YAACOUB v Minister for Immigration
[2017] FCCA 1953
•16 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YAACOUB v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1953 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Migrant) (Class BC) (subclass 100) visa – the applicant suffered no practical injustice by reason of the failure to disclose the existence of the certificate or the material the subject of the certificate – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 376, 438, 476 Migration Regulations 1994, reg.1.21, 1.23 1.24, cl.100.221(4) of Schedule 2 |
| Cases cited: AVO16 v Minister for Immigration and Border Protection [2017] FCA 566 BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512 |
| Applicant: | MOHAMAD YAACOUB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2391 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 16 August 2017 |
| Date of Last Submission: | 16 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2391 of 2016
| MOHAMAD YAACOUB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 August 2016 affirming a decision of the delegate not to grant the applicant a Partner (Migrant) (Class BC) (subclass 100) visa.
The applicant was a citizen of Lebanon and 29 June 2012 applied for a Partner visa. The applicant married his sponsor in Lebanon on 7 June 2012. The applicant was granted a temporary visa on 18 September 2013.
On 23 May 2014, the applicant’s agent wrote to the Department claiming that the applicant had suffered family violence. The applicant provided the Department with statutory declarations and other material in support of the claim and in support of the genuineness of the relationship. On 9 October 2014, the delegate refused to grant the applicant a Partner (Migrant) (Class BC) (subclass 100) visa.
The Tribunal’s decision
On 20 April 2015, the applicant applied for review to the Tribunal. On 7 May 2015, the Department provided the Tribunal with a certificate under s.376 of the Migration Act in respect of identified folios of a particular file given in confidence and that s.375A of the Migration Act did not apply. The certificate made reference to the disclosure of the material being subject to the Tribunal’s discretion and referred to the material the subject of the certificate as containing third party information.
The Tribunal identified the applicant’s migration background. The Tribunal correctly identified the relevant law and the requirements under reg.1.23 of the Migration Regulations 1995 (“the Regulations”) as to whether a person is taken to have suffered family violence and the definition of relevant family violence in reg.1.21 of the Regulations.
Consideration of a claim of domestic violence
The Tribunal observed that in the present case, the applicant was relying upon a non-judicially determined claim of domestic family violence. The Tribunal was satisfied that the evidence was presented in accordance with reg.1.24(1)(b) of the Regulations, that domestic violence had occurred and therefore found that the requirements of reg.1.23(1A)(b)(ii) of the Regulations was satisfied. Accordingly, a non-judicially determined claim of domestic violence had been made under reg.1.23(1)(A) of the Regulations.
Consideration of whether domestic violence had been suffered
The Tribunal identified that, having considered the evidence before it, the Tribunal was not convinced and was not satisfied for the purposes of reg.1.23(1)(f) of the Regulations that the applicant had suffered following domestic violence. Accordingly, the Tribunal, in accordance with reg.1.23(1B)(b) of the Regulations sought the opinion of an independent expert.
On 28 June 2016, the independent expert provided an opinion that the applicant had not suffered relevant domestic violence. The Tribunal conducted a second hearing to give the applicant an opportunity to present evidence concerning the independent expert opinion or to establish why the opinion was invalid. The Tribunal made reference to the applicant’s criticisms as to the questions that he was asked, and the Tribunal did not accept the applicant had not been given an opportunity to present his case to the independent expert. The Tribunal did not consider the fact that the independent expert was not favourable to the applicant renders the opinion invalid.
The Tribunal found that the opinion was authorised by the Regulations, as it was provided by an independent expert who is a person suitably qualified to make the assessment, from an organisation specified for the purpose, and found that the expert opinion was properly made.
The Tribunal made reference to reg.1.23(1(C) of the Regulations whereby the Tribunal is required to take as correct the independent expert’s opinion where properly made. The Tribunal found the applicant is not taken to have suffered domestic violence committed by the sponsor for reg.1.22 of the Regulations.
Consideration of whether the violence occurred while the parties were in a relationship
The Tribunal was not convinced that the applicant and the sponsor had a genuine and mutually committed relationship and that they were spouses. The Tribunal has found that the applicant did not suffer family violence, but even if the Tribunal’s finding was different, the Tribunal would have concluded that the violence did not occur when the parties were in a spousal relationship.
It was in those circumstances that the Tribunal concluded that the claim of domestic violence had not been established and that the applicant did not meet the criteria of cls.100.221(4)(b) or (c) of Schedule 2 to the Regulations for the grant of the visa and affirmed the decision under review.
Before this Court
The ground of the amended application are as follows:
Ground 2;
The Tribunal denied the applicant procedural fairness by failing in its obligation to disclose the existence of a certificate.
Particulars;
1. The Tribunal failed to disclose to the applicant the existence of s376 certificate, in accordance with the authority of Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67].
Mr Jones of counsel on behalf of the applicant, confirmed that ground 1 was abandoned.
Consideration
In relation to ground 2, Mr Jones submitted that the existence of the s.376 certificate and the failure to disclose the same gave rise to a jurisdictional error, and in that regard, relied upon the decision in BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512.
In the present case, the material the subject of the certificate was admitted into evidence subject to Mr Jones of counsel’s objection as to relevance. The material the subject of the certificate was clearly relevant to whether or not the applicant suffered any practical injustice in respect of the non-disclosure of the certificate, or the material the subject of the certificate.
It is in those circumstances that the Court has admitted into evidence and holds that the material the subject of the affidavit is relevant. That ground alone distinguishes the case in BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512, as well as MZAFZv Minister for Immigration and Citizenship (2016) 243 FCR 1 and Minister for Immigration and Border Protection vSingh [2016] FCAFC 183.
The Court has found and Mr Jones of counsel has properly conceded the material was neutral. On the face of the material before the Court, it was not relevant to the determination of the review by the Tribunal. On the face of the Tribunal’s reasons, the Tribunal had no regard to the material the subject of the certificate.
Mr Jones of counsel submitted that because there was a discretion that was capable of being exercised, the applicant lost the opportunity of inviting the Tribunal to exercise its discretion and/or to challenge the validity of the certificate and/or to put submissions on the material if it was disclosed. The material, for the reasons already identified, was not relevant to the issues before the Tribunal.
The Court is satisfied the applicant suffered no practical injustice by reason of the failure to disclose the existence of the certificate or the material the subject of the certificate or by reason of the applicant not having the opportunity of seeking an exercise of the discretion in relation to the material the subject of the certificate.
The material the subject of the certificate was clearly not relevant to the application. No practical injustice occurred in the present case by reason of the failure to disclose the existence of the certificate or the material the subject of the certificate. Accordingly, no jurisdictional error is made out.
Further, the Court is of the view that the disclosure of the material the subject of the certificate in the present case could not possibly have had an impact on the outcome of the review, and for this further reason, if a relevant error had been made out, relief would be refused on discretionary grounds.
Consideration of the decision in BJN16 v Minister for Immigration and Anor (No.2)
Mr Jones submitted that this Court should follow the decision in BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512 unless satisfied it was clearly wrong. The decision in BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512 is not consistent with the decision of the learned Barker J in AVO16 v Minister for Immigration and Border Protection [2017] FCA 566.
In that case, his Honour identified where the material was provided to the Court the appropriateness of examining the material to determine whether it was relevant and whether or not it occasioned any practical injustice, as well as whether or not it was material to which the Tribunal had regard. I am bound by the decision in AVO16 v Minister for Immigration and Border Protection [2017] FCA 566.
Further, insofar as the decision of BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512 purports to establish a principle that the Court should not receive evidence in relation to certificates, be it under s.376 or s.438, the decision is in my opinion, plainly wrong.
The Court regularly receives evidence from applicants and/or the first respondent in relation to not only issues of practical injustice, but issues of denial of procedural fairness in relation to the materiality of the same. Those principles do not appear to have been taken into account by Kelly J in BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512.
Further, the issue of a discretion in relation to relief is well-established by authority and it is difficult to see how in those circumstances, there could properly have been pursued an application for summary judgment. I regard the decision in BJN16 v Minister for Immigration and Anor (No.2) [2017] FCCA 1512 as clearly wrong.
Conclusion
For these reasons, the application in the present case is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 5 September 2017
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