Sok v Minister for Immigration - [2007] FMCA 1525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SOK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1525

MIGRATION – Migration Review Tribunal – partner visa – validity of reg.1.23 – whether Tribunal must invite applicant to hearing before opinion obtained from independent expert – whether Centrelink employee capable of being an independent expert – apprehended bias – relevant considerations.

Migration Act 1958, ss.360, 368, 467, 505
Migration Regulations 1994, reg.1.21, 1.23, Sch 2 cl.100.221

Applicant:

SIE SOK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1603 of 2006

Judgment of:

Riley FM

Hearing date:

18 June 2007

Date of last submission:

18 June 2007

Delivered at:

Melbourne

Delivered on:

7 September 2007

REPRESENTATION

Counsel for the Applicant:

Anthony Krohn

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the First Respondent:

Warren S. Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

DECLARATION

The decision of the second respondent made in matter V05/02007 is unlawful, void and of no force and effect.

ORDERS

There be an order in the nature of certiorari bringing in to court quashing the decision of the second respondent in matter V05/02007 handed down on 20 November 2006.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 22 March 2005.
The first respondent pay the applicant’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1603 of 2006

SIE SOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant is a 29 year old male citizen of Cambodia. On 18 August 2002, the applicant married Ms Morm,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Sok v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FMCA 1525
Decision Date: 7 September 2007

CaseChat Overview and Summary

In the case of Sok v Minister for Immigration, the applicant, Mr Sok, challenged the decision of the Migration Review Tribunal (the Tribunal) which dismissed his application for review of a decision made by a delegate of the Department of Immigration and Border Protection (the first respondent). The Tribunal had determined that Mr Sok did not suffer relevant domestic violence, a necessary condition for a protection visa under Australian law. Ground 4 of Mr Sok's appeal centred on the Tribunal's failure to consider a policy guideline contained in the Procedures Advice Manual 3, which outlined the approach to male claimants of domestic violence. The applicant contended that the Tribunal's failure to address the guideline, combined with its referral to an independent expert, indicated a failure to accord procedural fairness or natural justice, raising a reasonable apprehension of bias.

The court was required to decide whether the Tribunal's decision was affected by jurisdictional error due to a failure to consider relevant policy guidelines and to accord procedural fairness. The primary issue was whether the Tribunal's reliance on the policy guideline, without explicitly rejecting it, and its failure to provide reasons for referring the matter to an independent expert, constituted a breach of procedural fairness or natural justice. Additionally, the court needed to determine whether the Tribunal's decision to refer the matter to an independent expert without conducting a hearing contravened the statutory requirements for a hearing.

The Federal Court held that the Tribunal was not bound by the policy guideline in question and had not acted in breach of procedural fairness or natural justice. The court emphasised that the Tribunal was not making a judgment on the applicant's claim but was seeking an expert opinion on whether the applicant had suffered relevant domestic violence. The court further held that the Tribunal's referral to an independent expert and the lack of reasons did not indicate a failure to have an open mind or an apprehension of bias. The court also found that the Tribunal was not obligated to conduct a hearing before referring the matter to an expert, as the statutory requirements for a hearing were not strictly applicable in this context.

The court ordered that the decision of the Tribunal be quashed, and the matter be remitted to the Tribunal for rehearing and determination according to law. The Minister for Immigration was also ordered to pay the applicant's costs in the sum of $5,000.

Orders

Orders of the court

There be an order in the nature of certiorari bringing in to court quashing the decision of the second respondent in matter V05/02007 handed down on 20 November 2006.

There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.

There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 22 March 2005.

The first respondent pay the applicant’s costs fixed in the sum of $5,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ground 4 is as follows: Further or in the alternative the decision was affected by jurisdictional error in that the Tribunal failed to accord procedural fairness or natural justice to the applicant by reason of circumstances giving rise to a reasonable apprehension of bias.PARTICULARS(a) The Tribunal was obliged where it considered it appropriate to have regard to policy of the first respondent, including matters set out as policy for decision makers in the Procedures Advice Manual (PAM3) of the first respondent’s Department in section 32.8 of PAM3:32.8 Male claimantsUnder policy, it is reasonable to refer to an independent expert non-judicially determined claims of domestic violence made by men unless strong evidence exists that the claim is genuine.This is because, although it is certainly possible for men to be victims of domestic violence, historically, claims of domestic violence made by men under these provisions are disproportionate to the incidence of domestic violence against men in the general community. (Emphasis added.)From this policy and from the Tribunal’s lack of reasons for its decision to refer the applicant’s matter to independent experts there arises a reasonable apprehension that the Tribunal did not have an open mind in considering a claim of domestic violence to have been suffered by the applicant, a man.(b) The Tribunal gave no reasons for its decision to refer the applicant’s matter to independent experts, despite its obligation under section 368 of the Migration Act 1958 to do so if it had reasons.(c) The Tribunal did not conduct a hearing of the matter before determining pursuant to Regulation 1.23(1B)(a) of the Migration Regulations 1994 whether it was satisfied that the applicant had suffered relevant domestic violence and whether to seek the opinion of an independent expert, and thus effectively frustrated the intention and purpose of the hearing pursuant to section 360 of the Migration Act 1958; The applicant submitted that the Tribunal was bound to have regard to the PAM3 guidelines. The Tribunal noted the applicant’s submission that the guidelines were biased against men but did not address it. As the guideline was not explicitly rejected, the applicant argued that there was a reasonable apprehension that the Tribunal followed it. Additionally, the applicant argued that the absence of reasons for the Tribunal’s referral of the matter to an independent expert compounded that apprehension, as did the failure to give a hearing before referring the matter to an independent expert. The first respondent argued that the Tribunal is not bound by policy. The first respondent noted that the Tribunal only referred to PAM3 in the context of recording the applicant’s submissions about it. The first respondent then argued that:[53] Secondly, PAM3, as stated, in any event only reflects the concerns articulated as to the historically disproportionate number of male claimants of domestic violence compared with the incidence of such violence in the general community. In that light PAM3 is not indicative of any bias against male applicants, but only reflects the stated statistical concerns.[54] Thirdly, the Tribunal did no more than seek the opinion of an independent expert about whether the applicant had suffered relevant domestic violence. It did not determine that issue itself, but was bound to take the opinion provided to it as correct. It can hardly be maintained that the Tribunal’s reasons indicate an apprehension of bias, when it was not the Tribunal that determined that the applicant had not suffered relevant domestic violence, but the independent expert, and the Tribunal was required to take that opinion as correct. As PAM3 states (Supp CB 26):In deciding whether to refer a case to an independent expert, officers are not making any judgment that a person is not a victim of domestic violence or that another person is not a perpetrator of domestic violence. They are deciding whether, after taking into consideration all relevant information, they are satisfied (or not) that the alleged victim has suffered relevant domestic violence committed by the alleged perpetrator.’ (emphasis added by first respondent)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.