Hadchity v Minister for Immigration & Citizenship [2010] FCA 144 (2 March 2010)

Last Updated: 3 March 2010

FEDERAL COURT OF AUSTRALIA

Hadchity v Minister for Immigration & Citizenship [2010] FCA 144

Citation:	Hadchity v Minister for Immigration & Citizenship [2010] FCA 144
Appeal from:	Hadchity v Minister for Immigration & Anor [2009] FMCA 958
Parties:	PAUL HADCHITY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:	NSD 1227 of 2009
Judge:	EDMONDS J
Date of judgment:	2 March 2010
Catchwords:	MIGRATION – visas – partner visa – domestic/family violence – whether Tribunal invalidly obtained an expert’s opinion – whether the quashing of the initial decision invalidated the expert’s opinion. Held: The Tribunal validly obtained the expert’s opinion. The quashing of the initial decision did not invalidate the expert’s opinion.
Legislation:	Migration Act 1958 (Cth) Pt 5, Div 3 Migration Regulations 1994 (Cth) reg 1.23, cl 100.221 of Sch 2
Cases cited:	Minister for Immigration & Citizenship v Sok & Anor [2008] FCAFC 18; (2008) 165 FCR 586 cited Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 applied MZXRE v Minister for Immigration & Citizenship & Anor [2009] FCAFC 82; (2009) 176 FCR 552 approved Sie Sok v Minister for Immigration & Citizenship & Anor (2008) 238 CLR 251 considered SZEPZ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 107; (2006) 159 FCR 291 approved SZHKA & Anor v Minister for Immigration & Citizenship & Anor [2008] FCAFC 138; (2008) 172 FCR 1 considered

Date of hearing:	9 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Appellant:	Mr C Jackson
Solicitor for the Appellant:	Paramonte Legal
Counsel for the Respondents:	Mr G Kennett
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1227 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PAUL HADCHITY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	2 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1227 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PAUL HADCHITY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	EDMONDS J
DATE:	2 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the Federal Magistrates Court (Scarlett FM): Hadchity v Minister for Immigration & Anor [2009] FMCA 958, dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming the decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Partner (Migrant) (Class BC) visa.

BACKGROUND

2. The appellant applied for a Partner (Migrant) (Class BC) visa on 23 November 2005. A delegate of the Minister refused to grant the visa on 6 February 2007. The reason for this refusal was that the appellant and his sponsor were no longer living together as husband and wife and he therefore did not satisfy cl 100.221(2) of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
3. The appellant applied to the Tribunal to review this decision on 6 March 2007.
4. At a hearing before the Tribunal on 2 August 2007, the appellant claimed that he had separated from his sponsor because of her violence towards him. This claim was elaborated later in writing. It raised a question whether the appellant could meet the criterion in cl 100.221 by satisfying subcl (4), which applies (broadly speaking) in circumstances where the spousal relationship has ended in circumstances where the visa applicant has suffered ‘family violence’ (at the relevant time, the phrase used was ‘domestic violence’).
5. Division 1.5 of the Regulations sets out a process by which decision-makers are to determine whether a person has suffered, and whether another person has perpetrated, ‘family violence’. The key provision of Div 1.5 for present purposes is reg 1.23. Where a claim of family violence has not been ‘judicially determined’, reg 1.23(1B) and (1C) require the decision-maker to proceed as follows:

(a) If satisfied that the person has suffered family violence, determine the application on that basis;

(b) if not satisfied that the person has suffered family violence, to refer the issue to an ‘independent expert’; and

(c) take the expert’s opinion to be correct, for the purpose of determining whether the person satisfies any visa criteria that involves having suffered family violence.

6. The Tribunal sent the appellant a further invitation to comment on information on 4 October 2007 and in December 2007 received further material from his advisers. It later invited the provision of more evidence. Further material was received on 8 and 18 February 2008.
7. On 21 February 2008 (see [46] of the Tribunal’s first decision) or 25 February 2008 (see AB 164) (it matters not which), the Tribunal sent a bundle of material to Centrelink for assessment by a social worker in the role of an independent expert. The Tribunal received a report from a social worker dated 12 March 2008, which it sent to the appellant’s advisers on 2 April 2008. It appears that a further hearing had been scheduled for 4 April 2008 but the appellant did not attend.
8. The Tribunal handed down a decision on 18 April 2008 affirming the decision of the delegate. The basis for that decision, applying the reasoning of the Full Court of this Court in Minister for Immigration & Citizenship & Anor v Sok [2008] FCAFC 18; (2008) 165 FCR 586 (handed down on 5 March 2008), was that a non-judicially determined claim of domestic violence could only be considered if it had been made before the delegate.
9. The Tribunal’s decision of 18 April 2008 was set aside by the Federal Magistrates Court, by consent, on 3 November 2008. This occurred because, in the meantime, the decision in Sok had been reversed on appeal to the High Court: (2008) 238 CLR 251 (16 October 2008).
10. The Tribunal made contact with the appellant and in December 2008 invited him to comment on the social worker’s report. A further hearing took place on 20 February 2009. The Tribunal was not reconstituted.
11. On the same day the Tribunal made a new decision and sent it to the appellant. This is the decision presently under review.
12. The basis for this decision was that the Tribunal had not been satisfied that the appellant had suffered domestic violence; it had therefore referred the question to an independent expert pursuant to reg 1.23(1B)(b); the expert’s opinion was that the appellant had not suffered domestic violence; and the Tribunal was bound to concur with that opinion. This compelled the conclusion that the appellant did not satisfy subcl 100.221(4) and thus could not meet the criterion in cl 100.221.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

13. The amended application, upon which the appellant relied, alleged that the Tribunal had erred in considering itself bound by the expert’s opinion. The alleged error was characterised as a failure to conduct a review in accordance with Pt 5, Div 3 of the Migration Act 1958 (Cth) (‘the Act’), asking the wrong question and/or failing to apply the relevant regulations. The appellant was also critical of the fact that the Tribunal had not been reconstituted, although this was not advanced as a further ground of review.
14. His Honour held that there was no error in the Tribunal being constituted by the same member. His Honour then accepted the submission of the Minister that, with an independent expert’s opinion already having been obtained in accordance with reg 1.23, the Tribunal had no choice but to treat that opinion as correct and decide the issue of domestic violence accordingly.

THE APPEAL

15. Ground 1 of the notice of appeal substantially repeats the ground of review advanced in the court below. The notice of appeal also raised a new ground, alleging apprehended bias on the part of the Tribunal, but this was abandoned at the commencement of the hearing.
16. Ground 1 was articulated as follows:

‘1.) His Honour erred in finding that the Tribunal had conducted a review in accordance with Part 5, Division 3 of the Migration Act, and section 360, had not [sic] asked asked [sic] the wrong question, and/or failed to apply the relevant migration regulations.

1.1 His Honour should have found that the above errors occurred, when the Tribunal failed to ask whether or not it was satisfied that Mr Hadchity had suffered “domestic violence”, and when it considered itself bound by an expert report invalidly obtained by the Tribunal earlier constituted (“the First Tribunal”), prior to the quashing of the First Tribunal’s decision.

1.2 The Regulations required the Tribunal to first determine whether it could be satisfied for itself, reviewing all of the evidence, that Mr Hadchity had suffered relevant domestic violence, and only if it determined that it was not so satisfied was it empowered and required to obtain an expert report to determine the matter (migration regulation 1.23(1B)).’

17. The first leg of this ground was that the expert’s opinion was ‘invalidly obtained’ by the Tribunal prior to the quashing of the Tribunal’s first decision. According to the appellant, the Tribunal had not validly conducted the review that it was required to conduct by law, before it could validly obtain the expert opinion that it obtained. So much, according to the appellant, was manifest in [13] of the Tribunal’s first decision:

‘The effect of the Full Federal Court’s decision in Sok is that a non-judicially determined claim of domestic violence for the purposes of regulation 1.23(1)(f) or (g) can only be made to the Minister. Where a claim is not made to the Minister (or his or her delegate), in accordance with the Regulations, the Tribunal cannot consider the claim. Furthermore, in light of Sok, the Tribunal is of the view that where an issue of domestic violence arises, the Tribunal is limited to considering whether any of the alternatives in regulation 1.23(c), (d), (e), (f) or (g) is satisfied. The Tribunal is unable to form an opinion for itself, or undertake the enquiries provided for in Division 1.5 of the Regulations.’

18. However, it is an undisputed fact that prior to 5 March 2008, when the Full Court of this Court handed down its decision in Sok, the Tribunal had sought the opinion of an independent expert about whether the appellant had suffered domestic violence pursuant to reg 1.23(1B). Paragraph 12 of the Tribunal’s first decision reads:

‘In the circumstances of this review the applicant made his claim that he had suffered relevant domestic violence perpetrated by his former sponsoring spouse at a hearing before the Tribunal. He subsequently provided evidence in accordance with regulation 1.24, 1.25 and regulation 1.26 in relation to a non-judicially determined claim of domestic violence and regulation 1.23(1)(f). The Tribunal had sought the opinion of an independent expert about whether the alleged victim has suffered domestic violence: regulation 1.23(1B). However, prior to the Tribunal being provided with the expert opinion, the Full Federal Court in MIAC v Sok [2008] FCAFC 18 handed down its decision.’

19. The appellant submitted that there was nothing in this passage from the Tribunal’s reasons to indicate that the Tribunal was not satisfied that the appellant had suffered domestic violence so as to provide a lawful basis for the issue to be referred to an independent expert; and that what the Tribunal said in the second decision at [78], namely:

‘Having considered all of the evidence before it, including the evidence of a non-judicially determined claim of domestic violence provided by the applicant, the Tribunal was not satisfied that the alleged victim had suffered relevant domestic violence as the applicant’s account of the break down of his spousal relationship given by him at the hearing may not have amounted to relevant domestic violence. Therefore, in accordance with regulation 1.23(1B)(b), on 25 February 2008 the Tribunal sought the opinion of an independent expert about whether the alleged victim had suffered relevant domestic violence. On 13 March 2008, the independent expert provided an opinion that the alleged victim had not suffered relevant domestic violence.’

was an ex post facto rationalisation; indeed, pure reconstruction.

20. I cannot agree. The inference is well and truly open from the fact that the Tribunal referred the matter to Centrelink on 21 or 25 February 2008, that the Tribunal was not satisfied that the appellant had suffered domestic violence. The fact that it did not express that lack of satisfaction in its reasons is not to the point; it was under no obligation to record its lack of satisfaction either in its reasons or elsewhere. Moreover, since by the time the Tribunal came to deliver its first decision and reasons, the Tribunal understood, on the basis of the Full Court’s decision in Sok, that the domestic violence claim was not able to be considered, there was no reason to expect the Tribunal’s lack of satisfaction to be recorded in those reasons. I would conclude, and so find, that what occurred is precisely as set out in [78] of the Tribunal’s second decision. In the face of that conclusion, the contention that the opinion of the independent expert obtained prior to the quashing of the first decision was invalidly obtained, cannot be sustained.
21. The second leg of Ground 1 was that, even if the independent expert’s opinion was validly obtained the first time around, predicated as it was on a lack of satisfaction by the Tribunal as to the appellant having suffered domestic violence, the quashing of the Tribunal’s first decision effectively quashed the Tribunal’s lack of satisfaction as to the appellant having suffered domestic violence and this, in turn, quashed or invalidated the obtaining of the independent expert’s opinion. The procedure for forming a state of satisfaction, or lack thereof, as to the appellant having suffered domestic violence had to be recommenced before any independent expert opinion could be obtained and relied upon. Reliance was placed on what was said by the High Court in Sok at [8] – [10]; by Gleeson CJ in Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 at [16], namely:

‘The content of the interests of justice, in the events that occurred, is to be determined in the light of the provisions of the Act, pursuant to which the respondent made his application for a protection visa, and pursuant to which the delegate of the Minister, the Tribunal, and the Federal Court were acting. Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate’s decision. The Tribunal’s decision upon that review is to be made on the basis of the facts as they appear in the course of that review. To what extent the information before the Tribunal will differ from the information that was originally before Ms Boland is not known. The findings made by Ms Boland will have no legal status in that further review. Neither Ms Boland, if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them. The most that can be said is that, as a practical matter, if Ms Boland undertakes the review, then, unless there is a significant change in the information before the Tribunal, she is unlikely to alter the view of the facts she took previously, whereas a fresh decision-maker might see the matter differently even if the information remains substantially the same.’ (Emphasis added)

And by Gyles J in SZHKA & Anor v Minister for Immigration & Citizenship & Anor [2008] FCAFC 138; (2008) 172 FCR 1 at [37], namely:

‘[I]t is difficult to see an escape from the proposition that once an administrative decision is set aside for jurisdictional error, the whole of the relevant decision-making process must take place again (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597). There is no analogy between that situation and a rehearing ordered on an appeal in judicial proceedings or pursuant to statutory provisions such as s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) or the former s 481 of the Act. Mandatory statutory obligations must be carried out again. The suggested dichotomy between an administrative decision and what precedes it is unconvincing in this context. Such a conclusion would not mean that what has taken place in the previous review cannot be taken into account in the second review if considered relevant. The proceedings are administrative, not judicial, and the Tribunal can have regard to all relevant material, including a transcript of what took place at the previous hearing, subject to compliance with the statutory regime.’ (Emphasis added)

Neither Gray nor Besanko JJ made any similar observations.

22. The Minister accepted that, in relation to a question whether a visa applicant meets a criterion, the Tribunal must normally decide whether it is satisfied of the relevant facts on the evidence available to it at the time of its decision. This has the consequence that, if a decision is set aside and must be made again, findings of fact in the earlier decision are not preserved: see Wang at [15], [16].
23. However, the Minister pointed out that Div 1.5 of the Regulations stipulates a particular procedure that must be followed in determining whether a visa criterion involving the occurrence of ‘family violence’ has been met. The High Court decision in Sok establishes that the Tribunal is bound by these provisions, notwithstanding that in their terms they apply to the Minister (at [27] – [29]). Relevantly to the present case, that procedure required a sequence of steps in which the Tribunal was to:

(a) Reach a conclusion as to whether it was satisfied that there had been family violence;

(b) if that conclusion were positive, apply it in reaching its decision on the review;

(c) if that conclusion were negative (as it was in the present case), obtain the opinion of an independent expert; and

(d) treat the expert’s opinion as correct ‘for the purposes of deciding
whether the alleged victim satisfies a prescribed criterion’.

24. This procedure necessarily requires a conclusion to be formed, and action to be taken, in advance of the Tribunal’s final decision about whether the visa criteria are satisfied. Where the procedure is engaged, its outcome dictates the Tribunal’s decision about whether a ‘prescribed criterion’ is satisfied.
25. The Minister accepted, as he had to, that the expert’s opinion was obtained by the Tribunal prior to the making and setting aside of its first decision. However, the Minister submitted that this did not deprive the opinion of legal effect. According to the Minister, the general principle is that steps taken by the Tribunal in pursuance of its procedural obligations are not automatically undone by the setting aside of a decision. The consequence of such an order is that the Tribunal’s statutory task of reviewing the delegate’s decision remains uncompleted. To complete its statutory task in the present case, the Tribunal needed to reconsider and decide the review on the basis that the appellant’s domestic violence claims were able to be considered. Cautiously it held a further hearing, but there were no other procedures required to be revisited.
26. Reliance was placed on what was said by the Full Court of this Court in SZEPZ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 107; (2006) 159 FCR 291 at [39]:

‘An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.’

27. The Minister also made reference to what was said by the Full Court of this Court in MZXRE v Minister for Immigration & Citizenship & Anor [2009] FCAFC 82; (2009) 176 FCR 552 at [5] and [6]:

‘[5] The word “rehear” should not have been used in the orders. The order should have used the word “hear”. The tribunal commences the process of a review of the delegate’s decision when a valid application for its review is made under ss 412 and 414 of the Migration Act 1958 (Cth) (the Act). By force of s 414(1) the tribunal must conduct a review of a valid application. If some jurisdictional error occurs in the process of a review, the decision arrived at will be quashed and the matter remitted to the tribunal to complete the conduct of the review in accordance with the procedures specified in the Act: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291 at [39] per Emmett, Siopis and Rares JJ. ...

[6] The word “rehear” in the consent orders could be taken to suggest that whatever had been done by the tribunal had to be redone. That would not have been correct. ...’

28. I agree with the submissions of the Minister. Absent some identified non-compliance in the obtaining of the independent expert’s opinion, the existence of that opinion continued to impose an obligation on the Tribunal under reg 1.23(1C).

CONCLUSION

29. There is no error of the kind alleged in Ground 1 of the notice of appeal on the part of his Honour below on either of the legs particularised therein. For that reason, the appeal must be dismissed with costs.
    

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 2 March 2010