FEDERAL COURT OF AUSTRALIA

Pham v Minister for Immigration and Border Protection [2018] FCA 1946

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 26 November 2018 I made orders dismissing the appeal with costs. These are the reasons for those orders.

2    On 22 December 2017, the Federal Circuit Court (the ‘FCC’) dismissed an application for judicial review of a decision of the second respondent (the ‘Tribunal’) to affirm a decision of a delegate of the first respondent (the ‘Minister’) to refuse to grant the appellant a Partner (Residence) (Class BS) (Subclass 801) visa (a ‘partner visa’).

3    The issues related to whether a report from a nurse, Mr Tung Le, met any of the relevant descriptions in a legislative instrument known as “IMMI 12/116”, and therefore whether the appellant’s visa application included a “non-judicially determined claim of family violence” within the meaning of the Migration Regulations 1994 (Cth) (the ‘Regulations’).

4    The grounds of appeal set out in the appellant’s notice of appeal are:

The decision of the Federal Circuit Court is affected by jurisdictional error

Particulars

a.    in that the Court has accepted that the statutory declaration prepared by clinical psychologist Mr. Kleynhans did meet the requirements of instrument IMMI 12/116.

b.    The Court has also accepted that the tribunal was in error in relation to its conclusion in relation to the nurse's report.

c.    That because of these findings the matter in these circumstances should have been remitted to the tribunal for reconsideration according to law.

d.    The Court has further erred by not adjourning this case until the hearing of the appeal in the High Court in Shrestha had been concluded.

e.    The Court has erred by concluding that the nurse's report as a matter of law was capable of meeting the requirements of IMMI 12/116 and also by concluding it was a question that the court could determine regardless of whether it was a jurisdictional fact.

BACKGROUND

Visa criteria

5    The appellant made oral submissions before the Court at the hearing, but did not address the legal issue I am required to consider and which was considered by the FCC. The appellant was represented by solicitors and counsel before the FCC, but was unrepresented before the Court on this appeal. The appellant referred to the fact he was not properly advised by his lawyers as to the legal requirements, but this is not a matter which can impact the outcome of this appeal.

6    One of the applicable “time of decision” criteria for a partner visa was that the applicant meets the requirements of subcll 801.221(2), (2A), (3), (4), (5), (6) or (8) of Sch 2 to the Regulations. Subclauses 801.221(2) and (2A) required, among other things, that the applicant was the ‘spouse’ or ‘de facto partner’ of the sponsoring partner. Other subclauses had different requirements. Relevantly, subcl 801.221(6) provided as follows:

(1)    An applicant meets the requirements of this subclause if:

(a)    the applicant is the holder of a Subclass 820 visa; and

(b)    the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

(c)    either or both of the following circumstances applies:

(i)    either or both of the following:

(A)    the applicant;

…

has suffered family violence committed by the sponsoring partner;

…

7    In order for the sponsoring partner to be the “spouse” (reg 1.15A) or the “de facto partner” (reg 1.09A) of an applicant, the sponsoring partner and the applicant were required, relevantly: to have a mutual commitment to a shared life to the exclusion of others; to have a relationship that is genuine and continuing; and to live together or, alternatively, to not live separately and apart on a permanent basis.

8    An applicant will have “suffered family violence” committed by the sponsoring partner in circumstances where they were “taken” (under reg 1.23) to have suffered family violence (reg 1.22). Such circumstances included where a court made a certain injunction, order or conviction (reg 1.23(2)-(7)). In certain circumstances, a person was taken to have suffered family violence without any such court order (reg 1.23(8)-(14)).

9    In order for a person to be taken to have suffered family violence without any such court order, an application was required to include a “non-judicially determined claim of family violence” (reg 1.23(11)(a) and (13)(a)). An application for a visa included such a claim where the alleged victim, or another person on the alleged victim’s behalf, presented evidence in accordance with reg 1.24 that the relevant family violence had occurred (reg 1.23(9)).

10    The Migration Legislation Amendment Regulation 2012 (No 5) (Cth) (the ‘Amendment Regulation’) – which was made on 22 November 2012 – made amendments relating to evidentiary requirements for family violence claims. The Amendment Regulation provides that the relevant amendments apply in relation to an application for a visa made, but not finally determined, before 24 November 2012 (from item [1] of Sch 7 of the Amendment Regulation).

11    The present case falls within those parameters. Accordingly, the applicable evidentiary requirements were those as amended by the Amendment Regulation. In order for his application to have included a “non-judicially determined claim of family violence”, the appellant would have been required by reg 1.24 to have provided a statutory declaration under reg 1.25, and two items of evidence from the list in Sch 1 to IMMI 12/116 (being an instrument issued by the Minister under reg 1.24(b)).

12    Relevantly, Sch 1 to IMMI 12/116 identified the following types of evidence:

Factual background

13    On 9 December 2010, the appellant applied for a partner visa. The appellant claimed that he was in a spousal relationship with an Australian citizen, Ms Jennifer My Tien Le (the ‘sponsor’).

14    On 14 November 2013, a delegate of the Minister refused to grant the appellant a partner visa. The delegate was not satisfied that the appellant and the sponsor were in a spousal relationship. On 6 December 2013, the appellant applied to the Tribunal for review of the delegate’s decision.

15    On 14 January 2015, the appellant appeared at a hearing before the Tribunal. At that hearing, the appellant confirmed that he was no longer in a spousal relationship with his sponsor. The Tribunal explained the circumstances in which a visa may be granted even though a spousal relationship had ended. The Tribunal asked the appellant whether he had ever suffered family violence. The appellant indicated that he had. The Tribunal explained that the appellant had not made a valid claim to have suffered family violence in accordance with the Regulations. The Tribunal adjourned the hearing to a later date to enable the appellant to do so ([5]).

16    Subsequently, the appellant provided to the Tribunal:

(1)    a statutory declaration made by himself; and

(2)    a report from the nurse, Mr Le, dated 10 February 2015; and

(3)    a statutory declaration from the psychologist, Mr Kleynhans, dated 1 March 2015.

17    The content of these documents is discussed further below.

18    On 1 April 2015, the hearing before the Tribunal resumed. No transcript of the hearing was adduced in evidence in the Court below. Nevertheless, having regard to the summary of the hearing given by the Tribunal it its statement of reasons, it appears that the following evidence was given.

(1)    In relation to Mr Le, the appellant said that he had seen him “twice for periods of 1½ hours and 2 hours and he could not get time off to see him because of his work”. “[H]e had spoken to him on the phone twice.” Asked by the Tribunal whether Mr Le had treated him or offered him any therapy, the appellant said that Mr Le “told him to be calm and try not to be stressed; he did not prescribe any medication”. The appellant said that he was “too busy to go back and see him”.

(2)    In relation to Mr Kleynhans, the appellant said that he had seen him “3 or 4 times but he did not know the dates”. He had not seen Mr Kleynhans since he provided his report. Asked by the Tribunal whether Mr Kleynhans had suggested any treatment to manage his situation, the appellant said that “he had been told not to worry too much”. Asked by the Tribunal whether he had undertaken ongoing treatment as had been suggested by Mr Kleynhans, the appellant said that he could not do this because of his work commitments.

19    On 8 May 2015, the appellant provided a further document from Mr Kleynhans. It was not a statutory declaration. It was a letter from Mr Kleynhans to the Tribunal, which relevantly stated as follows:

BACKGROUND INFORMATION

Mr Pham a national from Vietnam referred himself to me on 15/1/2015, as he believed that he was subjected to relevant family violence at the hands of his estranged wife, Ms Jennifer My Tien Le, an Australian National. He married her on 14/11/2010.

I assessed his clinical profile and came to the conclusion that he was subjected to relevant family violence meted out by Ms Le. I completed a Statutory Declaration to that effect, dated 1/3/2015. I recommended psychological treatment.

Counselling. His family doctor, Dr Ley Chea, completed a Mental Health Care Plan on his behalf, dated 26/1/2015, and referred him to me for counseling.

I provided counseling for Mr Pham on the following dates: 5 & 19/3, 2, 16 & 30/4/2015.

Prognosis. This is improving because of the counseling he already received from me.

Tribunal’s decision

20    The Tribunal was not satisfied that either:

(1)    the report from Mr Le; or

(2)    the statutory declaration from Mr Kleynhans,

were items of evidence of any of the kinds described by IMMI 12/116.

21    Accordingly, the Tribunal was not satisfied that the appellant had presented evidence in accordance with reg 1.24, was therefore not satisfied that the application included a “non-judicially determined claim of family violence”, and was therefore not satisfied that the appellant satisfied the criterion in cl 801.221 of Sch 2 to the Regulations.

CONSIDERATION

22    The central issue which is determinative of this appeal is whether the report from Mr Le and the statutory declaration from Mr Kleynhans met any of the descriptions in IMMI 12/116. If either of these documents did not, then the application did not include a “non-judicially determined claim of family violence”, and therefore the appellant cannot have been “taken” to have suffered family violence in order to satisfy the criterion in cl 801.221 of Sch 2 to the Regulations. Resolving that issue involves construing IMMI 12/116.

23    In Dang v Minister for Immigration [2016] FCCA 1426 (‘Dang’), the Federal Circuit Court considered the proper construction of IMMI 12/116. In that case, the applicant had provided statutory declarations from a psychologist and a social worker. The Tribunal found that “the evidence does not indicate that [the psychologist] has treated Mr Dang”. Similarly, the Tribunal found that “the evidence does not indicate [the social worker] has provided counselling or assistance to Mr Dang”. The Court relevantly stated (in my view correctly) as follows as to the proper construction of IMMI 12/116:

[29]    In my opinion, the Tribunal was correct in determining that neither of those people had treated or counselled the Applicant in the course of preparing the reports that were attached to the statutory declarations they made. It is apparent that, in the case of a psychologist, the treatment of the alleged victim is required while performing the duties of a psychologist. If the evidentiary requirements were satisfied simply by a statutory declaration made by a registered psychologist, who is a non-treating psychologist, the words in relation to treatment would be otiose. The Tribunal was correct to conclude at [26] that:

… for a statutory declaration by a psychologist or a social worker to meet the requirements of IMMI 12/116 the relationship between the Applicant and the psychologist or social worker must have been essentially a therapeutic one…

[30]    If that requirement was ignored, the statutory declaration could be provided by any psychologist who was provided a history by the Applicant. As the First Respondent submitted in the course of the hearing and by written submissions, the purpose of the regulation is that it must be made by a professional who has formed the requisite opinion in the course of providing professional services in relation to the visa Applicant, in circumstances where the genuineness or otherwise of the claim might be expected to be observable by that professional.

24    Accordingly, the Court held as follows:

It is apparent from the evidence that was provided by both of [the psychologist] and [the social worker] to the Tribunal, that neither of those persons were in a therapeutic relationship with the Applicant. The reasons of the Tribunal disclosed that Mr Clifopoulos saw the Applicant only once, at the behest of the Applicant’s lawyers, for the purpose of obtaining an “assessment” (CB 163, page 3 of the psychological report). In relation to Ms Podbury, the Tribunal held at [25]:

… In the case of her statutory declaration the evidence does not indicate that she has provided counselling or assistance to Mr Dang. Mr Dang told the Tribunal that he saw her once for no more than three hours earlier in the month of the hearing. …

Further, at [25] the Tribunal stated:

… Asked by the Tribunal whether [the social worker] provided any counselling or assistance to him, Mr Dang paused before saying that they talked but that he could not remember.

25    I need only focus on the report from Mr Le.

26    The report from Mr Le did not meet any of the relevant descriptions in IMMI 12/116.

27    In particular, the report from Mr Le did not include the “detail” required by the relevant description in IMMI 12/116. The report does not “detail the physical injuries or treatment for mental health that is consistent with the claimed family violence”. The primary judge was correct to so hold ([25]-[34]).

28    The text in the table set out in IMMI 12/116 must be read in its context. Specifically, the text in the left hand column must be read with the text in the right hand column. Thus, the registered medical practitioner or nurse must “detail the physical injuries or treatment for mental health that is consistent with the claimed family violence”. The right hand column presupposes that the registered medical practitioner or nurse has already engaged with the applicant, and has assessed certain physical injuries or prescribed certain treatment for mental health.

29    Here, Mr Le’s report largely comprises a recitation of information provided to him by the appellant. Mr Le’s report starts by noting that the following information was “obtained” from the appellant and ends by concluding that it is “difficult to corroborate the history provided”. Mr Le’s report cannot sensibly be read as “detailing” any “physical injuries”, in the sense that it embodies the expression of an assessment of the existence and nature of any such injuries.

30    Nor can Mr Le’s report be said to detail the “treatment for mental health that is consistent with the claimed family violence”. As the FCC held in Dang, “[i]f the evidentiary requirements were satisfied simply by a statutory declaration made by a registered psychologist, who is a non-treating psychologist, the words in relation to treatment would be otiose” (at [29]). To construe IMMI 12/116 consistently, the requirement for a report from a medical practitioner and nurse category to “detail … treatment for mental health” likewise involves detailing therapeutic treatment; it cannot be satisfied by a mere opinion.

31    Here Mr Le’s report did not “detail” any therapeutic treatment for any mental health condition. In fact, the concluding paragraph of Mr Le’s report appeared to acknowledge that Mr Le has not “engaged” with any “services that would have been appropriate to meet his needs at the time”. Indeed, Mr Le only stated that the appellant “presented as a slightly anxious gentleman, whose mood was assessed as being at the lower end of euthymic (or normal mood range)”. Thus, even if details of the diagnosis of a mental health condition were sufficient to amount to “treatment for mental health”, that statement does not amount to providing details as to the “treatment for mental health that is consistent with the claimed family violence”.

32    Accordingly, the primary judge was correct to conclude that:

(1)    Mr Le’s report “does not, at first blush, detail any treatment for mental health, whether consistent with the claimed family violence or otherwise” ([28]).

(2)    “[T]reatment”, in this context, requires “the application of remedies” ([31]).

(3)    Accordingly, “[t]he requirement that a medical report give details of treatment requires details of what remedies were given”, including “such things as counselling, psychotherapy and psychoactive drugs” ([33]).

(4)    “The nurse’s report did not suggest that the nurse had given the applicant any such remedies, or any remedy at all. Indeed, the nurse’s report noted that the applicant had not engaged with services that would have been appropriate to meet his needs. That implied that the applicant did not receive any treatment, or any remedy, from anyone at all. The nurse’s report did not detail treatment for mental health, much less any treatment for mental health that is consistent with the claimed family violence” ([34]).

33    It follows, therefore, that the appellant’s visa application did not include a “non-judicially determined claim of family violence”, and the primary judge was correct to dismiss the application for judicial review of the Tribunal’s decision.

34    In addition, I make the following observations in relation to the notice of appeal:

(1)    With respect to particular (a), the proposition that Mr Kleynhans report met the relevant in IMMI 12/126 does not assist the appellant. In accordance with the Regulations, in order for the application to include a “non-judicially determined claim of family violence”, the applicant needed to provide two items of evidence from the list in Sch 1 to IMMI 12/116.

(2)    With respect to particular (b), because the question of whether the application included a “non-judicially determined claim of family violence”, the Tribunal’s own reasons for concluding that Mr Le’s report did not meet the relevant description in IMMI 12/116 is not determinative. The Court is obliged to consider the question for itself, informed correctly by the law, on the evidence before it. On that basis, the primary judge correctly concluded that Mr Le’s report did not meet the description in IMMI 12/116, and therefore the application did not include a “non-judicially determined claim of family violence”.

(3)    Particular (c) adds nothing to particular (b).

(4)    As to particular (d), it was entirely within the primary judge’s discretion to determine the application for review on the law (including the case law) as it stood at the time, rather than waiting for an indefinite period for the High Court to determine another case. Furthermore, the ultimate decision of the High Court in Shrestha v Minister for Immigration and Border Protection (2018) 359 ALR 22; [2018] HCA 35, which the applicant asked the primary judge to wait for, would not have assisted the appellant’s case or led to any different result.

CONCLUSION

35    It follows that the appeal should be dismissed.

Associate:

Dated:    4 December 2018