Judiciary Act 1903 (Cth), s.39B

Migration Regulations 1994 (Cth), regs.1.21, 1.22, 1.23, 1.24, 1.25, 1.26

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Patel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 115

Alkan v Minister for Immigration & Multicultural Affairs [2002] FCA 785

Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1)

The Migration Review Tribunal is joined as the second respondent.

(2)

The application is dismissed.

(3)

The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 November 2004 for a review of the decision of the Migration Review Tribunal ("the Tribunal") made on 13 October 2004, affirming the decision of the delegate of the first respondent ("the delegate") made on 10 November 2003 to refuse to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.

Mr Sandeep Sharma (the applicant), a national of India, born on

13 December 1976, applied for permanent residence on spouse grounds on 19 June 2000. The visa application form completed by the applicant incorporated an application for a permanent visa, a visa which normally cannot be granted until two years have elapsed since lodgement of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK) visa, which can be granted immediately, to permit stay until a decision is made on the permanent visa. This process is intended to test whether the relationship is continuing, two years after the visa application, before permanent residence is confirmed. The visa application was made on 19 June 2000 and the temporary (Subclass 820) visa was granted on 23 April 2001. The delegate's decision to refuse the Partner (Residence) (Class BS) Subclass 801 visa was made on 10 November 2003 (Court Book p.199) ("CB").

On 5 April 2002 the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") wrote to the applicant indicating that he may soon be eligible for the grant of a permanent visa and asking for the provision of documents in support of the grant of that visa (CB p.83). The applicant submitted documents to the Department in support of the grant of a permanent visa and subsequently was invited by the Department in a letter dated 12 August 2003 to attend an interview together with his spouse to be held on

4 September 2003 (CB p.149). However, on 30 August 2003 the applicant's spouse wrote to the Department informing it that she had separated from him a few months previously and that she withdrew her support for his application (CB p.150). On 10 November 2003 a delegate of the first respondent made a decision refusing to grant the applicant a permanent visa and on 28 November 2003 the applicant applied to the Tribunal for review of that decision.

By letter dated 1 July 2003, the Tribunal wrote to the applicant giving him particulars of information that may be part of the reason for refusing his application for review (namely, that his nominator had informed the Department that the relationship between them had broken down and that she no longer supported the applicant's application) and also requesting further information under s.359 of the Act. The applicant did not supply his comments or the further information requested within the time stipulated in the letter but, by letter dated 18 August 2004, requested a further period in which to do so (CB p.181). By letter dated 18 August 2004 the Tribunal informed the applicant that he had lost his right to a hearing but that if he wished to submit any further written arguments he should do so by

2 September 2004 (CB p.182). The applicant requested a further extension in light of an appointment that he had with a doctor on

7 September 2004 (CB p.184) but this was refused by the Tribunal (CB p.186). The applicant finally submitted a report by Dr Milorad Sokolovic, Consultant and Forensic Psychiatrist on 28 September 2004 in support of his application (CB pp.191-192).

The Tribunal handed down its decision on 13 October 2004 affirming the decision under review.

A convenient summary of the Tribunal's findings was contained in the first respondent's written submissions prepared by Mr J Smith and

I adopt paragraphs 5-6 of those submissions for the purpose of this judgment:

[5] The applicant did not meet the requirements for the grant of the visa under Item 801 of Schedule 2 to the Migration Regulations 1994 (Cth) because at the time of the decision he did not continue to be nominated for the grant of a subclass 801 visa by his nominating spouse and was not the spouse of the nominator. He did not fall within the exceptions to the requirement to be the spouse of a nominating person because the nominating spouse was not dead, and there was no evidence that the visa applicant or any dependent children had suffered from domestic violence committed by the nominating spouse. In this respect the Tribunal referred to the applicant's claims that he had seen a doctor because of depression and also the fact that the applicant had not provided any information relating to claims of domestic violence although he was provided with the opportunity to do so by both the Department and the Tribunal.

[6] It is important to note in this respect that the evidence necessary to make out a claim of domestic violence is set out in Regulation 1.23, 1.24, 1.25 and 1.26 and includes court orders and statutory declarations by the applicant and two competent persons. No such evidence was filed by the applicant in support of his application.

Application for review of the Tribunal's decision

On 10 November 2004 the solicitors representing the applicant at that time filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:

1. The Migration Review Tribunal ('the MRT') constructively failed to exercise its jurisdiction under the Act

Particulars:

i) The MRT erred in its understanding and or application of ss359C and 360 of the Act:

(a) The applicant did not respond to a s359 notice issued by the MRT within the time frame demanded by the MRT.

(b) On 28 September 2004, the applicant provided the MRT with a psychiatrist's report containing the opinion that he was suffering depression and that he had "suffered from the abusive behaviour of his wife".

(c) The applicant was advised by the MRT that 'he was not entitled to appear before the Tribunal' because he did not provide the further information within the time prescribed by the s359 notice.

(d) The MRT proceeded to make a decision on the papers, affirming the decision under review.

(e) The MRT had an obligation to decide whether or not the applicant should have a hearing. The MRT failed to do so. The MRT failed to exercise its discretion whether or not the applicant should have a hearing because it felt compelled to decide the application for review on the papers, once the response to the notice was not received within the required time frame nominated in the s359 notice. The MRT therefore failed to exercise its jurisdiction.

Relevant provisions of the Migration Act 1958 (Cth)

Section 359C of the Act provides:

(a) is invited under section 359 to give additional information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(a) is invited under section 359A to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.

Section 360 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.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

I note that at the time of filing of this application, the applicant was represented by a solicitor who prepared and filed the application. That solicitor subsequently withdrew by mutual consent. The only ground of review is that the Tribunal erred in its understanding of, or application of, ss.359C and 360 of the Act. With the withdrawal of the applicant's solicitor and the absence of any written or oral submissions in respect of the pleadings, the ground appears to be based on the argument that the Tribunal had an obligation to decide whether or not the applicant should have a hearing and that it failed to exercise its discretion in that regard because the Tribunal felt "compelled to decide the application for review on the papers, once the response to the notice was not received within the required time frame nominated in the s359 notice".

Counsel for the respondents submitted that there was no suggestion in the Tribunal's Statement of Reasons or indeed in the documents contained in the Court Book to support this argument. In its letter dated 18 August 2004, the Tribunal stated that the applicant had "forfeited (his) right to a hearing" (CB pp.182-183). Counsel submitted that this was an accurate statement to the effect of the relevant provisions of the Act.

Counsel for the respondents submitted that the words in sub-s.360(3) of the Act "is not entitled" make it clear that if the applicant does not respond to an invitation under ss.359 or 359A within the time prescribed then he has, in the words of the Tribunal, forfeited his right to a hearing: Patel v Minister for Immigration & Multicultural & Indigenous Affairs at [13] and Alkan v Minister for Immigration & Multicultural Affairs at [38].

The respondents' Counsel further submitted that there is no requirement under the Act to give reasons for a decision to proceed to make a decision without inviting the applicant to attend a hearing. The requirement under s.368(1) to prepare a written statement setting out the decision of the Tribunal, its reasons for the decision, findings on any material questions of fact and referring to the evidence or other material on which the findings of fact were based, applies only to the "decision on a review". This is a reference to a decision under s.349 of the Act being a decision to affirm, vary, remit or set aside and substitute a new decision for the decision of the delegate in respect of which an application for review has been brought. Accordingly, the absence in the Statement of Reasons prepared by the Tribunal of any reference to the reasons for not inviting the applicant to attend the hearing, apart from his failure to reply to the invitation to comment and provide further material, does not indicate that the Tribunal in fact had no reasons for the procedure adopted by it. In light of this, and once it is accepted that the applicant had in fact no right to attend a hearing by operation of s.360(3), the ground in the application must fail.

In the absence of any oral or written submissions, by or on behalf of the applicant in respect of the operation of ss.359C and 360 of the Act which are the provisions pleaded in this application, I believe that the argument submitted in this application is that the Tribunal had an obligation to consider whether or not to exercise its discretion to invite the applicant to attend a hearing regardless of the fact that he had not provided any comment or information in response to the Tribunal's letter of 1 July 2004 within the time required by the Migration Regulations 1994 (Cth) ("the Regulations"), namely 28 days from the date of receipt (CB pp.178-180). The date of the letter was 1 July 2004 and therefore the particular date for response was 9 August 2004.

In regard to the question of the operation of ss.359 and 360, I accept the respondents' submission that the factual situation does not appear to be in dispute. Specifically, that the letter of 1 July 2004 was not responded to within the time required. The Act provides in respect of an invitation to hearing in sub-s.360(1) that the Tribunal must invite an applicant to attend a hearing. However, in sub-s.360(2) there are exemptions to this requirement and in this particular case sub-ss.359C(1) or (2) applies to the applicant, the consequence being that there is no obligation on the Tribunal to invite the applicant to attend a hearing. Counsel for the respondents acknowledged that there is a residual discretion as to whether to hold a hearing or not, but it is not mandatory and there is no jurisdictional error in the Tribunal failing to do so.

Section 359C provides under sub-s.(1) that if a person is invited under s.359 to provide additional information and has not done so within the time provided, then the Tribunal may make a decision on review without taking any further action to obtain the information. Importantly, in the Tribunal's letter dated 1 July 2004 (CB p.179), it states clearly that if the Tribunal did not receive the requested information within the period allowed, then it may make a decision on review without taking any further action to obtain the information and the applicant would not be entitled to appear before the Tribunal. In light of the fact that both sub-s.(1) and sub-s.(2) of s.359C applied, there is no obligation on the Tribunal to invite the applicant to attend.

In paragraph 1(e) of the particulars contained in the application (see paragraph 8 above), the applicant contended that the Tribunal failed to exercise its discretion once the response to the notice was not received within the require time frame nominated in the s.359 notice. Counsel for the respondents submitted that firstly, the evidence before the Court suggested that the Tribunal did consider such a matter and, secondly, an absence of reference to its reasons for that consideration does not support the opposite conclusion. In support of that submission, Counsel submitted that the Statement of Reasons (CB p.198) was prepared under s.368(1) of the Act. That provision requires the Tribunal, once it has made a decision on review, to prepare a written statement setting out the decision, the reasons for that decision, the material findings of fact and the evidence upon which those findings were based. Counsel submitted that the section applies not to procedural decisions but rather to decisions on review. That is a decision as to whether or not the decision made by the delegate was the correct and proper decision on the basis of the material before the Tribunal at the time of its decision.

I accept Mr Smith's submission that the only evidence before me as to the question of whether the Tribunal has turned its mind to the exercise of its discretion or simply felt compelled, is set out primarily in the letter from the Tribunal to the applicant dated 18 August 2004 (CB p.182). The Tribunal forwarded that letter in response to a request received on the same day from the applicant for an extension of time to provide information (CB p.181). The Tribunal states in the fifth paragraph, having regard to s.359C, that s.360 of the Act clearly provides that where an applicant is affected by s.359C, the applicant is not entitled to appear before the Tribunal. The letter then continues:

"Accordingly, you have forfeited your right to a hearing. The Tribunal will now proceed to review your application on the basis of the material before it. If you wish to submit any further written arguments that you would like the Tribunal to consider, you should do this by 2 September 2004." (CB p.182)

That letter states quite clearly that the applicant is not entitled to appear before the Tribunal and has forfeited his right to a hearing. In support of this approach I was referred to the Full Federal Court decision of Uddin v Minister for Immigration & Multicultural & Indigenous Affairs ("Uddin"). That case principally concerned the operation of s.119 of the Act, that is a notice of information which may lead to a cancellation of a visa. However, the issue of whether the Tribunal was required to hold a hearing is addressed. The statement by the Tribunal in respect of this issue appears at [17]:

"... In accordance with s.359C of the Act, the Tribunal found that the applicant is no longer entitled to appear before it at a hearing. Accordingly, the Tribunal will now proceed to decide this matter on the basis of the papers before it."

This statement is almost identical in its terms to the second last paragraph of the Tribunal's letter to the applicant dated 18 August 2004 (CB p.182). In Uddin, their Honours, Wilcox and Branson JJ at [61] stated:

"We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing. We see no reason to conclude that the Tribunal thought otherwise. The reference in its reasons for decision to the appellant being 'no longer entitled to a hearing' suggests a correct understanding of the legal position. Nothing in the reasons for decision of the Tribunal suggest that it proceeded on an assumption that it was not empowered to grant the appellant a hearing. In the circumstances that happened the Tribunal was entitled to decide the matter before it in the way that it did."

I accept the submissions of the respondents' Counsel that the reasoning applied in Uddin applies equally to the position in this matter, where the letter provided by the Tribunal sets out the correct legal understanding of the operation of ss.359C and 360 of the Act.

I further agree that the ground in the application must fail.

In the applicant's oral submissions two new issues were raised. These were not formally pleaded. However, as the applicant is a self represented litigant, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. As I indicated earlier, the applicant was originally represented by migration agents and the formal pleadings were prepared by a qualified legal practitioner. Those arrangements were subsequently terminated and the applicant is conducting his own application. The applicant submitted that the Tribunal did not consider the report by Dr Sokolovic (CB pp.191-192) and secondly, in the Tribunal's "Findings and Reasons" (CB p.202 [32]) there was no evidence that the applicant or any dependent children suffered domestic violence committed by the nominating spouse. The applicant did not further elaborate or present any argument that arose from the report of Dr Sokolovic. I believe the applicant is attempting to develop an argument around the aspect of domestic violence and I thank Mr Smith of Counsel, appearing for the respondents, for his brief submissions in respect of the Regulations that apply in the circumstances of a domestic violence application. Significantly, when an applicant applies for a permanent visa on the basis of a spousal relationship they must meet the criteria set out in Clause 801 of Schedule 2 to the Regulations. In particular, at the time of the decision, the person must continue to have a spouse who nominated the applicant for the visa and "spouse" is defined in Regulation 1.15A, as being someone who is married and continues to be in a genuine relationship. If they do not meet the spousal criteria because either they or their dependent children have been the victim of domestic violence at the hand of the nominating spouse, then the applicant must meet the criteria set out in Clause 801.221.

"The applicant would meet the requirements of sub-clause(2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased"

801.221(6)(c) states:

Either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) ...

has suffered domestic violence committed by the sponsoring spouse

(ii) ...

The provisions relating to domestic violence are set out in Division 1.15 of the Regulations. Regulation 1.21, which is the first provision of Division 1.15, contains a number of definitions. The next important provision is Regulation 1.22(1):

"A reference in these Regulations to a person having suffered domestic violence is a reference to the person being taken under Regulation 1.23 to have suffered domestic violence."

Regulation 1.23 sets out the circumstances in which a person is taken to have suffered domestic violence. There are a number of such circumstances but the relevant one in the present case is under 1.23(1)(g):

"... the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24, that:

(i) the alleged victim has suffered relevant domestic violence; and

(ii) the alleged perpetrator has committed that relevant domestic violence."

Regulation 1.23(1)(g) is subject to paragraph (2) and in particular 1.23(2)(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."

Of particular relevance, it should be noted that the violence must be such as to cause the victim, being the applicant in this case, to fear for or be apprehensive about his personal well-being or safety.

Regulation 1.24 then sets out the evidence that must be given in order to comply with Regulation 1.23(1)(g), being either a copy of a record of assault kept by the police or a statutory declaration by the victim plus two statutory declarations by competent persons. Regulations 1.25 and 1.26 set out with some specificity what must be contained in those statutory declarations. Under Regulation 1.25(2) a statutory declaration must set out the allegation and the name of the person alleged to have committed the relevant violence. Regulation 1.26 sets out the requirements in respect of a statutory declaration from a competent person (being defined in Regulation 1.21 as including medical practitioners, psychologists, nurses, persons performing the duties of a nurse and/or social worker). The content of that statutory declaration must set out the basis for the competent person's claim to be a competent person, it must state the competent person's opinion that the relevant domestic violence that caused the applicant to be fearful for his safety has been suffered by the person, it must name the person who has suffered the domestic violence, it must name the person who has committed the domestic violence and must set out the evidence upon which the opinion is based.

A statutory declaration must meet each of the requirements under Regulations 1.25 and 1.26 to meet the criteria for a grant of a visa under Clause 801. In this matter the evidence that was before the Tribunal did not include any statutory declarations. There were two pieces of information before the Tribunal. In the delegate's decision (CB p.157) in the paragraph commencing "On 4 September 2003..." the following observation is recorded:

"When I asked him where his wife was he answered that he had had 'a little domestic violence'. I asked him what he meant by domestic violence and he stated that his wife had someone else, a Vietnamese man whom the applicant feared."

Those circumstances would not fall within the definition of domestic violence in Regulation 1.23 because it is not violence by the spouse. The delegate further notes:

"During our conversation it was established that there was no domestic violence." (CB p.157)

That was a conclusion that was open based upon what was recorded as having been said by the applicant. In the letter forwarded to the applicant on 1 July 2004 (CB pp.178-179) the Tribunal noted:

"Information on file shows that you have not made any claim of domestic violence committed by your ex-spouse." (CB p.179.4)

That issue is clearly before the Tribunal and the applicant is taken to be aware of the issue as noted in the Tribunal's letter.

In the applicant's letter to the Tribunal dated 18 August 2004 (CB p.181), there is a reference at the bottom of the page to Dr Sokolovic but no reference to violence or domestic violence. Similarly in the applicant's letter to the Tribunal dated 27 August 2004 (CB pp.184-185) there is a reference to a meeting with Dr Sokolovic but again no reference to domestic violence. In an email dated 31 August 2004 sent between offices of the Tribunal (CB p.186), it is noted that there was no claim for domestic violence. In the applicant's letter to the Tribunal dated 28 September 2004 (CB p.190) the applicant makes his first reference to domestic violence as follows:

"I also had received a call from your office that I don't have to come to for an Interview. But if [I] could get a chance so I could explain how I got hurt by [former spouse] and her boyfriend."

That is the extent of the reference from the applicant himself. However, it is not a statutory declaration and does not set out allegations of domestic violence.

In a report from Dr Milorad Sokolovic, Consultant and Forensic Psychiatrist, dated 26 September 2004 addressed to the Deputy Registrar of the Department (CB pp.191-192) the doctor makes the following references:

"Unfortunately, in August 2003, Sandeep [the applicant] witnessed his wife in intimate relations with someone else. The event shocked him and he could not tolerate his wife's behaviour, hence he separated from her." (CB p.192.1)

"In August 2004, Sandeep renewed his contact with the psychiatric office. He was still depressed and deeply affected by the manner in which his marriage ended. He was, however, intending to apply to immigration authorities for permanent residence status on his own accord; he based his application on the abusive behaviour of his wife which led to the untimely collapse of their marriage, despite Sandeep's best intentions and enthusiasm." (CB p.192.4)

Also in that letter, Dr Sokolovic gives the following opinion:

"... the impression is that Sandeep has suffered from the abusive behaviour of his wife and subsequently lost his right to permanent residence, due to no fault of his own." (CB p.192.6)

Apart from this report not being in the form of a statutory declaration, Dr Sokolovic does not express the opinion that the relevant domestic violence has taken place. There is no expression that the applicant is fearful for his safety on account of the harm or violence he is said to have suffered. In fact, there is nothing more than a reference to abusive behaviour.

I accept Counsel for the respondents' submission that in the statutory context, particularly in the tight regime relating to the domestic violence and the deeming of provisions in Regulations 1.22 and 1.23, it cannot be said on any view that the material evidences domestic violence in the sense required to meet the criteria in Clause 801.221(6) of the Regulations. The Tribunal correctly concluded:

"There is no evidence that the visa applicant or any dependent children have suffered domestic violence committed by the nominating spouse." (CB p.202 [32])

Given the Tribunal's finding that none of the relevant criteria had been met in respect of domestic violence, then the decision must be said to have been based on a proper understanding of the law and findings available on the material before it. Accordingly, there was a decision made under the Act with no jurisdictional error. This application, therefore, must be dismissed.

I acknowledge that the Regulations involving a claim for domestic violence are technical in nature. However, the applicant did have the assistance of migration agents and a solicitor at various times during the preparation of material for his visa application and review applications. Further, there appears to be some knowledge at the applicant's disposal concerning the issue of domestic violence in the circumstances in which he found himself. However, the requirements of the Act and the Regulations were not pursued by the applicant and his application must fail.

For the reasons set out above, I have not been able to identify any ground that the Tribunal has committed a jurisdictional error. The applicant's claim should be dismissed.

I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the first respondent's costs and disbursements of and incidental to the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.