Minister for Immigration and Citizenship v Sok

Introduction 1 The appellant (the Minister) appeals from a decision of the Federal Magistrates Court of Australia given by Riley FM on 7 September 2007 (Sok v Minister for Immigration and Citizenship [2007] FMCA 1525). That Court had set aside a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of a delegate of the Minister refusing the first respondent, Sie Sok (Mr Sok), a Partner (Migrant) (Class BC) visa Subclass 100 (Spouse). 2 The ground on which the Court set aside the Tribunal's decision was that the Tribunal had failed to accord Mr Sok a hearing before referring to an independent expert for opinion the question whether Mr Sok had suffered domestic violence at the hands of his sponsoring spouse. 3 We decide below that the legislative régime providing for the seeking of the opinion of an independent expert has no application to the Tribunal in the exercise of its review function. Based on the fact that the relationship between Mr Sok and his sponsoring spouse had ceased, the Tribunal was bound to affirm the delegate's decision to refuse to issue the visa. The opinion of the independent expert that the Tribunal had obtained, purportedly pursuant to the régime that had applied to the primary decision-maker alone, could have no bearing on the question whether Mr Sok was to be taken as having suffered domestic violence. 4 Accordingly, we have allowed the appeal.

Factual and procedural background 5 Mr Sok is a citizen of Cambodia. He was born on 10 November 1977. On 18 August 2002 he married Rinnalee Nary Morm (to whom we will refer to as Mr Sok's wife). Mr Sok's wife became an Australian citizen in 1991. She resides in Melbourne. Mr Sok and his wife were married in Cambodia. 6 On 14 October 2002, Mr Sok, who was then living in Phnom Penh, lodged with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) an application for a visa permitting him to migrate to Australia as a partner. His wife filled out an application in support under the heading "Sponsorship for a partner to migrate to Australia". Mr Sok's application was, in a formal sense, a combined application for a Partner (Provisional) (Class UF) visa Subclass 309 (Spouse (Provisional)) (the temporary visa), and a Partner (Migrant) (Class BC) visa Subclass 100 (Spouse) (the visa). Mr Sok's wife was his sponsor for both the temporary visa and the visa. 7 On 13 November 2002, Mr Sok was granted the temporary visa and on 25 November 2002 he arrived in Australia. 8 On 24 October 2004, Mr Sok and his wife each made a statutory declaration in a form required by the Department where the holder of a temporary visa granted on spousal grounds is an applicant for the grant of a permanent visa on the same grounds. In that statutory declaration Mr Sok stated that he was currently living with his wife at an address in Thornbury, Victoria, and that he and his wife had been living together in Australia since his arrival. His wife's declaration was to a similar effect. 9 By a letter dated 17 December 2004, the Department asked Mr Sok and his wife to provide documentary evidence of cohabitation. Mr Sok sent various documents, including tax returns, pay slips, joint account bank statements and documents relating to a joint superannuation fund, to the Department on 19 January 2005. 10 On 1 March 2005, the Department asked Mr Sok and his wife to attend an interview with an assessing officer of the Department to discuss his case and to bring to the appointment "… any documentary evidence that demonstrates that you have been in a genuine and ongoing relationship with your spouse for the period since your application until now". A Departmental officer interviewed Mr Sok and his wife on 9 March 2005. 11 By letter dated 22 March 2005, the Department advised Mr Sok that his application for the visa had been refused. He was also informed that the temporary visa previously granted to him would cease upon his receipt of the notification. 12 A decision record enclosed with the letter indicated that as a result of the information provided by Mr Sok and his wife at the interview, and inconsistencies in their responses to questions put to them, the assessing officer was not satisfied that they were residing together in a genuine and continuing relationship, and had requested to view their living arrangements via a home visit. After inspecting two houses, one in Thornbury and another in Keysborough, Departmental officers "found conclusive evidence" that Mr Sok's permanent address differed from that of his wife. 13 On 7 April 2005, Mr Sok applied to the Tribunal for review of the refusal decision. In that application to the Tribunal, under the question "Why do you think the DIMA decision was incorrect?", Mr Sok stated: I believe it is unfair for me as we are genuine marriage and the department has been rejected. I will send more information later on. [sic] 14 The review process did not move at great speed. On 9 November 2005, Mr Sok appointed Erskine Rodan & Associates (ERA) to act on his behalf as a migration agent. 15 On 18 January 2006, the Tribunal wrote to ERA inviting Mr Sok to comment, in writing, on the information set out in the letter which suggested that the relationship between Mr Sok and his wife had ceased, in that they were living "separately and apart" on a permanent basis. 16 ERA responded by a letter dated 24 February 2006. They stated in the opening paragraph: It is submitted that Sie Sok's situation falls within the special provisions relating to domestic violence, and as such should not have his permanent spouse visa refused. (sic) This was the first time that any contention about domestic violence had been raised by or on behalf of Mr Sok. ERA went on to assert that the Full Court of the Federal Court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 (Sok) had concluded that "relevant domestic violence" (a term that is used in the Migration Regulations 1994 (Cth) (the Regulations)) encompassed psychological or emotional violence and power differences between people. These elements were said to be clearly demonstrated in Mr Sok's case. ERA's letter stated: It is submitted that the matters put to my client under section 359A relating to the marriage, interview and house visit are explained in the enclosed evidence outlining relevant domestic violence, and in particular Sie Sok's statutory declaration. 17 It is convenient to note here that under the criteria for the visa (see [41] below), even though the relationship between the visa applicant and the sponsoring spouse has ceased, the criteria may be satisfied where the former has suffered domestic violence at the hands of the latter. 18 The letter dated 24 February 2006 attached a statutory declaration dated 1 February 2006, made by Mr Sok under reg 1.25 of the Regulations,setting out his claims to have suffered domestic violence inflicted on him by his wife. ERA's covering letter asserted that in the statutory declaration Mr Sok described psychological and verbal abuse, and fear of violence, experienced from his wife. ERA claimed that this met the "definition" of domestic violence in reg 1.23(2)(b) of the Regulations. 19 Two statutory declarations by persons answering the description of "competent persons" in reg 1.26 of the Regulations were also attached to ERA's letter. One was a declaration by Joan James, a psychologist, and the other by Lew Hess, a social worker. 20 ERA submitted that the three statutory declarations (being those of Mr Sok, Mr James and Mr Hess) satisfied the "domestic violence provisions" and should lead to a conclusion that Mr Sok had suffered relevant domestic violence for the purposes of the Regulations. It does not seem necessary for us to summarise the content of the three statutory declarations. 21 On 7 March 2006, the Tribunal wrote to ERA advising that Mr Sok's claim of domestic violence had been referred to an independent expert, namely, a Centrelink Senior Social Worker, for an opinion. The significance of the reference to the independent expert derives from Div 1.5 of the Regulations, especially reg 1.23(1B)(b) discussed below. 22 On 6 April 2006, Mr Sok was interviewed at Centrelink with the aid of an interpreter. A legal practitioner and migration agent from the office of ERA were present, together with a Centrelink social worker who acted as scribe. 23 On 12 April 2006, the independent expert gave a written assessment that Mr Sok had not suffered relevant domestic violence as defined in reg 1.23(2)(b) of the Regulations. 24 On 19 April 2006, the Tribunal wrote to ERA inviting comment, under s 359A of the Act on what it described as "the following information": The Tribunal has received an Independent Expert's Opinion dated 12 April 2006 from Centrelink that you have not suffered domestic violence as defined in regulation 1.23(2)(b) of the Migration Regulations 1994 (a copy of that opinion is enclosed). The letter went on to explain that under reg 1.23(1C) the Minister was required to take an independent expert's opinion on the matter mentioned in reg 1.23(1B)(b) to be correct for the purposes of deciding whether an alleged victim satisfied a prescribed criterion for a visa that requires the applicant or another person mentioned in the criterion to have suffered domestic violence. The letter went on: As the Tribunal is required to accept the independent expert's opinion as correct this means that you cannot satisfy the domestic violence provisions contained in regulation 1.23 and the Tribunal will have to affirm the decision under review. Having made this somewhat unencouraging statement, the Tribunal invited Mr Sok's written comments by 17 May 2006. 25 ERA responded on 10 May 2006, submitting that the decision to refer Mr Sok's case to Centrelink was "unbalanced" and could be tainted with bias as he was a male claimant under the domestic violence provisions. ERA further submitted that there were deficiencies in the statement of opinion of the independent expert in that neither the writer nor her qualifications or position number were identified in the opinion. ERA further submitted that there was no demonstration that the independent expert's opinion was based on an understanding of relevant domestic violence as interpreted by the courts and in particular in Sok 144 FCR 170. According to ERA's letter, the expert had seen Mr Sok for only two hours and had "ignored the opinions of two "competent persons" who each met with Mr Sok and formed their professional opinions". 26 On 15 May 2006 the Tribunal responded to ERA, inviting Mr Sok to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to his application for review. The Tribunal's letter pointed out that Mr Sok could also ask the Tribunal to obtain oral or written evidence from other persons or to obtain other written material. A hearing was fixed for 6 June 2006. 27 In the meanwhile, on 25 May 2006, ERA wrote to the Tribunal enclosing a statutory declaration of Mr Sok's mother-in-law and asked that this be provided to the independent expert prior to the hearing. 28 On 29 May 2006, the Tribunal advised ERA by letter that the matter had been referred again to an independent expert. The letter also stated that the hearing scheduled for 6 June 2006 was cancelled while the Tribunal awaited "the further Centrelink opinion". On the same day ERA sent to the Tribunal a further statutory declaration of Mr Sok's wife's uncle, in further support of Mr Sok's claim of domestic violence. 29 The independent expert, again unidentified, provided a further opinion apparently on 25 July 2006, stating: The alleged victim HAS NOT suffered relevant domestic violence (as defined in Regulation 1.23(2)(b) of the Migration Regulations 1994), committed by the alleged perpetrator (identified above). The review of the evidence which accompanied this opinion indicated that the independent expert had held another interview with Mr Sok, and that his migration agent, Ms Knight of ERA, had been present, along with an interpreter and a Centrelink social worker who had acted as scribe. 30 On 1 August 2006, the Tribunal again wrote to ERA inviting comment. The letter was, in general terms, similar to that referred to in [24] above. 31 On 29 August 2006, ERA wrote to the Tribunal saying that the only comments ERA could make related to the form and substance of the independent expert's opinion. 32 On 4 September 2006 the Tribunal extended to Mr Sok a further invitation to appear before it. A hearing was fixed for 10 October 2006. 33 That hearing took place and on 30 October 2006 the Tribunal affirmed the decision under review. Mr Sok subsequently applied to the Federal Magistrates Court of Australia for review of the Tribunal's decision. On 7 September 2007, Riley FM made orders in the following terms (Sok v Minister for Immigration and Citizenship [2007] FMCA 1525): 1. There be an order in the nature of certiorari bringing in to court quashing the decision of the second respondent in matter V05/02007 handed down on 20 November 2006. 2. There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision. 3. There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant's application for review of the decision of the delegate of the first respondent that was made on 22 March 2005. 4. The first respondent pay the applicant's costs fixed in the sum of $5,000. 34 On 28 September 2007, the Minister filed in this Court a notice of appeal from the decision of Riley FM.