Suwwan v Minister for Immigration
[2017] FCCA 2173
•7 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUWWAN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2173 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – refusal of an extension of time for a show cause application. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 375A, 477 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 Minister for Immigration v Maman [2012] FCAFC 13 Minister for Immigration v Singh [2016] FCAFC 183 Minister for Immigration v SZIAI (2009) 259 ALR 429 |
| Applicant: | AHMED F A SUWWAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3738 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3738 of 2016
| AHMED F A SUWWAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Suwwan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 November 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Suwwan a partner visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 31 August 2017.
On 23 July 2012, Mr Suwwan married Kunouz Sedda, an Australian citizen by grant. The couple was married in Nablus, Palestine.
On 10 September 2012, Mr Suwwan applied for a partner visa on the basis of his relationship with Ms Sedda. It was a requirement for the grant of the visa that the applicant be the spouse or de facto partner of the sponsoring partner, unless the relationship has ceased and certain circumstances existed.[1] One of the relevant circumstances was that Mr Suwwan had suffered family violence committed by the sponsoring partner.[2]
[1] Migration Regulations 1994 (Cth) (Regulations), Schedule 2, clause 100.221(2), clause 100.221(4)
[2] clause 100.221(4)
On 21 May 2013 Mr Suwwan came to Australia on a temporary (subclass 309) visa.
On 14 May 2015 a delegate of the Minister refused to grant Mr Suwwan a permanent visa because the delegate was not satisfied that Mr Suwwan met the requirements under the Regulations.[3] There was evidence before the delegate that the relationship had ended. When invited to comment, Mr Suwwan provided the delegate with a copy of an Apprehended Violence Order, naming him as the person in need of protection, and his father in law (Ms Sedda’s father) as the defendant. The delegate observed that Mr Suwwan had sought to come within the “family violence provisions” of the Regulations, but that there was no evidence that he had suffered family violence from the sponsoring partner, as required under clause 100.221(4). The delegate found that Mr Suwwan did not meet the requirements for the grant of the visa.
[3] Court Book (CB) 152-155
Mr Suwwan applied to the Tribunal for review of the delegate’s decision.
The Tribunal noted that Mr Suwwan provided additional information to it.[4] This included a letter from Dr Ala Almansur dated 24 May 2016,[5] and a report from a psychologist Kasim Abaie dated 24 May 2016.[6] Mr Suwwan also provided a statement in which he made a number of allegations against Ms Sedda.[7]
[4] CB 392 at [14]
[5] CB 203
[6] CB 236-242
[7] CB 393-394 at [16] (the statement appears at CB 232-234)
Mr Suwwan appeared before the Tribunal to give evidence on 3 June 2016.[8]
[8] CB 394 at [18]
The Tribunal was unable to be satisfied that Mr Suwwan had suffered relevant family violence committed by the sponsoring partner. The Tribunal therefore referred the matter to an independent expert for assessment.[9]
[9] CB 394 at [20]
The independent expert (Dr Emma Collins) conducted a face to face interview with Mr Suwwan. Mr Suwwan signed a declaration acknowledging that the expert had given him a fair and reasonable opportunity to present his case.[10] The independent expert produced a report.[11] The independent expert concluded that Mr Suwwan had not suffered relevant family violence that caused him to reasonable fear for, or to be reasonably apprehensive about, his own personal wellbeing or safety.[12]
[10] CB 364
[11] reproduced at CB 348-363
[12] CB 357
The Tribunal provided the independent expert’s report to Mr Suwwan pursuant s.359A of the Migration Act 1958 (Cth) (Migration Act).[13] Mr Suwwan’s agent responded to the Tribunal’s invitation to comment, asserting that Mr Suwwan was asked questions by the expert which made him apprehensive about answering, he did not think he was treated fairly by the expert, he was fearful of his ex-spouse and her family, and he wanted fairness and a sense of justice.[14] The Tribunal convened a further hearing to discuss the issue of the validity of the independent expert’s report.[15]
[13] CB 394 at [21]
[14] CB 395 at [22]
[15] CB 395 at [23]
On 1 November 2016 the Tribunal decided to affirm the decision under review. The Tribunal found that Mr Suwwan and the sponsor had been in a partner relationship, but that the relationship had ceased. The Tribunal considered that the issue that arose was whether Mr Suwwan had suffered family violence committed by the sponsor, within the meaning of the Regulations.[16] The Tribunal observed that Mr Suwwan was attempting to establish family violence on the basis of a non-judicially determined claim of family violence, under regulation 1.23(10)(c) of the Regulations.
[16] CB 395 at [26]
The Tribunal was satisfied that Mr Suwwan had made a non-judicially determined claim of family violence under regulation 1.23 on the basis of Mr Suwwan’s statutory declaration, and the reports from the doctor and psychologist.[17]
[17] CB 396 at [32]-[33]
The Tribunal proceeded to consider whether the opinion of the independent expert was flawed in any way. The Tribunal observed that the expert had been provided with all relevant information agreed at the hearing in relation to Mr Suwwan’s claims; she had conducted an “extensive interview” with Mr Suwwan where he was given the opportunity to provide further information; the expert contacted the psychologist who had provided a previous report. The Tribunal was satisfied that the expert had “taken into account all the relevant information and correctly applied the test of whether the applicant was reasonably fearful for, or reasonably apprehensive about, his own personal well-being or safety due to the conduct of the sponsoring partner”.[18]
[18] CB 396 at [37]
The Tribunal concluded that the independent expert’s opinion was properly made and that therefore it was bound to take the opinion as correct pursuant to regulation 1.23. The Tribunal found Mr Suwwan is not taken to have suffered family violence committed by the sponsor.[19]
[19] CB 397 at [39]
The present proceedings
These proceedings began with a show cause application filed on 28 December 2016. Mr Suwwan continues to rely upon that application. The grounds in the application are in handwriting and are not entirely clear. I sought clarification of those grounds from Mr Suwwan today. Unfortunately, what he told me was not consistent with the words appearing on the document. He was not personally familiar with the document as it had been completed by someone else. After discussion with counsel for the Minister, I accept that the grounds are accurately reproduced at [24] of the Minister’s submissions:
1.I believe that the Tribunal made an error by relying on affidavit of expert witness who collected evidence by intimidation and assumption of guilt.
2.I believe the Tribunal had ample evidence of family violence directed towards me by my spouse and her family.
3.Tribunal did not seek to verify claim.
4.Tribunal ignored evidence presented and witness statements in the case highlighting abuse.
5.Expert witness used [confrontational?] tactics that assumed guilt and came to wrong conclusion without paying attention to psychiatric [rights?] accumulated for over 1 year.
The application was filed some 22 days outside the time limit prescribed by s.477(1) of the Migration Act. Mr Suwwan seeks an extension of time pursuant to s.477(2) of the Migration Act. The application is supported by a short affidavit filed with it, which I received as a submission.
I have before me as evidence the court book filed on 31 May 2017, and the affidavit of Xiangling He made on 11 August 2017. Exhibited to that affidavit is a bundle of documents purportedly covered by a certificate issued by the Minister pursuant to s.375A of the Migration Act.
I sought oral submissions from Mr Suwwan today on the question of whether an extension of time should be granted. I explained to him that while the delay in coming to Court was relatively short, the only explanation for that delay was what appears in his application. The explanation proffered in the application is that Mr Suwwan was ignorant of the time limit, that he had sought assistance, and that he has a good case for Ministerial intervention.
In oral submissions, Mr Suwwan conceded that he had consulted his migration agent following receipt of the Tribunal decision. The court book discloses at pages 385 through to 390 that on 2 November 2016 the Tribunal wrote to Mr Suwwan’s migration agent enclosing a letter to Mr Suwwan and an information sheet about the Tribunal decision, as well as the decision itself. The information sheet included information about the possibility of an application to this Court within 35 days of the Tribunal decision. Mr Suwwan told me from the bar table that his agent did not tell him about the time limit. Nevertheless, he conceded that he and his agent had discussed the possibility of a Court application or an application to the Minister for his intervention. It appears that the agent advised Mr Suwwan that he should seek Ministerial intervention first and then seek to come to Court later. That was a choice which Mr Suwwan was entitled to make, but it does not satisfactorily explain his delay in coming to Court.
I otherwise agree with the Minister’s submissions concerning Mr Suwwan’s explanation for the delay.
In considering whether to extend time, the primary factors to consider are the length of and explanation for the delay, prejudice to the Minister if an extension was granted, and whether the substantive grounds are sufficiently arguable so as to justify an extension of time.[20]
[20] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252, [46]-[47]
First, Mr Suwwan states that he did not know that he had the right of appeal to the Tribunal. Ignorance of time limits is not generally considered to be a satisfactory explanation for delay in commencing proceedings.[21] In the circumstances, Mr Suwwan’s professed ignorance is not an acceptable explanation for the delay as the Tribunal’s notification letter attaching its decision advised him of the applicable time limits for taking the matter to Court.[22] It was a matter for Mr Suwwan to obtain whatever assistance and advice he might have required in order to take steps to challenge the Tribunal’s decision within the applicable time limits. During the Tribunal’s review Mr Suwwan was assisted by a migration agent.
[21] SZSDA v Minister for Immigration [2012] FCA 1319; (2012) 135 ALD 17, [38]; MZZYV v Minister for Immigration [2016] FCA 957, [25]
[22] CB 389
Secondly, Mr Suwwan states that he “sought help”, but the remainder of the ground is difficult to decipher.
Thirdly, Mr Suwwan states that he believes that he has a very strong case while he was seeking Ministerial intervention. Mr Suwwan applied for Ministerial intervention in his case on 6 December 2016, more than four weeks (and within the 35 day time limit under s.477) following the Tribunal’s decision on 1 November 2016. In the circumstances I infer that Mr Suwwan sought to commence proceedings in this Court as a “Plan B”, following the refusal of his Ministerial intervention application on 16 December 2016.[23]
[23] see Vu v Minister for Immigration [2008] FCAFC 59; 101 ALD 211, [29]
The Minister concedes he will not be prejudiced if an extension is granted.
I am not satisfied that Mr Suwwan has provided a satisfactory explanation for his delay in coming to court. The absence of a satisfactory explanation for the delay could be overcome, however, if the application disclosed a sufficiently arguable case of jurisdictional error.
I invited submissions from Mr Suwwan about his grounds of review. He is clearly dissatisfied with the report of the independent expert. He told me that after he received the expert’s report, he asked to be referred to a different expert. Mr Suwwan went into some detail from the bar table about what transpired between him and the expert at their interview. It is clear that the expert was attempting to come to grips with facts and circumstances in which there were conflicting allegations of family violence as between Mr Suwwan, his former wife, and members of her family. The conflict extended to applications for apprehended violence orders on both sides.
Nothing in what Mr Suwwan put to me points to, let alone establishes, any apprehension of bias on the part of the independent expert. Neither does it point to, let alone establish, any want of procedural fairness in relation to the preparation of the expert’s report. In my opinion, the Tribunal was entitled to rely upon the expert’s report. I otherwise agree with the submissions of the Minister on the grounds of review advanced.
Grounds 1 and 5
It is convenient to address the first and fifth grounds together. In each ground Mr Suwwan takes issue with the report produced by the independent expert on which the Tribunal relied (Report). I accept that if the Tribunal relied upon an opinion of an independent expert that was not formed in accordance with law this would result in jurisdictional error. As the Full Court of the Federal Court said in Minister for Immigration v Maman:[24]
To satisfy the requirements of that provision, an “opinion” must have been one that was formed in accordance with law, including the common law requirement to comply with the rules of procedural fairness. It is only such an “opinion” which could be clothed with the conclusiveness of reg. 1.23(1C), namely an “opinion” which the Minister must take as “correct”.
[24] [2012] FCAFC 13 at [64]
There is no substance to the allegation that the independent expert collected evidence by intimidation and assumption of guilt. A fair reading of the Report indicates that the expert was fair and thorough in her examination of the applicant and the relevant issues concerning his claims to have been the subject of relevant family violence. Following the interview with the expert, the applicant signed an acknowledgement that he had been given a fair and reasonable opportunity to present his case to the expert. The applicant’s complaint appears more related to the outcome of the expert assessment, rather than the fairness of the procedure.
That Mr Suwwan’s complaint appears more related to the outcome, than the process, is supported by reference to the allegation in the fifth ground where Mr Suwwan asserts that the expert came to the wrong conclusion. However it is certainly not for the Court, and neither was it for the Tribunal, to go behind a properly prepared independent expert report. In the absence of an argument that the independent expert formed an opinion not in accordance with law, the Tribunal had to accept the expert’s opinion as correct.[25]
[25] regulation 1. 23(10)(c)(ii)
Second ground
In the second ground Mr Suwwan does not articulate any jurisdictional error against the Tribunal. That the Tribunal had “ample evidence” of family violence directed towards Mr Suwwan does not identify error. In any event, the Tribunal ultimately relied upon as correct the opinion of the independent expert, which the Tribunal was bound to seek when it was unable to be satisfied that Mr Suwwan suffered family violence.[26]
[26] regulation 1.23(10)(c). See also CB 394 at [20]
Third ground
It is unclear what error Mr Suwwan is alleging in the third ground. In one sense, the process of referring a matter to the independent expert is, of itself, a process of verification which the Tribunal did undertake in this case, in accordance with the Regulations. I have found the expert’s opinion was validly formed, and the Tribunal was thereby required to take it as correct. It was not for the Tribunal then to engage in any other form of inquiry or verification. Indeed, it could not go behind the expert’s opinion. This is not the kind of case where a failure to make an obvious inquiry of a critical fact resulted in jurisdictional error.[27]
[27] cf Minister for Immigration v SZIAI (2009) 259 ALR 429
Fourth ground
The fourth ground, as with the previous two grounds, suggests a misunderstanding of the scheme under the Regulations. Having obtained the Report the Tribunal was required to take the expert’s opinion, properly formed, as correct. No error is identified in the fourth ground.
The non disclosure certificate
The other issue in this case concerns the purported ministerial certificate. As is effectively conceded by the Minister, the certificate was invalid. A substantial body of documents were purportedly covered by the certificate and are exhibited to the affidavit of Xiangling He.
When I invited submissions from Mr Suwwan about the certificate issue, he told me a strange story concerning a migration agent having the first name Mahmoud. The substance of that story appears to be that Mr Mahmoud is an agent who claims special power and influence. Mr Suwwan told me that he consulted Mahmoud after the delegate’s decision and before he sought review by the Tribunal. He apparently became concerned about Mahmoud and did not engage him for the purposes of the Tribunal review. He suggested that, for some unknown reason, Mahmoud may now hold some ill-will towards him. Whatever happened, it does not bear on the certificate issue.
In my opinion, none of the documents purportedly covered by the certificate needed to be disclosed to Mr Suwwan by the Tribunal. That is because, with one exception, they were irrelevant to the issues before the Tribunal. The exception is the document bearing the handwritten folio number 112. That document briefly summarises Mr Suwwan’s partner visa application and his migration history. There is a brief summary of his relationship and the evidence he had provided. There is nothing in that document which bears either for or against the visa application.
In other respects, I agree with the Minister’s submissions concerning the certificate issue.
In accordance with his obligations as a model litigant, the Minister instructed his solicitors to perform a search of relevant departmental files in order to determine whether a non-disclosure certificate was issued in relation to Mr Suwwan. A certificate dated 12 January 2016 purportedly issued under s.375A of the Migration Act was identified. A copy of the certificate (Certificate) appears at CB 188. Neither the Certificate, nor the documents to which it related, were given to Mr Suwwan during the review. Mr Suwwan does not appear to have been advised of the Certificate.
The affidavit of Xiangling He has exhibited to it the documents affected by the Certificate, being folios 71-101, 108-112, 122 and 147-161 of file number OSF2012/105477 (Documents).
On the authority of MZAFZ v Minister for Immigration,[28] the Certificate is not valid having been issued as the disclosure of the information would be contrary to the public interest because the information contains “Departmental processes and assessment notes”.
[28] [2016] FCA 1081; (2016) 243 FCR 1
Nevertheless, having regard to the content of the Documents, none was of any real relevance to the review, and Mr Suwwan was not denied procedural fairness as a consequence of the non-disclosure of the Certificate.[29] The Documents appear to comprise Departmental records (including movement records) and emails relating to Mr Suwwan’s history and prior visa applications (including unsuccessful student visa applications and the successful temporary partner (subclass 309) visa. Folio 112 contains references to Mr Suwwan’s relationship with the sponsoring partner, but the document merely states information that was available before the Tribunal, and otherwise had no bearing on the review.
[29] cf Minister for Immigration v Singh [2016] FCAFC 183
This matter may be distinguished from Minister for Immigration v Singh[30] for reasons similar to those given by Barker in AVO15 v Minister for Immigration,[31] in which his Honour distinguished both Singh and MZAFZ as the information in that matter was in his Honour’s view “of no, or only passing contextual, relevance to the application”. The same description applies to the Documents in the present case.
[30] [2016] FCAFC 183
[31] [2017] FCA 566
Conclusion
I conclude that the interests of the administration of justice do not require the granting of an extension of time.
I will order that the application for an extension of time be refused.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs fixed in the sum of $5,400. Mr Suwwan sought information concerning the process for paying costs but did not dispute the amount.
In my view, costs of not less than $4,500 have been reasonably and properly incurred when assessed on a party-and-party basis. I will order that Mr Suwwan pay the Minister’s costs fixed in that amount.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 13 September 2017
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