Sumanraj v Minister for Immigration
[2020] FCCA 2256
•15 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUMANRAJ v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2256 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Provisional) (Class UF) (Subclass 309) visa – whether the Tribunal erred in finding the psychologist ‘report’ did not meet the requirement of r 1.24 of the Migration Regulations 1994 (Cth) – whether the application for review failed – whether the Tribunal failed to comply with the provisions of s 424 of the Migration Act 1958 (Cth) – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.353, 357, 359, 424, Div.5 of Pt.5 Migration Regulations 1994 (Cth), sch 1, cls.100.221, rr.1.23, 1.24, 1.25. |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 501 Cakmak v Minister for Immigration and Multicultural Affairs (2003) 135 FCR 183 Mardini v Minister for Immigration, Migration and Indigenous Affairs [2006] FCA 488 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Mohamed v Minister for Immigration and Citizenship (2007) 161 FCR 408 Serfonteyn v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 333 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 |
| Applicant: | JEYARAJAH SUMANRAJ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2373 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 14 August 2020 |
| Date of Last Submission: | 14 August 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 15 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foster |
| Solicitors for the Applicant: | Sentil Solicitors |
| Counsel for the Respondents: | Ms Hooper |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs, fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2373 of 2019
| JEYARAJAH SUMANRAJ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 10 August 2016, the applicant lodged an application for Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) (Subclass 100) visas.
On 27 September 2016, the applicant was granted a Partner (Provisional) (Class UF) (Subclass 309) visa.
On 28 June 2017, the Department of Immigration and Border Protection (“the Department”) wrote to the applicant and invited him to comment on information indicating that the spousal relationship upon which his visa application was based, had ceased. The applicant provided a response by email on 19 July 2017.
On 12 March 2018, a delegate of the Minister for Immigration (“the delegate”), refused the applicant’s Partner (Migrant), (Class BC) visa application. The delegate found that the applicant did not satisfy the criteria for the grant of a visa, because he was not in a spousal relationship with his sponsor. The delegate found that exceptions to the requirement to be in a relationship, did not exist. These include that the applicant or a member of the family unit had suffered family violence committed by the sponsor (see cl 100.221(4)(b) and cl 100.221(4)(c)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”)).
The applicant sought review of the delegate’s decision on 24 March 2018, in the Administrative Appeals Tribunal (“the Tribunal”). The applicant was represented at the Tribunal by his solicitor, who is also a registered Migration Agent. The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, Ms Balaeswaran.
In a decision dated 14 August 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa. The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal’s Decision
Given the limited nature of the grounds of appeal, it is not necessary to summarise the Tribunal’s decision in full. The Tribunal accepted that the applicant and his sponsor were in a spousal relationship, prior to its cessation on 12 May 2017. The Tribunal identified the issue dispositive of the review was whether or not the applicant had made a valid, non-judicially determined, family violence claim.
The applicant provided a Statutory Declaration as to the nature of the family violence that he alleged was committed upon him. The Tribunal accepted that the applicant’s Statutory Declaration satisfied the requirements of r 1.25 of the Regulations.
At paragraph 35 of its decision, the Tribunal set out that in order for the claim to succeed, in addition to the applicant’s Statutory Declaration, he was required to provide two types of evidence by competent persons, as set out in Schedule 1 to the Regulations. The relevant instrument IMMI 12/116, specified that a minimum of two different types of the following information be given:
· a medical report, hospital reports, discharge summary or statutory declaration made by registered medical practitioner or nurse, acting in that capacity;
· a report, record of assault, witness statement or statutory declaration made by a police officer;
· a witness statement made by someone other than the alleged victim or a police officer during the course of a police investigation;
· a report or a statutory declaration by a child welfare authority officer or child protection authority officer;
· a letter or assessment report (on letterhead) from a women’s refuge or family violence crisis centre;
· a statutory declaration made by a member, or a person eligible to be a member of the Australian Association of Social Workers, who has provided counselling in that role to the alleged victim;
· a statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website;
· a statutory declaration or letter (on letterhead) made by a school counsellor or principal acting in that capacity.
At paragraphs 37-38 of its decision, the Tribunal had regard to a report from Dr Jeyachandran of the Parkview Medical Centre, dated 13 December 2018. While the Tribunal had some reservations in relation to this evidence, it was satisfied that the evidence was valid. The Tribunal’s reservations related to the applicant seeking the report in June 2018, well after the Department made its decision on 12 March 2018, given that the applicant did not reveal to the Department the extent of his difficulties with the sponsor and given the relationship actually ceased in May 2017.
At paragraph 39 of its decision, the Tribunal considered the second type of evidence submitted by the applicant. This was a report from a registered psychologist, Anne Craven, dated 26 November 2018 (“the Craven Report”). That report indicated that she had seen the applicant between 2 July 2018 and 22 October 2018, for ten sessions regarding issues relating to adjustment disorder, which included shock, traumatic grief, ‘heartbroken’, sleep disturbance, overthinking, shame, social withdrawal and domestic violence concerns. Ms Craven concluded her report with the following:
Based on the information provided to me during the ten psychology consultations, coupled with Mr Jeyararajah’s clearly distressed the (sic) emotional state, it is my clinical judgement that this is a man that has been through considerable emotional, psychological and physical/sexual abuse, both in the course of, and in the sudden conclusion of this marriage.
At paragraphs 40-45, the Tribunal notes that Schedule 1 of the Regulations stipulates that a competent person, by way of a registered psychologist, is to provide evidence of the form of a Statutory Declaration. It also needs to set out that in their opinion, the alleged victim was subject to family violence, detail the reasons for their opinion and identify the alleged perpetrator.
The Tribunal noted that the report provided by Ms Craven was not in the form of a Statutory Declaration as required. The Tribunal noted that the applicant had a good deal of time since the Department’s decision in March 2018, to make out his case according to the requirements of the Regulations. This was particularly so, as the applicant was being represented by Migration Agent. As Ms Craven’s report did not meet the requirements of r 1.24 of the Regulations, the application for review failed.
Although not required to, the Tribunal went on to express other concerns with the report. The Tribunal noted that Ms Craven had not undertaken any psychometric testing of the applicant, in order to reach her conclusions and appeared instead to rely upon the applicant’s account. Whilst this did not render the report invalid, it did raise questions about the methodology of arriving at her reasons for the opinion. The report also did not strictly identify the alleged perpetrator, referring to the applicants ‘wife’ only. As the evidence presented did not meet the requirements of r 1.24 of the Regulations, a non-judicially determined claim of family violence was not made out under r 1.23 of the Regulations.
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
Grounds of Judicial Review
In an amended application filed with the Court on 6 December 2019, the applicant relies on the following two grounds of judicial review, which are set out verbatim:
Ground One
The AAT erred in finding the report by Ms Craven, psychologist ‘report’, did not meet the requirement of r1.24 of the Regulation (Decision paragraph 41) and so the application for review failed, when the AAT did not comply with the provisions of S 424 of the Migration Act.
Particulars
1. Under S 424A, the Tribunal was required to:
a. give the applicant, in a way that the Tribunal considered appropriate in the circumstances, clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review;
b. ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
c. invite the applicant to comment on or respond to it.
2. The Tribunal affirmed the decision that was under review;
3. The report was information before the Tribunal;
4. The Tribunal relied upon the alleged failure of the report to comply with r 1.24 of the Regulation as the only ground to find the application failed, yet at no stage before during or after the hearing did the Tribunal raise or discuss with, inform, or question, or provide particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review to, the applicant in respect of the form of the said report, nor did the Tribunal ensure as far as was reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review, nor did the Tribunal invite the applicant to comment or respond to the form of the report, or comply in any way with S 424A because it did not:
a. give the applicant, in a way that the Tribunal considered appropriate in the
circumstances, clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review
b. ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
c. invite the applicant to comment on or respond to it.
5. Accordingly the Tribunal failed to comply with its obligations under the Act to review the decision according to law, made an unreasonable decision that no reasonable decision maker making a decision according to law would have made, and thereby committed jurisdictional error.
Ground Two
The AAT erred in finding the report by Ms Craven, psychologist “report”, did not meet the requirements of r1.24 of the Regulation (Decisions paragraph 41) [CB390] and so the application for review failed, when the AAT did not comply with provisions of s357A of the Migration Act.
Particulars
S.357 A reads:
"S. 357 A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just."
1. Under S 357 A, the Tribunal was required to act in a way that is fair and just.
2. The Tribunal affirmed the decision that was under review(paragraph 46)[CB390];
3. The report was before the Tribunal that contained relevant information;
4. The Tribunal relied upon the alleged failure of the report to comply with r 1.24 of the Regulation as the only ground to find the application failed, yet at no stage before or during the hearing did the Tribunal:
a. raise or discuss with, inform, or identify to, the Applicant that the form of the report did not comply with the relevant Regulation r. 1.24 in the manner it was presented to the Tribunal;
b. advise the Applicant that, should the report not be amended so as to comply with r. 1.24, or another report in compliance therewith be obtained, the Tribunal would affirm the delegate's decision regardless of the contents of the report and on no other ground;
c. give the applicant an opportunity to consider that point and to make any comment or response to the Tribunal, and/or to seek an adjournment in order to obtain and submit another report whose form complied with the r. 1.24.
5. Compliance with S 357A would have required the Tribunal to at least perform steps identified above 4 a-c.
6. Accordingly the Tribunal failed to comply with its obligations under the Act to review the decision according to law, made an unreasonable decision affirming the decision which no reasonable decision maker making a decision according to law would have made, and thereby committed jurisdictional error.
The Applicant’s Submissions
The applicant’s submissions are relatively brief.
In relation to ground one, Counsel for the applicant submitted that the Tribunal was aware that the report by the psychologist, Ms Craven, had been filed in the proceedings. At paragraph 34 of the transcript of the hearing, the following was stated which, inter alia, made reference to the report of Ms Craven:
“Well alright thank you so much for that. Okay Mr Sinnarajah, well I will go through the evidence very carefully and what’s being presented today and I will weigh all the evidence also, and I will make a fair decision, ok”.
Counsel for the applicant submitted that the Tribunal was required to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”). The sole reason for refusing the report of Ms Craven, was the form of the report and its apparent failure to comply with r 1.24 of the Regulations. The Tribunal should have, but did not:
a. put the applicant on fair notice in writing of this critical matter of concern to the Tribunal;
b. ensure that the visa applicant understood the significance of those matters in relation to the review;
c. give the applicant a reasonable opportunity to comment on or respond to those matters of concern: see SZMDC v Minister for Immigration and Citizenship (2009) 174 FCR 415;
Counsel for the applicant submitted that by refusing to consider the report of the psychologist, the Tribunal committed jurisdictional error.
In relation to ground two, Counsel for the applicant submitted that the Tribunal was required to act in a way that was fair and just. By failing to comply with s 424A of the Act, the Tribunal did not act in a manner that was fair and just.
Having been appraised to the contents the psychologist report and noting that the only reason the Tribunal considered it was inadmissible, was the form of the document and not substance of it, the Tribunal ought to have brought the reason to the attention of the applicant and adjourned the matter in order for the evidence to have been put in an admissible form. The failure amounts to a breach of s 353 of the Act, in that the Tribunal did not act according to the substantial justice and merits of the case. Accordingly, the Tribunal committed jurisdictional error
The First Respondent’s Submissions
Ground one alleges a breach of s 424A of the Act. This is been interpreted to mean correctly s 357A(3) of the Act, which is the fair and just provision. The claim is that the Tribunal erred in finding the report by Ms Craven, did not meet the requirements of r 1.24 of the Regulations so the application for review failed.
It was submitted on behalf of the first respondent that this ground must fail for the simple reason that it does not identify any ‘information’ enlivening the Tribunal’s obligations under s 359A(1) of the Act to provide information to the applicant and ask for comment. In so far as this ground relies upon the Craven report itself, the report was given by the applicant to the Tribunal and is therefore information to which
s 359A(4)(b) of the Act applies.
The Tribunal’s evaluation of whether the Craven report satisfied the requirements in r 1.24(b) of the Regulations and IMMI 12/16, is a reasoning process of the Tribunal and not s 359A of the Act information. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [24], the word ‘information’ was held not to encompass the Tribunal’s subjective appraisals, thought processes or determinations. In Mardini v Minister for Immigration, Migration and Indigenous Affairs [2006] FCA 488, Bennet J held at [38] that the proposition that a Statutory Declaration in support of the family violence claim is defective, is not ‘information’ for the purpose of s 359A of the Act.
The Tribunal did not have to give the applicant notice of its thought processes, whether under s 359A or s 360 of the Act. In so far as the applicant’s complaint, albeit not clearly pleaded in his grounds of review, in that the Tribunal did not comply with s 360 of the Act, the Tribunal was not under an obligation, pursuant to this section, to inform the applicant that the Craven Report did not satisfy the regulatory requirements.
In Serfonteyn v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 333 (“Serfonteyn.”), the Tribunal had written to the applicant asking for documentary evidence to substantiate a claim of what was then referred to by the Regulations, as ‘domestic’ violence. A police report and a statement were provided, but they did not meet the requirements of the Regulations as they were not in the form of Statutory Declarations. In Serfonteyn, Judge Phipps concluded at [22]:
To say that this letter misled the applicants is to say that the tribunal should have advised the applicants that the documentary evidence needed was statutory declarations complying with the requirements of division 1.5 of the regulations. This is going well beyond what could be required of the Tribunal under the rules of natural justice. This would be giving legal advice which must be well beyond what is required of the Tribunal. The need for statutory declarations meeting the requirements of the regulations is a matter of law. That the requirements of the regulations applicable to a particular visa must be complied with is not something that the tribunal is obliged to point out to an applicant.
The proposition that it is for the applicant to comply with the requirements of the Regulations was similarly found in Mohamed v Minister for Immigration and Citizenship (2007) 161 FCR 408 at [15], per Bennet J and Cakmak v Minister for Immigration and Multicultural Affairs (2003) 135 FCR 183 at [40] per Gray J.
The Craven Report clearly did not meet the requirements of the Regulations. The Tribunal did not err in finding that it was not obliged to put the applicant on notice of this obvious deficiency.
Paragraph 5 to this ground of judicial review, makes a separate allegation that the Tribunal failed to comply with its statutory obligations and make a legally reasonable decision. No particulars are provided. To the extent as suggested by the applicant’s submissions that the Tribunal was obliged to adjourn the review, to permit the applicant additional time to remedy the defect in this evidence, the Tribunal is under no such obligation. Legal unreasonableness is not demonstrated in any non-consideration by the Tribunal of its power to adjourn the review, particularly when no request to adjourn was made to it.
Ground two alleges that the Tribunal failed to comply with s 357A of the Act. Section 357A(1) of the Act identifies that the provisions of Division 5, of Part 5 of the Act, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
In so far as the applicant’s complaint
isthat there was a breach ofs 357A(3) of the Act, is an exhortative provision, which does not impose a freestanding obligation,. It concerns the manner in which the substantive provisions of Division 5 of Part 5 of the Act are applied by the Tribunal. This is also the case with respect to s 353 of the Act.
The Tribunal did not breach any provision of Division 5, of Part 5 of the Act and correctly found that the Craven Report was not a Statutory Declaration and thus did not satisfy r 1.24 of the Regulations.
The applicant’s complaint, as identified in ground two, is essentially the same as his complaint in ground one, being that the Tribunal did not give advance notice of its finding that the Craven Report did not satisfy
r 1.24 of the Regulations. As outlined above, the Tribunal was under no such obligation. The general assertion of a failure to comply with some unspecified provision of the Act and legal unreasonableness, is an assertion that has no apparent separate content from the balance of this ground of review and is therefore unsustainable.
Consideration
A fair reading of the grounds of review, reveals a considerable degree of overlap, repetition and some lack of clarity in the precise nature of the complaints being made. Essentially, the applicant’s complaint in both grounds, is that the Tribunal did not call to the attention of the applicant that Ms Craven’s Report was not in proper form so as to be a receivable form of evidence, for the purpose of proving domestic violence.
The applicant’s complaint is that the Tribunal should have done so, in order for him to rectify the situation and provide the Craven Report in proper form. By not doing so, the applicant alleges that the Tribunal failed to comply with s 357A(3) of the Act and/or acted in the matter that was legally unreasonable.
This complaint occurs in circumstances where the applicant was represented by registered Migration Agent, who is also a legal practitioner. There is a reasonable expectation by the Tribunal that it will not need to point out obvious deficiencies in evidence, in order to allow an applicant to rectify the situation. Further, there is no general obligation on the Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). The onus of proof, is that of the applicant, to advance whatever evidence or argument they wish to advance in support of their contention. The Tribunal must then decide whether the claim is made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 501 at [187]).
The Court is not satisfied that there was a requirement under s 359A of the Act
.to appraise the applicant of its reasoning process. The Craven Report was ‘information’ that was provided by the applicant, for the purposes of the application for review and is therefore covered by the exception in s 359A(4)(b) of the Act. That the information was procedurally defective in its form and was rejected, has been the subject of previous judicial consideration which is set out above, in the first respondent’s submissions. The Court adopts this reasoning and in particular, that of Cripps J in Serfonteyn.On the same basis, the Court is not satisfied, that it was legally unreasonable for the Tribunal to simply consider the information that was provided to it by the applicant and for the reasons it gave, conclude that the applicant had not met the requirements to show that he was eligible for the family violence exemption. That was a matter for the applicant to raise and strictly prove in accordance with relevant statutory requirements.
The fact that the applicant may have been poorly advised and represented by his Migration Agent as to the information that was necessary and the form that it was required to be provided in, in order to satisfy the legislative requirements, is an unfortunate matter. That is a matter between the applicant and his Migration Agent. The failure of the Migration Agent to fully appreciate the statutory requirements is not a matter that this Court can use, to set aside the decision of the Tribunal, otherwise lawfully made. No jurisdictional error is made out in ground one.
Ground two to a large extent, is essentially the same as the complaint in ground one. To the extent that the ground suggests that the Tribunal must act in a way that is fair and just, pursuant to s 357A(3) of the Act. The Court also agrees with the first respondent that it is not a provision that confers a separate obligation on the Tribunal, but is simply directive as to the manner in which the substantive provisions of Division 5 of Part 5 of the Act are to be applied. This provision does not override other provisions within the Act. That conclusion also applies with respect to
s 353 of the Act. Ground two reveals no jurisdictional error.
Conclusion
Accordingly, the application is dismissed
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 15 September 2020
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