Minister for Immigration and Citizenship v Pham

REASONS FOR JUDGMENT 1 The first respondent is a citizen of Vietnam who arrived in Australia on a temporary visa on 7 December 1997. The first respondent married an Australian citizen and applied for a spouse visa on 5 March 1998. 2 Initially, the first respondent's Australian husband, Mr Lee Burton, supported the spouse visa application. In 2000, however, Mr Burton advised the Department of Immigration and Multicultural Affairs (the department) that the relationship had ended and that he no longer wished to support the first respondent's visa application. Nevertheless, the first respondent applied for the spouse visa on the basis that at the time of making the visa application she and Mr Burton were in a genuine spousal relationship, that the relationship with Mr Burton had ceased and that she had suffered domestic violence committed by Mr Burton. 3 Under cover of a letter dated 30 August 2000, the first respondent sent to the department three statutory declarations in support of what is referred to as a non‑judicially determined claim of domestic violence. The statutory declarations were from the first respondent, Dr Dang L Sang, a registered psychologist, and from Ms Ema Luisa Flynn de Garcia, a welfare worker. They deposed to domestic violence suffered by the first respondent at the hands of Mr Burton. 4 An application containing a non‑judicially determined claim of domestic violence was a means whereby the first respondent could, if the domestic violence was made out, obtain a spouse visa notwithstanding that by the date of the decision in respect of the visa application, there was no longer a spousal relationship with her former husband. Subregulation 1.23(1A) of the Migration Regulations 1994 (Cth) (the Regulations) set out the requirements to be satisfied if the spouse visa application was to be taken as including a non‑judicially determined claim of domestic violence. The relevant requirement in the circumstances of this case was that the first respondent's application "presented evidence in accordance with regulation 1.24" that she had suffered domestic violence. 5 The first respondent sought to satisfy that requirement by furnishing statutory declarations from herself and from two persons, namely, Dr Sang and Ms de Garcia, each claiming to be a "competent person" within the meaning of the Regulations. Regulation 1.26 prescribed the requirements for a qualifying statutory declaration from a "competent person". 6 A central issue of this appeal is whether the statutory declaration of Ms de Garcia complied with the statutory requirements. 7 On 18 October 2002, the delegate of the appellant (the Minister) refused the first respondent's spouse visa application on the basis that there had not been a genuine and continuing spousal relationship between the first respondent and Mr Burton. The delegate did not consider the domestic violence issue. 8 On 31 October 2002, the first respondent applied to the Migration Review Tribunal (the Tribunal) for a review of the delegate's decision. The Tribunal affirmed the delegate's decision but the Tribunal's orders were set aside by consent and the matter was remitted for reconsideration to a differently constituted Tribunal. By a decision dated 24 November 2005, the Tribunal affirmed the delegate's decision. 9 The first respondent applied for judicial review of the reconstituted Tribunal's decision to the Federal Magistrate. There were five grounds of review relied upon. The Federal Magistrate upheld one of the grounds and remitted the application for rehearing to the Tribunal. 10 The Minister appealed against the decision of the Federal Magistrate to remit the application to the Tribunal for rehearing. In my view, the appeal should be allowed. The Tribunal 11 By a letter dated 8 July 2005, the reconstituted Tribunal invited the first respondent to attend a hearing on 20 July 2005. The solicitors acting for the first respondent wrote to the Tribunal by a letter dated 18 July 2005. The letter stated: With regards to the video hearing which is scheduled to take place at 1.30 pm (WST) on Wednesday 20 July 2005, I request the presiding member's directions in relation to the following: 1. A number of statutory declarations have been provided to DIMIA (and which is already contained on the relevant DIMIA and MRT/FOI files) in relation to the domestic violence provisions. Please advise whether there will be any issue from the point of view of the [T]ribunal as to whether these statutory declarations meet the prescribed requirements and are therefore validly accepted into evidence in terms of the legislation regulations and policy guidelines. 12 There was no reply to the letter. 13 At the hearing on 20 July 2005, the first respondent gave evidence which did not go to the status of the statutory declarations relied upon in respect of the domestic violence issue. The Tribunal member made no reference to the statutory declarations being deficient. 14 On 27 July 2005, the Tribunal sent a letter under s 359A of the Migration Act 1958 (Cth). The letter invited the first respondent to comment upon a number of enclosed documents which, said the Tribunal, called into question the first respondent's claim that the relationship with her former spouse was genuine and continuing. The letter made no reference to deficiencies in the statutory declarations relied upon in respect of the domestic violence issue. 15 The Tribunal dismissed the first respondent's application and published reasons for its decision dated 24 November 2005. There were two grounds for the Tribunal's decision. First, the Tribunal said that it was not satisfied that there had been a genuine and continuing spousal relationship between the first respondent and Mr Burton and, therefore, was not satisfied that the first respondent had been Mr Burton's spouse within the meaning of reg 1.15A. 16 The second ground of the decision dealt with the first respondent's application under the domestic violence provisions of Div 1.5 of the Regulations. Under subreg 1.23(1B) the first task of the Tribunal was to determine whether the visa application included a non‑judicially determined claim of domestic violence. This required the Tribunal to determine whether the statutory declarations provided by the first respondent complied with the requirements of the Regulations. 17 The Tribunal found that the statutory declaration of Ms de Garcia did not comply with the requirements of reg 1.21 and reg 1.26 of Div 1.5 of the Regulations. Accordingly, the Tribunal dismissed the first respondent's application on this ground as well as the ground based on the absence of a genuine and continuing spousal relationship. The Tribunal stated that it was not under any obligation to highlight to an applicant that the statutory declarations relied upon in support of allegations of domestic violence did not satisfy the requirements of the Regulations. The application for judicial review 18 The first respondent filed an application in the Federal Magistrates Court on 30 December 2005 seeking judicial review of the Tribunal's decision. 19 In her amended application the first respondent set out five grounds of review. Four of the grounds of review (namely, grounds 1, 2, 3 and 5) related to the manner in which the Tribunal had reached its decision that the first respondent had not been in a genuine and continuing spousal relationship with Mr Burton. The other ground, namely, the fourth ground of review, impugned the Tribunal's decision that the statutory declaration of Ms de Garcia was deficient. 20 The first respondent succeeded in relation to only one of the five grounds of review. This was ground one. The Federal Magistrate found that there was a failure by the Tribunal to consider witness statements provided by the first respondent which went to the question of the genuineness of the first respondent's relationship with Mr Burton. 21 It is significant that the Federal Magistrate rejected the fourth ground of review, which impugned the Tribunal's decision that the statutory declaration of Ms de Garcia did not comply with the requirements of reg 1.21 and reg 1.26 of the Regulations. 22 As previously stated, the Federal Magistrate remitted the first respondent's application to the Tribunal to be considered according to law. The appeal 23 The Minister filed a notice of appeal on 20 June 2007. Initially, the notice of appeal comprised five grounds. However, three of the five grounds were abandoned before the hearing of the appeal. These three grounds related to the decision of the Federal Magistrate upholding ground one of the grounds of review. The two remaining grounds of appeal stated: 4 The learned Federal Magistrate erred in upholding the application for review when: 4.1 the Tribunal had affirmed the decision of the delegate of the appellant on the independent ground that the first respondent had not provided the evidence required to support a non‑judicially determined claim of domestic violence; and 4.2 no error was shown in the Tribunal's finding on that ground. 5 Further or alternatively, for the reasons set out in ground 4 above, the learned Federal Magistrate should have refused relief in the exercise of his discretion. 24 In a notice of contention the first respondent contended that the Federal Magistrate erred in upholding the Tribunal's finding that the statutory declaration of Ms de Garcia did not comply with the Regulations. The first respondent also contended that the Federal Magistrate should have found jurisdictional error by the Tribunal because of the Tribunal's failure to notify the first respondent of any perceived deficiency in the statutory declaration of Ms de Garcia. There was also a cross‑appeal but this was not proceeded with. 25 There are three main issues in the appeal. Did Ms de Garcia's statutory declaration comply with the Regulations? 26 The first question is whether the Federal Magistrate erred in concluding that the Tribunal did not fall into jurisdictional error in the manner in which it dealt with the issue of Ms de Garcia's statutory declaration. This is ground one of the first respondent's notice of contention. 27 In order for the first respondent to succeed on her claim based on non‑judicially determined domestic violence, it was necessary for her to provide evidence of the domestic violence in a form which complied with reg 1.26 of the Regulations. Subregulation 1.26(a) and subreg 1.26(b) are particularly relevant in the context of this case. Subregulation 1.26(a) requires that the statutory declaration must be made by a "competent person". Subregulation 1.26(b) provides that the statutory declaration "must set out the basis of the competent person's claim to be a competent person for the purposes of [Division 1.5]". The term "competent person" is defined in reg 1.21. It includes medical practitioners and also, relevantly for the purposes of this case, "a person holding a position of the kind described in subregulation (2)". 28 Subregulation 1.21(2) of the Regulations provides as follows: The positions referred to in subparagraph (a)(vi) of the definition of competent person in subregulation (1) are: (a) manager or coordinator of: (i) a women's refuge; or (ii) a crisis and counselling service that specialises in domestic violence; or (b) a position with: (i) decision‑making responsibility for: (A) a women's refuge; or (B) a crisis and counselling service that specialises in domestic violence; that has a collective decision‑making structure; and (ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service. 29 The Tribunal found that the statutory declaration made by Ms de Garcia did not comply with subreg 1.26(a) because the information in the statutory declaration did not show that Ms de Garcia was a competent person within the meaning of subreg 1.21(2). 30 Ms de Garcia completed a statutory declaration in the prescribed Form 1040. She said that her relationship to the first respondent was "welfare worker". She recorded that the occupational group to which she belonged was "Domestic Violence Specialist Service". 31 In answer to the question on the prescribed form: "What is the basis of your claim to be a 'competent person'?", Ms de Garcia wrote: "I have 13 years experience working with victims of domestic violence. I have decision‑making responsibilities on case management." 32 In the space on the prescribed form provided for "Occupation", Ms de Garcia wrote: "Ethnic Resource Supervisor - Women's Refuges Multicultural Service". 33 The Tribunal said that Ms de Garcia did not claim to be the manager or coordinator of a crisis and counselling service that specialises in domestic violence. Further, said the Tribunal, Ms de Garcia did not claim to be the holder of a position with decision‑making responsibility for a prescribed crisis and counselling service that has a collective decision‑making structure. Ms de Garcia claimed "solely to have decision‑making responsibilities for case management within her employing agency" (Original emphasis). She did not claim that the agency had a collective decision‑making structure and that she occupied a position which carried decision‑making responsibility within such an agency. Accordingly, Ms de Garcia's statutory declaration did not comply with the Regulations and, therefore, the first respondent's claim based on non‑judicially determined domestic violence failed. 34 The Federal Magistrate held that the Tribunal had not erred in its approach and conclusion. 35 In my view, the Federal Magistrate did not err in upholding the Tribunal's decision. The requirement imported into subreg 1.21(2)(a) by the use of the words "manager or coordinator of" a women's refuge or a prescribed crisis and counselling service is that the "competent person" must hold a management position in respect of the general operations or direction of the women's refuge or the crisis and counselling service as an institution. The Tribunal did not err in finding that Ms de Garcia did not in her statutory declaration claim to hold such a position. The claim to hold the position of "Ethnic Resource Supervisor" or "welfare worker" did not disclose a position with the scope of authority required by subreg 1.21(2)(a). Nor does it give rise to an inference that Ms de Garcia held such a position. 36 In order to qualify as a competent person under subreg 1.21(2)(b), the person is required to hold a position with decision‑making responsibility for a women's refuge or a prescribed crisis and counselling service, that has a collective decision‑making structure; and responsibility for matters concerning domestic violence within the operations of that refuge or prescribed crisis and counselling service. 37 As previously stated, in support of her claim to be a competent person, Ms de Garcia said that she had "13 years experience working with victims of domestic violence" and had "decision‑making responsibilities on case management". In addition, Ms de Garcia described her occupation as "Ethnic Resources Supervisor - Women's Refuges Multicultural Service". 38 The information disclosed in the statutory declaration did not demonstrate that the institution referred to by Ms de Garcia, namely, Women's Refuges Multicultural Service, had a collective decision‑making structure or that she had held a position with decision‑making responsibility for the institution. All that the statutory declaration disclosed was that Ms de Garcia had decision‑making responsibilities for case management. 39 Accordingly, the Tribunal did not err in its identification of the relevant question, or in the manner in which it disposed of the question. It addressed the question of whether the statutory declarations complied with the Regulations and found that Ms de Garcia's statutory declaration did not. The first ground of contention by the first respondent is dismissed. Failure by the Tribunal to advise of deficiencies in Ms de Garcia's statutory declaration 40 The next issue is whether the Federal Magistrate erred in finding that the Tribunal had not acted in contravention of s 360(1) of the Act. Section 360(1) of the Act provides: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 41 The first respondent said that the delegate had not identified any deficiency in the statutory declaration of Ms de Garcia as an issue in relation to the decision made to refuse the spouse visa. 42 The first respondent also pointed to the fact that the first respondent's solicitors had prior to the commencement of the hearing, written to the Tribunal asking it to advise them if there were any deficiencies in the statutory declarations relied upon in support of the application on domestic violence grounds. The first respondent went on to say that the Tribunal had not advised the first respondent either before, or at the hearing, that the question of the adequacy of the statutory declaration of Ms de Garcia was an issue in relation to the decision under review. Accordingly, so the first respondent submitted, the Tribunal had failed to comply with s 360(1) of the Act because it had not given the first respondent an opportunity to make submissions and present evidence relating to an issue arising in relation to the decision under review. 43 The first respondent also contended that s 360(1) of the Act was analogous to s 425(1) and that the principle in the case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL)applied to this case. 44 In SZBEL, the applicant for a protection visa, a seaman from Iran, claimed that he feared that if he were returned to Iran, he would be persecuted on the grounds of having converted to Christianity. He had, therefore, jumped ship at Port Kembla and claimed a protection visa. The applicant described in a statutory declaration three incidents in support of his claim that the captain and other members of the crew of his vessel were aware of his conversion to Christianity and had subjected him to harassment. The delegate had refused the visa application. In his reasons, the delegate only dealt with one of the three incidents referred to in the statutory declaration. The delegate said that he did not accept that the incident described by the visa applicant was credible. The delegate did not deal with the other two incidents which the applicant had described in his statutory declaration. 45 The applicant applied for review of the delegate's decision to the Refugee Review Tribunal. At the Tribunal hearing, the applicant gave evidence and elaborated upon the account in his statutory declaration. The Tribunal did not indicate to the applicant at the hearing that it found his account of the three incidents implausible and did not give the applicant an opportunity to explain any doubts which the Tribunal harboured in relation to the plausibility of the three incidents. However, the Tribunal in its reasons, found that the applicant's account of the three incidents was implausible. The Tribunal, accordingly, affirmed the decision of the delegate. 46 The High Court found that there had been a denial of procedural fairness by the Tribunal because the Tribunal had not identified to the applicant as potentially dispositive of the application, issues which had not been treated as dispositive by the delegate. The applicant had, therefore, been deprived of the opportunity to make submissions and present evidence in respect of an issue arising in relation to the decision under review. 47 The first respondent relied upon the following observations of the High Court in SZBEL in support of her contention. 48 At 163, at [35]: The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". 49 At 163, at [36]: But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. 50 The first respondent contended that because the delegate had not refused the visa on the basis of the deficiencies in the statutory declaration of Ms de Garcia, it followed that if the Tribunal intended to rely upon the deficiencies in the statutory declaration, it should have informed the first respondent to that effect and provided her with an opportunity of remedying the defects by providing further evidence. 51 In my view, the case of SZBEL is distinguishable from the present case. The distinction lies in the fact that the first respondent chose to make a claim for a spouse visa founded on a non‑judicially determined claim of domestic violence. It was, therefore, incumbent upon the first respondent to establish that the relationship with her former spouse had been genuine and continuing and to present evidence in a form which complied with the Regulations, that her former spouse had subjected her to domestic violence. As to the evidence of domestic violence, Div 1.5 of the Regulations described in detail the qualifying conditions for a statutory declaration which was to be used in support of the domestic violence claim. An essential issue, therefore, in the determination of the first respondent's visa application was whether the statutory declarations relating to domestic violence met the requirements prescribed in the Regulations. It did not matter, therefore, that the delegate had in refusing the visa, not dealt with the domestic violence issue. If the first respondent was to succeed before the Tribunal, it was necessary for her to show that the statutory declarations satisfied the Regulations, notwithstanding that the delegate had dealt only with the genuineness of the relationship issue in refusing the visa. In other words, the nature of the claim and statute dictated that this would be an issue before the Tribunal, notwithstanding that the delegate had not dealt with the issue. 52 In SZBEL the High Court at 161‑162, at [29] approved the following observations of the Full Court of the Federal Court (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone): Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (Emphasis added by High Court.) 53 The portion of the Full Court's observation which was emphasised by the High Court, recognises, in my view, the distinction between the facts of this case and the facts in the SZBEL case. In this case, it was, to adopt the words of the observation from Alphaone, "apparent" from the terms of the Regulations that an issue before the decision‑maker would be whether the statutory declarations complied with the Regulations. It is evident from their letter of 18 July 2005 ([11] above) that the first respondent's solicitors were aware that this was the case. Further, the Regulations described in detail the requirements for a qualifying statutory declaration. There was no similar specific statutory prescription in relation to the identification of the live issues before the Tribunal in the case of the visa applicant in SZBEL. The first respondent and her solicitors were not entitled to assume, and did not assume, that because the delegate had not dealt with the domestic violence issue, the question of whether statutory declarations complied with the Regulations would not be a live issue before the Tribunal in relation to the review of the delegate's decision. 54 In my view, the Federal Magistrate did not err in determining that there was no requirement on the Tribunal to provide an advisory opinion to the first respondent in response to the 18 July 2005 letter, nor to advise of the deficiencies during the hearing. It is for the applicant before the Tribunal to make his or her case (Abebe v Commonwealth (1999) 197 CLR 510 at 576, at [187]). 55 The first respondent also referred to a number of previous instances when the Tribunal had advised a visa applicant of a deficiency in a statutory declaration presented in support of a non‑judicially determined claim of domestic violence, and given the visa applicant an opportunity to remedy that deficiency. However, it does not follow that a Tribunal will fall into jurisdictional error if it does not proffer any preliminary opinion on the question of any deficiency in the statutory declarations nor provide an opportunity to remedy such defect. 56 In my view, there was no denial of procedural fairness by the Tribunal arising from its failure to notify the first respondent of the deficiencies in the statutory declaration of Ms de Garcia. Nor, in my view, did the Tribunal contravene s 360(1) of the Act in not notifying the first respondent either before, or during the hearing of the deficiencies in Ms de Garcia's statutory declaration. 57 The first respondent also contended that there had been a contravention of s 359A of the Act because the Tribunal had not in its letter of 27 July 2005 referred to the deficiencies in the statutory declaration. 58 It is recognised that the information which is required to be disclosed pursuant to that section does not include the thought processes of the Tribunal. Accordingly, the thought processes of the Tribunal as to whether there were deficiencies in the statutory declaration of Ms de Garcia, was not information which needed to be disclosed under s 359A of the Act. 59 It follows, therefore, that the second ground of contention by the first respondent is dismissed. Whether the Federal Magistrate erred in remitting the matter to the Tribunal for rehearing 60 The Minister contended that, notwithstanding his finding of jurisdictional error in relation to ground one of the grounds of review, the Federal Magistrate had erred in remitting the first respondent's application to the Tribunal for rehearing. This was because there was an independent ground upon which the application had failed and it was of no utility to refer the matter back to the Tribunal when the Tribunal had found that the application failed on the independent ground. The Federal Magistrate should have given consideration to whether he should in the exercise of discretion decline to remit the application for rehearing. 61 There is a discretion whether to withhold relief in relation to the remedy in the nature of certiorari (Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). One basis upon which relief may be withheld in the exercise of a discretion, is where the impugned decision is supportable upon a ground which is independent of the ground affected by jurisdictional error (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 265, Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94 (Ejueyitsi)). 62 The case of Ejueyitsi was also a case where the visa applicant relied upon a non‑judicially determined claim of domestic violence. In that case also, there was jurisdictional error in relation to the Tribunal's finding that the applicant was not in a spousal relationship at the time of making the application. However, the Full Court in the exercise of its discretion declined to remit an application to the Tribunal, because there was an independent ground, namely, the failure of the statutory declarations to comply with the Regulations, which supported the Tribunal's decision. There is, in my view, no relevant distinction between the circumstances of this case and the circumstances that prevailed in Ejueyitsi. 63 In my view, the Federal Magistrate erred in failing to consider whether to withhold relief on the grounds that the Tribunal's decision was supportable on the independent ground that the first respondent had failed to present statutory declarations which complied with the Regulations. 64 It is open to this Court to exercise the discretion of the court below. In my view, because the decision of the Tribunal can stand on an independent ground, not affected by the jurisdictional error found by the Federal Magistrate, the Tribunal's decision ought not in the exercise of discretion be quashed and relief should, therefore, be withheld. 65 I, therefore, allow the appeal and set aside Orders (2) and (3) of the Federal Magistrate made on 31 May 2007, and his order of 19 June 2007. I will hear the parties on costs. I certify that the preceding sixty‑five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.