Minister for Immigration & Citizenship v Yacoub [2007] FCAFC 84 (5 June 2007)

MIGRATION – jurisdictional error - whether need for comity between courts and tribunals – partner visa – Apprehended Violence Order – whether existence of AVO is necessary consideration.

Crimes Act 1900 (NSW) s 562

MINISTER FOR IMMIGRATION & CITIZENSHIP v ANDRE YACOUB AND MIGRATION REVIEW TRIBUNAL

NSD2530 OF 2006

MOORE, EMMETT & STONE JJ
5 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2530 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION & CITIZENSHIP Appellant
AND:	ANDRE YACOUB First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	MOORE, EMMETT & STONE JJ
DATE OF ORDER:	5 JUNE 2007
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2530 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION & CITIZENSHIP Appellant
AND:	ANDRE YACOUB First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent
JUDGES:	MOORE, EMMETT & STONE JJ
DATE:	5 JUNE 2007
PLACE:	SYDNEY

1 This appeal, from orders of the Federal Magistrates Court, is said to involve a question as to the extent to which the Migration Review Tribunal (the Tribunal) must have regard to the need for comity between courts and tribunals to ensure, as far as possible, a consistent response by tribunals and courts to particular circumstances.

2 The first respondent, Mr Andre Yacoub (the Visa Applicant), is a national of Lebanon and France. He first entered Australia on 17 June 1996 on a visitor visa. Following his arrival, he made unsuccessful applications for visas that are not presently relevant to the issue before the Court.

3 On 28 November 2004, the Visa Applicant married Ms Rola Seaib, an Australian citizen (the Sponsor). On 15 December 2004, he applied for a Partner (Residence) (Class BS) visa and for a Partner (Temporary) (Class UK) visa. While the former cannot be granted until two years have elapsed, the latter can be granted immediately, to permit a stay in Australia until a decision is made on the former.

4 Clause 820.21 of Schedule 2 to the Migration Regulations 1994 (Cth) provides that an applicant for a Class UK Visa must meet certain requirements, including the following:

5 The Visa Applicant is the spouse of the Sponsor, who is sponsoring the Visa Applicant. Accordingly, the first two requirements are satisfied. However, the Visa Applicant is not the holder of a substantive visa and, accordingly, must satisfy criteria 3001, 3003 and 3004 of Schedule 3, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. It is common ground that the Visa Applicant does not satisfy Criteria 3001, because his application for a Class UK Visa was not made within 28 days after the last day on which he held a substantive visa.

6 On 4 May 2005, a delegate of the appellant, the Minister for Immigration and Citizenship (the Minister), refused to grant a Class UK visa to the Visa Applicant. The delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. The Visa Applicant, therefore, lodged an application for review by the Tribunal of the delegate’s decision. On 25 January 2006, the Tribunal affirmed the decision not to grant a Class UK Visa.

7 The Sponsor was previously married. There are three children of that marriage. The Sponsor was emotionally, physically and verbally abused by her former husband and on 8 March 2003 the Police removed him from the family home. Subsequently, on the complaint of the Sponsor, an apprehended violence order (AVO) was made against the former husband. Thus, on 26 June 2003, the Fairfield Local Court ordered that, for a period of two years, the Sponsor’s former husband must not:

8 The Visa Applicant told the Tribunal that the Sponsor had suffered physical abuse from her former husband and that her new relationship with him brought her confidence, serenity and peace. He said that together they were looking after the Sponsor’s children and that any separation would prejudice the Sponsor and the children. The Sponsor and the Visa Applicant have purchased their own home and have a monthly mortgage commitment.

9 The Sponsor told the Tribunal that, after the AVO was made, her former husband would drive past her home at night but that, after about three to four months, she no longer had any contact with him, other than when he had access to the children. For some time the Sponsor had not had any contact with her former husband as she leaves the children at McDonalds. The Sponsor’s marriage to him was dissolved on 19 November 2004. Just before Christmas 2004, he went to Lebanon.

10 If the Visa Applicant is not granted a Class UK visa, it will be necessary for him to return to Lebanon to await the grant of a substantive visa. The Sponsor told the Tribunal that she could not visit Lebanon with the Visa Applicant, as her former husband’s family might take her children. She regards the Visa Applicant as a father figure for her three children and she would be under great stress if the Visa Applicant had to return to Lebanon. She feels very happy with the Visa Applicant in Australia and wants him to stay with her and her children.

11 The Tribunal was not satisfied that the Visa Applicant and the Sponsor were in a long standing spousal relationship at the time of the application, since they had only been married a few weeks before the date of the application for a Class UK Visa. On the other hand, the Tribunal accepted that the Sponsor was in an abusive relationship with her former husband and accepted that she obtained the AVO on 26 June 2003 and that the AVO was still current. The Tribunal also accepted that the Sponsor attended counselling for 18 months and that her son had to attend counselling for six months. However, the Tribunal was not satisfied that the domestic violence experienced by the Sponsor was a compelling reason for not requiring the Schedule 3 criteria to be satisfied as at 15 December 2004, the date of the application.

12 The Tribunal had regard to the concerns expressed by the Visa Applicant and the Sponsor about the difficulties they would experience if the Visa Applicant had to return to Lebanon and they were separated for a period. The difficulties included emotional stress, financial commitments and the Visa Applicant’s role in caring for the Sponsor’s children. However, the Tribunal was not satisfied that those amount to compelling reasons for waiving the Schedule 3 criteria.

13 On 3 February 2006, the Visa Applicant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision of 25 January 2006. The grounds relied on in the application to the Federal Magistrates Court were as follows:

14 On 6 December 2006, after a hearing on 10 November 2006, the Federal Magistrates Court ordered that the Tribunal’s decision be quashed and that the Tribunal be required to determine the Visa Applicant’s review application according to law. While the Federal Magistrates Court rejected the submissions made that the Tribunal had ignored the claims made by the Visa Applicant in relation to his wife and her past history of domestic violence, his Honour adverted to an issue concerning the failure of the Tribunal to take into account the significance and importance of the AVO. That issue was apparently raised by the Court with counsel for the Visa Applicant during the course of submissions.

15 The primary judge expressed concern that the Tribunal, being cognisant of the AVO and its duration, should seek to analyse the circumstances as presented to the Tribunal and reach a conclusion that would, effectively, be inconsistent with the AVO. His Honour considered that, in effect, the Tribunal had decided that, at the time of the application for a Class UK visa, contrary to the AVO, there was no longer any need for the AVO to be in force. His Honour concluded that the Tribunal erred by failing to take into account the currency of the AVO and the need for there to be comity between courts and tribunals to ensure "as far as possible that the spirit and intent of an AVO is the subject of a consistent response by tribunals and courts".

16 His Honour considered that the failure of the Tribunal to take into account the currency and duration of the AVO in determining whether the application "was beyond what might be described as a factor which would apply to ‘many applicants’" was sufficient to constitute jurisdictional error. His Honour considered that the Tribunal "ought properly have regard to a relevant factor; namely, that a legally enforceable order has been made upon a proper basis where the Court has deemed that the order should remain in force for a period of two years". His Honour concluded that the Tribunal had committed jurisdictional error by failing to take into account the currency of the AVO in reaching its decision rather than simply making a reference to its existence. His Honour considered that that was a matter that the Tribunal was bound to take into account.

17 In the appeal, the Minister contended that the primary judge misapprehended the nature of the AVO and, accordingly, erred in concluding that there had been jurisdictional error on the part of the Tribunal.

18 The AVO was made under Part 15A of the Crimes Act 1900 (NSW), which deals with "Apprehended Violence". Section 562AD(1) provides that an application for an AVO may be made by way of complaint. Under s 562AE(1), the Local Court may, on complaint, make an AVO if it is satisfied, on the balance of probabilities, that a person who has a domestic relationship with another person has reasonable grounds to fear, and in fact fears, the commission by the other person of a personal violence offence against the person.

19 Under s 562E, an AVO remains in force for such period as is specified in the order by the Court. The period is to be as long as is necessary, in the opinion of the Court, to ensure the protection of the relevant person. The sanction for failure to comply with an AVO is contained in s 562I. A person who knowingly contravenes a prohibition or restriction specified in an AVO is guilty of an offence. The maximum penalty is 50 penalty units or imprisonment for two years or both.

20 Section 562AC of the Crimes Act provides that a court exercising the power conferred by Part 15A must be guided, in the exercise of the power, by the objects of Division 1A. Under s 562AC(1), the objects of that Division are, relevantly, to ensure the safety and protection of all persons who experience domestic violence and to reduce and prevent violence between persons who are in a domestic relationship with each other. The Division aims to achieve its object by empowering courts to make AVOs to protect people from domestic violence.

21 At its highest, the AVO represented a conclusion by the Fairfield Local Court that, on the balance of probabilities, the Sponsor had reasonable grounds to fear, and in fact feared, commission by her former husband of a personal violence offence against her. It also signified that the Local Court concluded that an AVO should remain in force for two years to ensure the protection of the Sponsor from that threat of violence. The Visa Applicant’s contention is that there is inconsistency between those conclusions by the Local Court and the Tribunal’s conclusion that, as at the date of the Visa Applicant’s application, the Sponsor was no longer experiencing the problems associated with her former husband.

22 However, there is no inconsistency between those conclusions. The Sponsor has experienced no violence from her former husband since the making of the AVO. Thus, it was open to the Tribunal to proceed on the basis that the AVO appeared to have been effective, at least up to the time of the hearing before the Tribunal, in achieving the object of the Crimes Act in reducing or preventing violence between the Sponsor and her former husband. The Tribunal’s conclusion that the Sponsor was no longer experiencing problems associated with her former husband is an acceptance, in effect, that the AVO was effective to achieve its object. Having concluded that there was no longer a problem associated with the former husband, the Tribunal concluded that the prospect of violence was not a compelling reason for waiving the Schedule 3 criteria in relation to the Visa Applicant.

23 The suggestion that the conclusion reached by the Tribunal was in some way inconsistent with the making of the AVO by the Local Court appears to involve some misapprehension. The object of the AVO was to prevent violence. The Tribunal appears to have accepted that it had that effect. The Tribunal recognised that it had that effect by concluding that violence from the Sponsor’s former husband was no longer a problem for the Sponsor.

24 Clearly, the Tribunal had regard to the fact that the AVO had been made and that the two year period of its currency had not expired at the time when the Visa Applicant lodged his application for a Class UK Visa. Whether or not the existence of the AVO was a consideration that it was necessary for the Tribunal to take into account, it did in fact take into account the existence of the AVO and the fact that it was still current.

25 There was no jurisdictional error on the part of the Tribunal. It follows that the appeal must be upheld. The orders made by the Federal Magistrates Court should be set aside. In lieu of those orders, there should be orders that the application to the Federal and Magistrates Courts be dismissed with costs. The Visa Applicant should pay the Minister’s costs of the appeal.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Emmett & Stone.

Counsel for the Appellant:	Mr J Smith

Solicitor for the Appellant:	Australian Government Solicitor

Counsel for the Respondent:	Mr J E Gormly

Date of Hearing:	28 May 2007

Date of Judgment:	5 June 2007

Federal Court of Australia - Full Court Decisions

Minister for Immigration & Citizenship v Yacoub [2007] FCAFC 84 (5 June 2007)