbourne

Hearing date:

4 April 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Baker

Solicitors for the Applicant:

Fernandez & Johnson

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Each application is dismissed.
The applicants pay the respondents’ costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 795 of 2002

ABDURAKIP SERFONTEYN & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

Respondent

REASONS FOR JUDGMENT

The first applicant is a male National of the Republic of South Africa. He first entered Australia as the holder of a long stay visitor visa on 28th February 1995. He was subsequently granted a short stay visitor visa valid until 20 January 1996. On 19 January 1996, the first applicant and his four sons applied for permanent residence on the basis that the first applicant was the spouse of an Australian citizen, namely Ms Gillian Dawson. Ms Dawson was the nominator in connection with the visa application. That application was refused by a delegate of the first respondent on 1 March 2001 on the basis that the applicant had ceased to be the spouse of Ms Dawson at the time of the decision.
The first applicant and two of his sons applied to the Migration Review Tribunal for review of that refusal on 29 March 2001. The tribunal affirmed the refusal on 1 November 2001. The applicants applied to the Federal Court for review of the tribunal's decision. The application was transferred to the Federal Magistrates Court.
The first applicant and the nominator were married in Victoria on

16 November 1995. As already noted, the application for residence on spouse grounds was made on 19 January 1996. The nominator notified the Department in writing on 8 September 1997 that her relationship with the first applicant had broken down and withdrew her nomination. Attempts by the Department to contact the nominator and visa applicant were unsuccessful. Eventually, the first applicant attended the Department for an interview on 26 February 2001 with his eldest son and his partner. The first applicant admitted that he had separated from the nominator about two years previously.
The application was refused on 2 March 2001. Prior to the date of refusal, no claim had been made that a dependent child had suffered domestic violence. The application for review was made to the tribunal on 28 March 2001. The hearing was held on 11 July 2001. The tribunal found that at the time of the decision there had ceased to be a spousal relationship between the first applicant and the nominator. A visa application based on a spousal relationship could succeed notwithstanding the cessation of the relationship if a dependent child of the applicant or the nominating spouse had suffered domestic violence committed by the nominating spouse. It was alleged that the nominator had committed an act of violence against her daughter, Jody Dawson. The tribunal noted that at the time of decision, Jody Dawson was 20 years old and in a defacto relationship with the first applicant’s son. Applying the definition of "dependent child" in regulation 1.03 of the Migration Regulations 1994, the tribunal considered that Jody Dawson was not a dependent child at the relevant time. Furthermore, the tribunal considered that the evidence in support of the allegations of domestic violence did not satisfy the requirements of Division 1.5 of the Regulations.
The first ground of jurisdictional error alleged is that the tribunal was wrong in deciding that Jody Dawson was not a dependent child as defined by the regulations at the time of the decision. The tribunal said at [38-39] of its reasons:
38. It has been claimed that at the time that the alleged domestic violence took place, Jody Dawson was the dependent child of the nominating spouse. In the police report, it was stated that at that time Jody Dawson was fifteen years of age and her date of birth was 4 October 1981. Therefore on the evidence it would appear that at that time the visa applicant was the dependent child of the nominating spouse. However the criterion in paragraph 820.221(3)(b)(i)(B) provides a requirement which is to be met at the time of decision. Jody Dawson is now twenty years of age. She gave evidence of being in a de-facto relationship and to be no longer living with the nominating spouse. The question becomes:
(i)whether it is sufficient to satisfy the criteria for the alleged domestic violence to have occurred when Jody Dawson was a dependent child, or
(ii) whether it is necessary for Jody Dawson to also be a dependent child at the time that the decision is made.
39. PAM3 is silent in relation to this matter, the regulations are ambiguous. The PAMS are silent as to this issue. However the Tribunal considers that to interpret the regulations in accordance with (i) above would be outside the obvious intentions of the regulations. Although Jody Dawson gave evidence that the visa applicant had been supportive of her while she was a dependent child, she is no longer a dependent child and is now in a de-facto relationship with the visa applicant's son. The Tribunal considers that the most logical interpretation of the regulations is as set out in (ii) above and that it is necessary for the child of the nominating spouse who is claimed to have suffered domestic violence is also a dependent child at the time that the decision is made. This is not the case and the Tribunal finds that on the grounds put forward in relation to Jody Dawson, the visa applicant does not satisfy paragraph 820.221(3)(b)(i)(B).
The transitional provision set out in r.5(5) of the Migration Amendment Regulations 1999 (No. 13) means that the Migration Regulations 1994 in force immediately before 1 November 1999 apply to the application. The visa which the first applicant sought was an Extended Eligibility (Temporary) visa Class TK, Subclass 820 (Spouse). To meet the requirements of a subclass 820 visa, the applicant must satisfy the criteria set out in subdivision 820.21 at the time of the application and subdivision 820.2 at the time of decision.
Clause 820.211(2)(a) provides that at the time of the application, the applicant must be the spouse of, amongst others, an Australian citizen. Clause 820.221 requires that at the time of decision, the visa applicant must continue to meet the requirements of the applicable subclause or meet the requirements of subclause (2) or (3).
At the time of decision, the applicant was no longer the spouse of the nominator and so sought to satisfy subclause (3). Subclause 820.211 (3) provided:
(3) An applicant meets the requirements of this subcl if:
(a) the applicant would continue to meet the requirements of subcause.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the nominating spouse as ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B)a dependent child of the nominating spouse or of the applicant or of both of them;
has suffered domestic violence committed by the nominating spouse;
(ii) the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the nominating spouse:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation
Note For special provisions relating to domestic violence, see Division 1.5.
Dependent child was defined to mean the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), who has not turned 18 and is wholly or substantially in the daily care and control of the person, or who has turned 18 and is dependent on that person.
It was claimed that at the time the alleged domestic violence took place, Jody Dawson was the dependent child of the nominating spouse. She was 15 years of age at that time. The Tribunal said that, on the evidence, it would appear that at the time the visa application was made, Jody Dawson was a dependent child of the nominating spouse.
The criterion in clause 820.221(3)(b)(I)(B) had to be met at the time of the decision. Jody Dawson was then 20 years of age, in a defacto relationship and no longer living with the nominating spouse. Therefore, at the time of decision, she was not a dependent child. The issue, identified by the Tribunal, was whether the regulations required that she be a dependent child at the time of decision. The Tribunal decided that the requirement had to be satisfied and the time of decision. The error of law alleged was that the Tribunal should have decided the opposite.
The Tribunal considered that this was the most logical interpretation of the regulations. Normal principles of interpretation show that this is correct. The basic principle is that “the grammatical and ordinary sense of the words used are to be adhered to” (Grey v Pearson (1857) 6 H.L.C. 61 at 106, Lord Wensleydale). The requirement is – "[A] Criteria to be satisfied at time of decision [is] a dependent child of the nominating spouse… has suffered domestic violence committed by the nominating spouse"; “dependent child” is contained within the present tense clause with “[is]”; "domestic violence" is contained within the past tense clause with "has". The requirement would have to be rewritten for the dependency of the child to have existed prior to the time of decision but not at the time of decision. The requirement of dependent child is to be satisfied at the time of decision. If the purpose or object of the regulation is to be looked at, (s.15AA(1) Acts Interpretation Act 1901 (Cth) supports this interpretation. One object or purpose would appear to be that children who meet the requirements of the regulation are not left dependent on a person who does not have a visa and so cannot remain in Australia.
The second ground of jurisdictional error alleged was that insofar as the occurrence of domestic violence was concerned, the respondent made an error involving an incorrect interpretation of the applicable law. The third ground was that the Tribunal failed to take into account the evidence of the applicant and Jody Dawson at the hearing and the police statement made by Jody Dawson subsequently provided to the Tribunal on 31 August 2001.
The fourth ground alleged is breach of natural justice. This ground was added by amendment at the hearing. The Tribunal sent a letter dated

1 August 2001 to the applicant asking for documentary evidence to substantiate the claims made at the hearing of domestic violence against Jody Dawson committed by the nominator. Further documents were sent. The Tribunal found that a police report and statutory declarations as required by Division 1.5 of the regulations in relation to domestic violence were not supplied. There is no doubt they were not. A police report and a statement by Jody Dawson were supplied but they did not meet the requirements of the regulations. It was alleged that since the letter only referred to documentary evidence, not specifically a police report and statutory declarations, the applicants were misled.
The second, third and fourth grounds can be dealt with together. The claim that Jody Dawson had suffered domestic violence committed by the nominator was made after 2 March 2001 when the delegate of the Minister made the decision to refuse the visa.
Division 1.5 of the Regulations contains special provisions relating to domestic violence. They include a statement (in r.1.23) of the circumstances in which a person "is taken to have suffered domestic violence" and another person "is taken to have committed domestic violence in relation to the alleged victim".
Reg 1.23(1) (g) provides:
"(g) if the alleged victim is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant domestic violence; and
(ii) the alleged perpetrator has committed that relevant domestic violence."
Reg 1.23(2) identifies the persons referred to in para (g). They include a dependent child of the alleged perpetrator.
Regulation 1.24(1) specifies the evidence referred to in para 1.23(1)(g). It provides:
(1) The evidence referred to in paragraph 1.23 (1) (g) 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 on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or
(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
The requirements of division 1.5 are mandatory. (Ibrahim v Minister for Immigration and Multicultural and Indigenous and Affairs [2002] FCA 1279). No statutory declarations were supplied. Various statements were supplied. It is not to the point that they may have satisfied the definition of domestic violence contained in the regulations. The only way the evidence can be given is by statutory declarations meeting the requirements of the regulations. This disposes of grounds two and three.
The relevant part of the letter from the Tribunal’s letter dated 1 August 2001 which it is said misled the applicants states:
Section 359 of the Migration Act allows the Tribunal to invite a person to give it additional information that is relevant to the review of the decision.
Accordingly, the Tribunal now invites you to provide the following additional information:
Documentary evidence to substantiate the claims made at the hearing of domestic violence against Jody Dawson committed by Gillian Dawson.
To say that this letter misled the applicants is to say that the tribunal should have advised the applicants that the documentary evidence needed was statutory declarations complying with the requirements of division 1.5 of the regulations. This is going well beyond what could be required of the Tribunal under the rules of natural justice. This would be giving legal advice which must be well beyond what is required of the Tribunal. The need for statutory declarations meeting the requirements of the regulations is a matter of law. That the requirements of the regulations applicable to a particular visa must be complied with is not something that the Tribunal is obliged to point out to an applicant.
The argument concerning natural justice and the amendment at the application came late in the hearing before the court. The respondent was given leave to file supplementary contentions of fact and law. In these contentions it is pointed out that in none of the Federal Court decisions concerning the statutory declarations required to establish domestic violence for the purposes of the regulations was it suggested that the Tribunal had erred in any way by not advising the applicants of what was required by way of statutory declaration. Cases referred to as examples are Ibrahim, Alim v The Minister for Immigration and Multicultural Affairs [2002] FCAA 1279, Du v Minister for Immigration and Multicultural Affairs [2000] FCAA 1115.
The supplementary contentions submitted that the authorities make it clear that it is no part of the role of a court to provide a litigant with legal advice, even when the litigant is unrepresented. The submissions referred to what was said by Deane J. in Dietrich v R v (1992) 177 CLR 292 at 334-5:
While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented. Thus, it is no part of the function of a prosecutor or trial judge to advise an accused before the commencement of a trial about the legal issues which might arise on the trial, about what evidence will or will not be admissible in relation to them, about what inquiries should be made to ascertain what evidence is available, about what available evidence should be called, about possible defences, about the possible consequences of cross-examination, about the desirability or otherwise of giving sworn evidence or about any of a multitude of other questions which counsel appearing for an accused must consider and in respect of which such counsel must advise in the course of the preparation of a criminal trial. Nor is it consistent with the function of prosecutor or trial judge to conduct, or advise on the conduct of, the case for the defence at the trial. Nor, in the ordinary case, is an accused capable of presenting his own case to the jury as effectively as can a trained lawyer. [Citations omitted]
A merits review of a decision by an administrative tribunal is a different process from a criminal trial. Nevertheless, the principles which are applicable to the way in which an unrepresented accused is dealt with in a criminal trial provides some assistance in deciding what a Tribunal is obliged to do when dealing with an applicant.
The Tribunal may well have gone beyond what was needed. The applicants had had the opportunity to put their case at the hearing. The documents which were not provided are mandatory under the regulations. As Wilcox J pointed out in Ibrahim, in determining whether there has been domestic violence, the Tribunal is not engaged in a fact finding exercise about domestic violence, but is looking to see whether the documents provided meet the description in the regulations. The facts set out in the statutory declarations may or may not be true. That is not the issue. The Tribunal was not asking for documents which might assist it in making findings of fact about domestic violence. It was giving the applicants the opportunity to remedy the documentary defects in the application.
None of the grounds of alleged jurisdictional error are made out. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: