Singh v Minister for Immigration

[2014] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2670

Catchwords:
MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant applicant a Partner (Residence) (Class BS) visa – Claim of non-judicially determined family violence against applicant – Whether Tribunal applied Regulation 1.23 of Migration Regulations 1994 (Cth) incorrectly – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.338(2)(d), 359A, 476(4)

Migration Amendment Regulations 2009 (No.12) (Cth), cl.6(2) of Sch.4
Migration Regulations 1994 (Cth), rr.1.21, 1.22 1.23, 1.23(10)(c)(i), 1.23(10)(c)(ii)

Liu v Minister for Immigration [2006] FMCA 1712

Applicant: RINPINBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 552 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 9 September 2014

Delivered at: Sydney

Delivered on: 26 November 2014

REPRESENTATION

The Applicant: The Applicant appeared in person.

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 7 March 2014 and amended on 16 July 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 552 of 2014

RINPINBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed on 7 March 2014  seeking judicial review under the Migration Act 1958 (Cth) (the “Migration Act”) of a decision of the Migration Review Tribunal (the “Tribunal”) dated 26 February 2014 made by Member M. Sripathy in case number 1300252. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Partner (Residence) (Class BS) visa (the “Visa”). The Tribunal affirmed the delegate’s decision because it had sought the opinion of an independent expert who determined that the applicant was not the victim of family violence as defined in the Migration Regulations 1994 (Cth) (the “Migration Regulations”) and it was bound by that opinion pursuant to reg.1.23(10)(c)(ii) of the Migration Regulations.

2. By orders of the Court made on 8 April 2014 the solicitors for the first respondent, the Minister for Immigration and Border Protection  (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing, by 22 April 2014. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.   

3. By orders of the Court made on 8 April 2014 the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review by 18 July 2014 and any additional affidavits upon which he wished to rely.  The applicant was also granted leave to file and serve an outline of written submissions fourteen days prior to the hearing.  The applicant filed an amended application (the “Amended Application”) on 16 July 2014 along with a supporting affidavit affirmed by himself on 17 July 2014 (the “Singh Affidavit”).  I note the Singh Affidavit appears to have been prepared after it was filed, however, as the applicant is a self-represented litigant I will take the Singh Affidavit to have been prepared on 16 July 2014 and filed on the same day.  In my view, there is no prejudice to the respondents and the Singh Affidavit should be read into evidence.  The applicant also filed an outline of submissions on 19 August 2014.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a 36 year old male from India who first arrived in Australia on 26 April 1998 as the holder of a Student visa (CB 3 at [16], CB 76).  On 4 August 2000, before his Student visa expired, the applicant lodged an application for a Protection visa which was unsuccessful and which was then subject of “unsuccessful appeals to the Federal Court and the [Minister] until 11 July 2003” (CB 76).  While the Protection visa application process was on foot, the applicant met his sponsor in 2001 in Sydney and they married on 4 June 2003 (CB 13, 45, 76). 

3. On 20 April 2004, the applicant made another request for Ministerial intervention based on the information that he had married an eligible New Zealand citizen (CB 76).  The Minister decided to intervene and on 4 May 2005 requested “further processing” as he was considering the grant of a Temporary Partner visa (Subclass 820) (CB 76).  On 24 January 2007, the applicant was granted the Temporary Partner visa (CB 76).

4. On 5 November 2009, the applicant lodged his application for the Visa (CB 1 – 23).  On 6 July 2011 the applicant, through his migration agent, notified the Department that he had separated from his wife and that he was the victim of family violence (CB 24 – 34).  On 21 October 2011, the applicant provided his statutory declaration and statements from two “competent persons” in support of his application (CB 39 – 72). 

5. On 25 May 2012, the delegate of the Minister decided to seek the opinion of an independent expert, being Ms Carendang who is a social worker at Centrelink, under clause 1.23(10)(c)(i) of the Regulations (CB 74 -84).  On 10 July 2012, Ms Carendang formed the view that there was insufficient evidence to substantiate the applicant’s claims that he was the victim of family violence with the meaning of clause 1.21(1) of the Regulations (CB 87 - 106 at 105).  On 24 July 2012, the delegate wrote to the applicant and advised him of Ms Carendang’s conclusions and invited him to comment (CB 110 -113).

6. On 22 August 2012, the applicant provided further information and reports to the delegate (CB 115 – 148).  On 6 December 2012, Ms Carendang provided a further short opinion to the effect that those documents did not alter her original conclusions (CB 181 – 183).

7. On 18 December 2012, pursuant to clause 1.23(10)(c)(ii) of the Migration Regulations, the delegate refused the application (CB 185 – 199).

Tribunal Proceedings

1. On 7 January 2013, the applicant applied to the Tribunal for review of the delegate’s decision (CB 202 – 212).  On 27 September 2013, the Tribunal invited the applicant to attend a hearing on 4 December 2013 (CB 221-224).  On 21 November 2013, the applicant submitted a further report to the Tribunal (CB 225 – 226).  The applicant, his migration agent and one witness attended the hearing before the Tribunal on 4 December 2013 (CB 227, 280 at [7]). 

2. On 5 December 2013, the applicant provided further documents to the Tribunal (CB 228-240). On 6 December 2013, the Tribunal referred the applicant’s claims for assessment by an independent expert at LSC Psychology (CB 242-254). On 3 February 2014, Dr Collins from LSC Psychology provided her report and concluded that the applicant did not meet the criteria for family violence as defined under the Migration Regulations (CB 262-272 at 270). On 6 February 2013, pursuant to s.359A of the Migration Act, the Tribunal wrote to the applicant and provided a copy of Dr Collins’ report and invited him to comment (CB 273-275).  On 24 February 2013, the applicant’s migration agent responded stating that he had no “new evidences” (CB 276).  On 26 February 2014, the Tribunal affirmed the decision of the delegate (CB 279 – 286 at 283 at [28]).

Current Proceedings

1. On 7 March 2014, the applicant filed an application seeking judicial review of the Tribunal’s in this Court.  On 16 July 2014, the applicant filed the Amended Application which seeks the following orders:

   1.  An order that the decision of the Tribunal and Minister be quashed.

   2.  A writ of mandamus directed to the Tribunal and Minister, requiring them to determine the applicant’s application according to law.

2. The Amended Application contains a discursive discussion of the applicant’s circumstances.  The main allegation appears to be that the applicant’s claim was assessed under the wrong regulations as his application for the Partner visa ought to have been considered as having been made in April 2004 (see paragraphs 1 and 14 – 16, 24).  This is also the only ground pressed in the applicant’s written submissions filed on 19 August 2014.  The grounds in the Amended Application appear to be in the form of submissions and are set out as follows:

   1. I lodged my application (Ministerial appeal) on 8 April 2004.  On the basis of the Ministerial Intervention I was granted SC820 visa on 29.1.2007.

   2. I was granted this visa because of my married relationship with an eligible New Zealand citizen who was settled in Australia.

   3. Although I was not asked to fill the prescribed forms (form 47sp and form 40sp) for the two step visa process of provisional visa (SC820) and the permanent spouse visa (SC801) of Class BS, but I met all the criteria of Spouse visa SC820/SC801 of class BS on the basis of which I was granted the provisional visa.

   4. As per the statement of delegate of Minister Ms Janine Moore in the family violence referral from DIAC to Centrelink (folio 77 of Green Book), she has stated, “Under the Migration legislation as the holder of a sc820 visa governing the grant of visas by Ministerial Intervention, the PA can remain in Australia on his temporary Spouse Visa indefinitely”.

   5.  The delegate of Minister did not convey this fact to me previous at any times.

   6. At the behest of letter of case officer Yuk Kong of Ministerial Intervention Unit written to my representative Mr. Mark Cruice on 5 February 2007, I forwarded my claims for the grant of Permanent Visa (SC801) on 5.11.2009.  Letter of Yuk Kong is attached as Annexure 4 (of the Singh Affidavit).

   7.  I lodged my claims for this visa because I met all the criteria for the grant of this visa.

   8.   For about 1½ years there was no action on my application from the Department of Immigration.

   9. In early July 2011 my relationship broke down with my partner Mrs. Sharon Ranapia and I informed the Department on 6 July 2011 by a registered letter.  Copy of this letter is attached as Annexure 1 (of the Singh Affidavit).  

   10.On 20.7.2011 I received a letter from Sioban O’hea of Partner (Permanent Processing Centre Melbourne asking me to submit further evidences of domestic violence claims to meet the requirements of Migration Regulations in relation to family violence. The officer summarized the list of requirements. The copy of this letter is exhibited under Folion36 of the Green Book.

   11.Following the instructions of the officer, I submitted the evidence of domestic violence as per Division 1.5 – Special provisions relating to Domestic Violence, to meet the subclause 801.221 (6)(c)(ii)(A) (sic) of 7.4.2004 regulations, which I suppose were applicable to me.

   12. To meet the r1.24 7 r1.25 of Division 1.15 I submitted the Statutory declaration on the prescribed Statutory Declaration form for ‘visa applications lodged before 15 October 2007’.

   13. The Delegate of the Minister and the Tribunal both accepted these evidences.

   14. I believe the delegate of the Minister has made a Jurisdictional error by applying regulations of Division 1.5 – Special Provision relating to family violence that were prevalent from 1.7.2012 to 14.8.2012.  Copy of which is exhibited under Folio 193 to 199 of the Green Book.

   15.  I also believe that the Tribunal made a jurisdictional error by applying regulations of Division 1.5.-Special Provisions relating to family violence that were prevalent from 9.11.2009 to 31.12.2009.  A copy of these regulations is exhibited under Folio 284 to 286.

   16.  I believe the delegate of the Minister and the Tribunal should have applied the regulations of Division 1.5 which were prevalent on 8.4.2004.  Copy of these regulations were attached in my previous application under Annexure 3.  My understanding is based on the fact that these two visas (SC820 & SC801) are applied together, by filling the same forms.  Since I was granted SC820 by Minister’s intervention I was not asked to fill the relevant forms and it was probably taken as a verbal application.  Therefore the regulations of 8.45.2004 should apply in my case.

   17.  In addition to the above when my SC801 Visa was refused I lost my SC820 visa also.  This is evidence that these two visas are connected to each other.

   18. As per the regulations of Division 1.5 of 8.4.2004 there is not provision that the delegate or the Tribunal should take the opinion of an Independent Expert (IE).

   19. The delegate of the Minister has also made jurisdictional error in understanding as to when the family violence claims should be taken into account.  She assumed that my relationship ceased at the end of 2006 and any claims of family violence after this time were not to be taken into account.  I would like to bring to your attention the statement of the delegate of Minister in Family violence Referral from DIAC to Centrelink Folio 77 of Green Book.

   20. Sub clause 1.23(7) of Division 1.5 Special provisions relating to family violence was only introduced in the regulations prevalent from 9.11.2009 onwards.  I suppose these regulations are not relevant in my case.

   21. The delegate also made a Jurisdictional error for not considering the evidences of my relationship, which were submitted by me.  In Folio 77 of the Green Book under paragraph Other history the delegate has written, “DIAC requested the PA provide evidence of termination of his NSW employment, lease, etc: however, no evidence was provided.”

   22.  This is not a correct statement.  The request was made to me by Mr. Zoran Vizec case officer for my application by registered letter of dated 14 June 2011.  Copy of his letter is attached under Annexure 02. (of the Singh Affidavit)

   23.  In reply to this letter I sent all the requested evidences. The copies of these letters are exhibited in Folio 314 to 326 of the file provided to me by MRT.  I attach the copies of these folios under Annexure 03.

   24.  Although under the correct regulations, I believe that there was no need by the delegate of the Minister or by the Tribunal to refer my domestic violence claims to Independent Experts to seek their opinion.  Yet the Independent Experts who assessed my domestic violence claims, also made jurisdictional error by applying incorrect regulations.

3. The applicant’s outline of submissions traverses the grounds of the Amended Application.  On a fair reading thereof, and for the reasons outlined below, paragraph [5] of the written submissions is the central paragraph relating to the claim before this Court.

Minister’s Submissions

1. The Minister submits that the applicant’s allegation contained at [5] of his written submissions is plainly misconceived. The relevant regs.1.21 and 1.23 of the Migration Regulations relating to family violence were introduced by Schedule 4 to the Migration Amendment Regulations 2009 (No.12) (Cth) (the “Amending Regulations”).  Clause 6(2) of the Amending Regulations provided that the Schedule 4 amendments were to take effect as follows:

   (2)   The amendments made by Schedule 4 apply in relation to an application for a visa made by a person:

   (a)         if:

   (i)    the person (the applicant) made the application for a visa before 9 November 2009; and

   (ii) the application was not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 9 November 2009; and

   (iii)        either:

   (A) the applicant claims to Immigration, on or after 9 November 2009 but before the application is finally determined, that family violence (within the meaning of regulation 1.23 of the Migration Regulations 1994 as in force on or after 9 November 2009) has been committed; or

   (B) the applicant claims to the Migration Review Tribunal, on or after 1 July 2011 but before the application is finally determined, that family violence (within the meaning of regulation 1.23 of the Migration Regulations 1994 as in force on or after 9 November 2009) has been committed; or

   (b)     if the person made the application for a visa on or after 9 November 2009.”

2. In this case there is no doubt that the applicant’s claims about family violence were first made by letter from the applicant’s migration agent dated 6 July 2011 (CB 24). There is also no doubt that the date of the application for the visa – being a permanent visa - is 4 November 2009 (CB 1). Nonetheless, even if the date of the application for the visa was taken to be 20 April 2004 it would not make any difference. The application would still fall within clause 6(2) of the Amending Regulations and clauses 1.21 and 1.23 of the Migration Regulations apply.

Consideration

1. I first turn to address a number of claims raised in the Amended Application that allege errors on the part of the delegate. The decision of the delegate the applicant seeks to challenge is a primary decision as defined in s.476(4) of the Migration Act as it is a privative clause decision which was reviewable under Part 5 of the Migration Act and was, ultimately, reviewed in any case (see Liu v Minister for Immigration [2006] FMCA 1712 per Lucev FM (as he then was) at [16]-[22]).

2. In Liu (supra) his Honour stated at [23]:

   23.    As the Delegate’s Decision is a primary decision, it follows that this Court has no jurisdiction to hear this matter pursuant to s.476(2)(a) of the Migration Act: see SZEUB v Minister for Immigration & Anor [2006] FMCA 1589 at [3] and [8]-[9] per Emmett FM, and note the helpful discussion of this issue in C. Yuen, “Judicial Review of Migration Decisions in the Federal Magistrates Court”. Law Society Journal (April 2006), p 66 at 68.

   Accordingly, this Court has no jurisdiction in relation to the decision of the delegate in respect of the Visa application and any such complaints raised in respect of the delegate’s decision by the Amended Application cannot be sustained.

3. Notwithstanding the above, the applicant has raised two alleged errors on the part of the Tribunal in its decision, which is a decision reviewable by this Court pursuant to s.338(2)(d) of the Migration Act. The two alleged errors can be described as:

   a)The Tribunal misapplying the regulations of Div.1.5 of the Migration Regulations as it applied the version that was prevalent at 5 November 2009 when it should have applied the version in force as at April 2009 (“Ground 1”); and

   b)The Tribunal making an error by referring the applicant’s domestic violence claims to independent experts to seek their opinion which was unnecessary and, in any case, the independent experts applied the incorrect regulations, though this has not been particularised any further (“Ground 2”).

Ground 1

1. I have had regard to both the applicant’s and Minister’s written submissions in relation to this ground (see [14] and [16]-[17] above, respectively).

2. On a fair reading, it is clear the applicant’s allegation is misconceived.  Irrespective of whether the Visa application was taken to have been made in April 2004 or on 5 November 2009, by the time the Visa application was heard by the Tribunal (and, for the sake of completeness, the delegate) The Amending Regulations had come into force.

3. The Amending Regulations, which came into force on 9 November 2009 make clear that the amendments made by Schedule 4 apply to any visa application made before 9 November 2009 that had not yet been finally determined. Relevantly, the Visa application, regardless of the date it was taken to have been filed, and noting that the first claim made by the applicant in respect of family violence was made by letter dated 6 July 2011 (see CB 24), came under the provisions of the Migration Regulations as amended by the Amending Regulations (cl.6.2) and clauses 1.21 and 1.23 (as amended by the Amending Regulations) of the Migration Regulations applied.

1. Consequently, this ground cannot be sustained and must fail.

Ground 2

1. Ground 2 of the Amended Application claims that the Tribunal committed error by referring the applicant’s family violence claims (see reg.1.21 of the Migration Regulations) to an independent expert.

2. The type of family violence claimed by the applicant to have occurred to him was a non-judicially determined claim of family violence as no order was made or conviction recorded by a court in respect of the applicant in the manner prescribed by sub-regulations 1.23(4) or 1.23(6) of the Migration Regulations.

3. Accordingly, the relevant sub-regulations of the Migration Regulations were 1.23(8), 1.23(9), 1.23(10), 1.23(11), 1.23(12), 1.23(13) and 1.23(14). Sub-regulation 1.23(10) states:

   (10) If an application for a visa includes a non-judicially determined claim of family violence:

   (a)     the Minister must consider whether the alleged victim has suffered relevant family violence; and

   (b)     if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

   (c)     if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

   (i)      the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

   (ii)    the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned on the criterion, to have suffered family violence.

   (Emphasis added)

4. In relation to the Visa application, the Tribunal was not satisfied at the hearing that the applicant had suffered the relevant family violence and referred the claim to an independent expert (see Decision Record at [9] (CB 281) and [25] (CB 283)). The independent expert then wrote to the Tribunal stating her opinion that she did not believe the applicant had suffered relevant family violence on 3 February 2014 (see Decision Record at [10] (CB 281) and CB 262-272). The Tribunal then wrote to the applicant on 6 February 2014 as required by s.359A of the Migration Act inviting his comments on the adverse opinion of the independent expert (see Decision Record at [11] (CB 281) and CB 274-275). The applicant responded through his then agent on 24 February 2014 stating he had nothing further to submit (CB 276).

5. At [27]-[28] of its Decision Record, the Tribunal stated:

   27.    The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of a Gazetted organisation for this purpose, and was properly made.

   28.    Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.  Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

6. Sub-regulation 1.23(10) of the Migration Regulations makes it clear that if the Minister (or Tribunal, as in this case) is not satisfied the alleged victim has suffered the relevant family violence, it must seek the opinion of an independent expert and take that opinion to be correct for the purposes of deciding whether the applicant satisfies a prescribed criterion for a visa that requires the applicant to have suffered relevant family violence. It is clear the Tribunal complied with its various statutory obligations in this respect in relation the applicant’s Visa application and there has been no error in the sense alleged by the applicant.

7. Consequently, this ground must also fail.

Conclusion

1. None of the pleaded grounds in the Amended Application or any of the applicant’s submissions are able be sustained for the reasons stated above.  On a fair reading of the Court Book and Decision Record, no jurisdictional error on the part of the Tribunal is apparent.

2. The Amended Application should be dismissed with costs awarded to the Minister.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  26 November 2014