Wu v Minister for Immigration - [2011] FMCA 14

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 14

MIGRATION – Partner visa – review of Migration Review Tribunal decision – claim of domestic violence – invitation to comment on information under s.359A of the Migration Act 1958 – failure to include confidential information in s.359A notice – nature of Tribunal’s s.359A obligations when matter referred to independent expert for report – Tribunal’s disclosure obligations in relation to confidential information – what documents are supplied by Tribunal to expert – apprehended bias on the part of the Tribunal and the expert – whether Tribunal obliged to consider whether expert’s opinion properly made – failure to consider claim.

Migration Act 1958, ss.5, 352, 357A, 359A, 474
Migration Regulations 1994, regs.1.21, 1.23, 1.24, 1.26, cl.801.221 of sch.2

First Applicant:

HONG WEI WU

Second Applicant:

DI WU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 325 of 2010

Judgment of:

Cameron FM

Hearing date:

2 June 2010

Date of Last Submission:

15 June 2010

Delivered at:

Sydney

Delivered on:

28 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr N. Poynder

Counsel for the First Respondent:

Ms L. Clegg

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 325 of 2010

HONG WEI WU

First Applicant

DI WU

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicants, who are father and son, are citizens of China. On

6 September 2002 the first applicant lodged an application for a Partner (Residence) (Class BS) subclass 801 visa. The application was refused by a delegate of the first respondent (“Minister”) on 14 January 2008. The applicants then applied to the Migration Review Tribunal (“Tribunal”) for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 14
Decision Date: 28 January 2011

CaseChat Overview and Summary

Wu v Minister for Immigration is a case before the Administrative Appeals Tribunal in Australia. The applicant, Mr Wu, sought a subclass 801 visa on the basis of alleged domestic violence. The Minister for Immigration had previously refused Mr Wu's visa application, leading to his appeal to the Tribunal. The central issue in this case was whether the Tribunal should grant Mr Wu's application for a subclass 801 visa on the basis that he had been a victim of domestic violence.

The Tribunal had to determine whether Mr Wu's claims of domestic violence were credible and whether he met the statutory requirements for a subclass 801 visa. This involved examining the statutory declaration provided by Mr Wu and the evidence he presented. The Tribunal needed to assess the requirements set out in regulation 1.26, including whether Mr Wu's statutory declaration was made by a competent person and whether it adequately set out the basis for his claim of domestic violence. Additionally, the Tribunal had to consider the role of an independent expert's opinion as outlined in regulation 1.23(1C) when the Minister was not satisfied with the applicant's claim.

After reviewing the evidence and the statutory requirements, the Tribunal found that Mr Wu's claims were not credible and that he did not meet the criteria for a subclass 801 visa. The Tribunal dismissed Mr Wu's application for review, concluding that the statutory declaration did not meet the necessary standards and that there was insufficient evidence to support a finding of domestic violence. The Tribunal's decision was based on the insufficiency of the evidence provided by Mr Wu and the lack of corroboration of his claims.

The final order of the Tribunal was to dismiss Mr Wu's application for a subclass 801 visa. The Tribunal did not grant the relief sought by Mr Wu, affirming the Minister's decision to refuse the visa application.

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Regulation 1.26 provided:1.26 Statutory declaration by competent personA statutory declaration under this regulation:(a) must be made by a competent person; and(b) must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and(c) must state that, in the competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and(d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and(e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and(f) must set out the evidence on which the competent person’s opinion is based. Pursuant to reg.1.23(1B), where an application for a visa included a non-judicially determined claim of domestic violence, the Minister was required to consider whether the alleged victim had suffered relevant domestic violence and(a)if satisfied that the alleged victim has suffered relevant domestic violence — consider the application on that basis; or(b) if not satisfied that the alleged victim has suffered relevant domestic violence — seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence. Where the opinion of an independent expert was sought by the Minister, reg.1.23(1C) provided that:The Minister must take an independent expert’s opinion on the matter mentioned in paragraph (1B)(b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered domestic violence. As noted earlier in these reasons, the applicant lodged an application for a partner visa on 6 September 2002. On 15 January 2003 he was granted a Partner (Temporary) (Class UK) subclass 820 visa on the basis of his relationship with his then wife and sponsor, Ms Jane Chanell. On 7 September 2007 Ms Chanell advised the department that she wished to withdraw her sponsorship of the applicant. By a decision dated 14 January 2008, apparently substituting for a decision dated 22 October 2007 which had been sent to the applicant at an address which was incorrect, a delegate of the Minister refused the applicant’s application for a subclass 801 visa on the basis that the relationship between the applicant and Ms Chanell had ceased and was not therefore genuine or continuing as required by the Regulations. The delegate also found that the applicant did not satisfy any of the criteria under cl.801.221(6) for the grant of a subclass 801 visa, including the provision relating to domestic violence. Following the lodgment of his application for review, the applicant provided to the Tribunal as first constituted a statutory declaration dated 27 May 2008 in which he made the following claims:a)he and Ms Chanell were married in August 2002;b)their relationship ended in January/February 2007;c)he had had monetary problems with Ms Chanell and had been threatened by her and her brother; andd)he was seeking permanent residence under the domestic violence provisions because he had been under constant threat from Ms Chanell and her family since the beginning of 2007.