Tang v Minister for Immigration
[2006] FMCA 60
•25 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TANG v MINISTER FOR IMMIGRATION | [2006] FMCA 60 |
| MIGRATION – Application for review of decision by the Migration Review Tribunal – spousal visas – whether a genuine spousal relationship existed – domestic violence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.1.15A |
| Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 Collins v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 571 Craig v South Australia (1995) 184 CLR 163 Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Rith Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1235 Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097 |
| Applicant: | NGUY TRANG TANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 730 of 2005 |
| Judgment of: | Connolly FM |
| Hearing date: | 24 October 2005 |
| Date of Last Submission: | 14 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | J.R. Hamilton |
| Solicitors for the Applicant: | Koenig & Simons Solicitors |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Migration Review Tribunal be joined as a second respondent.
That the application dated 17 June 2005 be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 730 of 2005
| NGUY TRANG TANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
17 June 2005 seeking judicial review of the decision of the Migration Review Tribunal on 25 May 2005 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a Partner (Temporary) (Class UK) visa nor a Partner (Residence) (Class BS) visa.
The history
The applicant is a citizen of Vietnam. She entered Australia on
16 August 2003 as the holder of a Prospective Partner (Temporary) (subclass 300) visa. The applicant had married an Australian citizen (“the sponsor”) whom she had met in Vietnam on 23 August 2003. The applicant separated from her husband in late September 2003, claiming that she had been subjected to domestic violence by the sponsor. The applicant lodged an application for a Partner (Temporary) (Class UK) visa (“Class UK visa”) and a Partner (Residence) (Class BS) visa (“Class BS visa”) with the Department of Immigration & Multicultural & Indigenous Affairs on 27 January 2004 pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
On 19 July 2004, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visas; the applicant applied for review of that decision by the Migration Review Tribunal (“the Tribunal”) on 11 August 2004.
In the decision made by the Tribunal on 25 May 2005, the Tribunal affirmed the decision of the delegate not to grant the visas. The Tribunal found that the applicant did not meet the essential criteria for the grant of a Partner (Migrant) (Class BC) visa. As a consequence she did not meet the essential criteria for the grant of a Class UK, and therefore also did not meet the criteria for a Class BS visa. Specifically, the Tribunal found that:
a)at the time of the visa applicant’s application for the visas in question, the applicant and sponsor had separated and their relationship had ended;
b)“the relationship between the parties was arid, involved minimal pooling and exchange of financial and material resources, received the barest level of social recognition, lacked any degree of mutuality or equality, provided neither party with companionship or emotional support, and was of the most limited duration” [Court Book “CB”p.197];
c)at no point in time could the relationship between the applicant and the sponsor have properly been regarded as ‘spousal’ within the meaning of regulation 1.15A of the Migration Regulations 1994 (Cth) (“the Migration Regulations”), and therefore the applicant was not in a genuine spousal relationship with the sponsor at the time of her application and continuing at the time of the Tribunal’s decision;
d)as a result of its finding that there had been no genuine spousal relationship and following the decision in Collins v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 571, the Tribunal’s view was that it did not need to make a finding in relation to the applicant’s claims of domestic violence. Nevertheless the Tribunal chose to consider those claims and found that the statutory declaration by Mr Hess was not one by a competent person for the purposes of regulation 121(1)(a)(iv) and therefore the applicant’s claims must fail under the domestic violence provisions of the Migration Regulations.
On 17 June 2005, the applicant lodged an application and supporting affidavit in this Court, being MLG 730 of 2005, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal had fallen into jurisdictional error in making its decision. On 19 July 2005 Registrar Mussett made orders for the filing of documents and setting the matter down for trial.
The applicant filed contentions of fact and law on 22 August 2005. Summarily, the applicant contended:
a)the Tribunal failed to consider that the marriage had only lasted for a month as a result of the domestic violence alleged by the applicant;
b)the Tribunal incorrectly required Mr Hess to claim or demonstrate that he is recognised by the Australian Association of Social Workers as being eligible for membership, when the only requirement is that he attest to such matters in order to be considered a ‘competent’ person; and
c)the Tribunal failed to exercise procedural fairness by not notifying the applicant about particulars of information lacking or insufficient with respect to evidence from competent persons required under regulation 121.
On 14 September 2005 the respondent filed contentions of fact and law, rebutting the applicant’s contentions and seeking that the application be dismissed with costs. Summarily, the respondent submitted that:
a)the Tribunal specifically recognised the duration of the relationship and made the “salient point” that there had not been any point where the relationship could have been regarded as ‘spousal’ within the meaning of regulation 1.15A;
b)the Tribunal was not required to consider domestic violence under paragraph 820.211(8)(d) (Migration Regulations) unless it was satisfied of the necessary relationship had existed at some point in time;
c)the provisions relating to claims of domestic violence in Division 1.5 of the Migration Regulations are highly prescriptive and mechanical and amount to a “triumph of form over substance… because the decision-maker’s role is not to decide whether the visa applicant has in fact been the victim of domestic violence… but rather to determine whether statutory declarations in conformity with regulations 1.25 and 1.26 of the Regulations have been presented” (per Wilcox J in Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [40]). The Tribunal found that the statutory declaration by Mr Hess did not comply with the technical requirements of the Migration Regulations, and accordingly the applicant could not satisfy the domestic violence provisions; and
d)the Tribunal was not obliged to draw the applicant’s attention to any defects in the documentary material relating to the claim of domestic violence, and furthermore the applicant was “in no relevant sense misled by the Tribunal”.
The hearing of the application proceeded on 24 October 2005.
The law
Regulation 1.15A(3) of the Migration Regulations requires:
In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ab) a Special Eligibility (Residence) (Class AO) visa; or
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii)any sharing of responsibility for housework;
c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities;
d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act 1958 (Cth) does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 (“Yusef”).
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Conclusions and findings
The applicant contends that the Tribunal in determining whether the parties had been in a marital relationship failed to consider in the decision making process that the marriage had lasted only one month, and by excluding from the process the fact that it had been affected from the outset by domestic violence. That, in fact, is not accurate. At CB 195 Paragraph 29, The Tribunal found:
“The parties were married to each other in Australia on 23 August 2003. At the time of application the review applicant and the nominator were married to each other under a marriage that is recognized as valid for the purposes of the Act. However, at the time of the application for the Subclass 820 visa on 27 January 2004, the parties had separated and the relationship had ended. The parties had separated and their relationship ended on approximately 23 September 2003, one month after their marriage and about five weeks after the review applicant joined the sponsor in Australia.”
The pertinent point about the Tribunal’s finding with respect to the parties’ relationship was in that set out in CB 197 paragraph 37:
“After carefully considering and balancing all the relevant evidence and applying the test outlined in Nassouh, the Tribunal finds that there is no point in time at which the relationship between the parties could properly be regarded as spousal within the meaning of regulation 1.15A of the Regulations.”
The Tribunal was not required to consider domestic violence under 820.211(8)(d) (Migration Regulations) unless it was satisfied of the existence of the necessary relationship at one point in time. There is no error disclosed.
The Applicant’s second contention was that the Tribunal erred in finding that Mr. Hess was not a competent person within the requirements of sub-regulation 1.21(1)(a)(IV)A&B. The applicant submits that the only requirement is that Mr. Hess attest to such matters. The regulations contained in 1.21 to 1.27 set out a particular regime relating to domestic violence and its method of proof for the purposes of the regulations. The provisions are highly prescriptive and mechanical.
The applicant sought to satisfy the evidentiary requirements by filing a statutory declaration by himself and by two competent persons. The Tribunal found that one of the statutory declarations by one of the competent persons (Mr. Hess) did not satisfy the requirements of the provisions as Mr. Hess was not a competent person as defined in Regulation 1.21(1)(a)(IV). Accordingly, the applicant could not satisfy the domestic violence provisions and could not be taken to have suffered domestic violence pursuant to Rule 820.211(8)(d). I accept the submission of the respondent that Mr. Hess did not attest to being recognized by the Australian Association of Social Workers as being a person who is eligible to be a member of the association. Nor did he swear to being a person who is preforming the duties of a social worker.
The Tribunal in the circumstances was entitled to determine that the statutory declaration sworn by Mr. Hess did not meet the requirements of the proof regulations. In Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56, Hely J. said at paragraph 45:
“This regulatory regime was described by Wilcox J. In Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [40] as a triumph of form over substance. That is because the decision maker’s role is not to decide whether the visa applicant has in fact been the victim of domestic violence committed by the sponsoring spouse, but rather to determine whether statutory declarations in conformity with regs 1.25 and 1.26 of the Regulations have been presented.”
And Sundberg J., made the same point in Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097 at paragraph 13:
“ Regulation 1.23(1)(g) will only deem the applicant to have suffered domestic violence committed by Ms. Weiley (see reg 100.221(4)(c)(i)) if, pursuant to reg 1.24, he provides a statutory declaration of his own that complies with reg 1.25 and two statutory declarations from two “competent persons” (see reg 1.21) that comply with reg 1.26. If he cannot do so, he has no evidence that he has suffered domestic violence committed by Ms. Weiley for the purposes do reg 1.23(1)(g). Therefore, the question for any decision maker (i.e. the delegate, the Tribunal or the Court) is not whether the applicant has suffered domestic violence committed by Ms. Wiley but whether the statutory declarations proffered by the applicant as evidence thereof of the purposes of reg 1.23 (1)(g) meet the requirements of the proof regulations.”
And finally, in Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 Gray J. at first instance said at paragraphs 40 and 46:
The traditions underlying our legal system have embedded in them a considerable suspicion of mechanical modes of proof. The relatively rare instances in which a finding of the truth of a serious allegation cannot be made because of the requirements of rules of corroboration quite rightly fuel this suspicion. Australian law contains no rule that the evidence of two women is required to equal the evidence of one man, a rule sometimes said to be a feature of some other legal systems. Mechanical modes of proof are regarded as capable of producing injustice. They also undermine the confidence normally reposed in the fact-finding abilities of courts. The effect of reg 1.23 of the Migration Regulations is to institute a mechanical mode of proof. The regulation requires that a finding in respect of a serious allegation must be made if the right mechanism is adopted to prove that allegation. In such circumstances, it is appropriate to be vigilant to ensure that every element of the mechanical mode of proof has been satisfied.
There was no substance in the submission on behalf of the applicant that the Tribunal had wrongly ignored the statutory declaration of Serpil Ozalp. The Tribunal was correct in holding that "welfare worker" was not a qualification satisfying the definition of "competent person" in reg 1.21. There was nothing in the statutory declaration itself to indicate either that Ms Ozalp had any of the qualifications referred to in reg 1.21(1)(a)(i) - (v), or that the Australian Turkish Association was a women's refuge or a crisis and counselling service that specialised in domestic violence, within the meaning of reg 1.21(2). The Tribunal could not therefore take into account the contents of the statutory declaration as part of the mechanical process of establishing that the sponsor had committed domestic violence in relation to the applicant. To the extent to which the declaration could be viewed on its own, it suffered from the same vice as the declarations of Ms Guducu and Ms Sozer, in that it failed to distinguish between what had been done by the sponsor and what had been done by her relatives. Nor did it corroborate evidence of the applicant in relation to threats or verbal abuse because, as I have said, he gave none. To the extent to which Ms Ozalp corroborated the applicant's evidence as to the scratching incident, even assuming that this single incident of physical violence had occurred, as the Tribunal appeared to do, it was open to the Tribunal to find that there was nothing serious enough to amount to domestic violence for the purposes of the relevant criterion.
Finally, the applicant argues that the Tribunal failed to exercise procedural fairness by not notifying the applicant about particulars of information lacking or insufficient with respect to the statutory declaration of Mr. Hess. In my view there was no obligation on the Tribunal to do so. In Rith Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1235 Herey J. said with respect to an argument relating to certain declarations filed under the domestic violence provisions in the regulations said at paragraphs 24 and 25:
“In support of his argument counsel said that the Tribunal did not in the course of the hearing raise with the applicant the contents of the statutory declarations or the view it took as to their adequacy. They were provided to the Department prior to the delegate’s decision.
The short answer is that the statutory declarations were not "information" within the meaning of s 359A. The word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. The applicant obviously knew that statutory declarations had been provided to the Tribunal through the Department. The Tribunal’s conclusion that they did not satisfy the regulations was not "information" to be provided to him for his comment: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].”
Similarly, in Wang v Minister for Immigration [2003] FMCA 135 Hartnett FM held at paragraph 42:
“Counsel for the respondent submitted that the applicant was accorded procedural fairness. Counsel submitted that s 359A does not oblige the MRT to identify the statutory criteria including definitional matters which must be satisfied. In my view this is clearly so. Section 359A of the Act does not require the Tribunal to notify the applicant as to defects in the documentary material provided in support of her application nor as to any doubts the Tribunal may have as to the sufficiency of the case put by the applicant. Rather, it is to advise the applicant of material which comes to the Tribunal from a source other than the applicant and upon which the Tribunal may rely. The applicant is then accorded natural justice and has an opportunity to respond.”
Finally it is not open to the Applicant to rely upon an asserted failure to comply with procedural fairness under the common law because these requirements have been excluded by the operation of s 357A of the Act which provides that Division 5 of Part 5 is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule made in relation to the matters it deals with. Division 5 includes s.359A.
In all the circumstances of this matter there is no jurisdictional error disclosed and accordingly the application should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: James Naughton
Date: 25 January 2006
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