Yacoub v Minister for Immigration
[2006] FMCA 1811
•6 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YACOUB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1811 |
| MIGRATION – Partner visa – whether ‘compelling reasons’ – current Apprehended Violence Order (AVO) – whether need for ‘comity’ between courts where AVO made and still ‘current’. |
| Migration Act 1958, s.5 |
| McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | ANDRE YACOUB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 387 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 10 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 25 January 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 387 of 2006
| ANDRE YACOUB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 25 January 2006.
In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent that the Applicant is not entitled to the grant of a partner (temporary) (class UK) visa, nor a partner (residence) (class BS) visa. The Applicant is a citizen of both Lebanon and France and he first arrived in Australia on 19 June 1996 on a visitor's visa. The last arrival was on 23 February 2003 on a subclass 976 electronic authority (visitor) visa. That visa appears to be the last substantive visa held by the Applicant and expired on 23 May 2003. On that day the Applicant applied for a subclass 457 (business long stay) visa (the business visa).
When reciting the background details of visas obtained by the Applicant, it is clear that the Tribunal has made an error. The error appears in the following paragraph:
“15. The visa applicant entered Australia on a Subclass 976 Electronic Travel Authority (Visitor) visa on 23 February 2003. This visa ceased on 23 May 2003. The visa applicant applied for a Subclass 457 Business (Long Stay) visa on 23 May 2003 and was granted a Bridging A visa on the basis of this application. The visa was refused on 7 July 2003 and the refusal was affirmed by this Tribunal (differently constituted) on 18 March 2005. The visa applicant was granted a Bridging B visa on 7 December 2004 to travel to New Zealand for a honeymoon. The visa applicant applied for a combined Subclass 820/801 visa on 15 December 2004. He currently holds a Bridging C visa granted on the basis of this application”.
(Court Book p.145)
The error in that paragraph appears where the Tribunal suggests that "The visa was refused on 7 July 2003 and the refusal was affirmed by this Tribunal (differently constituted on 18 March 2005)." In fact, a differently constituted Tribunal in a decision dated 18 March 2005 (MRT file number NO3/05772) decided to remit the application for a business visa to the Department. This required a delegate of the First Respondent to reconsider the application.
It is perhaps understandable that the Applicant, who was permitted to tender a copy of the Tribunal decision dated 18 March 2005, was aggrieved by the error made when the Tribunal whose decision is now sought to be reviewed inaccurately recorded the visa history. Nevertheless, I find on the material before me that the Tribunal in the decision before this court did not make an error by finding that at the relevant time the Applicant did not have a substantive visa as defined in s.5 of the Migration Act 1958 (the Migration Act) as any visa held by the Applicant could only be described as a bridging visa.
Hence the Tribunal correctly noted that fact and its error set out above does not alter its finding of fact that the Applicant at the time of application for the partner visas was not the holder of a substantive visa. Hence the Tribunal clearly and correctly then sought to apply paragraph 820.211(2)(d) of schedule 2 of the Migration Regulations 1994 (the Migration Regulations) which states:
(d) in the case of an applicant who is not the holder of a substantive visa – either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
Hence, as a preliminary matter, I am not satisfied that the error made by the Tribunal in describing the visa history could be properly regarded as an error which would constitute jurisdictional error and that to the extent that the Applicant relies upon that error, the application should fail.
Having dealt with that preliminary issue, it is useful to set out in further detail the background history, the Tribunal's decision and the remaining grounds sought to be relied upon by the Applicant in support of the application.
It should be noted that the Applicant was self-represented though appeared with the assistance of an interpreter, and the court permitted his wife to act as a McKenzie friend. This was not opposed by the First Respondent. It is further noted that the court permitted the Applicant to rely upon an affidavit sworn by him on 9 November 2006 which annexed what purports to be a handwritten transcription of the proceedings before the Tribunal. The tender of that affidavit was not opposed on the grounds that the Applicant only be permitted to refer to selected extracts from that transcript; namely, extracts which appear at pages 17, 18, 26, 28 and 32, to which further reference will be made in this judgment to the extent that it is necessary.
Background
After arriving in Australia, the Applicant met Ms Rola Saiab who is an Australian citizen. They met on 28 July 2003 and were married on 28 November 2004. The Applicant applied for a combined subclass 820/801 visa on 15 December 2004 and that application was sponsored by the Applicant's wife.
On 3 May 2005, a delegate made a decision to refuse to grant the Applicant a visa and the Applicant then applied on 24 May 2005 to the Tribunal for review of the delegate's decision.
A hearing of the Tribunal was conducted on 4 January 2006 and the Applicant and his wife gave evidence at that hearing.
The Tribunal Decision
The Tribunal in its decision recites the relevant legislation and then deals with the evidence and ultimately makes findings adverse to the Applicant.
When dealing with the relevant legislation it is useful to set out the following extract from the Tribunal's decision:
“11. The ‘Schedule 3’ criteria referred to in the paragraph above may be waived if there are ‘compelling reasons’. The term ‘compelling’ is not defined in the legislation. According to the Macquarie Dictionary, ‘compelling’ means ‘to force or drive, especially to a course of action’. The expression ‘compelling reasons’ involves something in addition to the basic pre-requisite criteria for the grant of the visa (Dunne). In other words, the assessment of the relationship between the applicant and their nominator was genuine would not, in itself, be enough to establish compelling reasons.
12. Departmental policy (PAM3: Schedule 2 – Visa 820) gives the following guidance:
820.211(2)(d)(ii)
‘in the case of an applicant who is not the holder of a substantive visa, satisfies Schedule 3 criteria … unless … there are compelling reasons for not applying those criteria’
3.3.13 This clause was inserted to allow certain persons unlawfully in Australia but in long-standing spouse relationships with Australian residents to legalise their status if compelling reasons exist.
3.3.14 In assessing whether there are compelling reason, officers are to take into account the circumstances which the Minister considers to be compelling. These circumstances, which were in the Explanatory Memorandum to Statutory Rules 1996 no. 75 which inserted this provision, are that
·there are Australian-citizen children from the relationship, or
·the applicant and their nominator are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least two years).”
(Court Book pp.144-145))
It will be clear from the paragraphs set out above that the Tribunal then sought to analyse the claims made in order to determine whether it was able to find that in this instance it could be satisfied that there are compelling reasons for not applying the criteria 3001, 3003 and 3004 in Schedule 3 of the Migration Regulations.
The Tribunal in its decision then refers to the evidence and, apart from the visa history referred to earlier in this judgment, then relevantly sets out the following:
“16. The visa applicant was sponsored in connection with the visa application by Ms Rola Seaib (the sponsor), an Australian citizen, who was born in Sydney on 16 January 1978. When lodging the application, the parties claimed that they met on 28 July 2003. The relationship developed and they made a decision to get married on 15 May 2004. They married on 28 November 2004 and began to live together after their marriage.
17. The sponsor was previously married and divorced on 19 November 2004. There are three children of this relationship. In a statement provided to the Department, the nominator stated that she was emotionally, physically and verbally abused by her ex-husband. She got the police involved on 8 March 2003 and they removed him from the family home. She had to attend counselling at the sexual assault unit for 18 months. Her eldest son went to Merrylands Community Services for 6 months and was seen by social workers because he witnessed the assaults by her ex-husband.
18. The sponsor provided documents to support these claims.
A letter from the Emergency Department at Westmead Hospital states that sponsor presented there on 10 March 2003. A letter from the Department of Community Services dated 19 March 2003, states that DOCS was concerned about the effect of the violence on the sponsor’s children. A letter from Westmead Health Department of Social Work stated that the sponsor attended the service on 8 March 2003 and 10 March 2003 as a result of sexual assault and domestic violence. An apprehended violence order (AVO) was made against the sponsor’s ex-husband on 26 June 2003 for a period of two years.”
(Court Book p.145)
The Tribunal then recited the personal circumstances of the Applicant as follows:
“21. At the hearing the visa applicant confirmed that he had dual French/Lebanese citizenship. He was born in Lebanon and had one brother there. The rest of his immediate family lived in Australia. He has never in France and has no family there. In Lebanon, he worked as a pastry chef. He currently works as a pastry chef in a family business with his two brothers. The visa applicant confirmed the history of his relationship with the sponsor as set out in paragraph 16. He stated that the sponsor is not close to her own family, but she gets on well with his parents and siblings. The sponsor currently worked full-time as a florist and receives family tax benefit.”
(Court Book p.146)
It is of significance and relevant to set out further paragraphs from the Tribunal's decision which appeared under the heading "Evidence" which specifically refer in further detail to the Applicant's claims and in particular the past history of the Applicant's wife as follows:
“22. The visa applicant stated that at the time he met the sponsor in July 2003, she no longer had contact with her ex-husband, other than when he had access to the children on Wednesdays and every second Saturday. He would verbally abuse the sponsor when he saw her at these times, so she arranged to drop the children off at MacDonalds. The sponsor’s ex-husband is currently in Lebanon. The visa applicant stated that he cannot return to Lebanon as he and the sponsor have a mortgage and financial commitments here. His wife and her children would be affected. The sponsor’s ex-husband could come back and abuse her again.
23. The sponsor told the Tribunal that after the AVO was taken out against her ex-husband he would drive past her property at night for about 3 to 4 months. She did not have contact with him after this, other than when he had access to the children. For about the last six months, a Family Court order has been in place and she has not had any contact with him as she drops the children off at MacDonalds. Her ex-husband went to Lebanon just before Christmas 2004. The AVO against him is still current. The sponsor stated that she attended counselling for about 18 months and stopped attending around September 2004. Her son attended counselling for 6 months in 2003. She has not had to seek further counselling since. Her sister-in-law helps with her children while she is working.
24. The sponsor stated that she cannot visit Lebanon as her ex-husband’s family could take custody of her children. She regards the visa applicant as a father figure to her three children. She could not take the stress if the visa applicant had to return to Lebanon. She feels very happy with him here and she wants him to stay with her and the children.”
The reference to the Apprehended Violence Order (AVO) having been obtained and still being "current" clearly arises from the document which appears in the Court Book (page 54) where it appears that in the local court at Fairfield on 26 June 2003, the AVO was made.
The orders made by the court purport to be made pursuant to the Crimes Act 1900 Part 15A (domestic) and specifically the order states that:
“The order is for a period of two YEARS in the following terms:
ORDERS MADE UNDER SECTION 562BC:
A.The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s).
B.The defendant must not stalk the protected person(s).
OTHER ORDERS MADE:
1.The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s).
3.The defendant must not enter the premises at which the protected person(s) may from time to time reside or work or other specified premises ....
6.The defendant must not approach, contact or telephone the protected person(s) except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorised by an order, or a registered parenting plan under the Family Law Act 1975.”
(Emphasis added)
Whilst the numbering of those orders may be out of order, it is clear that the orders made were intended to operate for a period of two years from 26 June 2003 and that the orders were correctly described by the Tribunal as still being "current" at the time the application was made for the partner visa. It is to be further observed from the orders made in the AVO that they extended to what might be described as the usual non-molestation orders together with orders which relevantly prohibit contact even by telephone to the protected person(s). It is not suggested in this application that the AVO contained orders that were inappropriate or baseless, and nor is it suggested that the operational period of the order made by the court was incorrect or inappropriate.
In its findings and reasons, the Tribunal, after reciting the evidence, accepted that the visa Applicant was validly sponsored by Ms Saiab and continued to be sponsored by her at the time of decision.
The Tribunal then determined whether the visa Applicant held a substantive visa at the time of the application, and as indicated, I am satisfied that in dealing with that issue it has made a decision free of any error despite the fact that there appeared to be some confusion in the mind of the Applicant and his wife as to the difference between a substantive and a bridging visa. That confusion, however, does not of itself raise any suggestion that the Tribunal was in error.
In its findings, the Tribunal then further noted that clause 301 of Schedule 3 of the Regulations requires the visa application to have been made "within 28 days after the day the visa Applicant last held a substantive visa". As indicated earlier, the Tribunal then correctly noted that the Applicant was unable to satisfy the Schedule 3 criteria which applied and accordingly then, correctly in my view, proceeded to consider whether in accordance with subparagraph 820.211(2)(d)(ii) there were compelling reasons for not applying the schedule 3 criteria. The Tribunal correctly referred to that requirement being met "at the time of application"; namely, 15 December 2004.
In my view it is relevant to this application to then set out in full the Tribunal's findings when dealing with the question of whether it was able to be satisfied that there were compelling reasons for not applying the schedule 3 criteria at the time of application. The Tribunal found as follows:
“31. As stated above, policy states that compelling reasons can exist where there are children of the relationship or where the parties are in a long-standing relationship (considered to be at least two years), at the time of application.
32. In this case, there are no natural children of the relationship, although the visa applicant has three step children. However, the policy is clearly directed at children of the relationship, being children of both the visa applicant and the sponsor. The visa applicant’s and sponsor’s evidence is that they met in July 2003, decided to get married in May 2004 and started a spousal relationship after their marriage on 28 November 2004. As the parties only started living together a few weeks before the date of the application, the tribunal is not satisfied that the parties were in a long standing spousal relationship at time of application.
33. Nevertheless, the Tribunal’s consideration of ‘compelling reasons’ is not limited to these circumstances. The Tribunal has considered the other claims put forward by the visa applicant.
34. The Tribunal has had regard to the sponsor’s history of domestic violence with her ex-husband. The Tribunal accepts that the sponsor was in an abusive relationship with her ex-husband, as evidenced by the reported referred to in paragraph 18. The Tribunal accepts that the sponsor took out an AVO against her ex-husband in July 2003 and that the AVO is still current. The Tribunal accepts that the sponsor attended counselling for 18 months until approximately September 2004 and that her son had to attend counselling for 6 months.
35. Nevertheless, the Tribunal is not satisfied that the domestic violence experienced by the sponsor is a compelling reason for not applying the Schedule 3 criteria at the time of application in December 2004. Based on the sponsor’s evidence and the above reports, the Tribunal finds that the sponsor no longer experienced the problems associated with her ex-husband at the time of application. At the time of application, the sponsor had stopped attending counselling. She had not had contact with her ex-husband since the AVO was made in July 2003, other than the limited times when he accessed the children. She has had no contact with him since the Family Court orders have been in place.
36. The visa applicant and the sponsor expressed concerns about the difficulties they would experience if the visa applicant had to return to Lebanon and they were separated for a period. These included the emotional stress, their financial commitments and the visa applicant’s role in caring for the sponsor’s children. The Tribunal is not satisfied that these amount to compelling reasons for waiving the Schedule 3 criteria.
37. A desire not to be separated from a partner and the stress and uncertainty that follow, and ongoing financial commitments, are circumstances that would apply to many applicants in this situation. The waiver provision is clearly framed as an exception, which means the intention is that it does not apply to the majority of cases. As stated above, the sponsor’s health has now stabilised and she is no longer seeing a counsellor. The sponsor now works full-time and she also has the support of the visa applicant’s family in caring for her children. The Tribunal accepts that the sponsor does not wish to travel to Lebanon, but there is no evidence before the Tribunal that it would take exceptionally long for a new spouse visa application to be processed in Lebanon.
38. The Tribunal has had regard to all the information before it and has considered each of the suggested reasons for not applying Schedule 3 criteria, individually and in combination. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. The Tribunal therefore finds that the visa applicant does not satisfy subparagraph 820.211(2)(b)(ii) and he cannot satisfy subclause 820.211(2). The visa applicant does not meet any of the other subclauses in clause 820.211. Therefore, the visa applicant does not meet clause 820.211.”
After making those findings, the Tribunal then stated that it had "no alternative but to determine the decision under review".
The Issues
Understandably the issues raised in the self-represented application were not clearly expressed by the Applicant. Nevertheless, the Applicant relied upon the application filed on 7 February 2006 and further relied upon an outline of submissions dated 9 November 2006; that is, the day before the hearing.
A significant period of time was taken at the hearing with the Applicant and his wife restating in some detail the domestic history of the wife. It is not necessary in this judgment to restate that history which I am satisfied has been appropriately summarised in the extracts from the Tribunal's decision set out earlier in this judgment. Whilst reference was made to the purported transcript of the Tribunal proceedings, it is my concluded view that those references, whilst providing further detail of the domestic background of the Applicant's wife, do not demonstrate that the Tribunal has inaccurately summarised those details. I do not take the Tribunal to conclude, and nor could it conclude, that the Applicant's wife has had anything other than a significant history of domestic violence and abuse which no doubt provided an appropriate basis for the issuing of the AVO.
The transcript also emphasises the significant impact an adverse decision would have upon the Applicant and his wife together with the children of the household should the Applicant be required to return to Lebanon. Again those matters, in my view, have been clearly referred to by the Tribunal when it notes the concerns expressed by the Applicant and his wife about "the difficulties they would experience if the visa Applicant had to return to Lebanon and they were separated for a period". It goes on to refer to emotional stress, financial commitments and the Applicant's role in caring for his wife's children.
Nevertheless, the Applicant in the outline of submissions sought to argue that the Tribunal misdirected itself or erred by finding that there were no compelling reasons. It was argued the Tribunal failed to understand the consequences of separation of the Applicant and his wife and "failed to assess the length of time for a new spouse visa application to be processed (approximately one year) via Beirut post". Other specific failures were alleged in the way in which the Tribunal dealt with the material and essentially it was argued the Tribunal had failed to correctly interpret "compelling reasons". It was argued that -
“compelling must be interpreted in the light of the probative evidence and the Australian spouse, who suffered at the hand of her ex-husband, was protected and recovered her dignity and happiness because of the support and association with her new husband ...”
It should also be noted at this point that the court refused to permit the Applicant to tender a medical report dated 25 February 2006 which essentially recites the history of domestic violence of the Applicant's wife and the effect which that violence has had upon her. The same document appeared to have attached a "victim's compensation report". The reason the court rejected the attempt to tender these documents is that they post-dated the hearing and were not documents which could properly be regarded as admissible upon judicial review. It was material at the very least which would have been available at the hearing, and in any event the content of that material did not in any substantial way advance the issue before this court, nor provide any additional relevant material. Instead, the documents simply emphasised the seriousness of the past domestic violence which does not appear to be in issue. Likewise, it is clear from the Tribunal decision and extracts set out earlier that the impact on the Applicant, his wife and children of any order which resulted in the Applicant leaving Australia to make an off-shore application has also been adequately set out in the material before the Tribunal. Hence, I ruled that it was not appropriate for the court to receive the additional documents to which I have referred.
The First Respondent's Submissions
The First Respondent, after reciting the details, submitted that in this instance the court should note that the word "compelling" does not involve an objective standard but rather always involves a subjective judgment. The court was referred to the decision of the Federal Court in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10] as follows:
“10 Secondly, counsel for the applicant submitted that the Tribunal misconstrued the term ‘compelling reasons’ in the waiver provision of the criterion. The dictionary definitions, to which the Tribunal referred and which are reproduced in [4] above, are said to involve an impermissibly high standard. This is a silly point. There is no true construction of the expression in question. Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective ‘compelling’ does not introduce an objective standard. The waiver decision will always involve a subjective judgment. In the present case the Tribunal considered whether the reasons advanced by the applicant justified not applying the criteria. That approach reveals no error.”
It was submitted that while another decision-maker may consider the situation of the step-children of the Applicant to constitute compelling reasons for waiving the criteria in schedule 3, the mere fact that in this case the Tribunal was not persuaded does not of itself indicate reviewable error.
It was further submitted that the Tribunal did not ignore the claims now sought to be emphasised concerning the ex-husband of the Applicant's spouse or the harm which might arise if the Applicant were required to return to Lebanon. It was submitted the Tribunal in paragraph 35 of its decision set out above considered the domestic violence and reached a conclusion that the Applicant spouse no longer faced problems associated with that violence.
During the course of submissions, counsel further referred to the decision of the Full Court of the Federal Court of Australia in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 where the court states,
“20 It is unnecessary to decide whether the meaning of "compelling circumstances" is a question of law or of fact. This is because in our opinion it cannot be said that the construction which the MRT placed on the expression was wrong, or, at least, was so wrong that it failed to address the statutory purpose of Regulation 1.20J(2).
21 In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word "compelling".
22 In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb "to compel". We respectfully disagree with the learned primary judge’s view of this.
23 In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that "compelling circumstances" were those which "forced or drove" or "compelled" a particular result.
24 There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of "compelling". But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.
25 We do not consider that the definition of "compelling circumstances" adopted by the MRT deflected it from deciding the question it had to decide. It is plain that the MRT addressed all of the circumstances put forward by the appellant as affecting him. It considered whether each of the circumstances alone or together "compelled" the exercise of the discretion. We can see no error in this, let alone jurisdictional error.”
It was submitted in the present case that the Tribunal's interpretation and application of the meaning of "compelling reasons" was consistent with the authorities upon which the First Respondent relied.
It should be noted that the First Respondent in written submissions referred to the application which specifically raised the question of the Tribunal's failure to "request further assessments in order to understand the sponsor's psychological and physical suffering without Applicant's support". In the application, the Applicant had further stated in relation to that matter that "the decision is totally unreasonable".
This matter was not pursued in detail in the Applicant's outline of submissions but nevertheless appropriately required a response from the First Respondent who submitted that that ground was based on an assertion "that the Tribunal has a duty rather than a power to make further inquiries to obtain further evidence before making its decision". It was submitted that assertion is incorrect (see Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 (Mohammed) at [24]).
Reasoning
In my view there is no substance in the claim that the Tribunal had any duty to make further inquiries and accordingly any suggestion that there was an error based on that alleged failure cannot succeed. I accept the First Respondent's submissions in relation to that matter and the authority of the Full Court in Mohammed.
I further reject the suggestion that the Tribunal ignored the claim made by the Applicant and in particular those claims relating to his wife, her past history of domestic violence and the current situation should the Applicant be required to return to Lebanon to make an off-shore application.
An issue raised during the course of submissions, however, related to the failure of the Tribunal to take into account a relevant matter in considering the history; namely, the significance and importance of the AVO. The court raised with the counsel for the First Respondent the manner in which the Tribunal dealt with that issue. It is clear from the extract of the Tribunal's reasons that it properly recited the background information concerning the AVO and correctly referred to it as still being "current" at the time of the application.
The question raised by the court concerned what might loosely be described as the need for comity between courts and Tribunals.
When a court issues an AVO on proper grounds and makes a decision that that order should remain in force for a period of two years, then it was of some concern to the court that a Tribunal, cognisant of the order and the duration of the order, should then seek to analyse the circumstances as presented to the Tribunal and reach a conclusion which would effectively be inconsistent with the order made by the local court; that is, the Tribunal has decided that at the time of the application, contrary to the AVO, there was no longer any need for the AVO to be in force at the relevant time; namely, at the time of application.
It made this finding when it claimed that it was not satisfied "that the domestic violence experienced by the sponsor is a compelling reason for not applying the schedule 3 criteria at the time of application in December 2004". It then went on to make findings based on the evidence that the Applicant's wife no longer experienced problems associated with her ex-husband at the time of the application. The difficulty with that finding which the court raised at the hearing was that AVOs are made for a period of time which would allow for conflict to resolve or settle. The mere fact that there may be periods of relative "calm" or indeed incident-free periods does not in any way detract from the significance of a court order made in the terms of the AVO, in this case for a duration of two years.
If the AVO order was properly made on the material before the court and if the court had appropriately fixed a two-year period, then the issue raised was whether a Tribunal, when considering this matter of compelling reasons, should not have regard to the nature of the order rather than going behind the order and drawing its own conclusions. It is that issue which has troubled the court in this application.
It is noted that the Tribunal correctly and in a manner free of error makes a finding reasonably open to it that the mere separation from a partner and stress and uncertainty that follow, including ongoing financial issues, would apply to many Applicants and that the waiver of a provision is clearly framed as an exception. It has to be assumed, however, that it would not apply to Applicants who have obtained an AVO in recent times which is still current at the time of application.
In my view it is an error to fail to take into account a relevant matter; namely, the currency of an AVO and the need for there to be comity between courts and Tribunals to ensure as far as possible that the spirit and intent of an AVO is the subject of a consistent response by Tribunals and courts. The failure of the Tribunal to take into account the currency and duration of the AVO in determining whether this application was beyond what might be described as a factor which would apply to "many Applicants" is sufficient in my view to constitute jurisdictional error.
Whilst it is clear that the Tribunal has recited and referred to the AVO, it could not possibly be in a position where, as a result of its hearing and investigations, it could hope to supersede the findings of the court when making an AVO or that its findings should be regarded as somehow replacing the findings of the court. When dealing with domestic violence, in my view the Tribunal ought properly have regard to a relevant factor; namely, that a legally enforceable order has been made upon a proper basis where the court has deemed that the order should remain in force for a period of two years. In my view the Tribunal has committed jurisdictional error by failing to take into account the relevant consideration, namely the currency of the AVO as described in reaching its decision rather than simply making reference to its existence. That failure was a failure to take into account a matter which in my view it was bound to take into account and accordingly constitutes jurisdictional error (See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
Conclusion
Accordingly it follows in my view that the decision of the Tribunal should be quashed and appropriate constitutional writs issued.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 6 December 2006
0