Zhoory v Minister for Immigration
[2015] FCCA 2699
•13 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHOORY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2699 |
| Catchwords: MIGRATION – Review of decision of former Migration Review Tribunal – refusal of a partner visa – claim of family violence not accepted by the Tribunal – Tribunal refusing further time to submit documents verifying a non judicially determined claim of family violence – because the evidence likely to be adduced would not be reliable as the practitioner would not be the applicant’s treating practitioner – refusal of an extension of time unreasonable in circumstances where all that was required from the practitioners was an opinion that family violence had occurred. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 359, 359C, 360, 363, 363A, 477 Migration Regulations 1994 (Cth) |
| Hasran v Minister for Immigration [2010] FCAFC 40 Lobo v Minister for Immigration (2003) 200 ALR 359 Minister for Immigration v Ejueyitsi (2007) 159 FCR 94 Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration v Singh [2014] FCAFC 1; (2014) 139 ALD 50 NAUWv Minister for Immigration [2005] FCA 1086 VBAP of 2002 v Minister for Immigration [2005] FCA 965 |
| Applicant: | SAID SALIM ZHOORY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2418 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | AC Lawgroup |
| Solicitors for the Respondents: | Ms M Stone of DLA Piper |
ORDERS
A writ of certiorari shall issue, removing the record of the former Migration Review Tribunal into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2418 of 2014
| SAID SALIM ZHOORY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 16 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Zhoory, a partner (migrant) (Class BC) visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Afghanistan born 12 December 1986. On 17 September 2009 in Kabul, Afghanistan he married an Australian citizen (the wife). Three days after the marriage Mr Zhoory’s wife returned to Australia. Mr Zhoory and his wife wished to live together in Australia and on 7 January 2010 Mr Zhoory lodged an “Application for migration to Australia by a partner” which on 3 October 2009, was signed by his wife as sponsor.[1] This application was for a combined Partner (Provisional) (Subclass 309) and Partner (Migrant) (Subclass100) visa.
[1] CB 1-32.
On 4 July 2011, Mr Zhoory entered Australia on a partner (Provisional) (Subclass 309) visa and commenced living with his wife. The couple experienced domestic difficulties and separated after a few months.
On 16 November 2011, the Minister’s Department received a letter from the sponsor, withdrawing her sponsorship of Mr Zhoory. By letter dated 28 November 2011, the Minister’s Department notified Mr Zhoory that it had received information that the relationship on which the visa application was based was no longer continuing.[2]
[2] CB 43.
On 8 March 2012, Mr Zhoory submitted three Forms 1040 claiming family violence:[3]
a)the first Form 1040 stated it was by Mr Zhoory, and provided details of his claims concerning family violence;
b)the second Form 1040 also stated it was by Mr Zhoory, and provided details identical to those in the above statutory declaration in the body of the Form 1040 itself. However this Form 1040 also annexed a typewritten document from Ms Kathryn Barker psychologist, and included details completed in that part of the Form that is to be completed by a competent person. The Form appears to have been signed by Ms Barker. The annexed typewritten document contained no statement of opinion that Mr Zhoory had suffered relevant family violence;
c)the third Form 1040 also stated it was by Mr Zhoory, and provided details identical to those in the first and second statutory declarations, in the body of the Form 1040 itself. However the part of the Form that is to be completed by a competent person was completed by a medical practitioner, Dr Feda Eqbal. This part of the Form contained no statement of opinion that Mr Zhoory had suffered relevant family violence. The Form appears to have been signed by Dr Eqbal.
[3] CB 55 and following.
Accordingly, this material failed to raise a valid non judicially determined family violence claim.[4]
[4] Mr Zhoory’s Form 1040 was the only satisfactory one.
By letter dated 14 May 2012, the Minister’s Department wrote to Mr Zhoory raising the issue of whether Mr Zhoory and sponsor were in a genuine spousal relationship prior to it ending.[5]
[5] CB 72.
Mr Zhoory's representative provided a submission enclosing several statutory declarations, received by the Minister’s Department on 29 June 2012.[6]
[6] CB 76.
A delegate of the Minister refused the visa application on 5 November 2012.[7] The delegate's decision,[8] records the fact of the sponsor's withdrawal of her sponsorship. The delegate was not satisfied that Mr Zhoory's relationship with the sponsor was a “partner relationship” as defined by s.5F of the Migration Act 1958 (Cth) (Migration Act) and having regard to the matters prescribed by regulation 1.15A to the Migration Regulations 1994 (Regulations).
[7] CB 84.
[8] CB 89.
Mr Zhoory sought review by the Tribunal, by application lodged on 16 November 2012. He attached a copy of the delegate's decision to his Tribunal review application.[9]
[9] CB 100.
On 9 April 2014, the Tribunal wrote to Mr Zhoory by letter sent by fax, inviting him to attend a hearing on 20 May 2014.[10] The hearing invitation stated that the member requested Mr Zhoory to provide a full copy of statutory declarations relied on if a claim was being made of family violence, and to provide evidence that Mr Zhoory and sponsor were in a spouse relationship at the time of the visa application. The Tribunal requested this material be provided by 13 May 2014.
[10] CB 132.
Mr Zhoory responded with an affirmative response to the hearing invitation, nominating a number of proposed witnesses.[11]
[11] CB 136.
On 12 May 2014, the Tribunal again wrote to Mr Zhoory by letter sent by fax, inviting him to attend the hearing on 20 May 2014.[12] The time of the hearing and the method of its conduct appear to have been changed (the hearing was no longer to be by video conference). This second hearing invitation included the same request for provision of evidence, by 13 May 2014.
[12] CB 141.
On 13 May 2014, Mr Zhoory returned an affirmative response to the second hearing invitation. He also provided correspondence by his representative, requesting a further “few days” to provide evidence.[13]
[13] CB 145.
An officer of the Tribunal telephoned Mr Zhoory's representative on 14 May 2014 to advise that an extension of time had been provided until 9.00am Monday morning (apparently the following Monday, 19 May 2014).[14]
[14] CB 146.
On 19 May 2014, Mr Zhoory's representative provided the Tribunal with a written submission.[15] It asserted that Mr Zhoory had been the victim of domestic violence and that the Minister’s Department had recognised Mr Zhoory as being in a spousal relationship by granting him the temporary visa.
[15] CB 147.
Mr Zhoory subsequently provided, among other things, further statutory declarations of third parties attesting to the genuineness of Mr Zhoory and sponsor's relationship, and further Forms 1410 (which replaced the Forms 1040). Those Forms 1410 were as follows:[16]
a)first, a Form 1410 by Mr Zhoory. It is noted that the answer to question 5 in the form cannot be readily characterised as a claim to have suffered “violence” of any kind.
b)secondly, a Form 1410, which contained no identifying details or information in the body of the form and was not signed. It annexed a letter from Dr Eqbal, dated 14 May 2014. The letter contained no statement of opinion that Mr Zhoory had suffered relevant family violence.
[16] CB 153 and following.
Mr Zhoory attended the hearing on 20 May 2014 together with his representative and one witness.[17]
[17] CB 178.
On 26 May 2014, the representative telephoned the Tribunal to advise he would be sending statutory declarations by fax the following day.
On 26 May 2014, the Tribunal received by fax:[18]
a)disordered pages from an incomplete Form 1410 by Mr Zhoory, providing details of his family violence claims;
b)a statutory declaration by Ms Barker stating Mr Zhoory had been referred to her because he was experiencing domestic issues;
c)a statutory declaration by Dr Eqbal;
d)the first two pages of a Form 1410 by Mr Zhoory;
e)a further Form 1410 by Mr Zhoory, including duplicates of the pages contained in the version of the Form 1410 by Mr Zhoory referred to above, but otherwise including details of the alleged victim (Mr Zhoory) and perpetrator (the former spouse) and other missing pages from the Form referred to above.
[18] CB 182 and following.
By fax letter dated 13 June 2014, the Tribunal invited Mr Zhoory to a second hearing, scheduled on 26 June 2014.[19]
[19] CB 200.
Mr Zhoory had consented to a shortened period of notice for the second hearing.[20]
[20] CB 197.
The Tribunal’s hearing invitation requested that any documents Mr Zhoory wanted to rely on at the hearing be provided by 19 June 2014.
Mr Zhoory returned an affirmative response to the third hearing invitation form and did not nominate any witnesses.[21] The Tribunal convened the second hearing on 26 June 2014, which was attended by Mr Zhoory.[22]
[21] CB 202.
[22] CB 204.
By fax letter dated 26 June 2014, the Tribunal wrote to Mr Zhoory inviting him to provide information, pursuant to s.359 of the Migration Act.[23]
[23] CB 209.
The Tribunal stated, relevantly:
At the hearing on 20 May 2014 the Tribunal took evidence from you. At that hearing the Tribunal indicated that the evidentiary requirements of the legislation to establish family violence had not been met. The Tribunal gave you until 27 May 2014 to provide this evidence. You submitted a number of documents to the Tribunal on 26 May 2014.
The Tribunal identified (correctly) that Mr Zhoory's statutory declaration met the requirements. The Tribunal suggested that the “medical letter” from Dr Eqbal dated 14 May 2014 was in accordance with the requirements.
The Tribunal continued that the evidence of Ms Barker was not in the correct evidentiary form and referred to the requirements of the Statutory Declarations Act1959 (Cth) and the Regulations. The Tribunal additionally stated that the statutory declaration must state that in the competent person's opinion the alleged victim was subjected to family violence and detail the reasons for this, and identify the alleged perpetrator.
The Tribunal requested the information be received by 10 July 2014.[24]
[24] This was the prescribed 14 day period: regulation 4.17(4).
On 3 July 2014, Mr Zhoory's representative wrote to the Tribunal concerning the provision of further evidence by Ms Barker.[25] He claimed that Ms Barker had refused to see Mr Zhoory and asked the Tribunal to refer the matter to an independent expert.
[25] CB 212.
The prescribed period for response ended on 10 July 2014. On 13 July 2014, Mr Zhoory's representative wrote to the Tribunal requesting, among other things, additional time to have Mr Zhoory's files transferred to a new psychologist and to have this person assess him.[26]
[26] CB 214.
The Tribunal made its decision on 16 July 2014.[27] The Tribunal accepted that Mr Zhoory and his spouse were in a genuine relationship, until the cessation of the relationship. Mr Zhoory advanced a claim to have suffered family violence. However the Tribunal was not satisfied the particular evidentiary requirements of that claim had been made out, owing to the deficient material from Ms Barker. The Tribunal accepted Mr Zhoory's statutory declaration provided to it, and the letter of Dr Eqbal dated 14 May 2014, were satisfactory.
[27] CB 222.
The judicial review application
These proceedings began with a show cause application filed on 28 September 2014. That application has been amended several times since then. Mr Zhoory ultimately relied upon a second further amended application filed in Court by leave on 30 September 2015. The grounds in that application are:
That the decision of the second respondent Tribunal was affected by jurisdictional error in that:
1.In not acceding to the applicant’s request for time to allow him to adduce further evidence to establish a non-judicially determined claim of family violence the Tribunal acted unreasonably in the exercise of its discretion under s 363(1)(b) Migration Act 1958 (the Act) and, in breach of s 360(1) of the Act, also failed to afford the applicant procedural fairness
Particulars
a.The Tribunal had an obligation under s 360(1) to provide the applicant with a real opportunity to present his case.
b.The Tribunal had a discretion under s 363(1)(b) to adjourn the review to allow the applicant further time to present evidence which would constitute a non-judicially determined claim of family violence pursuant to reg 1.23(9) Migration Regulation 1994.
c.As the Tribunal’s refusal meant that the applicant was denied an opportunity to establish the threshold claim of family violence, therefore, pursuant to reg 1.23(10)(a), the refusal also meant the Tribunal failed to consider the considerable evidence already adduced by him pursuant to reg 1.23(10)(a) that he had actually suffered family violence, as well as evidence of the opinion of an independent of an independent expert under reg 1.23(10)(c) if the Tribunal did not accept the applicant’s evidence.
d.While the Tribunal by letter dated 26 June 2014 allowed the applicant until 10 July 2014 to present further evidence to support the applicant’s claim for family violence it required the evidence to be a statutory declaration “by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist”. To establish a non-judicially determined claim of family violence regs 1.23(9)(c), 1.24(1)(b), 1.26(a) and 1.21(1) Migration Regulation 1994 s require only that the statutory declaration be from a competent person: see ground 2.
e.The Tribunal’s reasons for not acceding to the request included a prejudgment on the reliability of the evidence proposed by the applicant’s agent despite that the evidence would have complied with the request (unlawful anyway) that the evidence be from a treating psychologist.
f.The Tribunal’s prejudgment of the reliability of the proposed evidence appeared to be in relation to the issue of whether the applicant actually suffered the relevant family violence.
g.The delays faced by the applicant in obtaining a statutory declaration from a new psychologist were beyond his control and the time allowed by the Tribunal was insufficient and effectively required the cooperation of Ms Barker to make another statutory declaration.
h.The Tribunal identified the problem with Ms Barker’s statutory declaration to be one of form. The Tribunal wrongly accepted “the medical letter” of Dr Freda Eqbal dated 14 May 2014 as being in accordance with the evidentiary requirements
i.Whether the applicant had made a non-judicially determined claim of family violence was not an issue arising in relation to the decision under review, but was raised by the Tribunal.
j.Time was lost by the Tribunal’s failure to respond to the applicant’s agent’s (timely) request on 3 July 2014 for an independent expert under reg 1.23(10)(c)(ii). While the request was misconceived, the agent’s letter made it clear that the applicant was then having difficulty in securing the cooperation of Ms Barker.
k.There was no urgency for a decision to be made immediately.
l.There was a significant delay between the lodging of the application for review on 10 November 2012 and the Tribunal’s first hearing on 20 May 2014 which was not the fault of the applicant.
2.In not acceding to the applicant’s request for time to allow him to adduce further evidence to establish a non-judicially determined claim of family violence the Tribunal acted unreasonably in the exercise of its discretion under s 359(b)(4) Migration Act 1958 (the Act).
Particulars
a.By letter dated 26 June 2014 the Tribunal invited the applicant until 10 July 2014 to present further evidence to support the applicant’s claim for family violence
b.By letter dated 3 July 2014 the applicant responded to the Tribunal’s invitation.
c.Until its decision the Tribunal had a discretion under s 359B(4) to allow the applicant further time to present further evidence which would constitute a non-judicially determined claim of family violence pursuant to reg 1.23(9) Migration Regulation 1994.
d.The applicant repeats particulars c. – l. of ground one.
3.The Tribunal misconstrued and misapplied regs 1.23(9)(c), 1.24(1)(b), 1.26(a) and 1.21(1) Migration Regulations 1994 in specifically requiring further evidence from a registered treating psychologist to establish a non-judicially determined claim of family violence rather than from any competent person as defined in reg 1.21.(1).
Particulars
a.The Tribunal set this requirement in its post hearing letter to the applicant of 26 June 2014 and applied the requirement at [43] of its decision with reference to the letter.
b.The meaning of competent person in reg 1.21(1) is not limited to a person who is a registered psychologist but includes medical practitioners, nurses, social workers, and managers or coordinators of crisis counselling services specialising in family violence, among others.
4.The Tribunal’s finding that cl. 100.221(4)(b) Migration Regulations had not been met (to the extent that it is read independently of and not cumulatively with the Tribunal’s finding in relation to cl. 100.221(4)(c), was irrational and not open on the evidence.
Particulars
a.The Tribunal concluded that the applicant did not meet the requirements of cl 100.221(4)(b) and (c) for the grant of the visa on the basis that the claim of family violence had not been established.
Mr Zhoory required an extension of time, pursuant to s.477(2) of the Migration Act because his initial show cause application was filed about one week late. The Minister opposed the granting of an extension of time, but only on the basis of the alleged lack of merit in the application. Having regard to the fact that the matter had been listed for hearing on a final basis (if an extension of time were granted) and having regard to the guidance offered by Wigney J in SZTES v Minister for Immigration[28], I granted the extension of time.
[28] [2015] FCA 719 at [102].
I have before me as evidence the court book filed on 3 October 2014, as well as two affidavits by Mr Zhoory’s solicitor, Mr Fardin Nikjoo made on 16 September 2015 (which bore on the question of an extension of time) and by Mr Zhoory made on 24 August 2014, which dealt with various matters relating to his proceedings before the Tribunal.
Mr Zhoory and the Minister made oral as well as written submissions.
The fourth ground in the application as amended was not pressed.
Consideration
Mr Zhoory’s contentions
Grounds of review
The first two grounds of review identify jurisdictional error in the Tribunal’s conduct of the hearing and its finding that Mr Zhoory had not made a non judicially determined claim of family violence.
Ground 1
Ground 1 asserts that in not acceding to Mr Zhoory’s requests in his letter of 13 July 2014 for time to allow him to adduce further evidence to establish a non judicially determined claim of family violence the Tribunal acted unreasonably in the exercise of its discretion under s.363(1)(b) of the Migration Act and, also in breach of s.360(1) of the Migration Act, by failing to afford Mr Zhoory procedural fairness.
In Minister for Immigration v Bhardwaj,[29] the High Court considered a provision applicable to the Refugee Review Tribunal which was similar to the discretion to adjourn in s.363(1)(b). The Court stated that “a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness”. French CJ in Minister for Immigration v Li[30] found this statement applied to proceedings in the Tribunal despite s.357A.[31]
[29] (2002) 209 CLR 597 at [40].
[30] (2013) 249 CLR 332 at [18]-[19].
[31] Bhardwaj was decided before the passing of s.357A which provided that Division 5 of Part 5 of the Migration Act concerning the conduct of the Tribunal was an exhaustive statement of the natural justice hearing rule in relation to the matters it dealt with. The High Court in Saeed v Minister for Immigration (2010) 241 CLR 252 at [37]-[39] affirmed a narrow reading given to the expression “in relation to the matters it dealt with”. This reading was applied by French CJ in Minister for Immigration v Li (2013) 249 CLR 332 at [18]-[19] in finding that the common law hearing rule of procedural fairness applies to the process for making a decision to grant or refuse an adjournment…and informs its legal consequences where a person is said to have been deprived by a refusal of a reasonable opportunity for a hearing”.
In Li, French CJ found a refusal by the Tribunal to grant an adjournment was unreasonable because there was an arbitrariness about the decision which put it outside the rational framework of the Migration Act to accord a person affected by a decision a reasonable opportunity to be heard.[32]
[32] see [26] and [31].
The other Justices[33] in Li found the legislature intended that the Tribunal’s statutory power in s.363(1)(b) to adjourn be exercised reasonably.
[33] French CJ at [21], Hayne, Kiefel, Bell JJ at [63] and Gageler J at [92].
In Li the plurality[34] also said at [61]:
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty. (citations omitted)
[34] of Hayne, Kiefel, Bell JJ.
The plurality linked the obligations between s.360(1)(b) and s.360(1) at [74]:
In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. (citations omitted)
The paths by which a conclusion of unreasonableness in the exercise of the discretion may be reached, including as connected to the purpose of s.360(1), are advanced as particulars to Ground 1 in the application:
a)the Tribunal had an obligation under s.360(1) to provide Mr Zhoory with a real opportunity to present his case;
b)the Tribunal had a discretion under s.363(1)(b) to adjourn the review to allow Mr Zhoory further time to present evidence which would constitute a non judicially determined claim of family violence pursuant to regulation 1.23(9) of the Regulations;
c)as the Tribunal’s refusal meant that Mr Zhoory was denied an opportunity to establish the threshold claim of family violence, therefore pursuant to regulation 1.23(10)(a), the refusal also meant the Tribunal failed to consider the considerable evidence already adduced by him pursuant to regulation 1.23(10)(a) that he had actually suffered family violence, as well as evidence of the opinion of an independent expert under regulation 1.23(10)(c) if the Tribunal did not accept Mr Zhoory’s evidence;
d)while the Tribunal by letter dated 26 June 2014 allowed Mr Zhoory until 10 July 2014 to present further evidence to support Mr Zhoory’s claim for family violence it required the evidence to be a statutory declaration “by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist”. To establish a non judicially determined claim of family violence, regulations 1.23(9)(c), 1.24(1)(b), 1.26(a) and 1.21(1) require only that the statutory declaration be from a competent person;[35]
e)the Tribunal’s reasons for not acceding to the request included a prejudgment on the reliability of the evidence proposed by Mr Zhoory’s agent despite that the evidence would have complied with the request (unlawful anyway) that the evidence be from a treating psychologist;
f)the Tribunal’s prejudgment of the reliability of the proposed evidence appeared to be in relation to the issue of whether Mr Zhoory actually suffered the relevant family violence pursuant to regulation 1.23(10) (which was not relevant to the Tribunal’s ultimate finding), and not in relation to the relevant issue of whether Mr Zhoory had made a non judicially determined claim of family violence pursuant to regulation 1.23(9);
g)the delays faced by Mr Zhoory in obtaining a statutory declaration from a new psychologist were beyond his control and the time allowed by the Tribunal was insufficient and effectively required the cooperation of Ms Barker to make another statutory declaration;
h)the Tribunal identified the problem with Ms Barker’s statutory declaration to be one of form. The Tribunal accepted “the medical letter” of Dr Freda Eqbal dated 14 May 2014 as being in accordance with the evidentiary requirements;
i)whether Mr Zhoory had made a non judicially determined claim of family violence was not an issue arising in relation to the decision under review, but was raised by the Tribunal;
j)time was lost by the Tribunal’s failure to respond to Mr Zhoory’s agent’s request on 3 July 2014 for an independent expert under regulation 1.23(10)(c)(ii). While the request was misconceived, the agent’s letter made it clear that Mr Zhoory was then having difficulty in securing the cooperation of Ms Barker;
k)there was no urgency for a decision to be made immediately; and
l)there was a significant delay between the lodging of the application for review on 10 November 2012 and the Tribunal’s first hearing on 20 May 2014 which was not the fault of Mr Zhoory.
[35] see Ground 2.
Ground 2
Ground 2 asserts that the Tribunal misconstrued and misapplied regulations 1.23(9)(c), 1.24(1)(b), 1.26(a) and 1.21(1) of the Regulations in specifically requiring further evidence from a registered treating psychologist to establish a non judicially determined claim of family violence rather than from any competent person as defined in regulation 1.21(1).
In Lobo v Minister for Immigration[36] the Full Federal Court found:
Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and Regulations, upon a proper construction of the criterion, require him to ask.
[36] (2003) 200 ALR 359 at [43].
The Tribunal’s request for the further evidence was made in its post-hearing letter of 26 June 2014.[37]
[37] CB 209.
The Tribunal’s letter did not specifically require that the statutory declaration be from Ms Barker, however it said that the statutory declaration should be “made a by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist”.
The Tribunal appears to have intended to give advice on how to correct the form of Ms Barker’s statutory declaration, however it has erred in requiring that the further declaration be from a treating psychologist. There is no such requirement in the regulations. Regulations 1.23(9)(c) and 1.24(b) do not specifically require that any of the declarations by two competent persons include a declaration by a registered psychologist. Two statutory declarations from medical practitioners or registered nurses or social workers would have sufficed, and likely would have been easier for Mr Zhoory to obtain.
The meaning of “competent person” in regulation 1.21(1) is not limited to a person who is a registered psychologist but includes medical practitioners, nurses, social workers, and managers or coordinators of crisis counselling services specialising in family violence, among others.
Ground 3
Ground 3 is raised to refute any claim that the Tribunal’s finding at [44] that “Mr Zhoory does not meet the requirements of clause 100.221(4)(b)” provides an independent basis for affirming the delegate’s decision.
The Tribunal’s finding in relation to clause 100.221(4)(b) should be read cumulatively with and not independently from its finding in relation to clause 100.221(4)(c).
If the finding in relation to clause 100.221(4)(b) is read independently of the finding in relation to clause 100.221(4)(c), then the former finding is irrational and not open on the evidence, there being no evidence, consideration or even a finding of fact in the Tribunal decision that the relationship between Mr Zhoory and his wife had not ceased.
Minister’s submissions
Ground 1: Tribunal’s exercise of discretion not to allow additional time
The Tribunal did not err in its exercise of discretion not to allow Mr Zhoory additional time to meet the evidentiary requirements in the Regulations.
As Mr Zhoory had not sought additional time within the prescribed period for response, the Tribunal was not empowered to formally extend time to respond.[38] However it is accepted that the Tribunal could still have delayed making its decision and would have been required to consider any material submitted by Mr Zhoory up until it was functus officio.
[38] Hasran v Minister for Immigration [2010] FCAFC 40 at [48].
The Tribunal considered at [43] Mr Zhoory's request for further time to provide evidence. It noted that Mr Zhoory had been provided additional time on a number of occasions, and in the reconvened hearing on 26 June 2014 the Tribunal had set out the evidence required. In the letter of 26 June 2014 sent following the hearing, the Tribunal had required the evidence to be provided by 10 July 2014. The Tribunal noted Mr Zhoory was seeking to attend another psychologist. However there was no time frame proposed by Mr Zhoory within which to submit the required evidence. The Tribunal considered that although the new psychologist may be asked to treat Mr Zhoory for his present psychological problems, this was in the context of the alleged family violence having occurred three years ago, and the evidence obtained may not be as reliable as that from a treating psychologist who saw Mr Zhoory closer to the event. The Tribunal gave “cogent” reasons for its refusal to allow additional time, and did not err in unreasonably exercising its discretion.[39]
[39] cf Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration v Singh [2014] FCAFC 1; (2014) 139 ALD 50.
In so far as Mr Zhoory takes issue with the Tribunal’s correspondence dated 26 June 2014,[40] this correspondence did not misstate the requirements of any regulatory provision and merely guided Mr Zhoory concerning the documentary material he had already submitted. The Tribunal’s correspondence is properly to be understood in that factual context. Particular (d) to this ground positively misstates the Tribunal’s correspondence. The Tribunal, after identifying that Mr Zhoory had submitted a statutory declaration by Ms Baker, psychologist, stated, correctly, the required content of the statutory declaration.[41] The Tribunal did not, on any fair reading of its correspondence or decision generally, confine the categories of competent persons contrary to the applicable regulatory provisions.
[40] CB 209.
[41] CB 210.
In so far as issue Mr Zhoory takes issue with [43] of the Tribunal’s reasons,[42] what the Tribunal there observed that that the evidence of a new psychologist, three years after relevant events, may not be as reliable as the evidence of a treating psychologist at the relevant time. The Tribunal engaged in this consideration in relation to its exercise of discretion not to allow more time, not in determining whether the evidentiary requirements of a non judicially determined family violence claim had been satisfied. The likely reliability of any additional evidence was a permissive consideration in the Tribunal’s exercise of discretion. No jurisdictional error is demonstrated.
[42] see particulars (e) and (f) to this ground.
The particulars to this ground otherwise take issue with the factual merit of the outcome of the Tribunal’s discretionary exercise of power. No jurisdictional error is demonstrated and ground one should be dismissed.
Ground 2: evidence from a “treating psychologist”
Mr Zhoory's complaint is that the Tribunal erred in restricting the categories of competent persons.[43] He relies, entirely, on the Tribunal's letter to him dated 26 June 2014. The Minister repeats his submissions above in relation to Ground 1. He further emphasises that there is no basis to infer from the Tribunal's findings and reasons that it did not correctly apply the relevant regulatory provisions. Mr Zhoory's written submissions do not suggest otherwise.
[43] submissions, at [45]-[56].
Further and independently of the manner in which this ground is pleaded, the Minister submits that the Tribunal correctly held that the evidentiary requirements of a non judicially determined family violence claim were not satisfied.
Regulation 1.24 required Mr Zhoory to lodge a statutory declaration by himself (under regulation 1.25) together with two statutory declarations under regulation 1.26. Regulation 1.26 required the statutory declarations to be made by a competent person and, relevantly, to state that “in the competent person's opinion, relevant family violence (within the meaning of subregulation 1.21(1)) has been suffered by a person”.
There have been a number of cases in which the content of the relevant statutory declarations has been discussed. Although the form of the relevant provisions has changed from time to time, the requirements for the evidence needed to establish domestic violence has been relatively stable. In Minister for Immigration v Ejueyitsi[44] the Full Federal Court surveyed a number of the authorities and concluded at [33]:
It is common to all of these cases that for a declaration to conform to reg 1.26, it must be clear from the declaration itself that the declarant is expressing his or her opinion that the visa applicant has suffered domestic violence within the meaning ascribed to that term in reg 1.23(2)(b), namely, “ ... violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.”
[44] (2007) 159 FCR 94.
The letter from Dr Eqbal dated 14 May 2014 did not meet the regulatory requirements. It contained no statement of opinion that Mr Zhoory was the victim of family violence.[45] The letter was annexed to a Form 1410, but that form was not completed nor was it signed. The Tribunal erred in finding the letter of Dr Eqbal dated 14 May 2014 met the regulatory requirements.
[45] regulation 1.26(c).
Although the Tribunal indicated to Mr Zhoory at the hearing on 20 May 2014 that the evidentiary requirements to establish family violence had not been met, on the basis of the Tribunal's erroneous acceptance of the adequacy of Dr Eqbal’s material, the Tribunal did not expressly raise this item of evidence in its subsequent s.359 invitation. However the Tribunal was not required by s.360 of the Migration Act to do so.[46]
[46] Minister for Immigration vPham [2008] FCA 320, at [54].
Further, the Tribunal’s error concerning the adequacy of Dr Eqbal’s material, including any alleged breach of s.360, was not material and had no bearing on the outcome of the review. Mr Zhoory's second competent person statutory declaration (that is, Ms Barker’s statutory declaration) also did not meet the regulatory requirements, and the Tribunal was correct in so finding. On the material, the evidence required to constitute a “non-judicially determined claim of family violence” was before neither the Department nor the Tribunal at any time. There is therefore an independent basis for the decision, being the inadequacy of the evidence of Ms Barker. If any jurisdictional error is found as to the Tribunal's finding with respect to the adequacy of Dr Eqbal’s material and/or its statement in its s.359 invitation, the decision is independently sustained on this basis.[47]
[47] VEAJ of 2002 v Minister for Immigration [2003] FCA 678 at [55]; VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [33]; NAIF v Minister for Immigration [2005] FCA 114 at [17] and NAUWv Minister for Immigration [2005] FCA 1086 at [24].
Ground 3: error of law
Ground 3 alleges that the Tribunal erred with respect to clause 100.221(4)(b). That clause required Mr Zhoory to meet the requirements of subclause (2) or (2A) except that the relationship between Mr Zhoory and his sponsor had ceased. It is alleged that the Tribunal’s finding that clause 100.221(4)(b) was irrational or not open on the evidence.
The Minister contends that precisely what error is alleged by this ground is unclear. It is not suggested by the Minister that there are two alternative bases for the Tribunal's decision.
Resolution
Ground 1 – was the Tribunal’s refusal of an extension of time to allow Mr Zhoory to adduce further evidence to establish a non judicially determined claim of family violence unreasonable?
This is not a case where the refusal of further time was inexplicable. The Tribunal gave reasons for its refusal at [43] of its decision:[48]
The Tribunal decided not to grant the applicant further time to provide evidence in relation to his family violence claim. It notes the applicant has been provided additional time on a number of occasions and in the reconvened hearing on 26 June 2014 it set out the evidence required. In the letter of 26 June 2014 sent following that hearing it required the further evidence to be provided by 10 July 2014. The Tribunal notes the applicant is seeking to attend another psychologist. However, there is no time frame proposed by him within which he seeks to submit the required evidence. The Tribunal considers that although the new psychologist may be asked to treat the applicant for his present psychological problems this is in the context of the alleged family violence having occurred 3 years ago in July 2011 and the evidence obtained may be not as reliable as that from a treating psychologist who saw him closer to the event.
[48] CB 228.
As I indicated to the parties during the course of oral argument, it is plain that Mr Zhoory had struggled to get his documentation in order in an attempt to establish his non judicially determined claim of family violence and was ultimately left in a position where he could not obtain from his psychologist, Ms Barker, the necessary opinion. He asked for time to consult another psychologist. The Tribunal had pointed out to Mr Zhoory’s representative what needed to be done in order to provide the required opinions from his psychologist and doctor. That was perfectly reasonable. The Tribunal was wrong in determining that Dr Eqbal’s letter met the evidentiary requirements under regulation 1.24[49] but neither Mr Zhoory nor the Minister took issue with that. The error was in Mr Zhoory’s favour and the Minister suffered no detriment in that the delegate’s decision was affirmed. The parties agree that the Tribunal was correct in finding that Ms Barker’s statutory declaration did not meet the evidentiary requirements.
[49] see [37] at CB 228.
At [43] of its decision, the Tribunal appeared to proceed on the basis that no useful purpose would be served by giving Mr Zhoory additional time to consult a different psychologist because Ms Barker had been seeing Mr Zhoory for several years and a different psychologist would not have had the benefit of that history. In my opinion, in that reasoning the Tribunal fell into error because it overlooked two critical points. The first was that the evidentiary obligation on Mr Zhoory was not to obtain an opinion from Ms Barker but, rather, to obtain an opinion in support of his claim from a competent person, who did not need to be a psychologist, let alone a psychologist who had been seeing Mr Zhoory over time. Secondly, the evidentiary requirement was more procedural than substantive. The evidentiary requirement, if met, would have required the Tribunal to form a view about the claim. If the Tribunal did not accept the claim, it would have to obtain the opinion of an independent expert. That expert, if appointed, would have been in no better position than the hypothetical replacement for Ms Barker in that the expert would not have had the opportunity to see Mr Zhoory over the previous time period. By suggesting that a different psychologist would not have a proper basis for forming the requisite opinion the Tribunal was, in effect, suggesting that an independent expert also could not form a necessary opinion. This was, of course, an opinion fundamentally in conflict with the procedural requirements binding the Tribunal and was unreasonable.
The Minister is correct to point out that Mr Zhoory’s final request for an extension of time was itself out of time and could not have been granted because of s.359C and s.363A of the Migration Act. However, as the Minister concedes, the Tribunal could have deferred making its decision until Mr Zhoory had had a reasonable opportunity to obtain the opinion of a competent person other than Ms Baker. It follows, in my opinion that the unreasonableness of which the Tribunal is accused bears not on its discretion to grant an extension of time to respond to its request for further information pursuant to s.359 of the Migration Act, which had lapsed, but, rather, on its overriding obligation of review, upon which s.363(1)(b) equally operates. That exercise of discretion miscarried for the reasons given above.
On that basis, Mr Zhoory should receive the relief he seeks.
Grounds 2 and 3
In respect of the remaining claims, while it is not strictly necessary, I agree with the submissions of the Minister and would reject those grounds of review, except that I do not accept that the inadequacy of the evidence of Ms Barker provides an independent basis to sustain the Tribunal decision. That inadequacy was known before the Tribunal decision and was the very reason Mr Zhoory sought time to obtain an alternative opinion. In circumstances where Ms Barker was apparently unavailable to augment her evidence, it was unreasonable for the Tribunal to proceed on the basis that only her evidence would do.
Conclusion
Mr Zhoory has established that the Tribunal fell into jurisdictional error in respect of Ground 1. I will order that the decision of the Tribunal be quashed and that the matter be remitted for redetermination according to law.
I will hear the parties as to costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 October 2015
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