ZDGY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 5228

ZDGY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5228 (24 December 2020)

Division:GENERAL DIVISION

File Number:          2020/6182

Re:ZDGY  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:24 December 2020  

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter for reconsideration pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) in accordance with the direction that the issue of child protection be taken into account when reconsidering the decision.

……..[sgd]…………………

Dr Stewart Fenwick, Senior Member

Catchwords

MIGRATION – visa refusal – partner visa – withdrawal and reinstatement of visa sponsorship – domestic violence offending – whether the applicant passes the character test – involvement of child protection authorities – decision set aside and remitted for reconsideration

PRACTICE AND PROCEDURE – where new evidence arose at the hearing – where further relevant material provided to the Tribunal following the hearing – where Applicant recalled on two occasions to respond to evidence and material – where evidence and material subject to confidentiality orders – s 2A of the Administrative Appeals Tribunal Act 1975 considered

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

24 December 2020

BACKGROUND

1. By application dated 8 October 2020, ZDGY sought review of a decision of a delegate of the Respondent Minister, dated 25 September 2020, to refuse to grant a Partner (Residence) (Class BS) visa because ZDGY did not pass the character test under s 501(1) of the Migration Act 1958 (Cth) (the Migration Act). This was on the basis that, under s 501(6)(d)(i) of the Migration Act, there is a risk that he would engage in criminal conduct in Australia.

2. In the application for review, ZDGY states as follows:

   We think there are multiple reasons for this claim.

   Delegates did not account all the information which were provided, such as she did not consider about 3 years old daughter and her future. She would be separated from her father forever. Not only just daughter but also my wife would be deprived from me. My wife is also Pregnant and expecting another baby which would be due in a few months time. It's now 3 lives are dependent on me and they would be suffering if right decision is not Made. My wife and daughter are very much dependent on me. They would be suffering emotionally, mentally, cylogically because of wrong decision. If this decision does not set aside they would be suffering more as well as my wife and coming baby. Other reason law was not applied correctly as the applicant does not have a substantial criminal record and have to regard for past and present criminal conduct, the past and present general conduct.

   We still live together and love each other and want to have a bright future with lovely family and upcoming baby.

3. ZDGY is a citizen of Pakistan born in 1987. He arrived in Australia in 2008 and undertook a range of vocational courses. In October 2013, ZDGY married his Australian citizen wife, who is also his first cousin, and on 25 November 2013 applied for a partner visa with his wife as sponsor. The marriage has been marked by periods of separation and sponsorship has at times been withdrawn and reinstated by his wife. These issues led to the visa being refused on a prior occasion, and that decision was remitted by the Migration and Refugee Division of the Tribunal for reconsideration.

4. On 9 March 2017 ZDGY was convicted after pleading guilty to a charge of Common Assault (Domestic Violence). He was released on a good behaviour bond for 12 months and made subject to an Apprehended Violence Order until 22 February 2018. The offending conduct took place on 15 February 2017 when ZDGY assaulted his pregnant wife. She gave birth to their daughter in August 2017.

5. At the time of the hearing the couple had reconciled and were residing together after another recent separation, including recourse to family law proceedings, and ZDGY’s wife is expecting the couple’s second child.

6. This matter was heard via a Teams video hearing with myself sitting in Melbourne and the parties resident in Sydney. Evidence was given by ZDGY, his wife and several friends providing evidence in support of the Applicant.

7. This matter took a somewhat unusual course. The matter was initially scheduled over 1 and 2 December 2020. Material was lodged with the Tribunal by the Respondent prior to these hearing days and was later made the subject of a confidentiality order, although this material was not admitted during the initial hearing days (described as a Bundle of Sensitive Documents).

8. Evidence not previously forming part of the consideration of this matter by the delegate of the Respondent arose during the evidence of the Applicant’s wife. This led to the Applicant being recalled during the initial hearing days to be able to respond to the substance of issues arising from this evidence.

9. Further material was provided to the Tribunal following the close of the initial hearing days, on 20 December 2020. This material was also made the subject of a confidentiality order and was discussed at a directions hearing on 21 December 2020 with the Respondent only. Subsequently, the Tribunal reconvened on 22 December 2020 to recall the Applicant for a second time to afford an opportunity for ZDGY to respond to the substance of this material.

10. ZDGY lodged a Statement of Facts, Issues and Contentions (SFIC) with the Tribunal and the following documents were received in evidence at the initial hearing: a statement of the Applicant (Exhibit A1); a letter of the Applicant’s wife (Exhibit A2); letters of support (Exhibits A3-A7); and, medical records relating to the pregnancy of the Applicant’s wife (Exhibit A8).

11. The Respondent Minister lodged a SFIC and a bundle of G documents. A Bundle of Relevant Documents (Exhibit R1) and a Decision Record with respect to the Applicant, dated 31 August 2016 (Exhibit R2), were admitted during the initial hearing. The Bundle of Sensitive Documents were lodged on 30 November 2020, and were admitted at the subsequent hearing day on 22 December 2020 (Exhibit R3).

12. The further relevant material, being documents provided to the Tribunal on 20 December 2020, were admitted at the subsequent hearing day (Exhibits T1 and T2). Under the terms of the confidentiality order Exhibits R3, T1 and T2 were not provided to the Applicant.

    CONSIDERATION

13. As noted above, this matter was conducted over several days. Oral evidence was taken from the Applicant and witnesses on the first day of scheduled hearings, with some additional evidence from ZDGY on the second day. The second day, otherwise, largely consisted of submissions.

14. The evidence arising at the initial hearing, which caused the Applicant to be recalled, relates to the current involvement of child protection authorities with the family. This fact was confirmed in evidence by both ZDGY and his wife. The Bundle of Sensitive Documents, and the further material provided to the Tribunal following the initial hearing days, were all relevant to the nature of the relationship between the Applicant and his wife, and to the child protection issue.

15. At the directions hearing on 21 December 2020 it was submitted on the Respondent’s behalf that the further material provided on 20 December 2020 was highly relevant to the issues arising in this matter. Options for dealing with this material were discussed with the Respondent’s representative, and the options included remitting the matter for reconsideration.

16. While not discussed with the Respondent’s representative at the directions hearing, I note that the material was not provided in support of the Applicant’s case, and s 500(6J) of the Migration Act does not apply (a provision that requires material in support to be provided 2 business days prior to a hearing).

17. At the directions hearing I decided that it would be appropriate to provide ZDGY with the opportunity to respond to the substance of the matters raised in both the Bundle of Sensitive Documents and the further material. As noted, ZDGY duly gave evidence again on 22 December 2020. On this occasion the Applicant appeared by video from what appeared to be the back seat of his car.

18. It became apparent during the course of this matter, however, and particularly following the further recall of ZDGY, that there were important matters of fact to be determined upon a shifting evidential base. I note, for example, that it only became apparent that the Applicant’s wife had given her evidence without the presence of ZDGY himself, during the course of her evidence. I accepted this on the basis that her evidence raised sensitive matters and, possibly, safety concerns.

19. However, consideration of the evidence in this matter, taken overall, involves assessment of credibility, potential contradictions, and statements about current events in the context of a longer pattern of behaviour by ZDGY and his wife. Moreover, in the context of the most critical issues in this matter, the Applicant’s evidence included direct denials of key claims but also statements about the conduct of family members that may properly be assessed only in the context of evidence from other parties, which evidence was not taken.

20. In the conduct of this matter I have sought both to admit relevant information of a sensitive nature, under confidentiality orders, and to provide procedural fairness to ZDGY. The nature of critical factual issues in this matter, specifically the existence or risk of family violence, possibly including minors, led to the imposition of the confidentiality orders. I considered that this measure could be counterbalanced by recalling ZDGY to give evidence as to the substance of evidence and material arising.

21. The importance of affording procedural fairness as a fundamental principle of Tribunal’s work applies equally to both the Applicant’s and the Respondent’s capacity to prepare for and present their case. The fluid and evolving nature of the evidence in this matter has placed both parties, and the Tribunal, in a challenging position. There are, in brief, very important matters central to determining ZDGY’s application that are dependent upon interpreting evidence that has arrived in a somewhat episodic manner.

22. Fundamentally, I consider that the ‘creeping’ nature of the hearing renders consideration of ZDGY’s application to be problematic. It is made more problematic by the requirements of the Migration Act for the hearing of matters of this kind. That is, pursuant to s 500(6L) of the Migration Act, a decision should be made on or before 24 December 2020, being 84 days following notification to ZDGY of the decision under review (failing which the decision under review is taken to be automatically affirmed).

23. The complex personal history of ZDGY and his wife, and young family, has become more complex with the involvement of child protection authorities. This is clearly a matter of real significance. It is a matter that demands coherent, consistent and fair interrogation, particularly given the dynamics within their partnership. These dynamics are apparent not only from the documentary record in this matter, but also from the evidence given by ZDGY and his wife.

24. The Tribunal’s objective is set out in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). In carrying out its review function, the Tribunal must pursue the objective of providing a mechanism of review that is, among other things, fair and just, and that promotes public confidence in the Tribunal’s decision making. The statement of objectives also makes reference to the need for the Tribunal to conduct itself in a way that promotes review processes that are economical, informal and quick. Equally, the Tribunal is not bound by the rules of evidence. However, a balance must be struck between these somewhat different objectives within the procedural freedom afforded.

25. In addition to meeting the important objective of providing a review that is fair and just, I am particularly conscious of the need to act reasonably when arriving at the correct and preferable decision. That is, in a matter such as this which carries serious consequences for the Applicant, and where there are the evidential challenges I have identified, I consider that I must exercise some caution with respect to the critical findings required here.[1]

    [1] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, particularly at [15] (Logan J) and [120] (Flick and Perry JJ).

26. I consider that in the circumstances of this matter, unusual as they are, that the decision under review should be set aside and remitted for reconsideration. This reconsideration must take into account the recent involvement in ZDGY’s family of child protection authorities, in the broader context of the marriage and the history of decision making in respect of ZDGY’s partner visa application.

    DECISION

27. For the reasons given above, the Tribunal sets aside the decision under review and remits the matter for reconsideration pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) in accordance with the direction that the issue of child protection be taken into account when reconsidering the decision.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

........[sgd]........................................................

Associate

Dated: 24 December 2020

Dates of hearing:	1, 2 and 22 December 2020
The Applicant:	Self-represented
Advocate for the Respondent:	Ms Subasha Prasad
Solicitors for the Respondent:	Minter Ellison