FEDERAL COURT OF AUSTRALIA

Jibal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1926

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) dismissing the appellant’s application for judicial review of a decision of the second respondent (Tribunal): Jibal v Minister for Home Affairs & Anor [2018] FCCA 3370. The Tribunal had affirmed a decision of a delegate of the Minister of Immigration and Border Protection to refuse to grant the appellant a Partner (Residence) (class BS) (subclass 801) visa (partner visa).

2    The appellant raises a single ground of appeal, which is that the FCCA judge erred because her Honour “failed to accept that [the appellant] was a victim of domestic violence, a matter that the Tribunal failed to consider”.

3    It is clear that the Tribunal did not consider whether the appellant was a domestic violence victim. Relevantly, the Tribunal’s decision record states that the appellant did not claim to have suffered “family violence”.

4    The appellant did not file written submissions in support of his appeal. He appeared at the hearing of the appeal with the assistance of an Arabic interpreter.

Background

5    The appellant is a 27 year old citizen of Lebanon. He married Dima Al Kurdi in New South Wales on 8 March 2014. Ms Al Kurdi, an Australian citizen, sponsored the appellant’s application for the partner visa, which was lodged in October 2014.

6    On 30 October 2014, the appellant was granted a Partner (Temporary) (class UK) (subclass 820) visa (temporary partner visa).

7    On 2 August 2017, Ms Al Kurdi wrote to the Department stating that she had broken up with the appellant a month earlier and wished to withdraw her sponsorship.

8    By letter dated 8 August 2017, the Department invited the appellant to comment on the information that it had received about the cessation of the spousal relationship between the appellant and Ms Al Kurdi, including by explaining the appellant’s current circumstances and the reason for the breakdown of the relationship. The letter noted that the appellant could withdraw his visa application at any stage during processing.

9    By letter dated 15 September 2017, the appellant acknowledged to the Department that the relationship with Ms Al Kurdi had ended but asked the Department to permit him to remain in Australia on a permanent basis “knowing that our relationship has lasted over two years and resulted in unfairness from my side”. The appellant submitted that he would face hardship if required to leave Australia.

10    On 12 October 2017, the delegate refused to grant the appellant a partner visa, finding that he did not satisfy the relevant provisions of the Migration Regulations 1994 (Cth) (Regulations).

11    On 31 October 2017, the appellant applied to the Tribunal for merits review of the delegate’s decision.

12    By letter dated 19 April 2018, the Tribunal wrote to the appellant, noting that information on the Department’s file indicated that the appellant’s relationship with the sponsoring partner had ended and that the sponsoring partner had withdrawn the sponsorship. The letter included the following:

If the Tribunal is not satisfied that you are the spouse or de facto partner of the sponsor, and if you do not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that you do not meet the requirements for the grant of the visa for which you have applied. The Tribunal may then affirm the decision under review.

13    The letter invited the appellant to give comments on, or respond to, the information on the Department’s file.

14    Subsequently, the appellant provided to the Tribunal a report from Dr Fayza Al Shamali, psychologist, dated 12 May 2018. The report set out background information about the appellant, the results of a psychological assessment and a recommendation that, on compassionate grounds, the appellant be supported by granting him a permanent resident visa.

15    The appellant and a friend, Ms Tania Hinnaoui, attended a hearing before the Tribunal on 26 June 2018. The hearing was conducted with the assistance of an Arabic interpreter.

16    As noted above, the Tribunal affirmed the delegate’s decision.

Statutory framework

17    The requirements for the grant of the partner visa are set out in cl 801 of Sch 2 to the Regulations. Clause 801.221(2) requires, among other things, that the appellant be sponsored by the sponsoring partner at the time of the decision. An exception to this requirement applies in cases of family violence committed by the sponsoring partner, set out in cl 801.221(6) as follows:

(6)    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;

(B)    a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

18    Special provisions relating to “family violence” are set out in Div 1.5 of the Regulations, which comprises regs 1.21 to 1.27.

19    Regulation 1.22 provides relevantly:

(1)    A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.

20    Regulation 1.23(1) states:

(1)    For these Regulations, this regulation explains when:

(a)    a person (the alleged victim) is taken to have suffered family violence; and

(b)    another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

21    Regulations 1.23(2) to (7) set out circumstances that are not relevant to this case. Broadly, they concern cases where a court has made an order falling within the terms of the regulations or a court has convicted the alleged perpetrator of an offence of violence against the alleged victim or recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

22    Regulation 1.23(8) provides a definition of the expression “non-judicially determined claim of family violence” which is not relevant to this appeal. It concerns circumstances in which, among other things, there are court proceedings in which an allegation is made that the alleged perpetrator has committed an act of violence against the alleged victim.

23    Regulation 1.23(9) provides a second definition of the expression “non-judicially determined claim of family violence”, as follows:

(9)     For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

(a)    the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

(b)    the alleged victim is:

(i)    a spouse or de facto partner of the alleged perpetrator; … and

(c)    the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

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

(ii)    the alleged perpetrator committed that relevant family violence.

24    “Relevant family violence” is relevantly defined under reg 1.21 to mean conduct, whether actual or threatened, towards the alleged victim that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

25    Regulation 1.24 provides:

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.

26    By instrument IMMI12/116 dated 22 November 2012, the then Minister for Immigration and Citizenship specified the types of evidence for the purpose of reg 1.24(b) in a schedule marked “Schedule 1”. Schedule 1 provides relevantly:

27    By IMMI12/116, the Minister also specified that a minimum of two items of such evidence and no more than one of each type of evidence may be presented for the purposes of reg 1.24(b).

28    Regulations 1.23(10) and following address the position if an application for a visa includes a “non-judicially determined claim of family violence”. In particular, reg 1.23(10) provides:

(10)    If an application for a visa includes a non-judicially determined claim of family violence:

(a)    the Minister must consider whether the alleged victim has suffered relevant family violence; and

(b)    if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

(c)    if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

(i)    the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

(ii)    the Minister must take an independent expert’s opinion on the matter 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 family violence.

Tribunal decision

29    Inevitably, the Tribunal found that the appellant did not continue to be sponsored for the grant of the visa by the sponsoring partner.

30    The Tribunal also found that the appellant did not meet any of the alternative criteria in cl 801.221, including cl 801.221(6) of Sch 2 to the Regulations.

31     In reaching the latter conclusion, the Tribunal made the following relevant findings:

(1)    The appellant did not claim to meet any of the “exceptions” in the alternative criteria.

(2)    The appellant said he did not wish to make a formal claim of family violence from the sponsor.

(3)    The appellant said that the story he submitted, being the information contained in the report of Dr Al Shamali, explained what had occurred in his relationship with the sponsor.

(4)    The appellant did not claim that he had suffered family violence.

32    The Tribunal considered Dr Al Shamali’s report at [16] and [17] of its decision record. The Tribunal found that there was “no claim made or evidence presented in [Dr Al Shamali’s report] meeting any of the relevant exceptions in this visa subclass”.

33    The Tribunal also considered the evidence of Ms Hinnaoui at [18] of its decision record. The Tribunal noted Ms Hinnaoui had said that the appellant was the “victim” of the relationship between the applicant and the sponsor and that he did everything right by the sponsor and her family, “who were vulgar and had abused him”.

Appellant’s submissions

34    The appellant submitted that the Tribunal did not understand his case, namely, that he is a victim of domestic violence.

35    The appellant referred to [47] of the FCCA judge’s reasons, which states:

The psychologist report is not evidence of a claim for family violence. The applicants written claims and his evidence to the Tribunal do not and could not be taken to be making a claim of family violence at the hands of the Sponsor.

36    Speaking through the Arabic interpreter, the appellant said:

What I was talking about is that there is a legal error, because I am getting psychological treatment and the witness has said in evidence – who was with me – that I do suffer from mental health issues, and she is a mother of me and also she gave evidence that I was a victim of domestic violence.

…

I believe that AAT has the duty to refer me to an expert to get a report to show that I am a victim of domestic violence and that has not happened, and that my mental health issues were deteriorating and I did say that I was unfairly treated or oppressed, and that is because I was a victim of domestic violence. I do plead with this court to look into my case that I am a victim of domestic violence, and because of my mental health state, I was not able to prove that as it should be and I was not able to explain. I did not quite understand what they meant by a victim of domestic violence and I always used to say that I was unfairly treated.

37    At this point, the interpreter said:

Your Honour, the word “salaam” in Arabic could mean oppressed or unfairly treated and this is exactly the word [the appellant] is using.

38    The appellant then continued:

And I did not have a lawyer or a migration agent to explain my case as it should be. And the appeal that I have submitted to this – served to this court in – as it appears in the court book number 6 and it shows that the lower court did not comprehend or understand from the psychological report that I was a victim of domestic violence and I plead for help.

39    The appellant also said that, when he was asked about “family violence”, he did not understand exactly what that is and he did not have anyone to explain to him the meaning of that expression.

Consideration

40    The statutory framework set out above shows that the appellant was required to present evidence in accordance with reg 1.24 in order to fall within the scope of cl 801.221(6), which provides the family violence exception on which the appellant seeks to rely.

41    The evidence upon which the applicant sought to rely was:

(1)    Dr Al Shamali’s report;

(2)    Ms Hinnaoui’s evidence; and

(3)    the fact that the applicant was receiving psychological treatment.

42    None of this evidence meets the requirements of reg 1.24(a) or (b).

43    In particular, Dr Al Shamali’s report does not fall within any of the categories of “Type of Evidence” in Schedule 1 to IMMI 12/116. Specifically, it is not a medical report made by a person who is registered as a medical practitioner or a nurse. Nor is it a statutory declaration made by a registered psychologist which states an opinion that the appellant was subject to family violence with reasons for that opinion.

44    It follows that, on the available evidence, the appellant was unable to meet the requirements of cl 801.221(6).

45    Accordingly, the FCCA judge was correct in her Honour’s finding, at [47] of the FCCA judge’s reasons, that the psychologist report is not evidence of a claim for family violence for the purpose of the Regulations. Otherwise, her Honour was correct that there was nothing in the material presented by the appellant to the Tribunal which provided an evidentiary basis for a claim that he had suffered family violence at the hands of his sponsor.

46    Without evidence that met the requirements of reg 1.24, the FCCA judge had no basis for a conclusion that the appellant had suffered family violence within the meaning of cl 801.221(6). Otherwise, the factual question of whether the appellant was a victim of domestic violence was not relevant to the appellant’s visa application.

47    Similarly, without evidence that met the requirements of reg 1.24, the Tribunal was not required to consider whether the appellant met the requirements of cl 801.221(6).

48    Further, without such evidence, reg 1.23(10) had no relevant operation because the appellant’s visa application did not include a “non-judicially determined claim of family violence”.

49    The appellant’s submissions suggest that he was not sufficiently informed about the meaning of “family violence” and, perhaps, the evidentiary requirements for cl 801.221(6). The transcript of the Tribunal hearing shows that the Tribunal raised the issue of whether the applicant wished to make a “formal claim” in terms of “family violence”. The applicant responded to that enquiry by saying: “No. The story I had submitted I had explained what happened.”

50    This answer referred to the account set out in Dr Al Shamali’s report.

51    The Tribunal was not required to initiate inquiries about whether cl 801.221(6) applied to the appellant’s case, although it did make a limited inquiry. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25], the plurality noted that the duty imposed upon the Tribunal under the Migration Act 1958 (Cth) is a duty to review. The plurality acknowledged the possibility that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. However, that is not this case. Here, on the evidence available to the Tribunal, it was far from obvious that the appellant had suffered family violence within the meaning of cl 801.221(6) for two reasons. Firstly, there was no evidence of the kind required by reg 1.24. Second, when the Tribunal raised the possibility of a claim “in terms of family violence”, the appellant said that there was no such claim.

52    Nor was the Tribunal required to explain to the appellant the meaning of “family violence” in cl 801.221(6) or the evidential requirements of reg 1.24: “it is no part of the duty of the decision-maker to make the applicant’s case for him”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170.

53    For these reasons, the FCCA judge did not make any error in failing to accept that the appellant was a victim of domestic violence. Nor did the Tribunal make any error in failing to give consideration to that matter, or to the question whether the appellant suffered family violence within the meaning of cl 820.221(6).

Conclusion

54    The appeal must fail. Costs should follow the event.

Associate:

Dated:    22 November 2019