Shaikh v Minister for Immigration - [2004] FMCA 116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAIKH v MINISTER FOR IMMIGRATION

[2004] FMCA 116

MIGRATION – Application for review of decision of Migration Review Tribunal – whether the Tribunal failed to accord the requirements of procedural fairness in determining that the applicant and his wife had never established the status of ‘spouse’ – at the time of application and thereby took the applicant by surprise in failing to give him an opportunity to call evidence on the issue – relevance of that issue in view of separation of applicant and nominator by date of decision – whether the Tribunal failed to consider statutory declaration evidence regarding domestic violence – whether breach of section 379G(1) of the Act was a jurisdictional error where no unfairness to the applicant occurred – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 66, 66(2), 66(2)(d)(ii), 66(4), 349, 359(2), 368, 379G(1), 379G(1)(b), 412, 412(1)(b), 424, 424A, 424A(1), 424A(2), 474, 483A, 494, 494B, 494C, 494C(4), 494D, 494D(1), 494D(2), 501G, 501G(4)
Migration Regulations 1994, Regs 1.15A, 1.22, 1.23, 1.23(2)(b), 1.24, 1.25, 1.26, Div 1.5
Judiciary Act 1903 (Cth), s.39B
Family Law Act 1975 (Cth)

Valdes v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 115
Alin v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979
Pintos v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1400
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6
Stead v State Government Insurance Commission (1986) 161 CLR 141
Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 503
Aala v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Lam v Minister for Immigration and Multicultural and Indigenous Affairs 1995 ALR 502
NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 102
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 327
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56
Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292
VEAN of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 311
Veta v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

Applicant:

MUSTAK NASIR SHAIKH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENEOUS AFFAIRS

File No:

MZ 1010 of 2002

Delivered on:

26 May 2004

Delivered at:

Melbourne

Hearing date:

29 January 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr J Hamilton

Solicitors for the Applicant:

Dimauri Solicitors

Counsel for the Respondent:

Mr T Gray

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1010 of 2002

MUSTAK NASIR SHAIKH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39(B) of the Judiciary Act 1903 (Cth) to review a decision of the Migration Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent Minister (The Respondent) to refuse the grant of a general (Residence) (class A S) visa. The delegate's decision to refuse to grant the visa was made on 23 October 2001. On 20 November 2001 the applicant lodged an application for review with the Migration Review Tribunal. On the 31 July 2002 the Tribunal affirmed the decision under review that the applicant was not entitled to the grant of a visa. The applicant applied to the Federal Court of Australia to review the decision of the Tribunal and on 27 September 2002 North J transferred the application to the Federal Magistrates Court for hearing. The Federal Magistrates Court shares jurisdiction with the Federal Court pursuant to s.483A of the Migration Act 1958 (Cth) (the Act).

Background

The applicant is a national of India. He arrived in Australia on 30 September 1998 on a student visa valid until 30 July 2000. On 29 July 1999 the applicant married an Australian citizen, Ms Cynthia Monica Krishna (the nominator). On 2 August 1999 the applicant applied for a general (Residence) (class AS) visa based on his marriage. There is evidence before the Tribunal that the nominator regarded the couple as separated on 30 July 1999 and the marriage as being over on 25 May 2000 to which the applicant responded that the couple separated on 6 September 2001 and the marriage was over when the nominator applied for an apprehended violence order against the applicant on 27 September 2001.
On 23 October 2001 the nominator withdrew her nomination and a delegate of the Minister refused the applicant the Class AS visa. On the same date, the nominator applied for divorce from the applicant.
An interim apprehended violence order was made against the nominator on 30 October 2001. On 20 November 2001 the applicant lodged an application for review of the delegate's decision with the Tribunal. A decree nisi for the dissolution of the marriage was made on 16 January 2002.
An apprehended violence order was made against the applicant on the 18 February 2002.
On 22 March 2002 the Tribunal wrote to the applicant inviting him to comment on information received by the Tribunal to the effect that the nominator had withdrawn her nomination. By letter to the Tribunal dated 29 April 2002 the applicant, through his solicitor, raised the allegation that he had been the victim of domestic violence at the hands of the nominator.
The Tribunal thus identified its role as determining the major issues in the case as whether:
·At the date of application, and the date of decision the visa applicant and nominator were in a spousal relationship as defined in the Regulations and in particular met the requirements of regulation 801.221 (2).
·If they were not, then did the visa applicant fall within Regulation 801.221 (6) and notwithstanding the parties' relationship was no longer in existence at the time of decision, suffer domestic violence as described in part 1.5 of the Regulations.

Relevant Legislation

Subclass 801 Spouse
801.1 Interpretation.
801. 111 in this Part:
"Nominating spouse" in relation to an applicant who is the holder of a subclass 820 visa, means the person who nominated the applicant for the grant of that visa;
801.2 PRIMARY CRITERIA
801.21 (No criteria to be satisfied at time of application).
801.22 criteria to be satisfied at the time of decision.
801.221
The applicant meets the requirements of subclause (2), (3), (4), (5), (6), or (8).
An applicant meets the requirements of this subclause if:
The applicant is the holder of a subclass 820 visa;
The applicant continues to be nominated for the grant of the subclass 801 visa by the nominating spouse;
The applicant is the spouse of the nominating spouse;
Subject to subclauses 6A (and) 7 at least two years has passed since the application was made.
Regulation 1.22 in Division 1.5 of the Regulations states that for the purposes of the Regulations, persons having suffered or committed domestic violence are persons who have been taken, in accordance with Regulation 1.23 to have suffered or committed domestic violence.
Regulation 1.23 states as follows:
When is a person taken to have suffered or committed domestic violence?
For the purposes of these Regulations:
a person ( the alleged victim ) is taken to have suffered domestic violence; and
another person ( the alleged perpetrator ) is taken to have committed domestic violence in relation to the alleged victim;
if:
on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 (Cth) against the alleged perpetrator; or
a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or
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:
the alleged victim has suffered relevant domestic violence; and
the alleged perpetrator has committed that relevant domestic violence.
In paragraph (1) (g):
the persons referred to are the following:
a spouse of the alleged perpetrator;
a dependent child of:
the alleged perpetrator; or
the spouse of the alleged perpetrator; or
both the alleged perpetrator and his or her spouse; or
a person in an interdependent relationship with the alleged perpetrator;
a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);
a person who is in an C:\doc-conversion\inputToHtml\s1.03.html - interdependent_relationshipinterdependent relationship with the alleged perpetrator; and
a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.
Regulation 1.24 prescribes:
The evidence referred to in paragraph 1.23 (i) (g). "Either a statutory declaration by the alleged victim, a statutory declaration by a "competent person" and a police record of an assault committed on the victim or, in the absence of such a record, statutory declaration under regulation 1.25 and two statutory declarations under regulation 1.26 by competent persons (with different qualifications).
Regulation 1.25 relevantly states:
That a statutory declaration under this regulation must be made by the spouse of the alleged perpetrator.
Subregulation 1.25 (i) provides:
(ii ) A statutory declaration under this regulation that is made by a person who alleges that he or she is a victim of relevant domestic violence (within the meaning of paragraphs 1.23 (2) (b) must:
(a) Set out the allegation;
(b) Name the person alleged to have committed the relevant domestic violence.
A "competent person" is defined in regulation 1.21 to mean (as far as is relevant for present purposes) a person registered as a medical practitioner, a person registered as a psychologist or a person who is a member of the Australian Association of Social Workers or is recognised by that association as a person who is eligible to be a member of that association and who is performing the duties of a social worker.
Regulation 1.26 sets out the requirements of the statutory declarations to be completed by competent persons, and is central to the decision under review. It provides as follows:
1.26 Statutory Declaration by Competent Person.
A statutory declaration under this regulation:
(a) ..
(b)..
(c) Must state that, in the competent person's opinion, relevant domestic violence (within the meaning or paragraph 1.23 (2) (b) has been suffered by a person and
(d) ..
(e) and;
(f) Must set out the evidence on which the competent person's opinion is a based.

The Tribunal's Decision

The Tribunal had before it the following documents in support of the review application:
a)A statutory declaration by the applicant dated 17 October 2001 (not submitted to the delegate) and received by the Tribunal on 30 April 2002. The applicant stated that the nominator's mother became violent towards him and threatened to throw him "outside" after his refusal to convert from Muslim to Hindu. The applicant further stated that the nominator soon after also became violent against him, aborted a pregnancy because she did not want to carry a Muslim child, demanded that he buy her expensive jewellery, threatened to have him deported and abused him over the telephone in the middle of the night, including stating that all Muslims should be killed and that he should go back to Afghanistan and join his terrorist brothers[1].
b)A statutory declaration by Dr Parikh Kiritkumar Jaysukhlal (a medical practitioner) declared on 2 April 2002[2]. Dr Jaysukhal identified the applicant as a victim of domestic violence and the nominator as the perpetrator. Dr Jaysukhal described the nature of domestic violence as being “aggressive and violent behaviour” and “mental and emotional torture”. He stated that he based his opinion on physical and mental examination of the applicant and interviews.
c)Letter from Dr Kirit Parikh (also known as Dr Parikh) 3 April 2002 which described the nominator's behaviour as “aggressive” and the effect on the applicant as making (the applicant) emotionally upset about the difficult relationship and living life. He stated that the applicant could not tolerate and became anxious and could not perform activities of normal living. He developed loss of sleep, isolation and became inactive, development of ill-health with anxiety[3].
d)A statutory declaration from Dr Gregory White, a psychiatrist, medical practitioner, declared on 18 April 2002. Dr White identified the applicant as a victim of domestic violence and the nominator as perpetrator. Dr White described the nature of the violence as including emotional abuse (humiliating him), yelling and screaming, criticising him about his religion, (having unrealistic expectations), intimidation (smashing and throwing things) coercion and threats (threatening to report him to the department), isolation and economic abuse. Dr White states that he based his opinion on having interviewed the applicant on five occasions.
e)A statutory declaration by Alias Ki Aboushady[4] - unspecified relationship to the applicant. Declared on 28 May 2002. Mr Aboushady stated that the applicant started complaining to him (at an unspecified point in time) that his wife was threatening, abusing and insulting him.
f)Letter from Dimita Iatru, applicant solicitors, advising that the applicant advised, at an unspecified date, that his wife had threatened him and that the applicant was scared for his safety and wellbeing[5].
g)Interim apprehended violence order issued by the applicant in respect of the nominator dated 30 October 2001. There was no evidence to suggest that a final order was made by the Court.
h)A statutory declaration by Mr Nicholas John Button (social worker) declared 2 July 2002[6]. The declaration identified the applicant as a victim and the nominator as the perpetrator. Mr Button described the nature of the abuse as "aggression and harassment from his ex-wife and mother-in-law" and "a significant level of emotional abuse and threats". Mr Button stated that he based his opinion on "an extensive discussion with the applicant in relation to the circumstances surrounding the dissolution of his marriage. I have also cited (sic) documents including letters from his psychiatrist and am satisfied on the evidence presented that (the applicant) has been a victim of domestic violence".
i)A second statutory declaration sworn by Mr Button on the same date[7]. Whilst largely repetitive of the first statutory declaration, adds that one of the documents before him was the applicant's statutory declaration. This declaration attests to Mr Button's belief in line with regulation 1.26 that the applicant has suffered domestic violence.
[1] See Court Book, pages 97-98.
[2] See Court Book, pages 100-101.
[3] See Court Book, pages 102-104.
[4] See Court Book, page 109.
[5] See Court Book, page 108.
[6] See Court Book, pages 113-114.
[7] See Court Book, page 155-156.
The Tribunal, after reviewing the definition of "spouse" in Regulation 1.15A against the factual circumstances of this case, concluded that whilst the parties were married, they were never married for the purposes of Regulation 1.15A. The Tribunal concluded that as no spousal relationship existed, the visa applicant could not satisfy, inter alia, the requirements of paragraph 801.226 (6) (b) which relevantly states:
The applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the nominating spouse has ceased.
The Tribunal reasoned that there was no relationship between the applicant and the nominating spouse which ceased and any domestic violence cannot have been perpetrated by the nominating "spouse".
The Tribunal reached its conclusion that the applicant and nominator were never in a spousal relationship by considering the matters set out in Regulation 1.15A at the time of application and the time of decision (although it was clear at the time of decision the parties were separated and were in fact divorced.) The matters considered by the Tribunal appear at paragraph 44 of the Tribunal's reasons[8]. In short, the Tribunal concluded that the parties had independent financial lives, and never shared a household. They kept their marriage secret from both sets of parents and there was little evidence that they presented themselves as a married couple to friends.
[8] See Court Book, page 154.
The Tribunal found there was conflicting and unreliable evidence indicating the nominator's commitment to the applicant to the exclusion of all others other than the formality of the marriage itself.
Having determined that the applicant's former wife was not his "spouse" at the date of application, then there was no relationship between the visa applicant and the nominating spouse which ceased pursuant to subclause 801.226 (6) (b) and the domestic violence could not have been perpetrated by the applicant's nominating "spouse" pursuant to subclause 801.226 (b) (c) (i) and that regulation 801.221 (6) did not apply.
The Tribunal then went on to consider, however, in the event that it might be incorrect in its above findings, whether the claim of domestic violence would otherwise satisfy the requirements of regulation 801.226 (6) at the time of decision.
Originally, the applicant submitted statutory declarations from medical practitioners which did not comply with the Regulations. However, the Tribunal allowed him a period of 21 days to provide another statutory declaration from a competent person which he did. The Tribunal was thus satisfied at the time of decision that both statutory declarations from competent persons complied with Regulation 1.26 (c).
The Tribunal referred to documentary evidence and the oral evidence given by the applicant. The Tribunal found that:
a)the statutory declaration of the applicant did not comply with subregulation 1.25 (2) as the applicant did not make statements which might indicate that he had a fear or apprehension relating to his personal wellbeing or safety[9]. The Tribunal found that the statutory declaration "simply describes the offending behaviour by the nominator as taking the form of verbal abuse of different kinds".
b)The statutory declaration of Mr Button (social worker) did not comply with subregulation 1.23 (2) (b) as there was nothing in the declaration to indicate whether the evidence utilised by Mr Button in forming his opinion dealt with the issue of relevant domestic violence. Moreover, Mr Button, did not anywhere refer to the applicant fearing or being apprehensive about his wellbeing or safety or use words to that effect[10].
[9] See Court Book, paragraph 67, page 157.
[10] See Court Book, paragraph 66, page 157.

Such a finding is required to comply with the Regulations. It requires some acts of violence to have occurred, but also an assessment of the state of mind of the alleged victim (see Valdes vMinister of Immigration and Multicultural and Indigenous Affairs (2000) FCA 115 and Alin v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979).
The Tribunal concluded that in relation to the issue of domestic violence, the applicant did not satisfy the requirements of Division 1.5 of the Regulations and therefore did not satisfy regulation 801.221 (6) at the time of decision.

Present Proceedings

Three grounds were identified by the applicant.

Ground one: denial of natural justice/procedural fairness

This contention is that the proceeding before the Tribunal proceeded solely on the basis of whether the applicant was entitled to a spouse visa notwithstanding the separation, because of the provisions relating to domestic violence. The applicant submits that in the proceeding the Tribunal denied a fair hearing because it decided the question on a matter which was not raised at the hearing (that is that they were not "spouses") and which the applicant would not have expected. The applicant's written contentions say, at paragraph 3.3:
In particular the transcript establishes that the hearing before the MRT was conducted on this basis.
In paragraph 2.2 of the contentions the applicant says:
The applicant will produce the transcript.
However, the applicant did not produce the transcript and no further submissions, or arguments, were directed to this ground. Thus, the applicant has not discharged the onus of demonstrating failure to accord procedural fairness. Without a transcript it is difficult to form a concluded view but I have concerns about the matter in which the Tribunal dealt with this issue.
However, the respondent submitted, and I agree, that a failure by the Tribunal to accord procedural fairness to the applicant, in particular by leading him to believe that witnesses on the issue of a spousal relationship (at the time of the application) was not necessary, could not succeed if such a failure could not have altered the result. In such a case an imputed failure is not a jurisdictional error such as to quash the decisions (see Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 at [59]; Stead v State Government Insurance Commission (1986) 161 CLR 141 and Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [58].
In argument, the applicant further contended that there was a denial of natural justice and failure to provide a proper hearing because the Tribunal determined the question of whether the parties were spouses pursuant to Regulation 1.15A at the date of the hearing, which the Tribunal said was the date of decision. The applicant contends that date of decision refers to the delegate's decision. In this case, it was contended the delegate's decision was made on 23 October 2001 when the parties were still in a married relationship and accordingly the Tribunal should have found the parties were in a spouse relationship at the time of decision and there was no need to look further at the provisions relating to domestic violence.
I reject the applicant's contentions on this point. Section 65 of the Act deals with the Minister's obligations after considering a valid visa application to grant, or if not satisfied about the matters in s.65, to refuse to grant, the visa.
Section 349 of the Act, under the heading “Powers of Migration Review Tribunal”, says:
(1)The Tribunal may, for the purposes of the review of an MRT reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
Thus the time of decision is an ambulatory concept depending upon the person (or Tribunal) exercising the power at the time of the decision. This much is clear from the decision of Katz J in Pintos v Minister for Immigration and Multicultural Affairs (2001) FCA 1400.
At paragraph 9 his Honour said:
It would be obvious that in order for Mr Pintos's application to the MRT for review of the delegate's decision to succeed, it was necessary for the MRT to be satisfied both that Mr Pintos had been, at the date of his application to the Minister's Department for the family visa, and was, at the date of the MRTs decision a "special need relative" of another person . . .
And at paragraph 34:
Next, regarding the MRT’s having relied on evidentiary material which had not been before the delegate that complaint is obviously fundamentally misconceived, given the nature of the MRT’s function.

Ground two: the decision of the Tribunal regarding the findings about domestic violence was so unreasonable as to amount to an error of law

Findings about domestic violence were made by the Tribunal notwithstanding the Tribunal's findings regarding the non-existence of a spousal relationship. The passage in the Tribunal's reasons is a path of reasoning predicated on the assumption that a spousal relationship existed.
Clause 806.221 of Schedule 2 to the Regulations prescribed as a criterion to be satisfied at time of decision on the visa application, that the applicant continue to satisfy the criteria in clause 806.213 of schedule 2 to the Regulations.
The Tribunal found that the statutory declaration of the applicant did not comply with subregulation 1.25 (2) as the applicant did not make statements which might indicate that he had a fear or apprehension relating to his personal wellbeing or safety. It simply described the then behaviour by the nominator as taking the form of verbal abuse of different kinds.
Nor did the statutory declaration of Mr Button comply with subregulation 1.23 (2) (b) as there was nothing in the declaration to indicate whether the evidence utilised by Mr Button in forming his opinion, dealt with the issue of relevant domestic violence. Moreover, Mr Button did not anywhere refer to the applicant's fearing or being apprehensive about his wellbeing or safety or use words to that effect.
The respondent contends, and I agree, that the applicant must establish an error in both the above findings to be successful. The finding referred to above is a correct observation of a fatal flaw in the applicant's statutory declaration. In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 503 at paragraph 62 the Full Court said:
However, belittling, lowering self-esteem, emotional violence or psychological violence in such behaviour as surrogates, or synonyms for violence is, we think, to broaden the scope of the Regulations beyond their words. There must be "violence" or the "threat of violence" involving the application, or threat of application of force such that the alleged victim is caused to fear for or be apprehensive about, his or her wellbeing or personal safety.
And further, at paragraph 64:
As we have said, "violence" is an ordinary word and "domestic violence" is an ordinary concept. Each normally includes the exercise of physical force. There are a number of pointers in the regulations themselves to indicate that this primary sense was intended by the drafter.
The Court went on to consider whether the violence must be committed or perpetrated by the spouse of the alleged victim. And at paragraph 69 said:
Even if one approaches the appeal on the conceded basis of the width of the word, "violence" and the phrase "domestic violence", there must still be violence committed or perpetrated by the spouse of the alleged victim. . . The meanings of "commit" and "perpetrate" direct one to the personal act of the spouse of the victim. This accords with the intended subject matter of the Regulations: the infliction or threat of infliction of violence on a spouse or family member in a domestic context.
Most of the allegations in the applicant's statutory declaration[11] allege that abuse was carried out by the nominator's mother. No physical violence is alleged against either. But furthermore, there is a flaw, which in my view is fatal to the statutory declaration and that is that it does not present any evidence that the applicant had any fear or apprehension for his wellbeing or safety by reason of violence or threat of violence from his spouse. The finding of the Tribunal that the statutory declaration of the applicant was inadequate to satisfy the Regulations was open on the material and in my view is the only view available.
[11] See Court Book, pages 97-98.
The applicant further contended that the Tribunal erred in that it required evidence of physical violence rather than a threat of violence. I am satisfied there is nothing in the Tribunal's reasons to indicate that the Tribunal misunderstood the scope of the definition of "violence". This much is clear from a description by the Tribunal of the statutory declarations of the two doctors. But the reasoning of the Tribunal relied upon the fact that an essential element of the definition of "relevant domestic violence" being the subjective fear or apprehension that the violence (or threat of violence) creates, and this element was absent from the applicant's material.
Similarly, the Tribunal was entitled to find that Mr Button's affidavit does not evidence an appreciation of the scope of "relevant domestic violence" and again is limited by the requirements of the violence to cause apprehension or fear in the mind of the victim regarding personal safety or wellbeing see Aala v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979, per Sunberg J).

Ground three: breach of s 379G

On 31 July 2002 the Tribunal wrote to the applicant enclosing a copy of the Tribunal's statement under s.368 of the Act recording its decision on the application for review. The letter set out the appeal rights available under the Act. The letter was addressed to the applicant care of his solicitor.
The first error said to be made by the Tribunal and which it was contended was a jurisdictional error, was alleged to be constituted by a breach of s.379G(1) of the Act which it is contended is an inviolable limitation and thereby jurisdictional error occurs if it is breached.
Section 379G says as follows:
379G Authorised Recipient
(1) if:
(a) a person (the applicant) applies for review of an MRT - reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
The Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
It is conceded that the applicant had properly appointed an agent who fell within the description of "authorised recipient".
The Tribunal wrote to the applicant on 22 March 2003 inviting him to comment on the following information:
The nominator has withdrawn her nomination in your favour and therefore there is no current nomination.
The letter invited the applicant to provide the requested information in writing within 28 days of notification of the invitation and provided for an extension of time to be granted.
In response to that letter the authorised agent of the applicant wrote to the Tribunal on 29 April 2003[12]. The letter raised the issue of domestic violence and produced statutory declaration from the applicant, and Doctors White and Jaysukhal.
[12] See Court Book, page 96.
Subsequently the applicant was advised to appear before the Tribunal at the hearing which he did. At the hearing, in addition to considering the matters raised by the applicant in the statutory declarations, the Tribunal asked him about allegations that the applicant and nominator were married in name only[13].
[13] See Court Book, page 152.
It was common ground that the letter of 22 March 2003 inviting him to provide information was addressed to:
Mr Nilanga Dayarathne Malavige care of Mr Godson Nwankwo of Di Mauro Solicitors, Level 4, 21 Victoria Street Melbourne 3000.
Mr Nwankwo was the authorised recipient. It is thus clear, and conceded, that the letter was addressed to the applicant care of the authorised person.
Ultimately, the Tribunal affirmed the delegate’s decision to refuse the relevant visa for the reasons described in paragraphs 8-18 inclusive. It was not suggested that the applicant did not receive the letter, nor that he had an opportunity to respond to it. Nor is it contended that he did not have an opportunity to respond to the relevant matter raised when put to him by the Tribunal at the hearing.
What is contended is that in addressing the letter to the applicant care of his authorised recipient the Tribunal did not comply with s.379(G)(1)(b) which required the Tribunal to give:
The authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
It is contended that is a breach of an inviolable limitation in the Act and constitutes jurisdictional error. The applicant relied in support of this contention on two decisions of the Federal Court VEAN of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 311 and Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292). The decision in Chan Ta Srey was delivered on 12 November 2003 and the decision in VEAN on 23 September 2003. As both cases involved similar argument or similar issues they require careful consideration.
The case of VEAN involved the procedures with respect to the Refugee Review Tribunal and the construction of s.494B(1) of the Act. However the wording is consistent with the wording in s.379G(1). In VEAN the applicant was sent a letter notifying him of the delegate's decision rejecting his visa application and enclosing the delegate's reasons for decision on 3 January 2002. The letter was addressed to the applicant care of his authorised agent and the authorised agent's address. In VEAN the authorised agent was a sister of the applicant and the address was her address.
Section 473 provides that if the respondent gives a document to a person by one of the methods specified in s.494B, that in case of despatch by prepaid post or other prepaid means, a person is taken to have received the document, if it was despatched from a place in Australia to an address in Australia, seven working days after the date of the document. If the Act had been complied with, s.494C would have deemed the applicant to have received the document no later than 15 January 2002 being seven working days after the date of the letter.
Section 412(1)(b) provides a 28 day period in which to make application to the Refugee Review Tribunal for a review of the decision in a period ending not later than 28 days after the notification of the decision. Section 494B had been complied with, s.494C would have deemed the applicant to receive the document no later than

15 January and the 28 day period would have expired on 11 February.
The applicant actually received notification on 6 February 2002 after his brother collected a registered mail article from the post office. His application was made on 26 February 2002 and was accordingly out of time not being lodged within a period ending no later than 28 days after the notification of the decision of the delegate. The Tribunal had no power to extend the time within which an application for review may validly be made to it.
Thus the critical issue in VEAN was how and when the applicant had been notified of the decision of the delegate. The applicant argued inter alia, that the application to the Tribunal had been made within time because
a)on its proper construction s.494D(1) was not complied with because following the authorisation, the notification was not given to the authorised recipient instead of the applicant, it was given to the applicant care of the authorised recipient at the authorised recipient's address.
The Judge at first instance found firstly that he could see no reason why the use of the word –
give
could not include a letter sent to the applicant care of his authorised recipient as the word –
give
is a word of wide amplitude and was not to be equated with physically handing over an object. Secondly, he held that if he was wrong as a matter of construction conformably with Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the failure to name the authorised recipient of the person to whom the letter is addressed, rather than the applicant care of the authorised recipient, does not of itself invalidate the notification process:
The likelihood of the applicant being informed of the arrival of the letter is no different in either case. Considerations of substance rather than form should prevail.
That view did not prevail in the Full Court. The Full Court held that s.494B(1) was enlivened only when the relevant document, namely the letter of 3 January 2002, was given to the authorised recipient and held that in the circumstances the letter was not given to the authorised recipient. The practical effect of that was that the authorised recipient did not consider the letter was addressed to her, notified the appellant of the letter that was addressed to him at her address and the appellant subsequently arranged for collection of a letter from the Post Office. The Court held that there were two essential elements for compliance. One was the giving of the document to the appellant or to the authorised recipient and the second was the despatch of the document to one of the addresses specified in s 494B(4)(c). The Full Court noted that the correct specified address of the authorised recipient was used but the addressee was not the authorised person and said at paragraphs 41-42:
This is one of the two critical elements of the means of notification described in section 494B(1) and 4(c) and section 494D(1).
The Full Court then referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 38–39 [91] and [93]. Where, discussing the continued utility of the distinction between mandatory and directory requirements their Honours said at [93]:
A better test for determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision should be invalid.
The Full Court then proceeded at paragraph 45:
In this matter, of course, the sending of a letter of 3 January 2002 in the manner described was not invalid. The issue is whether it was done in the manner prescribed by s 494B(1) and (4) and s 494D(1) so as to have the effect prescribed by s 494C(4) and 494B(2). That is, the issue is whether it should result in the notification being taken to have been given to the appellant and the appellant being taken to have received it, seven days after the date of the letter.
The Full Court at paragraph 46 said:
The consequence is that the letter of 3 January 2002 was not given to the authorised recipient because it was addressed to another person, the appellant, care of the address of the authorised recipient. And it was not given to the appellant at one of his addresses provided for by s 494B(4)(c). Accordingly, the notification is not one which attracts the operation of s 494C(4) or s 494B(2), that is the appellant is not taken to have received the document seven working days after its date of 3 January 2002.
47. In our judgment the Tribunal therefore erred in law in determining that the application for review was outside the time specified in s 412(1)(b) in dismissing the application. Such an error, reflecting an incorrect conclusion that the letter of 3 January 2003 answered the statutory description in s 494B and 494B is an error of law: see Veta v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]. Its decision involved jurisdictional error because, by error of law, it wrongfully refused to exercise its jurisdiction; see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.

In Chan Ta Srey a similar issue arose and Gray J concluded that notification of the decision of a delegate which specified the time for review as being:
Within 28 days of the date of this letter
as not fulfilling the requirements of s.66(2)(d)(ii) of the Act. It did not state the time within which the application for review might have been made.
In that case his Honour referred to the purpose of s.66(2) of the Act as being to ensure that the legislative scheme:
In relation to rights of review of decisions operate fairly. The contention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so (Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1292 at [45]).
… without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme in which the time limits are strict and in which there exists no power discretionary or otherwise, to enlarge them.
He concluded that each element of the requirements of s.66(2) was an integral part of the scheme of notification so that all of the requirements must be met before there could be a
notification
of the delegate's decision and before the time for review described by s.412(1)(b) could commence to run.
At paragraph [42]he said:
In the course of argument there was a tendency of counsel for both parties to treat this question as being one of the "validity" of the letter of 19 May 2000 with the notification, for the purposes of s 66. To some extent, focussing on the question of "validity" is distracting. As I have said, the real question is whether the applicant was notified of the refusal to grant a visa so at to start time running with respect to the operation of his bridging visa. The principles applicable however might not differ very much. As Marshall J recognised, the question of "validity" depends not upon the traditional classification of statutory provisions into mandatory or directory, but on the application of the principles discussed in Project Blue Sky. It is necessary to ascertain the intention of the legislation as to whether non-compliance with a statutory requirement should result in the act concerned having no effect. The question of legislative intention is also highly relevant, when asking the question whether the applicant was notified of the result. It is complicated to some extent by the fact that the provision to be construed is found in the Regulations.
His Honour noted at paragraph 45 that the intention of the legislative scheme is that not only should an unsuccessful applicant be told that his or her application has been unsuccessful but should be given enough information to pursue the right of appeal if disposed to do so. That information included the criterion or criteria that the applicant failed to satisfy, the legislative provision that prevented the grant of a visa, reasons why the criterion were not satisfied or the provision prevented the grant of visa and the steps required to make an application to review the decision. His Honour noted that without all of this information an unsuccessful applicant would be disadvantaged in the operation of the scheme in which the time limits are strict and in which there exists no power discretionary or otherwise to enlarge them.
His Honour said at paragraph 46:
In this context it is easy to see that each element of the requirements of s 66(2) is an integral part of the scheme of notification. The absence of any one item of information would disadvantage an unsuccessful applicant. There is, therefore, a strong case for saying that, if one of the requirements of s 66(2) has not been complied with the duty of notification imposed by the section has not been carried out.
His Honour distinguished the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56 which concerned a written notice pursuant to s.501G of the Act. One issue before the High Court in Palme was whether the written notice was deficient in that it failed to set out the reasons for the decision. The High Court held that the written notice was deficient in that respect but then dealt with the question of whether a consequence of that deficiency was that the decision was capable of being quashed on the ground of jurisdictional error despite s.501G(4) a provision similar to s.66(4) preserving the validity of the decision. By majority the High Court held that the decision was not tainted by jurisdictional error because of the defect in the written notice.
Gray J distinguished Palme on the basis that the High Court was not dealing with the issue of whether the written notice did not comply with s.501G because of the absence of reasons was nevertheless a discharge of the obligation to give a written notice under that section so as to commence the time limit running. His Honour noted the question was not discussed at all. His Honour thus concluded that the obligation to notify pursuant to s.66 is only discharged when all the requirements of s.66(2) have been met and only then can the time limit for an application for review begin to run. He thus concluded that a statement of an incorrect time was not a statement for the purpose of compliance with the provision and as a consequence the obligation to notify the applicant of the decision to refuse the grant of a substantive visa he sought, imposed by s.66, was never discharged. And in the absence of such notification time did not begin to run in respect of an application to the MRT to review the decision. The consequence of that was that the applicant's bridging visa did not expire by the effluxion of time and he had not become an unlawful non-citizen.
The applicant relies upon Chan Ta Srey and VEAN and contends that as the letter to the applicant was addressed to him care of his authorised recipient as had been the case in VEAN, the statutory requirements, of the scheme which required strict compliance, had not been met, that constituted an inviolable limitation which had not been complied with and constituted jurisdictional error.
The respondent contends that this case can be distinguished from VEAN and Chan Ta Srey because the breach of the statutory provision did not result in jurisdictional error. I agree with that submission. In Chan Ta Srey and VEAN the effect of the written notice not complying with the Act was that the obligation to notify the applicant of a right in respect of which a time limit applies, was never discharged and the Tribunal having no discretion to extend the time, wrongfully refused to exercise its jurisdiction creating a jurisdictional error.
In the present case, the breach of s.379G(1)(b) is an error of law but no consequences flowed from it despite the error of law. The applicant did receive the relevant notices, did provide information he was invited to provide, and the Tribunal did conduct a hearing at which the applicant was present. Hence no jurisdictional error occurred. The distinction in my view is clear from the cases cited.
The issue is not the procedural obligation imposed upon the Tribunal in performing its review function under the Act but whether the Tribunal had power to entertain the application for review lodged out of time. [paragraph 33, VEAN]
In this matter of course the sending of the letter of 3 January 2002 in the manner described was not invalid. This issue is whether it was done in the manner prescribed by s 494B(1) and (4) and 494D(1) so at to have the effect prescribed by s 494C(4) and 494D(2). That is the issue is whether it should result in the notification being taken to have been given to the appellant and the appellant being taken to have received it, seven working days after the date of the letter. [paragraph 45, VEAN].
In our judgment, the Tribunal therefore erred in law in determining that the application for review was outside the time specified in s 412(1)(b) and in dismissing the application. Such an error, reflecting an incorrect conclusion that the letter of

3 January answered or satisfied the statutory description in

ss 494B and 494D is an error of law … its decision involved jurisdictional error because by error of law, it wrongfully refused to exercise its jurisdiction. [paragraph 47, VEAN].
In this case there was an error of law but the Tribunal did not wrongfully refuse to exercise its jurisdiction and no jurisdictional error occurred.
In Chan Ta Srey, Gray J indicates in my view that an error of law by failure to comply with the statutory requirement will not necessarily be a jurisdictional error.
There is, therefore, a strong case for saying that if one of the requirements of s 66(2) has not been complied with, the duty of obligation imposed by the section has not been carried out. [Paragraph 46, Chan Ta Srey].
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 327, a case cited in VEAN also concerns a failure to comply with the notice requirements of the statute resulting in the Tribunal failing to exercise its jurisdiction.
The difference between the result in this case and VEAN and Chan Ta Srey is not simply as the trial Judge in VEAN described it:
Considerations of substance rather than form should prevail.
It is a question of whether there has been only an error of law or whether there had been a jurisdictional error. The point was touched upon in NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 102 where the Court had to consider a failure to comply with s.424A(2). That section provided that an invitation to the applicant to provide information sought by the Tribunal under s.424A(1) was to be given in accordance with subsection (2). The Court observed:
It is sufficient for us to say that here, in particular in light of the presence of s 474 in the Act (but even in the absence of s 474) the failure to observe the procedural requirements of s 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness did not amount to a failure to exercise jurisdiction or an exceeding of jurisdiction. [paragraph 25]
And:
In conclusion, to meet the point raised by the Court about the apparent failure to comply with subsection 424A(2) of the Act it is sufficient to say that such failure was not jurisdictional, with or without any reconciliation process involving s 474. [paragraph 27]
The point made at paragraph 23 by the Court is apposite to this case. The –
Mandatory language (the word "must" is used in subsection 424A(2)) is relevant to but not decisive of this inquiry. In our view it cannot be concluded that invalidity of the Tribunal's decision is a necessary consequence of any failure to comply with subsection 424A(2), irrespective of the absence of any unfairness, whether of a substantive or a procedural kind. Thus we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional. This is so, it seems to us, even without considering the applicant of s 474 of the Act (quite different considerations might attend the analysis had there been a breach of s 424A(1)).
Similar considerations apply in this case. The breach here concerns s.379G(1) which was the manner in which the notice should be given, a similar provision to the provision in s.424A(2). As in NAHV in this case, despite the apparently mandatory language of s.379G(1) the Tribunal undertook its task of review and did so fairly. An act done in breach of a condition regulating the exercise of a statutory power does not necessarily lead to the conclusion of the invalidity of the exercise of the power. Whether it does or not depends on ascertaining from the statute whether such an intention exists, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [388 – 89].
Finally, dealing with this ground, relief under s.39B is discretionary. In this case there has been no practical injustice to the applicant at all. He received notification despite the fact the letter was addressed to him care of his authorised agent. He responded to the Tribunal's request to provide information. The Tribunal held a hearing, he attended and put his case (see Lam v Minister for Immigration and Multicultural and Indigenous Affairs 1995 ALR 502, per Gleeson CJ paragraph [37 to 39]).
Therefore I find that as the respondent contends, if either finding of the Tribunal is valid, namely either that there was never a spousal relationship between the applicant and the nominator within Regulation 1.15A or that in the alternative the requirements of Division 1.5 of the Regulations had not been met, then the Tribunal's decision was not vitiated by jurisdictional error and must stand.
As the applicant has failed to satisfy me that both findings are invalid as he must do, the application must be dismissed.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 26 May 2004