WORRALLO v Minister for Immigration

[2020] FCCA 3237

FEDERAL CIRCUIT COURT OF AUSTRALIA

WORRALLO v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3237

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Partner (Temporary) (class UK) (subclass 820) visa – whether the Tribunal failed to consider an issue arising on the material before it – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to exercise its jurisdiction in relation to the independent expert – whether the Tribunal failed to comply with ss. 359A or 359AA(1)(b)(iii) of the Migration Act 1948 (Cth) – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 375A, 376, 476

Applicant: WAYNE WORRALLO

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 36 of 2020

Judgment of: Judge Street

Hearing date: 26 November 2020

Date of Last Submission: 26 November 2020

Delivered at: Sydney

Delivered on: 26 November 2020

REPRESENTATION

Counsel for the Applicant: Mr M Crowley

Solicitors for the Applicant: Four Lion Legal

Counsel for the Respondents: Ms S Oliver

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to the applicant to rely on the amended application filed on 14 September 2020.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 26 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 36 of 2020

WAYNE WORRALLO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 February 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Partner (Temporary) (class UK) (subclass 820) visa. 

2. The applicant applied for the visa on 7 July 2015 on the basis of his relationship with the sponsor. The Delegate found the applicant failed to meet the criteria for the grant of the visa. The applicant applied for a review. The applicant was invited to, and attended, a hearing on 10 December 2018 to give evidence and present arguments, and at a further hearing on 17 July 2019. 

3. The Tribunal was not satisfied, in accordance with the statutory requirements, that the relationship that had ended had been the subject of family violence, within the meaning of the Migration Regulations 1994 (Cth) (“the Regulations”), and, as required to, the Tribunal engaged an independent expert to determine that matter. 

4. The applicant persuaded the Tribunal that the first independent expert, who found that there had not been the relevant family violence, had not conducted the same in accordance with the requirements of the Act. The Tribunal then engaged in obtaining the opinion that was required of the independent expert under the Regulations, and the second independent expert found that there had not been family violence as required, at least within the meaning of the Regulations. 

5. The Tribunal found that that second independent expert’s report was made by an appropriate expert and met each of the requirements of the Regulations, and accordingly found that the relevant family violence had not occurred and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 4 February 2020. 

2. Mr Crowley, counsel on behalf of the applicant, seeks to rely upon the grounds identified in an amended application filed on 14 September 2020.

The grounds

1. The grounds in the amended application are as follows:

   1A. The second respondent’s (Tribunal) decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction in that the Tribunal failed to consider an issue arising ‘squarely’ on the material before it, but not expressly advanced, that plainly fulfilled an alternative criterion for the grant of the visa (clause 801.221(6)(c)(i)(B) of Schedule 2 to the Migration Regulations 1994).

   Particulars

   1A.1 The evidence before the Tribunal included that, during their cohabitation, the sponsor assaulted her biological son by ‘slapping the face of her son James with such force that he fell over into bath’ [CB 693, 936, 964]; or by ‘stri[king him] hard to the face, causing him to fall into the empty bath and leaving a visible handprint on his face’ [CB 1294, 1348]; [CB 1467 line 29-31, 1469 line 20-28];

   1A.2 The Tribunal affirmed the delegate’s refusal by reference only to ‘family violence’ committed by the sponsor directed to the applicant under clause 801.221(6)(c)(i)(A), but did not consider at all clause 801.221(6)(c)(i)(B) directed to family violence committed by the sponsor directed to ‘a dependent child of the sponsoring partner or of the applicant or both of them’.

   2A. The Tribunal’s decision to affirm the delegate’s refusal was vitiated by a denial of procedural fairness in that the conduct of the interview with the independent expert appointed to conclusively determine the claim of ‘family violence’ (as framed by the Tribunal) might have created in the mind of a fair-minded & neutral lay observer an apprehension that the independent expert might not have approached her task with an open mind.

   Particulars

   The independent expert, Ms Wager:

   2A.1 Said to the applicant that ‘it is impossible for a woman to be violent to a man of your size’ (in a belittling tone and while laughing) (applicant affidavit [39]; and that he ‘should not be afraid of a woman’ in belittling tone and laughing at the applicant (applicant affidavit [40]), and that she ‘usually make[s] a decision as to whether there was family violence within 10 minutes of hearing what the victim ha[s] to say’;

   2A.2 Mocked and belittled the applicant and diminished his claims (applicant’s affidavit [41], [42], [43], [46]); accused the applicant of uncharged criminal offences (applicant’s affidavit [45], [46]); approached her task in an interrogative, hostile manner (applicant’s affidavit [50], [52], [53], [54]).

   3A. The Tribunal’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction in that the independent expert’s determination that there was no ‘family violence’ by the sponsor directed to the applicant was manifestly unreasonable, or was not an opinion on ‘family violence’ within the meaning of regulation 1.21 of the Migration Regulations 1994, with the consequence that there was no valid determination actuating the Tribunal’s decision.

   Particulars

   3A.1 The independent expert recounts an actual assault on the applicant by the sponsor in which the sponsor ‘punched him to the side of the head’, but concluded that it ‘does not appear to be one that would cause him to reasonably fear for, or be apprehensive about, his wellbeing or safety’ [CB 1350];

   3A.2 The independent expert set up a false dichotomy between ‘family violence’ and ‘avoidance’ [e.g. CB 1348-1349, 1353], or ‘family violence’ and ‘dysfunctional relationships’ [e.g. CB 1353]; or ‘family violence’ and ‘ill-tempered behaviour in the context of relationship conflict and drunkenness’ and ‘unpleasant behaviour underpinning the apparently mutual conflict and unmet expectations’ [e.g. CB 1354]; or ‘family violence’ and ‘contextual anger … affected by alcohol’ [CB 1360-1361]; or ‘anger’ and ‘intimidation or oppression’ [CB 1360]

   3A.3 The independent expert assimilated the applicant’ s explanation to his employer of why he left the marital home with his subjective reasons for doing so [CB 1367-1368], and thought it negated fear or apprehension of violence that the applicant ‘carried on as usual’ or ‘left the family home’ [CB 1361].

   4A. The Tribunal’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction in that the Tribunal did not comply with ss 359A nor 359AA(1)(b)(iii) of the Migration Act 1958 (Cth), an inviolable condition of the review.

   Particulars

   4A.1 The Tribunal purported to give written particulars of information which would be the reason, or part of the reason, for affirming the decision under review, but which were wholly inadequate [CB 672] to fulfil its obligation under s 359A;

   4A.2 At the hearing the Tribunal purported to give oral particulars of information which would be the reason, or part of the reason, for affirming the decision under review, but which did not fulfil its obligation under s 359AA(1)(b)(iii) because the Tribunal did not ‘advise the applicant that he … may seek additional time to comment on or respond to the information’

   5A. The Tribunal’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction by practically ceding the entirety of the review to the independent expert, without making any findings of fact upon the assumption of which the independent expert was to provide an opinion.

Ground 1A

1. In the first ground, in substance, it is advanced that there was a claim by reason of which the applicant allegedly could meet the criteria because of family violence in respect of his dependent son. 

2. Firstly, as the respondent has correctly pointed out, no such claim was advanced on behalf of the applicant and no such claim fairly arose on the material before the Tribunal. 

3. Mr Crowley submitted that such a claim arose because of a reference to the slapping of the son on the material that was before the Tribunal. That material was advanced in the context of an alleged fear by the applicant. No such claim to meet the criteria, based on family violence to the son, fairly arose on the material before the Tribunal. 

4. Further, the son was not a dependant within the meaning of the requirement of the Regulations, and, accordingly, for these reasons, no jurisdictional error as alleged in ground 1A is made out.

Ground 2A

1. In relation to ground 2A, the applicant sought to rely upon information contained in affidavit evidence that the Court rejected on the grounds of not being relevant because it could have been put on before the Tribunal. The affidavit evidence sought to assert conduct by the independent expert which was all material that could have, had the applicant sought to do so, been advanced before the Tribunal. 

2. This is not a case where there is some other independent information, of a kind that was not available at the time of the hearing before the Tribunal, which is relied upon to advance a denial of procedural fairness. 

3. It was in those circumstances that the Tribunal found that material that was not before the Tribunal is not relevant for the purpose of establishing a jurisdictional error, and as the applicant wished to rely upon that information in circumstances where the applicant could have advanced it before the Tribunal, it is not information which the applicant can now rely upon to advance the allegation of jurisdictional error. 

4. Mr Crowley of counsel properly conceded that without the affidavit evidence ground 2A cannot succeed. That was a proper concession. 

5. No jurisdictional error is made out by ground 2A.

Ground 3A

1. In relation to ground 3A, Mr Crowley submitted that the Tribunal’s decision in respect of the determination as to no family violence was manifestly unreasonable. There is no substance in this ground and it is an impermissible invitation to engage in merits review. 

2. Mr Crowley referred to an incident involving physical contact between the applicant and the sponsor, describing the same as a punch. Whatever that physical conduct was is a matter that was before the independent expert and the Tribunal was bound by the independent expert’s determination. 

3. The independent expert’s determination reflected a genuine intellectual engagement with the material that was provided to the independent expert and the proposition that the adverse finding by the independent expert is manifestly unreasonable is without substance. The independent expert provided logical and rational reasons in support of the finding that there was no relevant family violence. Those reasons provide an evident and intelligible justification for the adverse finding. Nor is the adverse finding one to which it could be said no reasonable independent expert court come. 

4. This ground fails to make out any jurisdictional error. 

Ground 4A

1. The fourth ground is one in respect of which Mr Crowley drew attention to the existence of a certificate under s 375A of the Act and a certificate under s 376 of the Act. Mr Crowley took the Court to where the Tribunal had sent a letter in purported compliance with s 359A of the Act, and to the transcript in respect of the information the subject of the letter at a hearing on 18 July in which Mr Crowley identified that the applicant was not given advice that the applicant may seek additional time to comment or respond to the information, and accordingly contends a breach of s 359AA of the Act in respect of the information the subject of the certificate. 

2. Ms Oliver of counsel correctly points out that s 359A has no application to information that is identified as non-disclosable information. The information the subject of the certificate was non-disclosable information.

3. It is, however, apparent that the applicant had a real and meaningful hearing because the Tribunal raised with the applicant the substance of the information the subject of the certificates. In those circumstances the applicant was not deprived of a real and meaningful hearing in the conduct of the review.  The applicant suffered no practical injustice in the conduct of the review by reason of the existence of the certificates or the documents the subject of the certificates in the circumstances of the present case.

4. Mr Crowley sought to submit that the certificates were the subject of invalidity. Whether the certificates were invalid or not, the applicant had identified at the hearing by the Tribunal the information the subject of the certificates and had an opportunity to put submissions, and respond to the same, whether or not it reflected a step identified under s 359AA(1)(b)(iii) of the Act. 

5. The Court accepts the respondent’s submission that s 359AA did not have any such application.

6. Further as identified above the Court finds that the applicant suffered no practical injustice by reason of the information the subject of the certificates.

7. The Court finds that the applicant had a real and meaningful hearing. 

8. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. Ground 5(a) was not pressed. 

2. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 26 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 15 December 2020