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[2008] FCAFC 18
Federal Court of Australia (Full Court)
2008-03-05
Jacobson JJ
Original judgment source is linked above.
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.
The appeal and the notice of contention 35 The declaration and orders that Riley FM made in favour of Mr Sok were based on her Honour's having sustained the following ground of Mr Sok's application for review: The decision [of the Tribunal] was affected by jurisdictional error in that the Tribunal failed correctly to interpret or to apply the law. PARTICULARS … (b) The Tribunal did not conduct a hearing of the matter before determining pursuant to Regulation 1.23(1B)([b]) of the Migration Regulations 1994 whether it was satisfied that the applicant had suffered relevant domestic violence and whether to seek the opinion of an independent expert, and thus effectively frustrated the intention and purpose of the hearing pursuant to section 361 of the Migration Act 1958; 36 The Minister submits that Riley FM erred in finding that the Tribunal had failed to comply with s 360 of the Act by not inviting Mr Sok to appear before the Tribunal to give evidence and present arguments before the Tribunal sought the opinion of an independent expert pursuant to reg 1.23(1B)(b) about whether Mr Sok had suffered relevant domestic violence. The Minister submits that that error amounted to jurisdictional error. 37 On the hearing of the appeal, the Court raised the question whether the Tribunal was bound by the regulations contained in Div 1.5, which include reg 1.23, and which, on their face, are addressed only to the Minister. With leave, Mr Sok filed a notice of contention pursuant to O 52 r 22 of the Federal Court Rules contending that the judgment at first instance should be affirmed on the grounds that the whole or part of Div 1.5 of the Regulations, and specifically reg 1.23, does not bind the Tribunal, or is invalid to the extent that it purports to do so. The Court granted leave to the parties to make supplementary submissions on the issue raised and they did so. 38 It is to be noted that one of the grounds of the application before Riley FM was that reg 1.23 was invalid because it rendered ineffectual an applicant's right to a hearing under s 360 of the Act. Riley FM found (at [9]) that reg 1.23 was not invalid.
The legislation 39 Subsection 65(1) of the Act provides that if the Minister, after considering a valid application for a visa, is satisfied, inter alia, that the criteria for the visa prescribed by the Act or the Regulations have been satisfied, is to grant the visa, and if not so satisfied is to refuse to grant the visa. 40 Section 31 of the Act provides that there are to be prescribed classes of visas, and that the Regulations may prescribe criteria for a visa or visas of a particular class. Section 505 of the Act provides, relevantly, that to avoid doubt, regulations for the purpose of prescribing a criterion for visas may provide that the Minister, when required to decide whether an applicant satisfies a criterion, is to get a specified person or organisation or a person or organisation in a specified class to give an opinion on a specified matter, and is to take that opinion to be correct for the purposes of deciding whether the applicant satisfies the criterion. 41 The current proceeding concerns a Subclass 100 (Spouse) visa. The criteria to be satisfied at the time of decision in relation to that class of visa are prescribed in cl 100.22. In relation to the criterion in cl 100.221, there are various alternatives. One is that the applicant for the visa first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and satisfies additional criteria set out in subclause (4) of cl 100.221. They include that the relationship between the visa applicant and the sponsoring spouse has ceased and that the visa applicant has suffered domestic violence committed by the sponsoring spouse after the applicant first entered Australia. 42 The note to subcl 100.221(4) states "For special provisions relating to domestic violence, see Div 1.5". 43 Division 1.5 of the Regulations comprises regs 1.21 to 1.27. 44 Regulation 1.21 defines certain terms used in Div 1.5. Relevantly, reg 1.21 provides that the expression "non-judicially determined claim of domestic violence" has the meaning given by subreg 1.23(1A) (see below) and that "relevant domestic violence" has the meaning given by para 1.23(2)(b). Paragraph 1.23(2)(b) provides that a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety. 45 Regulation 1.22 states that a reference in the Regulations to a person having suffered domestic violence or having committed domestic violence is a reference to a person being taken, under reg 1.23, to have suffered domestic violence or to have committed domestic violence respectively. 46 Subregulation 1.23(1) provides that for the purposes of the Regulations, a person (the alleged victim) is taken to have suffered domestic violence and another person (the alleged perpetrator) is taken to have committed domestic violence, if any one of the criteria listed in paras 1.23(1)(c)-(g) are satisfied. The circumstances listed in paras 1.23(1)(c)-(e) require that a court has granted an injunction, made an order, or convicted or made a finding of guilt against the alleged perpetrator. None of these are relevant in Mr Sok's case. 47 Only paras 1.23(1)(f) and 1.23(1)(g) are relevant. They are: (f) the Minister is satisfied, for paragraph (1B)(a), that the alleged victim has suffered relevant domestic violence; or (g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence. 48 Subregulations (1A), (1B), (1C) and (2) of reg 1.23 are, relevantly, as follows: (1A) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of domestic violenceif: (a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered domestic violence; and (b) either of the following circumstances exists: (i) ... ; (ii) for an alleged victim who is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that: (a) the alleged victim has suffered relevant domestic violence; and (b) the alleged perpetrator has committed that relevant domestic violence. (1B) If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and: (a) if satisfied that the alleged victim has suffered relevant domestic violence - consider the application on that basis; or (b) if not satisfied that the alleged victim has suffered relevant domestic violence - seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence. (1C) The Minister must take an independent expert's opinion on the matter mentioned in paragraph (1B)(b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered domestic violence. (2) In subparagraph (1A)(b)(ii): (a) the persons referred to are the following: (i) the spouse of the alleged perpetrator; (ii) ... ; (iii) ... ; (iv) ... ; and (b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety. 49 Regulation 1.24 provides that the evidence referred to in subpara 1.23(1A)(b)(ii) is, relevantly, a statutory declaration under reg 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with two statutory declarations under reg 1.26 (which deals with statutory declarations by competent persons). Regulation 1.25 provides, that a statutory declaration under that regulation must be made by the spouse of the alleged perpetrator, or, if the alleged perpetrator is in an interdependent relationship with a person, that person. Regulation 1.26 provides, relevantly, that a statutory declaration made under that regulation must be made by a "competent person" and satisfy certain other criteria. The expression "competent person" is defined in subreg 1.21(1). It was not suggested that either Ms James or Mr Hess was not a competent person as defined. 50 Mr Sok presented the evidence required by subpara 1.23(1A)(b)(ii) in accordance with reg 1.24, thereby giving rise to a non-judicially determined claim of domestic violence. At least if that claim had been made in connection with his visa application to the Minister, subreg 1.23(1B) would have been enlivened. 51 Subregulation 1.23(1B) requires the Minister to consider whether the alleged victim has suffered relevant domestic violence. (The Minister could not do so in the present case because Mr Sok first made his claim of domestic violence to the Tribunal.) If the Minister is satisfied that the alleged victim has suffered relevant domestic violence, the Minister must consider the application on that basis (para 1.23(1B)(a)), and the result is that para 1.23(1)(f) is satisfied and the alleged victim is taken to have suffered domestic violence. Paragraph 1.23(1B)(b) provides that if the Minister is not satisfied that the alleged victim has suffered relevant domestic violence, the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence (para 1.23(1B)(b)). The Minister must take the independent expert's opinion to be correct (subreg 1.23(1C)). If the independent expert's opinion is that the alleged victim has suffered relevant domestic violence, para 1.23(1)(g) is satisfied and the alleged victim is taken to have suffered domestic violence. If the independent expert is not of the opinion that the person has suffered domestic violence, then para 1.23(1)(g) is not satisfied and the alleged victim is not taken to have suffered domestic violence. It follows that the requirement set out in subcl 100.221(4) will then not be satisfied.
Review by the Tribunal 52 Part 5 of the Act is entitled "Review of decisions". 53 Division 2 within Pt 5 is entitled "Decisions reviewable by Migration Review Tribunal". The decision to refuse Mr Sok's application for a Spouse (Migrant) Subclass 100 (Spouse) visa on 22 March 2005 was an "MRT-reviewable decision" within s 338 in Div 2. 54 Some of the powers of the Tribunal when reviewing a decision are set out in Div 3 of Part 5. Relevantly, s 349(1) provides that the Tribunal "may for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by [the] Act on the person who made the decision". Subsection 349(2) provides that the Tribunal may, inter alia, affirm the decision, vary the decision, remit the matter for reconsideration (if the decision relates to a "prescribed matter"), or set the decision aside and substitute a new decision. The decision as varied or substituted is taken to be a decision of the Minister (s 349(3)). Subsection 349(4) provides that, to avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the Regulations. 55 Division 5 of Pt 5 is entitled "Conduct of review". Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that Div 5 deals with (s 357A(1)). Relevantly, s 359A provides that the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review and invite the applicant to comment on it. Subsection 360(1) states that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Subsection 360(2) provides certain exceptions to the mandatory requirement of s 360(1) but they are not presently relevant. Following notification of the invitation to appear, the applicant may notify the Tribunal that the applicant wishes to obtain oral evidence, written evidence or other written material from specified persons (see ss 360A-361).
The decisions of Riley FM in Sok v Minister for Immigration and Citizenship [2007] FMCA 1525and Riethmuller FM in Victorino v Minister for Immigration and Citizenship [2007] FMCA 1294 56 As mentioned above, in the present case Riley FM thought that the Tribunal was obliged by s 360 of the Act to invite Mr Sok to a hearing before seeking the opinion of an independent expert. Her Honour stated: [20] …Section 360 of the Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review….Under [reg1.23(1B)], the Minister, and, on review, the Tribunal, must consider whether the alleged victim has suffered relevant domestic violence…. [21] Accordingly, whether the alleged victim has suffered relevant domestic violence is an issue arising in relation to the decision under review. As a result, s.360 required the Tribunal to invite the applicant to a hearing on that issue. The invitation to a hearing cannot be an "empty gesture" or "hollow shell": Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 at [31] per Goldberg J and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 533 at [33]. Accordingly, when the invitation to give evidence and present arguments is given, the issue of whether the alleged victim suffered relevant domestic violence cannot have already been foreclosed by the binding opinion of an independent expert. If it were otherwise, the hearing by the Tribunal under s.360 would be a pointless charade. … [23] Regulation 1.23(1B)(b) only comes into play after the Tribunal has considered for itself the issue of whether the alleged victim has suffered relevant domestic violence…. [24] However, there is nothing in reg.1.23 or s.505 of the Act which authorises the Tribunal to reach a state of non-satisfaction on the issue of whether the alleged victim has suffered relevant domestic violence without inviting the applicant to a hearing in relation to that issue. 57 Subsequent to the decision of Riley FM, Riethmuller FM in Victorino v Minister for Immigration and Citizenship [2007] FMCA 1294 (Victorino) disagreed with her Honour as to whether s 360 of the Act obliged the Tribunal, prior to deciding whether it was satisfied that an applicant had suffered domestic violence and, if not, seeking the opinion of an independent expert, to invite the applicant to appear before it, to give evidence, and to present arguments relating to that issue. Riethmuller FM stated (at [28]): "…I am not persuaded that the decision [of Riley FM] is correct on this point. This is a question that will ultimately require resolution by the Full Court". 58 His Honour stated: [24] If the Tribunal determines that there is an 'issue' about whether relevant 'domestic violence' has occurred, then r 1.23(1B)(b) is engaged, requiring particular evidence to be gathered….r 1.23(1B)(b)….provides the method by which the evidence to determine this 'issue' is obtained. The Tribunal, at this stage has not yet formed a view or reached any conclusion, merely identified what the real issues are on the material, and what evidence it wishes to gather. Care is needed in determining what is actually an 'issue' in the proceedings rather than an element of the visa conditions or a procedural question. In the context of this case the issues must be determined by the Tribunal: it is not an action tried on pleadings where the parties define the issues. Even essential elements to a cause of action may not be an issue before a court, key elements of the visa categories may not be considered by the Tribunal to be an 'issue' in many cases as it is obvious that they are satisfied. …. [27] When one considers the language or r 1.23 as a whole, it appears clear that this is a procedural provision. Specifically, the use of the phrase "if satisfied" in a provision that allows for evidence gathering cannot be addressed to the ultimate issues, but only procedural matters. 59 In response to the contention that any hearing after the expert's opinion is provided would be an "empty gesture" or "hollow shell", Riethmuller FM stated: [25] …The hearing still allows an opportunity to address whether the opinion is an opinion properly addressing the relevant matters: see for example the issues discussed in Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117 at [66]: see also Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 at [56] (other authorities omitted) [26] …Questions about evidence gathering can not be considered an 'issue' within the terms of s 360. That the evidence is practically or legally 'conclusive' does not make a hearing an 'empty gesture' as the person still has the opportunity to show that the evidence is not within the meaning of the regulations. What the applicant seeks is an opportunity to convince the Tribunal not to seek the best available evidence. 60 The submissions of Mr Sok and the Minister on the question to a large extent reflected the positions taken by Riley FM at first instance in the present case and Riethmuller FM in Victorino [2007] FMCA 1294 respectively.
Consideration 61 In our opinion, the régime established in Div 1.5 of the Regulations applies only to the original decision-maker, and does not apply to the Tribunal in the exercise of its review function. 62 Regulation 1.22 provides that a reference "in these Regulations" to a person having suffered domestic violence is a reference to a person being taken, under reg 1.23, to have suffered domestic violence. Subclause 100.221(4) is "in these Regulations". Accordingly, the reference in subcl 100.221(4) to the suffering of domestic violence committed by a sponsoring spouse has no meaning apart from the meaning it is given by reg 1.22. It follows that an applicant cannot satisfy the domestic violence requirement in subcl 100.221(4) unless he or she is "taken" under reg 1.23 to have suffered domestic violence. 63 The starting point for being so taken in the case of a "non-judicially determined claim of domestic violence" is the reference in the definition of that expression in subreg 1.21(1) to subreg 1.23(1A). Subregulation 1.23(1A) provides that "an application for a visa" is taken to include a non-judicially determined claim of domestic violence in the circumstances set out in that subregulation. 64 Applications for visas are dealt with in Subdivision AA of Div 3 of Pt 2 of the Act and in Div 2.2 of Pt 2 of the Regulations. An application for a visa must be made to the Minister. An application to the Tribunal for review of an MRT-reviewable decision is not an application for a visa. 65 Subregulation 1.23(1A) takes as its starting point the application for a visa that has in fact been made. In the present case, that application was not taken to include a non-judicially determined claim of domestic violence because the circumstances identified in paras (a) and (b) of subreg 1.23(1A) were not satisfied in connection with that application. It will be recalled that the evidence in relation to the domestic violence allegedly suffered by Mr Sok was not presented in connection with the visa application. It was presented in connection with the application to the Tribunal for review of the Minister's decision. 66 It follows that subreg 1.23(1B) was not enlivened and the Minister was not required to "consider" the matters or to "seek" the opinion referred to in that subregulation. 67 The delegate's decision to refuse Mr Sok's application for the visa was an "MRT-reviewable decision" and therefore Mr Sok was entitled to apply to the Tribunal for review of it. However, Mr Sok and the Tribunal both proceeded on the erroneous understanding that Mr Sok could yet be taken to have suffered domestic violence notwithstanding that he had not been taken to have suffered domestic violence when his application for the visa had been considered by the Minister. It is only in the application to the Minister that a person can be "taken" to have suffered domestic violence. 68 Subsection 349(1) of the Act, which provides that the Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the decision-maker, is irrelevant to the definition of what it means for the purposes of the Regulations to have suffered domestic violence. As reg 1.22 makes clear, the suffering of domestic violence, for the purposes of the Regulations, is a legal construct. That legal construct is associated with the making of the application for a visa, which application is made to the Minister, as noted above. The legal construct was not enlivened in the present case, and s 349(1) does not require a different conclusion. 69 The aphorism that a merits review tribunal "stands in the shoes of the original decision-maker" (Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]), while sometimes useful, can be taken too far. In the present case, for example, it may be a useful way of encapsulating the statutory provision that the Tribunal may exercise the powers and discretions conferred on the Minister as primary decision-maker (see s349(1)). However, it would be erroneous if it conveyed the meaning that the Tribunal is "substituted" for the Minister in all respects, including in respect of applications for visa and of the mandatory procedures to be followed by the Minister in dealing with them. 70 The Tribunal declared itself satisfied that the relationship between Mr Sok and his sponsoring spouse had ceased (at para 40 of the Tribunal's Decision Record). In these circumstances it was only if Mr Sok had suffered domestic violence within para 100.221(4)(c) that he would satisfy the criterion in cl 100.221 for the visa. As noted above, he had not suffered domestic violence for the purposes of the Regulations, including for the purposes of cl 100.221. The Tribunal was therefore bound to affirm the delegate's decision, although not by reference to the opinion it had obtained from the independent expert. 71 If, contrary to our conclusion above, we had been of the opinion that Div 1.5 of the Regulations applied to the Tribunal rather than just the Minister, we would have held, contrary to the notice of contention, first, that Div 1.5 was not invalid to the extent that it purported to bind the Tribunal. We would have held that Div 1.5 fell squarely within s 505, and left work for s 360 to do, even though the practical implications of compliance with s 360 would have been less extensive than they would have been in the absence of Div 1.5. In the present respect, therefore, we would have agreed with Riley FM at first instance at [9]. 72 Second, we would have held that the Tribunal was not required by s 360 of the Act to invite Mr Sok to appear before it and to give evidence and present arguments relating to the issue of whether he had suffered domestic violence, before the Tribunal reached the state of not being satisfied that he had done so for the purposes of para 1.23(1B)(b) of the Regulations, and sought the opinion of the independent expert. In this respect, we would have agreed in general with Riethmuller FM in Victorino [2007] FMCA 1294 at [20]-[28].
Conclusion 73 The appeal should be allowed, the declaration and orders of the Federal Magistrates Court should be set aside, and in lieu thereof there should be an order that the application to that Court be dismissed. The parties should be given the opportunity of making submissions on costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate: Dated: 5 March 2008 Counsel for the Appellant: Mr W S Mosley
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the First Respondent: Mr A F L Krohn
Solicitor for the First Respondent: Erskine Rodan & Associates
Date of hearing: 11 November 2007
Date of last submission received: 12 December 2007
Minister for Immigration and Citizenship
Sok
[2007] FMCA 1294
[2007] FMCA 1525
(2005) 144 FCR 170
(2000) 183 ALR 188
(2003) 128 FCR 533