Chu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 548

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Partner (Residence) (Class BS) visa (partner visa).

1. On 15 March 2013, the applicant applied for the partner visa on the basis of his relationship with his sponsor (Sponsor).
2. On 17 April 2014, the applicant was granted a Partner (Temporary) (Subclass 820) visa.
3. On 17 November 2016, the Delegate refused to grant the partner visa application under consideration. The applicant applied to the Tribunal for review of the Delegate's decision on 23 November 2016.
4. On 10 November 2017, the Tribunal affirmed the Delegate's decision. The Tribunal's decision was subsequently quashed by the Federal Circuit Court of Australia (as it was) by consent and remitted to the Tribunal for redetermination.
5. On 17 December 2019, the Tribunal (differently constituted) again affirmed the Delegate's decision.

1. The Tribunal summarised the background to the matter and evidence that had been given at [1]-[36] of its decision. At [39], the Tribunal expressed an intention to proceed on the basis that the applicant and the Sponsor were in a "marriage relationship" that had ceased. At [40], the Tribunal observed that the remaining issue was whether the applicant had suffered family violence committed by the Sponsor, within the meaning of the Migration Regulations 1994 (Cth) (Regulations).
2. The Tribunal considered the relevant provisions as follows at [41]-[45] of its decision:
   1. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a nonjudicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21... The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).
   2. In the present case the applicant is seeking [to] establish family violence on the basis of a nonjudicially determined claim of family violence...
   3. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.
   4. The applicant in this case is seeking to rely on evidence referred to in r.1.24 - namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes (see IMMI 12/116).
   5. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).
3. The Tribunal accepted that the applicant had provided a statutory declaration that met the requirements of r 1.25. The Tribunal also accepted that a report by a Psychiatrist that had been provided met the requirements of IMMI 12/116. However, the Tribunal found that a statutory declaration made by a Mr Joe Chuong dated 21 September 2019 did not meet the regulatory requirements. The Tribunal therefore concluded that a non-judicially determined claim of family violence had not been made (at [49]-[51]).
4. The Tribunal provided the following reasons at [52]-[54]:
   1. IMMI 12/116 specifically requires a social worker providing evidence must be a member (or be eligible to be a member) of the Australian Association of Social Workers and have 'provided counselling or assistance to the alleged victim while performing the duties of a social worker', and a psychologist must have 'treated the alleged victim while performing the duties of a psychologist'. The assistance or treatment must be more than the provision of a report or statutory declaration. For evidence from a psychologist or a social worker to meet the requirements of IMMI 12/116 the relationship between the applicant and the psychologist or social worker must essentially be a therapeutic one, rather than simply a referral for the purposes of an assessment.2 The applicant's evidence to the Tribunal was that he saw Mr Chuong for the first time in August or September 2019 after being referred by his GP. Mr Chuong's report refers to one consultation on 16 September 2019 and states that the applicant was referred to him 'for assessment and counselling' by his solicitor and 'the purpose of this assessment was to provide a social work report in relation to his application for permanent residency in Australia on family violence ground'.
   2. In addition, the Tribunal notes Mr Chuong's report indicates he is a 'retired social worker' who was a registered and accredited social worker with the Australian Association of Social Workers, and refers to his employment as a senior social worker and Service Manager of Fairfield Community Mental Health Service until 9 October 2019. No explanation is provided for why the applicant was not seen as a client of Mr Chuong's employed service if he was working as a social worker there at the time of preparation of the report. He states that he writes the report as a private social worker however no evidence is provided to support that he has a private social work practice. There is also no evidence before the Tribunal, and it has been unable to otherwise confirm3 his ongoing registration or membership of the Australian Association of Social Workers.
   3. Therefore, the Tribunal is not satisfied on the evidence that Mr Chuong's Statutory Declaration meets the requirements set out for a social worker in Immi 12/116.
5. At [55], the Tribunal observed that it had other concerns with Mr Chuong's report going to the issue of whether the applicant had suffered family violence. However, the Tribunal found that it was unnecessary to determine that issue.
6. The Tribunal concluded that the evidence presented did not meet the requirements of r 1.24 of the Regulations and that a non-judicially determined claim of family violence had not been made under r 1.23. The Tribunal concluded that the applicant was therefore unable to meet the criteria for the visa and affirmed the Delegate's decision (at [56]-[60]).

1. As any spousal relationship between the applicant and the Sponsor had ceased, the applicant was unable to qualify for the partner visa unless he had suffered family violence committed by the Sponsor: cl 801.221(6) of Schedule 2 to the Regulations. In order to have made a "non-judicially determined claim of family violence", the applicant was required by reg 1.24 to have provided a statutory declaration under reg 1.25 and two items of evidence from the list in Schedule 1 to IMMI 12/116. Schedule 1 relevantly identified the following in relation to evidence by a social worker:

• a member of the Australian Association of Social Workers, or
• a person who is eligible to be a member of that Association

who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.

• States in their opinion the alleged victim was subject to family violence, and
• Details the reasons for the opinion, and
• Identifies the alleged perpetrator.

1. On 20 January 2020, the applicant applied for judicial review of the Tribunal's decision. The applicant ultimately relied upon an amended application filed on 8 October 2024 containing the following grounds:

Ground 1

1. The Tribunal erred in its construction and application of the requirements of IMMI 12/116 with respect to the statutory declaration of Mr Chuong as seen in paragraph [52] of the Tribunal's reasons. That error is properly characterised as an error of a jurisdictional kind, because it went to the proper and lawful discharge of the Tribunal's task: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177-178, [12]- [14].

Particulars of Ground 1

(a) For the purpose of satisfying the requirements of IMMI 12/116, being the instrument specified under paragraph 1.24(b) of the Migration Regulations 1994 (Regulations) at the relevant time, the applicant sought to rely on a statutory declaration made on 21 September 2019 by Van Tuen (Joe) Chuong, retired social worker.

(b) Contrary to the reasoning expressed in Opoku v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 945 and Cherkawi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 275, the Tribunal:

(1) approached its assessment of Mr Chuong's statutory declaration on the erroneous basis that a single interaction between the applicant and Mr Chuong could not satisfy reg 1.24; and having done so;

(2) failed to consider the totality of the "provision of counselling or assistance" to the applicant by Mr Chuong in the context of IMMI 12/116;

(c) Having adopted that course, the Tribunal found that it was not satisfied that Mr Chuong's statutory declaration met the requirements set out for a social worker in IMMI 12/116 and that the applicant therefore had not established a non-judicially determined claim of family violence under r.1.23 of the Regulations.

(d) In approaching its statutory task in this way, the Tribunal erred in its construction and application of the requirements of IMMI 12/116, and failed to comply with regulation l.24(b) of the Migration Regulations 1994 (Cth), giving rise to jurisdictional error.

Ground 2

1. The Tribunal erred in its construction and application of the requirements of IMMI 12/116, as seen in paragraph [53] of its reasons. That error is properly characterised as an error of a jurisdictional kind, because it went to the proper and lawful discharge of the Tribunal's task: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177-178, [12]- [14].

Particulars of Ground 2

(a) For the purpose of satisfying the requirements of IMMI 12/116, being the instrument specified under paragraph 1.24(b) of the Migration Regulations 1994 (Regulations) at the relevant time, the applicant sought to rely on a statutory declaration made on 21 September 2019 by Van Tuen (Joe) Chuong, retired social worker.

(b) In reaching its decision, the Tribunal failed to consider whether a "retired" social worker, such as Mr Chuong, is "a person who is eligible to be a member" the Australian Association of Social Workers in a "retired" capacity or any other capacity.

(c) Having adopted that course, the Tribunal found that it was not satisfied that Mr Chuong's statutory declaration met the requirements set out for a social worker in IMMI 12/116 and that the applicant therefore had not established a non-judicially determined claim of family violence under r.1.23 of the Regulations.

(d) In approaching its statutory task in this way, the Tribunal erred in its construction and application of the requirements of IMMI 12/116, and failed to comply with regulation l.24(b) of the Migration Regulations 1994 (Cth), giving rise to jurisdictional error.

1. It is convenient to deal with ground 2 first. The applicant accepted that he would need to succeed under both grounds 1 and 2 in order to succeed. The applicant accepted that if the statutory declaration from Mr Chuong did not meet the requirements of IMMI 12/116, then he was unable to meet the criteria for the visa. If the applicant could not prove that Mr Chuong was "a person who [was] eligible to be a member" of the Australian Association of Social Workers (AASW) at the relevant time, then his application for review could not succeed.
2. In considering whether a "non-judicially determined claim of family violence" has been made, the Court is obliged "to consider the question for itself, informed correctly by the law, on the evidence before it". The Tribunal's own reasons are not determinative: Pham v Minister for Immigration and Border Protection [2018] FCA 1946 (Pham) (Middleton J).
3. The applicant relied upon an affidavit of Andy Vuong Duc Pham dated 16 October 2024. That affidavit annexed printouts from the website of the AASW dealing with membership. This included a "Retired" category of potential membership. The applicant submitted that the following factors indicate that Mr Chuong provided counselling or assistance to the applicant "while performing the duties of a social worker":

(a) Mr Chuong signed his declaration as a "Social Worker";

(b) Mr Chuong held qualifications B.A. (Saigon); B.Soc.Work (UWA); M.Soc.Adm. (UWS) as at the date of his report/statutory declaration; and

(c) Mr Chuong was a former registered and accredited member of the AASW.

1. The above, combined with the following, was submitted by the applicant to demonstrate that Mr Chuong was "eligible to be a member" of the AASW:

(a) Mr Chuong was a "retired" social worker on the date of his consultation with the applicant and when he prepared his report/statutory declaration; and

(b) the website for AASW included a membership type "Retired".

1. The applicant submitted that the Tribunal's rejection of Mr Chuong's report on the basis that Mr Chuong was "retired", without expressly considering whether he was nonetheless "a person who is eligible to be a member" of the AASW, resulted in jurisdictional error.
2. At hearing, the applicant accepted that the question of eligibility was a jurisdictional fact. I am not persuaded that the evidence before the Court provides an adequate basis for finding that Mr Chuong was eligible to be a "retired" member of the AASW. This is even assuming that the extract from the website relied upon (retrieved on 16 October 2024) sets out the requirements for membership at the relevant time.
3. As was raised with the applicant at hearing, the "Retired" category explained in the extract from the website indicated that being "fully retired" was a requirement for eligibility. Whilst Mr Chuong indicated that he was a "retired social worker" when he provided his report, he also stated that he was writing the report for the applicant "as a private social worker". I am not persuaded that this demonstrates that Mr Chuong was "fully retired" at the relevant time, as he was ostensibly working as a social worker whilst providing the report. Although the website indicates that other categories of membership were available (e.g. for "fully qualified Social Workers"), the requisite qualifications are not articulated in the extract that has been provided. It is not apparent, for example, whether there may have been continuous training and development, insurance or other practice related requirements that applied. The extract provided simply indicates that there were other potential categories of membership, which may or may not have been available to Mr Chuong (as someone who appears to have come out of retirement to provide a one-off report in a private capacity). I am therefore not persuaded it has been demonstrated that Mr Chuong was eligible to be a member of the AASW at the relevant time.
4. In the above circumstances, I am not persuaded that the Tribunal failed to consider whether Mr Chuong was eligible to be a "retired" member of the AASW. The Tribunal cited the AASW's website page and stated that it had been unable to confirm the applicant's ongoing registration or membership (at [53]). This was in a context, expressed at [52], in which the Tribunal had acknowledged that eligibility would have been sufficient for the purposes of IMMI 12/116. For the reasons set out above, I similarly do not consider that the evidence relied upon by the applicant from the website demonstrates eligibility or membership. Even if some error were demonstrated in the Tribunal's reasoning in this regard, the Tribunal's reasons are not determinative: Pham at [34]. The question for the Court is whether the applicant made a non-judicially determined claim of family violence. Having regard to the above, I have not been persuaded that he did so.
5. I am therefore not persuaded that ground 2 is able to succeed. The applicant accepted that if error were not demonstrated under this ground, then his application for review was unable to succeed.

1. Having regard to the above, it is unnecessary to determine ground 1. However, in the hopes that it may assist, I will set out some thoughts on that ground.
2. The Tribunal relied upon the case of Dang v Minister for Immigration [2016] FCCA 1426 (Dang). In that case, Judge McNab found that the Tribunal had correctly concluded that in order to meet to meet the requirements of IMMI 12/116 through a statutory declaration by a psychologist or a social worker, the relationship between the applicant and the psychologist or social worker must have been "essentially a therapeutic one". In that case, the psychologist had seen the applicant only once, at the behest of the applicant's lawyers, for the purpose of obtaining an "assessment". In relation to the social worker, the applicant's evidence had not indicated that she had provided counselling or assistance to the applicant. Neither were found to have been in a therapeutic relationship with the applicant.
3. The applicant relied upon the subsequent decision of Judge Egan in Opoku v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 945 (Opoku). In that case, the Tribunal was found to have erred by overlooking evidence regarding the conduct of a counselling interview or interviews and by not seeking clarification of what had taken place. The Tribunal was found to have relatedly denied the applicant procedural fairness. Judge Egan further reasoned:
   1. ... It is trite that a person may be professionally counselled on one, or on more than one occasion. IMMI 12/116 does not relevantly provide that there must be more than one occasion of counselling to have occurred before a social worker is able to relevantly make a compliant statutory declaration. Had that been the intention of the Minister, one would have thought that such requirement would have been specifically set out in the body of IMMI 12/116...
   2. When construing Ministerial instruments such as IMMI 12/116, the Court finds that in the absence of any confining or restrictive language which narrows or confines the interpretation of a word or words, such word or words ought to be given their primary and natural meaning. The absence of any stated intention for the words "counselling or assistance" to be construed as constituting more than one occasion of counselling or assistance, or a demonstrated course of ongoing counselling or assistance, is, with respect, suggestive of such narrow approach being inapt.
4. The applicant also referred to Cherkawi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 275 (Cherkawi). In that case, Judge Forbes had regard to the Explanatory Statement accompanying the instrument, which was found to clearly reveal "a legislative intention to streamline the process for people who may already have been in contact with support services" (at [57]). Judge Forbes considered that "a pre-existing therapeutic relationship" was required (at [58]) and that Opoku did "not stand for the proposition that a single interaction will satisfy reg 1.24 - only that it could" (at [54]). Judge Forbes considered that, in the circumstances of that case, it was clear that the relevant engagement "was to interview the applicant and write a report, not to provide ongoing counselling or assistance as a social worker nor to confirm any past history of counselling or assistance" (at [59]). It was found that "assessment and preparation of a report were wholly directed, not to family violence, but to meeting the evidentiary requirements of the visa application".
5. The Minister submitted that this case was analogous to Cherkawi. Both applicants had been referred for assessment by their legal representatives to obtain evidence in support of their visa applications. In the present case, the evidence in this regard is somewhat mixed. Mr Chuong, in his report, stated that the applicant had been "referred for this assessment and counselling by his solicitor". However, the applicant gave evidence at the hearing before the Tribunal that he had been referred by his family doctor. It is possible that the referral occurred through both, although it was only the solicitor's referral that was referenced in Mr Chuong's report. Mr Chuong's report referred to a single date of consultation. However, the applicant referred to two visits with Mr Chuong (the first being shorter in duration and a week before the second).
6. In his report, Mr Chuong stated that the "purpose of this assessment was to provide a social work report in relation to [the applicant's] application for permanent residency in Australia on family violence ground". However, Mr Chuong's report also referred to the purposes of the referral as including "counselling". Parts of the report referred to advice provided to the applicant that had no apparent migration related purpose. This included advice to seek referral to a Vietnamese speaking psychiatrist for treatment. Under the heading "TREATMENT OPTIONS", it was stated:

Dao would benefit from treatment for his Acute Stress Disorder and Major Depression. He was strongly advised to seek medical treatment to relieve his distressing psycho-somatic symptoms and moderate to severe sleep disturbances. He also advised to see a counsellor for ongoing counselling which assist him to resolve the current anxiety and depression symptoms...

His depression and anxiety symptoms are genuine and moderately severe which necessitates the immediate referral to the private psychiatrist for an urgent psychiatric review and treatment. They are not just "sadness" or normal "grief or loss". As an experienced mental health clinician, it is my professional and ethical duties to arrange immediate treatment and follow-up counselling for Dao.

1. From the above evidence, I would infer that there were two purposes to the applicant's engagement with Mr Chuong. The primary and essential purpose of the relationship appears to have been, as was stated, "to provide a social work report in relation to [the applicant's] application for permanent residency in Australia on family violence ground". This is reflected in the vast majority of what was said in the report. An incidental, or secondary, purpose appears to have been "counselling". To this end, Mr Chuong appears to have included in a relatively confined part of his (migration related) report some general recommendations that the applicant seek medical treatment, including through a counsellor and referral to a private psychiatrist.
2. The Tribunal did not directly refer to the parts of the report that were ostensibly therapeutic, rather than migration related. This does not mean they were not considered by the Tribunal. I would not draw an inference that these parts of the report were overlooked, simply because they were not set out in the Tribunal's decision. On balance, a more likely inference is that the Tribunal considered the overall, stated, purpose of the referral and relationship to be sufficiently clear i.e. to provide an assessment and report for migration related purposes. Having regard to Dang, which had found that the relationship was required to "have been essentially a therapeutic one" (at [29]), the Tribunal considered that this requirement could not be met. In so reasoning, I do not accept that the Tribunal proceeded on the basis that a single interaction between the applicant and Mr Chuong could not satisfy reg 1.24, as was suggested by the applicant. No such opinion was expressed in the Tribunal's reasons. Rather, the Tribunal's concern was that the relationship was not "essentially a therapeutic one", but was rather one expressed to have been formed, at the behest of the applicant's solicitor, for "[t]he purpose" of a migration related report. In any event, it is clear from Pham that the Tribunal's reasons are not determinative.
3. This matter is potentially distinguishable from cases such as Dang and Cherkawi, in which the sole purpose of the relationship between the applicant and the maker of the statutory declaration appears to have been migration related. Having regard to what was found in Opoku and to the language of IMMI 12/116, it seems that Mr Chuong's statutory declaration was at least potentially capable of being regarded as having been provided by a person "who has provided counselling or assistance to the alleged victim while performing the duties of a social worker".
4. However, the requirement articulated in Dang that the relationship be "essentially a therapeutic one" was embraced Middleton J in Pham (at [23]). Although in the present case the relationship had some incidental therapeutic purpose, quality or consequence, it is questionable whether it could be characterised as essentially therapeutic in nature.
5. In any event, given my conclusion in relation to ground 2, it is unnecessary to resolve this issue.

1. For the reasons given above, the application must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.