Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1016

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The first and second applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 March 2020. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Partner (Residence) (Class BS) visas (partner visas). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. The issue that arises for determination, is whether the Tribunal denied the applicants procedural fairness and/or breached s 360 of the Act, in failing to raise with the first applicant the deficiencies in the evidence put forward as to a non-judicially determined claim of family violence. For the reasons set out below, I find the applicants have not demonstrated jurisdictional error.

1. The first applicant is a male citizen of Vietnam, who lodged an application on 17 October 2017 for a partner visa based on his relationship with Ms Thi Ngoc Chan Phan (sponsor) (Court Book (CB) 17 to 156). The second applicant is the son of the first applicant and applied for the visa as a member of the family unit.

1. Initially, the sponsor supported the application for a partner visa on the basis that the sponsor and the first applicant married on 5 October 2017 (CB 101). However, on 8 August 2018 the sponsor advised the department that the relationship between the first applicant and the sponsor had ceased and withdrew her sponsorship ([5] of the Tribunal's reasons).

1. The first applicant did not raise before the delegate that he had suffered family violence committed by the sponsor. The delegate noted the applicant was represented by a migration agent Mr Patrick Lauger (CB 362 to 364). The delegate noted the department wrote to the first applicant on 13 August 2018 advising him that the sponsorship had been withdrawn and provided the first applicant with an opportunity to submit additional information (CB 310 to 313). The delegate noted that a response was received on 17 September 2018 from the migration agent (CB 328), which included a statutory declaration from the first applicant stating the following (CB 332 to 334):

(a) The relationship between the first applicant and the sponsor had not ended.

(b) Although living apart, the first applicant was genuinely committed to reconciling the relationship with the sponsor.

(c) The sponsor was not responding to the first applicant's messages or answering his phone calls.

1. The delegate noted that on 19 September 2018, the department wrote to the first applicant and requested he provide further documentation including statutory declarations from the first applicant and his sponsor regarding the relationship reconciliation (CB 344 to 345). The migration agent responded by email on 17 October 2018 (CB 350 to 351), providing a statutory declaration from the first applicant stating that he was committed to reconciling with his wife, the sponsor, and that he was unable to provide a statutory declaration from the sponsor as she was not responding to his communication (CB 352 to 353).
2. The delegate noted that on 29 October 2018, the department received confirmation from the sponsor that she had withdrawn her sponsorship (CB 355). Due to the sponsor withdrawing her sponsorship and the first applicant not providing documentary evidence to support his claims, the delegate concluded that the first applicant did not meet the criteria of cl 801.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because the sponsor had withdrawn her sponsorship and s 5F of the Act was not met (CB 362 to 364).

1. On 18 April 2019, the applicants applied to the Tribunal for review of the delegate's decision (CB 393 to 395).
2. On 23 September 2019, the Tribunal sent a letter to the first and second applicants' migration agent, inviting them to comment on information, being that the relationship between the first applicant and the sponsor had ended and that the sponsor had withdrawn the sponsorship (CB 412 to 414).
3. By letter dated 7 October 2019, the first applicant wrote to the Tribunal and confirmed that his relationship with the sponsor had broken down and raised that he had been the subject of family violence at the hands of the sponsor (CB 415 to 417).
4. By letter dated 5 December 2019, the Tribunal invited the first and second applicants to attend a hearing before the Tribunal (CB 431 to 432). On 14 January 2020, the first and second applicants, with their migration agent attended the hearing before the Tribunal (CB 481). Following the hearing, the first and second applicants' migration agent provided post-hearing submissions dated 28 January 2020, which included transcripts of voice recordings between the first applicant and the sponsor, as well as extracts of text messages (CB 485 to 508).

1. On 14 January 2020, the first and second applicants appeared before the Tribunal assisted by a migration representative, Mr Lauger, and an interpreter in the Vietnamese and English language (CB 481).
2. Before the Tribunal, the first applicant conceded his relationship with the sponsor had ceased and he claimed he had been the victim of family violence perpetrated by the sponsor ([11] of the reasons). The Tribunal was satisfied based on the registered marriage certificate that the first applicant and sponsor had been in a genuine relationship ([12] of the reasons).
3. The Tribunal correctly noted the sole issue it needed to consider was whether the first applicant suffered family violence committed by the sponsor within the meaning of the Regulations ([13] of the reasons). The Tribunal referred to the requirements in reg 1.23 to reg 1.25 of the Regulations and Evidentiary Requirements IMMI 12/116 (IMMI 12/116) of the Regulations at [19] to [21] of its reasons. At [24] of its reasons, the Tribunal identified the relevant evidence the first applicant provided for the purposes of IMMI 12/116.
4. At [26] to [32] of its reasons, the Tribunal considered the evidence that had been provided and whether the evidentiary requirements as set out in IMMI 12/116 were satisfied. The Tribunal concluded at [34] of its reasons that the first applicant had only provided one type of evidence (in addition to his statutory declaration), but he had not provided a second type of evidence as required by IMMI 12/116, in the nature and form required to make a valid claim of family violence on the basis of a non-judicially determined claim of family violence.
5. In considering the grounds for judicial review, I consider below at [26] to [30] of this judgment, the relevant applicable provisions of the Regulations and IMMI 12/116, and whether the Tribunal's treatment of the evidence provided by the first applicant was in accordance with the provisions of the Regulations.

1. I granted leave to amend the application for the grounds for judicial review to read as follows:
   1. The Tribunal denied the first applicant procedural fairness and/or breached s 425 s 360 of the Migration Act.
      1. He engaged the registered migration agent to represent him in this matter.
      2. He did not know what the requisite requirements of the application are.
      3. He gave all the evidence required for this case. But migration agent did not put it in the form required by the law. Neither case officer nor AAT asked him to provide the evidence in a particular form.
      4. Despite of having all evidence his evidence is not being accepted. He was denied the procedural fairness in his application.

1. The first and second applicants appeared at the hearing before me as litigants in person, assisted by a Vietnamese interpreter. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]), I explained to the first and second applicants the role of the Court in undertaking judicial review. I ensured the first and second applicants were in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant and the Minister's written submissions dated 7 October 2020. The first and second applicants did not provide written submissions.

Statutory declarations sought to be relied upon by the first and second applicants

1. In support of the grounds for judicial review, the first and second applicants submitted that when they went to the Tribunal, they did not have the requisite knowledge of the provisions of the Regulations and IMMI 12/116. Therefore, they did not understand they needed to provide evidence by way of statutory declarations. Further, the first and second applicants contended their migration agent was equally unaware that evidence needed to be in the form of statutory declarations. The first and second applicants argued that if they had known the evidence had to be in the form of statutory declarations, they would have provided the evidence in that form.
2. The first and second applicants sought to rely on four statutory declarations, which are marked for identification as MFI 1 to MFI 4, as follows:

(a) Mary Vu, social worker at Marrickville Community Mental Health Service, who set out matters as to the alleged family violence.

(b) Nga Nguyen, settlement worker for Metro Assist, now working for NSW Health as a Health worker, who set out matters as to the alleged family violence.

(c) Loren Katafono, member of the Australian Association of Social Workers (AASW), who set out matters as to the alleged family violence.

(d) Tuong-Vi Thi Pham, Executive Officer at Community and Cultural Connections Inc (CCCI) since 23 July 2014, who provided a character reference for the first applicant.

1. The Minister objected to the four statutory declarations being received into evidence on the basis that the said statutory declarations were not before the Tribunal and were irrelevant to the issue before the Court. The Minister contended that the statutory declarations were sought to be relied upon by the first and second applicants as to the underlying issue of whether there was a non-judicially determined claim of family violence, which is an issue this Court has no power to determine.
2. When asked by the Court, the Minister accepted that in the event I find there is a denial of procedural fairness, then the Minister accepted the first applicant could have provided to the Tribunal evidence in the form of statutory declarations. Given that concession, I rejected the admission of the four statutory declarations on the basis they were otherwise not relevant to any other issue before me.

1. The Minister relied on his written submissions dated 7 October 2020 and tendered 4 volumes of the Court Book, which were marked Exhibit "R1".

Denial of procedural fairness and/or s 360(1) of the Act

1. In essence, the applicants contended that the Tribunal, to accord them procedural fairness, ought to have told them that the evidence to support the first applicant's claim for family violence, was required to be in the form of statutory declarations. The applicants submitted that they were completely reliant upon their migration agent. It was only when the applicants received the Tribunal's decision that they realised their migration agent had made a mistake and not provided the evidence in the correct form. The applicants submitted that they now understand that evidence needs to be in the form of statutory declarations and they have in fact obtained the evidence in the proper form.
2. Before I address the ground for judicial review, I will first identify the relevant legislative provisions. I do this to determine whether the Tribunal correctly considered the first applicant's case in accordance with the applicable law.

Relevant legislative provisions for the grant of a partner visa when family violence is alleged based on a non-judicially determined claim of family violence

1. The starting point in this case was cl 801.221(2)(b) of the Regulations, which set out the criteria to be satisfied at the time of the Tribunal's decision. Relevantly, it required that an applicant continued to be sponsored by the sponsoring partner. However, cl 801.221(6)(c)(i)(A) provided that the requirements of the subclass were satisfied, if relevantly in this case, the first applicant had suffered family violence committed by the sponsoring partner.

When is a person taken to have suffered or committed family violence

1. Regulation 1.23 set out the various circumstances when a person would be taken to have suffered family violence or committed family violence and included what is referred to as a non-judicially determined claim of family violence. Regulation 1.23 (9)(c) relevantly provided that to establish a non-judicially determined claim of family violence, the alleged victim had presented evidence in accordance with reg 1.24.
2. Regulation 1.24 provided as follows:

The evidence mentioned in paragraph 1.23(9)(c) is:

(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and

(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.

1. The instrument IMMI 12/116 set out, for the purposes of reg 1.24(b) of the Regulations, the type of evidence that was acceptable. Further, it provided that a minimum of two items of evidence from the list in schedule 1 of IMMI 12/116 and no more than one of each type of evidence may be presented for the purposes of reg 1.24(b).
2. Relevantly, for this case schedule 1 of IMMI 12/116 provided as follows:

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

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

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

1. The first applicant sought to satisfy the evidentiary requirements by providing five documents. One of the documents was a discharge summary dated 15 October 2019 from Bankstown Lidcombe Hospital (CB 450 to 453), which the Tribunal at [26] of its reasons accepted as evidence for the purposes of schedule 1 of IMMI 12/116, in that it identified the alleged victim and detailed the treatment of his mental health that was consistent with the claim of family violence.
2. The first applicant also provided a letter dated 23 December 2019, from Ms Mary Vu, social worker at Marrickville Health Centre (CB 448 to 449). The Tribunal at [28] of its reasons noted that it was prepared to accept that Ms Vu was a member of the AASW. However, the Tribunal found that the said report was not the type of evidence specified in schedule 1 of IMMI 12/116 for the following two reasons:

(a) First, it was not in the form of a statutory declaration.

(b) Second, although it could be accepted that Ms Vu had provided counselling or assistance to the first applicant while performing the duties of a social worker, the report did not state the opinion of Ms Vu, that the first applicant was subject to family violence and it did not detail the reason for any such opinion. The Tribunal report stated that "based on my limited involvement so far and my consultation with Dr Denholm, it is possible that [the first applicant] experienced psychological and financial abuse and threats from [the sponsor]".

1. I find that the Tribunal was correct in not accepting the letter dated 23 December 2019 from Ms Vu, as acceptable evidence for the purposes of schedule 1 of IMMI 12/116 for the two reasons expressed by the Tribunal. First, schedule 1 (as set out at [30] of this judgment) makes clear that evidence from a member of the AASW is required to be in the form of a statutory declaration and it also makes clear the details that need to be included. The report did not state the opinion of Ms Vu that the first applicant was subject to family violence and detail the reasons for the opinion. This is because on a fair reading of what Ms Vu says, being "However, based on my limited involvement so far and my consultation with Dr Denholm, it is possible that he experienced psychological and financial abuse and threats from Ms. Phan", Ms Vu is relying on the opinion of Dr Denholm, and not on her own opinion. Further, no details as to the reasons for the opinion are included.
2. The first applicant also sought to rely on a letter/report dated 4 January 2020 from Dr Wai Chi Angela Lam, from Marrickville Medical Centre (CB 465). The Tribunal found that the said letter was a medical report and for the purposes of schedule 1 of IMMI 12/116, fell within the same category of evidence as the hospital discharge summary. Therefore, it could not be considered, since schedule 1 required that no more than one of each type of evidence listed in the schedule be presented. On reviewing the report from Dr Lam, I find the Tribunal was correct in its assessment of that evidence and that it was a medical report that fell within the same category as the hospital discharge summary. IMMI 12/116 makes it clear that only one type of each type of evidence from each category may be presented for the purposes of reg 1.24(b) of the Regulations.
3. The first applicant also sought to rely on the letter/report dated 8 September 2018 from Ms Lisa-Marie Poynter, registered psychologist (CB 419). At [31] of the reasons the Tribunal found that this evidence did not meet the requirements of schedule 1 of IMMI 12/116, which required the evidence of a registered psychologist to be presented by way of a statutory declaration. Further, the Tribunal found the report did not express the opinion that the applicant was subject to family violence. On reviewing the medical report dated 8 September 2018, the report appeared to be from a registered psychologist and therefore was required to be in the form of a statutory declaration to satisfy schedule 1of IMMI 12/116 and to express an opinion that the alleged victim was subject to family violence. Therefore, the Tribunal was correct in rejecting this evidence for the purposes of schedule 1 of IMMI 12/116.
4. The first applicant also relied on evidence of communication between himself and the sponsor in the form of excerpts of text messages and a transcript of part of a telephone conversation in or about June 2018 (CB 486 to 508). At [33] of its reasons the Tribunal found that this evidence did not meet the requirements of schedule 1 of IMMI 12/116. I find that the Tribunal was correct in so finding.

Procedural fairness and/or breach of s 360(1) of the Act

1. Section 360(1) of the Act relevantly provided as follows:

(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.

1. In the decision of Minister for Immigration and Citizenship v Pham (2008) 101 ALD 268; [2008] FCA 320 (Pham) his Honour Siopis J, considered whether the Tribunal had acted in contravention of s 360(1) of the Act and denied the applicant in that case procedural fairness, in failing to advise of deficiencies in the statutory declaration in support of a non-judicially determined claim of family violence. In that case, the applicant alleged that the delegate had not identified any deficiencies in the relevant statutory declaration, as being an issue in relation to the decision made to refuse the spouse visa. Further, it was said that when providing the statutory declarations to the Tribunal, the applicants' solicitors had asked the Tribunal to advise them of any deficiencies in the statutory declarations. The applicant in that case contended that because the delegate had not refused the visa based on any deficiencies in the statutory declarations, it followed that if the Tribunal intended to rely upon the deficiencies, it should have informed the applicant and provided her with an opportunity of remedying the defects by allowing her to provide further evidence.
2. His Honour Siopis J referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] and [36] of the decision as follows:

[35] The issues that arise in relation to the decisions 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".

...

[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.

1. His Honour Siopis J held that there was no denial of procedural fairness or contravention of s 360(1) of the Act by the Tribunal, arising from the alleged failure to notify the applicants of the deficiencies in the relevant statutory declaration for the following reasons:

[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] FCA 1074; (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.

(emphasis added)

[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]).

1. The decision of Pham was followed in Lawani v Minister for Immigration and Citizenship and Another (2013) 284 FLR 1; [2013] FCCA 114 by Judge Whelan. In that case, an issue arose as to whether when the Tribunal decides to advise that a statutory declaration does not comply with the Regulations, if it was then under an obligation to provide details of why it did not consider the statutory declaration complied. His Honour held that the decision to advise the applicant that she should have provided a statutory declaration that complied with the Regulations, did not oblige the Tribunal to specify what was necessary to meet the evidentiary requirements. His Honour said at [54]:

[54] In my view the decision to advise the Applicant that she should provide a statutory declaration that complied with the Regulations did not oblige the Tribunal to specify what was necessary to meet that requirement.

1. In my view, the analysis of Siopis J as set out at [40] of this judgment, is authority for the proposition that the Tribunal was under no obligation to raise with the applicants in this case that the evidence submitted needed to be in a particular form. This is because the applicants themselves raised the question of a non-judicially determined claim of family violence, and the Regulations clearly set out what evidence needed to be provided in support of such claim. Therefore, it was "apparent" from the terms of the Regulations, that an issue before the Tribunal would be whether the evidence was of a type that complied with schedule 1 of IMMI 12/116. Therefore, I find there was no denial of procedural fairness or breach of s 360(1) of the Act by the Tribunal. Accordingly, no jurisdictional error is disclosed.

Whether any jurisdictional error arises from the conduct of the migration agent

1. The fact that the applicants' matter before the Tribunal has been detrimentally affected by bad or negligent advice does not vitiate the decision made by the Tribunal: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [15] and [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. I accept the Minister's submissions that any failure to inform or bare negligence or inadvertence with respect to the requirements of IMMI 12/116 is not sufficient to give rise to fraud on the Tribunal: see Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 at [33] per Tamberlin, Finn and Dowsett JJ.

1. Given the applicants were self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.