Zreika v Minister for Home Affairs
[2019] FCCA 599
•11 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZREIKA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 599 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Partner (Residence) (Class BS) visa – whether the certificate was invalid – whether the Tribunal complied with the statutory regime – whether the Tribunal erred in taking as correct that the independent expert took into account all of the applicant’s claims – no jurisdictional error made out – further amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 476 Migration Regulations 1994 (Cth), cl. 800.221 & reg 1.22, 1.23, 1.24 |
| Applicant: | MIDHAT AHMAD ZREIKA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 309 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 11 March 2019 |
| Date of Last Submission: | 11 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Solicitors for the Applicant: | Drexler Litigation Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The further amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
DATE OF ORDER: 11 March 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 309 of 2018
| MIDHAT AHMAD ZREIKA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 January 2018 affirming a decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa.
The applicant is a citizen of Lebanon who applied for the visa on 15 April 2013, on the basis of a relationship with a sponsor.
On 16 May 2014, the delegate wrote to the applicant inviting the applicant to comment on information that was said to be adverse and that letter refers to. The Department having received information that:
the relationship between you and your sponsoring partner on which your applications were based has ended.
Under the heading “Opportunity to provide comments on the allegation of a relationship breakdown”, the letter noted:
The Department has received information that you and your sponsor are no longer living together and that the sponsor has withdrawn her sponsorship.
The letter noted that:
This information suggests that the relationship has broken down.
The applicant was invited to comment on that information, including the conclusion that the applicant is no longer the spouse of the sponsoring partner and that the sponsorship has been withdrawn.
Following this letter of 16 May 2014, the applicant’s migration agent indicated that:
My client wishes to inform the Department of Immigration that he would like his application for Visa grant to be considered despite his relationship breakdown on the basis of the applicant suffering family violence committed by the sponsoring partner.
That letter confirmed that the relationship with the sponsor has ceased.
On 1 April 2016, a delegate found the applicant failed to meet the criteria for the grant of the visa. The delegate refused the application on the basis the applicant did not satisfy cl 801.221 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the delegate was not satisfied the applicant remained a spouse of the sponsoring partner. The delegate was further not satisfied the visa applicant was able to satisfy any of the circumstances in which the applicant may continue to be considered for the grant of a permanent residence visa where the relationship with the sponsoring partner had ceased.
On 21 April 2016, the applicant filed an application for review. By letter dated 9 January 2017, the Tribunal invited the applicant to attend a hearing on 6 March 2017. A transcript of that hearing has been tendered into evidence. That transcript of the hearing on 6 March 2017, at which the applicant was represented, identifies the Tribunal member expressly raising that on the Department file there is a section 376 certificate in respect of information in folio 91 of the Department file, being the notification from the former spouse of the visa applicant that they were no longer in a relationship. Folio 91 has been put into evidence before the Court, subject to the deletion of an address as to where the sponsor is living. There was no challenge to the deletion of the address as to where the sponsor was living, in the circumstances where the sponsor had identified concern in the information provided to the Department as to not feeling safe with the applicant’s abusive yelling at her constantly, which can lead to physical violence.
The information provided by the sponsor was one that identified that the sponsor was writing in relation to the spouse visa application and was withdrawing the application by reason of no longer being in a relationship. The letter refers to the parties having separated and refers to the applicant’s personality having changed and being abusive towards her and her family. There is an assertion that the applicant was using the sponsor and using the Australian system so he can be a citizen and not leave the country, and that after he is a citizen he will leave the sponsor. The sponsor refers to having not had any contact with the applicant for a couple of months and that they were living separate lives. It was in that context that the sponsor identified that she now lives with her parents and identified an address which has been deleted. The comment following in relation to not feeling safe, on a fair reason, is referable to the address as a result of those separate lives. The sponsor said she no longer wants a relationship with the applicant.
Following the first hearing, the Tribunal was not satisfied that the requisite non-judicially determined family violence had occurred and, in accordance with the statutory regime, referred the issue of family violence for determination in accordance with reg 1.24 of the Regulations. The Tribunal received a report on 26 May 2017 from the independent expert expressing an opinion that the applicant has not suffered the relevant family violence.
By letter dated 8 June 2017, the Tribunal invited the applicant to comment under s 359A of the Act and the Tribunal referred to the applicant’s response and the contention that there had been a failure to consider all of the relevant family violence as advanced by the applicant. The submission contended that there had been a failure by the expert to give proper, genuine and realistic consideration to the supporting evidence which was a failure to accord procedural fairness.
The Tribunal referred to the hearing that occurred on 25 October 2017, in which the applicant submitted the expert had misconstrued the law. The Tribunal was satisfied that the expert correctly understood the chronology of events, including when the relationship broke down and the events that precipitated the breakdown. The Tribunal referred to giving careful consideration to the submissions but did not accept that the opinion was flawed as asserted.
The Tribunal referred to the opinion specifically referring to the applicant having been given the opportunity to refer to all accounts of family violence on which he relied. The Tribunal did not accept that the applicant was denied a meaningful opportunity to present his case to the independent expert.
The Tribunal referred to the contention that the expert did not take into account all of the applicant’s evidence. The Tribunal rejected that submission, identifying that the opinion contained detailed history of the relevant events and a thorough analysis of the applicant’s claims that he was the alleged victim of family violence committed by his former spouse.
The Tribunal was satisfied that the applicant had been given an opportunity to make submissions to the expert. The Tribunal referred to the material that was provided. The Tribunal rejected the contention that the expert made unsubstantiated conclusions. The Tribunal found the expert was appropriately qualified. The Tribunal found that the opinion was authorised by the Regulations and that it has been provided by an independent expert, who is a person suitably qualified to make the assessment. The Tribunal identified under reg 1.23 of the Regulations, that the Tribunal is required to take as correct the independent expert’s opinion, properly made. The Tribunal found the independent expert’s opinion was properly made.
It was in these circumstances the Tribunal found that the applicant has taken not to have suffered family violence committed by the sponsor for reg 1.22 of the Regulations and, accordingly, affirmed the decision under review.
The grounds
The grounds in the application are as follows:
1. The Second Respondent (Tribunal) proceeded or acted upon on invalid certificate or denied the applicant procedural fairness.
Particulars
The document entitled "Certificate regarding Administrative Appeals Tribunal's Discretion to disclose certain information under s376 of the Migration Act 1958" dated 29 April 2016 was not a valid certificate for the purposes of section 376 of the Migration Act 1958 (Act).
3. Further or in the alternative to I and 2, the Tribunal erred in finding that it was required under subparagraph regulation 1.23( 10)( c )(ii) of the Regulations to take as correct the opinion in the report of the “independent expert” in circumstances where that report was not authorised by the Regulations.
Mr Chia of counsel on behalf of the applicant confirmed that ground 2 was abandoned and that the additional particular to ground 1 was abandoned.
Ground 1
In relation to ground 1, Mr Chia submitted that the certificate was invalid and drew attention to the concession made in the first respondent’s submissions as to invalidity. Mr Chia referred to the content of the document the subject of the certificate and contended that there was information that was adverse that could not be said to be immaterial, that was not disclosed to the applicant and, therefore, there was a jurisdictional error by the non-compliance by the Tribunal with the statutory regime and the existence of the invalid certificate in the circumstance of the present case.
This is a case where the Tribunal, in its own reasons, referred to the disclosure of the certificate. It is apparent that the disclosure occurred prior to the Tribunal finding that it was not satisfied that there had been the requisite non-judicially determined family violence. More than that, the Tribunal in the transcript expressly identified what the Tribunal perceived the information to be that was adverse that they were no longer in a relationship. That identification of the adverse information is consistent with the same characterisation of the adverse information as was identified by the delegate and, more importantly, in the Tribunal’s reasons, the Tribunal referred to the document the subject of the certificate containing adverse information which was put to the applicant by the Department on 16 May 2014, regarding the breakdown of the relationship.
On a fair reading of the Tribunal’s reasons, in light of the transcript and the disclosure, it is apparent that the only adverse information that the Tribunal regarded the document the subject of the certificate was disclosing was that there was a breakdown of the relationship. It was common ground between the parties that there was such a breakdown.
I do not accept that the other information in the certificate was taken into account by the Tribunal in the circumstance of the present case, where the transcript reveals an express identification of the certificate and where the Tribunal’s reasons expressly refer to the nature of the adverse information having been put to the applicant by the Department on 16 May 2014, and where the Tribunal itself identified the adverse information as being the breakdown of the relationship.
In the circumstances of the present case, the Court finds that the Tribunal did not take into account in the other part of the information provided by the sponsor as being adverse information in the determination of, first, whether there had been the requisite non‑judicially determined family violence; or in the Tribunal’s determination of the review. This is because the Tribunal expressly addressed the certificate and expressly identified the adverse information.
Notwithstanding the skilful submissions of Mr Chia, that there might arguably be identified content that could be said to be adverse. It is apparent from the Tribunal’s reasons in the present case and the transcript and the disclosure that took place that the Tribunal did not take into account any other information from the sponsor that could be characterised as adverse information. The reference to the applicant having been abusive towards the sponsor and her family, as well as the reference to using the sponsor and using the Australian system, and the sponsor wanting the applicant out of the country because the sponsor did not feel safe with his abusive yelling, are not matters that the Tribunal, in the present case, took into account adversely to the applicant. The Court finds that the Tribunal identified in the course of the hearing the relevant adverse information, being the breakdown of the relationship. The Tribunal referred to that as being the subject of the letter from the Department and, in its reasons, identified that that was the adverse information that had been disclosed to the applicant. In these circumstances, the Court finds that there was no other adverse information taken into account from folio 91 by the Tribunal in the determination of the review.
Further, this is a case where the applicant had disclosed to him the existence of the certificate at the first hearing. It is apparent that the applicant was then subsequently provided with the certificate itself prior to the Tribunal’s decision. The certificate identified that folio 91 contained adverse information disclosed by the sponsor. In circumstances where the relationship the subject of the application was one between the applicant and the sponsor, the reference to the adverse information being disclosed by the sponsor is of significance in considering the issue of practical injustice and whether the content of folio 91, advanced by Mr Chia, should be characterised as material or immaterial.
The applicant, given the relationship and the relationship breakdown, once having the benefit of the certificate was in a position where he was able to identify the source of information that might have been said to be adverse, coming from his partner. In the context where the Department identified that the adverse information was the breakdown of the relationship, and where the Tribunal identified the same at the first hearing, the Court finds in the circumstances of the present case that the other content in folio 91 was immaterial to the Tribunal in the determination of the review. No practical injustice arose from the other content in folio 91 as it was not taken into account by the Tribunal and further was immaterial information that could not have given rise to a different outcome in the review determination. No jurisdictional error as alleged in ground 1 is made out.
Ground 3
In relation to ground 3, Mr Chia of counsel submitted that the independent expert had erred by reason of failing to take into account all of the applicant’s claims of family violence. Reference was made to the statutory declaration of the applicant. Attention was drawn to the dot points in which the applicant alleged that the sponsor’s brother was violent towards the applicant and caused him to fear for his safety. Reference was made to the applicant being fearful from the sponsor’s brother and alleging that family violence had been perpetrated against the applicant by the sponsor and her family.
The independent expert in the report determining that there was not the requisite family violence referred to whether or not the incidents caused the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing and safety, to which the answer was given “no”. Then the independent expert expressly referred to the applicant not being fearful for his safety and wellbeing as a result of the conduct by the sponsor.
The independent expert identified that the applicant continued to engage in conduct to provoke the sponsor, and the conduct was not consistent with an individual who is reasonably fearful for their safety and wellbeing as the result of another’s behaviour. The Tribunal expressly referred to the applicant’s statement in the additional information being taken into account.
The independent expert concluded that the question of whether the relevant family violence had caused the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety has not occurred. The independent expert provided details reasons in support of the opinion following the provision of the opinion. The independent expert provided a response to a further referral of additional information. In the context of that, the independent expert referred to the submission that was advanced, asserting that there had been a misconstruction of the relevant family violence, and the expert expressly referred to all conduct identified by the applicant.
The expert referred to the finding on the evidence that the applicant was not reasonably fearful or apprehensive for either his safety or wellbeing as the result of the sponsor’s conduct. The expert referred to the submission that the applicant, despite stating he was scared of the sponsor, could not reasonably be considered so, concluded that the applicant exaggerated his claim of being scared of the sponsor’s alleged displays of physical aggression.
The independent expert also referred to the submission querying whether all incidents of family violence have been taken into consideration. In this regard, the independent expert expressly referred to the applicant not asserting that the brother-in-law was instructed by the sponsor, or that the sponsor was somehow involved her family in their disputes. The expert referred to there being no evidence during the interview to suggest that the acts perpetrated by the sponsor’s brother-in-law would be considered relevant family violence. That statement does not identify that the independent expert failed to take into account all the circumstances or the applicant’s statement as a whole.
The independent expert referred to the applicant describing an incident that occurred between himself and his brother-in-law, but that this had occurred after the breakdown of the relationship, which the expert identified would not be considered relevant family violence. The expert’s statement is to be read in its context, and does not support the contention that the expert failed to take into account all the circumstances in determining whether there had been the relevant family violence.
The reference to the incident occurring after the relationship with the sponsor had broken down, and when the applicant was seeking to reunite with the sponsor, and the absence of any evidence suggesting the sponsor instructed her brother to commence an argument with the applicant, are entirely consistent with the expert taking into account all the circumstances in the determination of whether there was the requisite family violence.
In these circumstances, I do not accept the submission that the expert did not consider all of the applicant’s claims of family violence in the expert determination. The Tribunal was correct in holding that the experts determination complied with the requirements of the Regulations.
Further, even if the expert’s opinion were to be read in a way in which the expert should be understood as disregarding the incident with the brother-in-law that occurred after the breakdown of the relationship, given the finding that it was not at the instruction of the sponsor, the Court does not accept that any such error, if it occurred, is an error of a kind that would give rise to jurisdictional error by the expert in the determination of family violence.
In other words, the Court is satisfied that the alleged error is immaterial and could not have given rise in the circumstances of the present case to any different outcome, and accordingly no jurisdictional error is made out by ground 3.
Accordingly, the further amended application is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 2 May 2019
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