Silva v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SILVA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1955

MIGRATION – Visa – domestic violence – independent expert.

Migration Regulations 1994 regs.1.21, 1.23(1)(g), 1.23(2)(b)

Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56
Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115

Applicant: JOSEPH RASHMI SILVA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 282 of 2007

Judgment of: Riethmuller FM

Hearing date: 8 August 2007

Date of last submission: 8 August 2007

Delivered at: Melbourne

Delivered on: 23 November 2007

REPRESENTATION

Counsel for the Applicant: Mr Sabelberg

Solicitors for the Applicant: Frank Sabelberg Lawyers

Counsel for the First Respondent: Mr Palmer

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That a writ of Certiorari issue quashing the decision of the second respondent made on 31 January 2007.

2. That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.

3. The Respondent shall pay the costs of the Applicant fixed at $5,000 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 282 of 2007

JOSEPH RASHMI SILVA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal of 31 January 2007. The applicant had sought a spouse visa in reliance upon the domestic violence provisions of the visa category.

2. The applicant's application was refused by the delegate on 10 February 2005. It was first reviewed by the Migration Review Tribunal on 4 January 2006. However, this decision was set aside and the matter remitted by consent on 3 February 2006, as a result of the previous tribunal failing to consider whether or not the expert who provided an opinion was in fact an independent expert within the meaning of reg.1.21 of the Migration Regulations 1994.

3. The tribunal heard and determined the matter again, providing a decision on 31 January 2007, affirming the decision of the delegate.

4. The statutory scheme for applications of this type provides for the tribunal to make an initial assessment as to whether or not they accept the claims of domestic violence, and - if they do not - to obtain the advice of an independent expert within the meaning of reg.1.21, which is what occurred in this case. The opinion of the independent expert must accepted by the tribunal member (see reg.1.23(1)(g)). The opinion of the expert in this case is in the following terms:

   The alleged victim has not suffered relevant domestic violence (as defined in regulation 1.23(2)(b) of the Migration…