Thaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2133
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Thaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2133
File number: DNG 28 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 27 August 2021 Catchwords: MIGRATION –application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate to refuse to grant a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) – non-judicially determined claim of family violence – whether the Tribunal erred in concluding the evidence failed to satisfy the legislative requirements – jurisdictional error made out – application allowed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) regs 1.23, 1.24
IMMI 12/116 - Specification of Evidentiary Requirements
Cases cited: Dang v Minister for Immigration and Border Protection [2016] FCCA 1426
Pham v the Minister [2018] FCA 1946Number of paragraphs: 34 Date of hearing: 27 August 2021 Place: Darwin Counsel for the Applicant: Ms Baw Solicitor for the Applicant: Hunter Flood Lawyers Solicitor for the First Respondent: Ms Anderson of Clayton Utz ORDERS
DNG 28 of 2020 BETWEEN: SUPAPORN THAWORN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The time for making the application filed on 18 September 2020 be extended pursuant to section 477 of the Migration Act 1958 (Cth).
2.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 7 August 2020.
3.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 8 November 2019.
4.The First Respondent is to pay the Applicant’s costs in the fixed sum of $7,467.
REASONS FOR JUDGMENT
Ex TemporeJUDGE YOUNG:
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 7 August 2020 to affirm a decision of the Minister’s delegate (the delegate) to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) (the visa).
The applicant alleged she had been the victim of family violence by her former partner and had subsequently separated from him. The Tribunal determined that the applicant had not made a “non-judicially determined claim of family violence” under regulation 1.23(9) of the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal concluded that the applicant did not satisfy the requirements in subregulation 1.23(9)(c) that she present evidence in accordance with regulation 1.24. Regulation 1.24 provides that:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or behalf of alleged victims); and
(b)the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
The relevant instrument in writing is IMMI 12/116 - Specification of Evidentiary Requirements (IMMI 12/116) dated 22 November 2012 which provides:
I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under paragraph 1.24(b) of the Migration Regulations 1994 (‘the Regulations’):
1. SPECIFY for the purpose of paragraph 1.24(b) the types of evidence as acceptable evidence at Schedule 1.
2. SPECIFY that a minimum of two items of evidence from the list in Schedule 1 and no more than one of each type of evidence may be presented for the purposes of paragraph 1.24(b).
This instrument, IMMI 12/116, commences on 24 November 2012, immediately after the commencement of Migration Legislation Amendment Regulation 2012 (No.5).
Schedule 1 of IMMI 12/116 states:
Schedule 1
| Type of Evidence | includes the following detail |
| Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is: · registered as a medical practitioner and is performing the duties of a medical practitioner, or · registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse. | · Identifies the alleged victim, and · Details the physical injuries or treatment for mental health that is consistent with the claimed family violence. |
| Either a report, record of assault, witness statement or statutory declaration that is made by: · a police officer of a State or Territory · a police officer of the Australian Federal Police OR | · Identifies the alleged victim, and · Identifies the alleged perpetrator, and · Details an incident/s of family violence. |
| Report or statutory declaration made by an officer of: · a child welfare authority, or · a child protection authority of a State or Territory. | · Details fears for the dependent child’s safety due to family violence within the household, and · Identifies the alleged perpetrator. |
| Letter or assessment report made by: · a women’s refuge, or · family/domestic violence crisis centre on the organisation’s letterhead. | · States that the alleged victim has made a claim of family violence, and · States whether the alleged victim was subject to family violence, and · Identifies the alleged perpetrator, and details any evidence used to form the opinion. |
| Statutory declaration made by: · a member of the Australian Association of Social Workers, or · a person who is eligible to be a member of that Association who has provided counselling or assistance to the alleged victim while performing the duties of a social worker. | · States in their opinion the alleged victim was subject to family violence, and · Details the reasons for the opinion, and · Identifies the alleged perpetrator. |
| Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist. | · States in their opinion the alleged victim was subject to family violence, and · Details the reasons for the opinion, and · Identifies the alleged perpetrator. |
| 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. | · States that the alleged victim has been treated or counselled, by the family consultant or family relationship counsellor, and · States that in their opinion the alleged victim was subject to family violence, and · Details the reasons for the opinion, and · Identifies the alleged perpetrator. |
| Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity. | · States that they have made, or been made aware of, observations that are consistent with the alleged victim’s claims that they were subject to family violence, and · Identifies the alleged perpetrator, and · Provides details of those observations. |
The applicant relied on a number of statutory declarations. However, the only ones that could arguably, in my view, comply with the requirements in IMMI 12/116 are those in relation to social workers, psychologists and a women’s refuge or domestic/family violence crisis centre. The Tribunal was not satisfied that the statutory declaration from Mr Goodluck, a social worker and member of the Australian Association of Social Workers, complied with the requirements IMMI 12/116. At paragraph 40 of the Tribunal’s reasons the member said:
There is no suggestion that Mr Goodluck provided counselling or assistance to the applicant whilst performing the duties of a social worker. For these reasons the Tribunal does not accept that Mr Goodluck’s statement meets the evidentiary requirements.
The Tribunal was also not satisfied that Ms Helen Stathis, who is a registered psychologist in the Northern Territory and provided a statutory declaration, was performing a therapeutic or treating role or performing the duties of a psychologist when she met with the applicant. At paragraph 38 of the Tribunal’s decision the member said:
It appears to the Tribunal that her [Ms Stathis] opinion was made solely and specifically for the purpose of providing it to the Tribunal.
The Tribunal was not satisfied that the statutory declaration satisfied the requirements in IMMI 12/116.
In relation to the category of women’s refuge or family/domestic violence crisis centre, the applicant relied on a letter from a domestic violence legal service operating in Darwin. The letter warned the applicant’s former partner to desist from certain behaviour which was alleged to have occurred. It is in form a lawyer’s letter threatening proceedings. The Tribunal was prepared to treat this as emanating from a relevant category, however, I note that, in my view, a domestic violence legal service is not such a relevant category. In any event, the Tribunal rejected the letter from the domestic violence legal service dated 19 December 2018 on the basis that it did not express an opinion. I agree with the member’s conclusion about that. It appears to me that the other ground not relied on by the member was open to the member as a basis of rejecting it – that is, it was not from a relevant category of organisation.
The background to this matter is as follows. The applicant is a Thai citizen with relatives in Australia. She appears to have visited Australia a number of times from Thailand. In 2015 or thereabouts she met her former partner through relatives. In approximately 2017 she appears to have commenced a relationship with her former partner and in February 2018 they were married. She applied for a partner visa in March 2018. The Tribunal appeared to accept that at that time the relationship was a genuine one.
In November 2018 the applicant notified the Department of a change in circumstances and alleged she was the victim of family violence. On 19 December 2018 a domestic violence legal service, the one already mentioned, wrote to the applicant’s former partner threatening to commence domestic violence order proceedings unless he desisted from certain behaviour detailed in the letter.
On 8 November 2019 the delegate refused the application for the visa. The delegate was satisfied that the relationship was genuine but was not satisfied that evidence of family violence had been provided.
On 27 November 2019 there was an application for review to the Tribunal. On 15 April 2020 there was an invitation by the Tribunal to provide evidence of family violence. On 29 April 2020 the applicant’s migration agent advised that she could not provide the specified evidence. On 22 May 2020 the Tribunal invited the applicant to attend a hearing on 10 June 2020.
On 1 June 2020 the applicant’s migration agent sought an adjournment on the ground that the material from the social worker and the psychologist who the applicant had consulted would not be ready in time. On 2 June 2020 that application for an adjournment was refused. On 5 June 2020 there was a further request for an adjournment and in addition the migration agent submitted that if there were issues about the applicant’s credibility then a telephone hearing was not appropriate. The migration agent made arguments that in the circumstances a telephone hearing would not comply with the requirements of the Migration Act 1958 (Cth) which states that the applicant must be invited to appear before the Tribunal if it was satisfied that her application would not succeed. That application was refused and the Tribunal’s response to the application (p. 219 of the Court Book) states:
The Member notes that in the present case the Tribunal will largely be dealing with matters of fact, specifically types and forms of evidentiary requirements. As such, the Member determines that it is appropriate for the applicant to appear by telephone for the hearing in this matter.
By implication, at least, the member suggests that the credibility of the applicant is unlikely to be an issue.
On 10 June 2020 the hearing was conducted by telephone and the applicant appeared with an interpreter present, along with the applicant’s representative. A transcript of that telephone hearing has been tendered in evidence. It appears that the applicant and the member sometimes conversed in English and sometimes through the interpreter. It is unclear from the transcript when each of those courses was followed. The transcript is of some significance because the member questioned the applicant about the circumstances of the applicant consulting Mr Goodluck, the social worker, and Ms Stathis, the psychologist.
In relation to Mr Goodluck, the relevant passage begins on p. 9 of the transcript:
SENIOR MEMBER: And the other form that I have in front of me is a Form 1040 signed by Mr Gregory Goodluck. Could you tell me about him, Ms Thaworn?
APPLICANT: He’s the one the one advised me to go to Ms Helen.
I interpolate that that would appear to be a reference to the psychologist, Ms Stathis. To continue:
SENIOR MEMBER: And, who is he?
APPLICANT: He’s a social worker.
SENIOR MEMBER: And, how did you come to meet him?
APPLICANT: Yes, so, my aunty knew him.
SENIOR MEMBER: And so when he - - -
INTERPRETER: And then he – he – he advised her to meet Helen.
SENIOR MEMBER: And so when you met – and, did you meet with Mr Goodluck?
APPLICANT: Yes, I did. Yeah.
SENIOR MEMBER: And, how many times?
APPLICANT: Three times.
SENIOR MEMBER: And, for what purpose?
APPLICANT: We’re just going to talk together, like, a counsel – counsel. The – because of my bad mental state, not knowing what to do, or how to continue with my life. I needed to first go and talk to somebody for counsel.
SENIOR MEMBER: All right. Thank you for that.
There is no further discussion about Mr Goodluck other than the member reminding the applicant or her representative that there needed to be some evidence that he was a member of the Australian Association of Social Workers. I understand that this has since been provided.
In relation to the psychologist, Ms Helen Stathis, the discussion begins on p. 7 of the transcript:
SENIOR MEMBER: Okay? So, now we come to a form signed by Ms Helen Stathis, a psychologist. Ms Thaworn, can you tell me about your relationship with Ms Stathis, when you first met her, how many times you saw her, why you went to see her, as much detail as you can?
INTERPRETER: She would like me to repeat that surname. It’s Stathis, is it, Member?
SENIOR MEMBER: Stathis. Ms Helen Stathis, a psychologist.
INTERPRETER: Helen Stathis.
SENIOR MEMBER: Mm hm.
INTERPRETER: Okay.
APPLICANT: So, I was very stressed. I was, kind of, being – I was meeting various people, and I didn’t know this person personally, she’s a social worker…
I interpolate to add that it is not in dispute that Ms Stathis is a psychologist. That was corrected later in the hearing according to the transcript:
…I met her. So, I did have an appointment with her, but then during the – during the COVID pandemic I haven’t been able to continue those appointments.
SENIOR MEMBER: So, when did you see her?
APPLICANT: I can’t remember the day that – I met her twice – I met her twice last week. I only just received the appointment from her.
SENIOR MEMBER: And – and – and, why did you go to see her?
APPLICANT: I was stressed, unsettled in my mental state. I was not sleeping well, not eating well, my weight reduced seven kilos, so I went to - - -
SENIOR MEMBER: Just recently?
APPLICANT: - - - the counsellor.
SENIOR MEMBER: Is that recently?
APPLICANT: It started ever since things started happening between myself and my ex-husband.
SENIOR MEMBER: And, so, what did you tell – what did you tell Ms Stathis when you went to see her, what – why did you tell her that you were going to see her?
APPLICANT: I told her that, you know, I was thinking, thinking so much, I couldn’t sleep, and I was afraid that my ex-husband would come and harm me.
SENIOR MEMBER: And when was the last time you heard from your ex-husband?
APPLICANT: Last December, and he has also tried sending me messages and to contact my sister-in-law.
SENIOR MEMBER: That was in relation to the divorce or for some other reason?
APPLICANT: No, we’ve already divorced, but he comes to try to bother me all the time.
That is the end of the discussion in relation to Ms Stathis, the psychologist, apart from, again, the Senior Member reminding the applicant there needed to be some evidence that Ms Stathis was a registered psychologist. I understand that is not in dispute.
There is no indication in the transcript of the hearing that the member did not believe what the applicant said. There was no challenge to what the applicant said in the hearing. Further, there was prior correspondence between the member and the applicant’s representative where it was, at least implied, that credibility was not an issue. There does not appear to be any basis in the material that I have seen for questioning the credibility or reliability of the applicant’s statements she made to the member.
After the hearing on 10 June 2020 the member wrote to the applicant raising some concerns about the evidence. On 21 July 2020 the member again wrote a letter to the applicant. The member said in relation to Ms Stathis:
It appears to the Tribunal that her opinion was made solely and specifically for the purpose of providing it to the Tribunal.
That is, of course, word-for-word the finding made at paragraph 38 of the Tribunal’s reasons for decision.
In relation to Mr Goodluck the letter said:
There is no suggestion that Mr Goodluck provided counselling or assistance [to] you whilst performing the duties of a social worker.
That is word-for-word the finding made at paragraph 40 of the Tribunal’s reasons of decision.
The applicant was invited to comment on those matters along with a variety of other matters. The migration agent responding on behalf of the applicant said that she would obtain further material from Ms Stathis and Mr Goodluck, however that was not forthcoming. The reason for that is not before me.
Nowhere in the member’s reasons does she discuss the applicant’s oral evidence or express any statement to the effect that it should be disbelieved. The starting point for consideration of the evidentiary requirements is the instrument to which I have referred, IMMI 12/116 and Schedule 1 of IMMI 12/116 which is featured at paragraph 4 above. I do not propose to deal specifically with the women’s refuge or family/domestic violence crisis centre issue because I am satisfied, for the reasons I have already given, that the member has not made any error in respect of that.
In relation to a social worker column 1 of Schedule 1 of IMMI 12/116 says that the evidence that is acceptable in conformity with regulation 1.24(b) of the Regulations is a:
Statutory declaration made by:
·a member of the Australian Association of Social Workers, or
·a person who is eligible to be a member of that Association
who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.
Column 2 of Schedule 1 of IMMI 12/116 outlines what must be included in the evidence and that is:
·States that the alleged victim has made a claim of family violence, and
·States whether the alleged victim was subject to family violence, and
·Identifies the alleged perpetrator, and details any evidence used to form the opinion.
In my view the statutory declaration from Mr Goodluck satisfies each of those three criteria in column 2. I note that this was not disputed by the Minister.
In relation to the statutory declaration of Ms Stathis, the acceptable evidence is a:
Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.
Column 2 reproduces much the same criteria as for social work, namely:
·States in their opinion the alleged victim was subject to family violence, and
·Details the reasons for the opinion, and
·Identifies the alleged perpetrator.
It is not suggested that any of the detail required by column 2 of Schedule 1 of IMMI 12/116 was not provided in the statutory declaration of Ms Stathis.
The Tribunal member was not, however, satisfied that there was evidence that the social worker provided “counselling or assistance” to the applicant in the course of performing the duties of a social worker. I note that there is no statement in the statutory declaration from Mr Goodluck saying that he provided “counselling or assistance” or if so, the kind of assistance he provided to the applicant. However, in my view, it is not necessary for the statutory declaration to necessarily state expressly that the social worker provided “counselling or assistance” to the alleged victim while performing the duties of a social worker. The necessary detail that must appear in the statutory declaration is set out in column 2.
In my view, the matters referred to in column 1 can be provided in some other way, for example by acceptable or appropriate evidence from the applicant herself. In this case the evidence of the applicant was that she attended on Mr Goodluck, essentially because of anxiety about her position, anxiety about her former partner and difficulties in sleeping and the like. It is also clear that Mr Goodluck referred the applicant to Ms Stathis, as is apparent from page 9 of the transcript of the Tribunal hearing where the applicant said:
He’s the one who advised me to go to Ms Helen.
It would appear that that is evidence that Mr Goodluck provided, not only counselling, but also assistance. He provided, it would appear, a referral to a psychologist. The member concluded that:
There is no suggestion that Mr Goodluck provided counselling or assistance to the applicant whilst performing the duties of a social worker.
This entirely overlooks the evidence of the applicant herself, in my view. There is no explanation in the body of the member’s reasons why that evidence should be rejected in that way. There is no analysis or consideration of her evidence and no conclusion that she is not to be believed. It appears to me that the two possible explanations for this are that:
(1)the member simply overlooked crucial evidence that was germane and potentially determinative of the central issue; or
(2)the member misdirected herself as to the requirements of IMMI 12/116.
The second possibility arises as there are some indications that she thought that the evidence of those matters must appear in the statutory declaration of the social worker. In my view, in either case the member has made an error, and one of significance.
In relation to the consideration of the evidence of the psychologist, Ms Stathis, the Tribunal member found that the evidence did not comply with the requirements of IMMI 12/116. The member found that Ms Stathis’s expression of opinion through the statutory declaration was:
…made solely and specifically for the purpose of providing it to the Tribunal.
This flies in the face of the statement made by the applicant that she had seen the psychologist on two occasions, albeit very recently and that her attendance on the psychologist was stopped because of the COVID-19 pandemic. She gave evidence that she went to see a psychologist about matters which were related to her psychological condition. It was not put to the applicant or even suggested that she had been simply sent along to obtain an opinion in the nature of a medico-legal opinion that could be relied upon in proceedings. Similarly, there is nothing in the instrument to suggest that oral evidence of those matters cannot be provided by the applicant herself.
I acknowledge that the applicant did not give evidence that she was receiving treatment or therapy from the psychologist and the psychologist’s statutory declaration does not specifically refer to any treatment that was provided to the applicant. There is authority, which I refer to below, that that is a necessary matter for the applicant to demonstrate. However, the psychologist’s statutory declaration refers to the psychologist administering a psychological test on the applicant to measure her degree of stress and/or anxiety. In my view, the inference is open that if the applicant had seen the psychologist on two occasions (albeit one day apart) and had intended to continue to see the psychologist then the overall objective was for treatment. I am satisfied that there was evidence that was overlooked by the Tribunal which was highly relevant to the question of whether the evidence put forward satisfied the requirements in regulation 1.24 of the Regulations.
The parties both relied on two cases, a Federal Circuit Court of Australia decision of Dang v Minister for Immigration and Border Protection [2016] FCCA 1426 (Dang) and a later Federal Court of Australia decision of Pham v the Minister [2018] FCA 1946 (Pham) which approved Dang. I do not propose to discuss those cases in detail. However, the discussion in Dang by Judge McNab made it clear that the purpose of the requirements outlined in IMMI 12/116 in the case of a psychologist wasthat the psychologist, by extensive involvement or at least involvement on multiple occasions in treating a person, be in a position by virtue of their involvement to make an assessment and provide an opinion of the genuineness or otherwise of the claims of family violence. In other words, the instrument and the requirements of the instrument are designed to avoid people simply opportunistically making appointments with experts to provide superficial assessments. I certainly acknowledge that the lateness of the involvement with the psychologist, Ms Stathis, may give rise to a suspicion of that kind.
However, in Dang it is clear enough from the recitation of the facts, particularly at paragraph 31 of the judgment, that the applicant in that case had simply attended upon a psychologist on one occasion at the behest of his lawyers. In other words, it was a straightforward request from lawyers to provide a medico-legal report. This, in substance, is something that IMMI 12/116 is designed to avoid. Judge McNab was not satisfied that such a report met the requirements. Of course, by analogy, involvement with a social worker that was superficial or without any repeated engagement in a way that would permit a social worker to provide a genuine opinion or assessment about whether the person suffered family violence is likewise something IMMI 12/116 aims to avoid.
That is to be contrasted with both the social worker and the psychologist in this case. There is evidence, essentially unchallenged, that the applicant visited the social worker on multiple occasions, three I believe the applicant said. There is also evidence the social worker gave a referral for the applicant to see a psychologist, Ms Stathis. I note I used the word “referral”, however, the applicant used the words “advised me”. In substance, it is a referral to a psychologist from the social worker that in my view would constitute assistance of the kind referred to in IMMI 12/116. That was approved by Middleton J in Pham.
The Tribunal member, in considering whether or not the requirements of IMMI 12/116 were satisfied, concluded that the psychologist’s report was created merely for provision to the Tribunal and that the social worker’s report did not involve counselling or assistance. These conclusions appear to ignore the evidence of the applicant that she was consulting both the social worker and psychologist because of her mental state and the applicant’s evidence that the social worker referred her to the psychologist. That, in my view, is indicative of a social worker engaged in counselling or assistance and a psychologist engaged in a therapeutic approach to the applicant. This is notwithstanding that the psychologist’s report does not detail the form of therapy given, though that is not required in IMMI 12/116.
I am satisfied that the Tribunal member has overlooked crucial and potentially determinative evidence or has misdirected herself about the requirements of IMMI 12/116. I am unable to say which. In any event, I am satisfied that the result is jurisdictional error.
There are other grounds of review made by the applicant. As I said to counsel at the outset, however, it appeared that, if the Tribunal member was correct in her conclusion that there was not evidence in an acceptable form, then the application must fail at the threshold and the other grounds advanced by the applicant were therefore not relevant. In other words, they could not result in the decision being set aside if it was futile to do so. On the other hand, if there has been jurisdictional error, as I have found, then the decision must be set aside in any event.
Counsel for the Minister said that if I were satisfied there had been jurisdictional error and proposed to set the matter aside, then there was no basis for opposing the extension of time sought by the applicant. The delay of the applicant is relatively short in this case. There is no prejudice suffered by the Minister so I extend time to the time she made the application.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 7 September 2021
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