Mardini v Minister for Immigration & Multicultural & Indigenous Affairs

Submissions on the grant of leave to rely on the proposed amended notice of appeal 16 Mr Zipser submits that leave should be granted if the grounds are meritorious, unless there is disentitling conduct. He points to the fact that no new evidence has been filed and that the appellant was not represented by a legal practitioner before the Federal Magistrate. He relies on 'a recent development in the law' in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 which, he submits, is relevant to the Tribunal's reference to the statutory declarations. 17 Ms Wong opposes leave being granted to rely on grounds not raised before Lloyd-Jones FM. She points to the absence of any explanation for why these grounds were not raised before his Honour, other than the lack of legal representation. Ms Wong submits, further, that an application of the principles enunciated in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [166]by Madgwick J (with whom Conti J agreed) should result in refusal of leave. She points out that, relevantly, the law relied upon by Mr Zipser was determined in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, both of which pre-dated the Tribunal hearing. 18 I shall return to the question of leave.

Matters not in dispute 19 The following matters are not in dispute: · The Tribunal applied the test of domestic violence in Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 183, requiring physical violence or the threat thereof. That constituted jurisdictional error, the test having been stated in Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170 as not being limited to physical violence. · The Tribunal referred to the statutory declarations. Those declarations were part of the information given by the appellant to the delegate and were not information within s 359A(4)(b) of the Migration Act 1958 (Cth). The medical reports were part of the information given by the appellant to the Tribunal as part of his application to the Tribunal and came within s 359A(4)(b) of the Act. · The Tribunal's finding that the statutory declarations failed to comply with reg 1.24(2) is correct (subject to a claim that the Tribunal failed to comply with s 359A(1)).

Issues arising from the proposed amended notice of appeal and pressed in the appeal 20 Mr Zipser raises the following issues, as pressed: · Is the appellant entitled to relief as a result of the agreed jurisdictional error concerning the test for domestic violence? · Did the Tribunal mislead the appellant in telling him the incorrect test of domestic violence? If so, is the appellant entitled to relief? · In the 9 June letter, the Tribunal stated: 'The Tribunal has made a decision on your case'. Did that mislead the appellant and, if so, does that amount to jurisdictional error entitling the appellant to relief? · Did the Tribunal fail to comply with s 359A(1) of the Act by referring to the statutory declarations? · Should the appellant be given leave to rely upon any of the proposed grounds? · If the appellant makes out any of the proposed grounds, should the Court, in its discretion, grant relief?

Is the appellant entitled to relief as a result of the agreed jurisdictional error concerning the test for domestic violence? 21 The Tribunal made its decision on two independent bases. The incidents described by the appellant did not constitute domestic violence ('the first basis'). Regulation 1.24(2) was not complied with as the statutory declarations did not establish relevant domestic violence because those claiming to be competent persons had the same qualifications (at [40]) ('the second basis'). The Tribunal was 'unable to accept that domestic violence had occurred under the regulations' (at [41]). Accordingly, the Tribunal said, at [42], that 'As these are the only declarations or other applicable evidence put forward, the Tribunal is not satisfied that relevant domestic violence has occurred'. 22 Mr Zipser submits that the Tribunal could have come to a different conclusion as to whether the appellant's experiences satisfied the Sok test of domestic violence (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [104]). That is not challenged in this application. Mr Zipser then seeks to extend that consequence to the acknowledged separate basis for the decision and raises four routes from the jurisdictional error in the first basis to the second basis: 1. The Tribunal might have put to the appellant in writing the problem with the statutory declarations or it might have given the appellant the opportunity to obtain a further statutory declaration to satisfy reg 1.24. 2. If the Tribunal had not misled the appellant by telling him the incorrect test, the appellant might have been motivated at the hearing to ask the Tribunal for more time to obtain a further statutory declaration to satisfy reg 1.24. 3. The 9 June letter 'would have dissuaded the appellant' from obtaining a further statutory declaration. 4. At a de novo hearing there may be a new declaration, so that a different result may be reached. 23 Some of those routes are relied upon independently of this ground. 24 Relief may be dependent on establishing that the breach denied the possibility of a successful outcome (Al Shamry at 41 per Merkel J). In Giretti v Commissioner of Tax (1996) 70 FCR 151, where there was an independent ground for a decision unaffected by procedural unfairness, Lindgren J (with whom Jenkinson J agreed) pointed out at 164 that Mr Giretti 'was not deprived of the possibility of avoiding the making of a sequestration order', in contrast to the situation in Stead v State Government Insurance Commission (1986) 161 CLR 141. His Honour analysed Stead to determine whether that test was 'forward-looking' or 'backward-looking'. His Honour pointed out that in many cases the result is the same but was of the opinion that the better view is that there is scope for the operation of both tests as alternatives. His Honour characterised the difference as whether there was or that there is no possibility of a different result but pointed out at 165 that '[i]t is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been'. He also observed at 166 that Stead does not require or admit of 'speculation or guesswork as to matters not suggested by the evidence or by the parties. An example would be that Mr Giretti might somehow even now obtain legal representation and mount a new and different attack on the assessments'. 25 It could well be said that Mr Zipser is inviting the Court to engage such speculation or guesswork. 26 Mr Zipser submits that the Tribunal appeared to have formed the view that, on the Cakmak test, there was no domestic violence and that, if it had appreciated the correct test, it may have been minded to adopt one or more of these routes. It should be noted that there is no evidence to support any of the above assertions. 27 Not every departure from the rules of natural justice will entitle an aggrieved party to a new hearing if the new hearing would be a futility (Stead at 145). As the High Court said in Stead at 147 'All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome'. In Aala at [104] the High Court has applied the same test to jurisdictional error. That test applies to the first basis. The second basis, however, formed an independent ground for the Tribunal decision. 28 In the transcript of the hearing the Tribunal member said that the Tribunal had written to the appellant about the fact that the declarations did not 'meet the requirements of the law'. That was not correct. The issue was referred to in the decision of the delegate which had been forwarded to the appellant. The Tribunal asked the appellant why he had not made an effort to achieve other declarations, to which he replied that he did not know what he had to do. It is apparent that the appellant was aware of the problem, had the opportunity to fix it and did not do so. This, in my view, weighs against starting the proceedings afresh (Turner v Official Trustee in Bankruptcy [1996] 71 FCR 418 at 423). 29 This is a case where, irrespective of the failure to apply the Sok test, the Tribunal was bound by the Act and Regulations to affirm the decision of the delegate. The Tribunal decision as to the inadequacy of the statutory declarations was correct and did not involve jurisdictional error. The Tribunal decision should be upheld on this independent ground (Shaikh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 174at [34]; Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097 at [29]). The fact that the Tribunal applied the test of domestic violence in Cakmak rather than the later test in Sok would not be sufficient to uphold the appeal if the appellant were permitted to rely upon this ground. In those circumstances, it is appropriate to refuse relief on discretionary grounds (Aala at [58] per Gaudron and Gummow JJ; SZEEU at [232]-[233] per Allsop J).

In telling the appellant of the incorrect test of domestic violence, did the Tribunal mislead the appellant and, if so, would the appellant be entitled to relief? 30 There is no evidence to support the allegation that the appellant was misled or that the appellant was deprived of an opportunity. In any event, as Mr Zipser conceded, if the Tribunal did mislead the appellant in telling him the incorrect test of domestic violence, the appellant would not be entitled to relief for the same reasons as set out above. 31 This proposed ground of appeal would not succeed.

Did the 9 June letter mislead the appellant and, if so, does that mount to jurisdictional error entitling the appellant to relief? 32 Mr Zipser submits that, by telling the appellant that the Tribunal had made a decision in his case, the Tribunal suggested to the appellant that he was not permitted to provide further evidence to the Tribunal. It is said that was misleading, as the appellant had the right to provide further evidence at any time prior to the handing down of the decision. 33 There is no evidence to support such an interpretation of the letter, nor that the appellant was misled, nor that there was any consequence of any such interpretation, nor that the appellant was dissuaded from obtaining further evidence, nor that he was deprived of any opportunity. Indeed, the appellant was placed on notice by the Tribunal at the hearing of the defect and did not seek to adduce further evidence. 34 This proposed ground of appeal would not succeed.

Did the Tribunal fail to comply with s 359A of the Act with respect to the statutory declarations? 35 The appellant submits that the "information" which the Tribunal failed to put to the appellant in accordance with s 359A(1) was: (a) the two competent persons from whom he obtained statutory declarations were both medical practitioners, as a result of which the appellant did not satisfy clause 1.24(2) of the Migration Regulations; and/or (b) a psychiatrist was not a psychologist. 36 Ms Wong submits that the "information" represented the Tribunal's thought processes and identified defects in the appellant's evidence and, as such, was not encompassed by "information" within the meaning of s 359A(1) (VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471at [24]). 37 The Tribunal, in its reasons, said at [40] that 'the available declarations do not establish relevant domestic violence because of the basis of those claiming to be competent persons'. It then explained the effect of the regulations and continued at [41] - [42]: 'Accordingly, the Tribunal is unable to accept that domestic violence has occurred under the regulations as the statutory declaration of either Dr Hanna and Dr Teoh cannot be relied upon to support a claim of domestic violence under the regulations. Therefore, paragraph 1.24(1)(b) of the regulations has not been satisfied. As these are the only declarations or other applicable evidence put forward, the Tribunal is not satisfied that relevant domestic violence has occurred.' 38 In my opinion, the Tribunal was pointing to a defect in the appellant's case and explaining the reasons for its conclusion that there was such a defect. It explained why it was not satisfied that domestic violence had occurred. That does not constitute information for the purposes of s 359A(1). 39 This proposed ground of appeal would fail.

Conclusion 40 The fact that the appellant was unrepresented before the Federal Magistrate is relevant but not, of itself, a basis for permitting the re-litigation on different grounds of the very same question in subsequent proceedings (SZBWJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 13 at [49]). In my view, the proposed grounds of appeal would not succeed. In addition, as in SZBWJ, other than to rely on recent retaining of legal advice, the appellant has made no attempt to explain why the proposed grounds were not raised earlier. 41 Even if I were wrong I would not, as a matter of discretion, uphold the appeal and remit the matter to the Tribunal. The appellant had submitted the whole of each statutory declaration with its accompanying report to the delegate. It resubmitted the reports to the Tribunal with the intention to rely upon them and did so. Strictly, the reports needed to be accompanied by the statutory declarations to comply with reg 1.24(1)(a). The Tribunal did not reject the appellant's evidence on the basis of this "technicality". The Tribunal decision was correct in that the appellant failed to comply with the Regulations. The appellant was aware of the defect from the delegate's decision and was told about it again at the Tribunal hearing. He did not seek to correct it. 42 The appellant has not otherwise relied upon error on the part of the Federal Magistrate. 43 Leave to file the amended notice of appeal should be refused. The appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Solicitor for the Appellant: Brett Slater Solictors