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Revollo v Minister for Immigration & Anor [2011] FMCA 899 (25 November 2011)

Last Updated: 30 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REVOLLO v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 899

MIGRATION – Review of Migration Review Tribunal decision – cancellation of temporary spouse visa – where applicant claimed to be victim of domestic violence – where visa cancelled on other grounds – where domestic violence claim not considered by Tribunal – whether domestic violence claim expired – inferences – where no reference to relevant information in Tribunal’s decision – whether Tribunal failed to consider relevant information.


Minister for Immigration and Citizenship v Khadgi & Anor (2010) 190 FCR 248
Burton v Minister for Immigration [2005] FCA 1455
Maman v Minister for Immigration & Anor [2011] FMCA 426
Gama v Qantas Airways Limited (No. 2) [2006] FMCA 1767
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Alexander and Others v Australian Community Pharmacy Authority and Others [2010] FCA 189; (2010) 265 ALR 424
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
Craig v South Australia [1995] HCA 58; (2005) 184 CLR 163

Applicant:
LUIS ALBERTO ZAMBRANA REVOLLO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 1323 of 2011

Judgment of:
Raphael FM

Hearing date:
3 November 2011

Date of Last Submission:
11 November 2011

Delivered at:
Sydney

Delivered on:
25 November 2011

REPRESENTATION

Counsel for the Applicant:
Mr N Poynder

Solicitors for the Applicant:
Phillip Silver & Associates

Counsel for the First Respondent:
Ms L Clegg

Solicitors for the First Respondent:
DLA Piper Australia

ORDERS

(1) A writ of certiorari issue directed to the Migration Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 30 May 2011.
(2) A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
(3) First Respondent to pay the Applicant’s costs assessed in the sum of $6,240.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1323 of 2011

LUIS ALBERTO ZAMBRANA REVOLLO

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. Mr Revollo is a Bolivian citizen who married Ms Frances Martinez on 2 April 2007 in Bolivia. It was his second marriage. On 5 April 2007 Mr Revollo lodged an application for a sub-class 309/100 spouse visa at the Australian Embassy in Chile. The scheme under which spouse visas are granted is that an application for a sub-class 309 visa is also an application for a sub-class 100 spouse visa, a permanent visa. The sub-class 100 can only be granted after two years have passed since the original application was made. Under Schedule 2 Class 100.221(2)(b) of the Migration Regulations 1994 (Cth)[1] a sub-class 100 visa can only be granted if the applicant is still the “spouse” of the sponsor in a relationship which is genuine and continuing.[2] The exception to this provision is where the relationship has ceased because the visa applicant has suffered domestic violence committed by the sponsoring spouse.[3] Although Mr Revollo claims that he has been the victim of domestic violence his visa cancellation was made on other grounds and before his application to have the temporary visa made permanent on domestic violence grounds was determined.
  2. The history of the applicant’s dealings with the department and its grounds for considering the cancellation of and then cancelling his visa are contained in the applicant’s helpful written submissions reproduced below. It is my understanding that this history is not disputed by the respondent:
  3. At the Tribunal hearing the member asked the applicant:

The applicant responded that the period was two years and that he had known his second wife since they were children as she was a neighbour. The Tribunal then asked the applicant where his wife was and why she was not with him that day to which the applicant responded:

“Yes, well she’s not here because it has been two years since her and I have been living together. Immigration knows we haven’t been living together for two years because of the mistreatment on her behalf.”[23]
  1. This series of questions indicates that the Tribunal was not aware when it commenced the interview of the applicant’s claim to have been the victim of domestic violence and not to have read the information provided by his solicitors. The Tribunal questioned the applicant about the timing of the marriage breakdown very shortly and indicated that she would get hold of the file relating to the visa application:

The Tribunal returned to the matter towards the end of the interview:

“Q134 M: Sorry, I’m just having a quick look at the submission that I received this morning, because I didn’t have an opportunity to look at it before I got to the hearing.
Mr Silver: My apologies on that basis, Mr Cipolla.
Q135 M: So I’m assuming from the evidence that the applicant, Mr Silver, that if the Tribunal was to exercise its discretion and set the cancellation aside and he’s reinstated with a visa, that the circumstances with regard to the issue of that visa have now changed because of the breakdown of the relationship. You’re going to be pursuing the exceptions for the grant of the visa on the basis that the gentlemen being a victim of relevant domestic violence?
Mr Silver: Correct. Any statutory declarations were submitted to the Department of Immigration in support of all those contentions, and I have annexed them to the submission.
Q136 M: To this submission, yes.
Mr Silver: Yes, now, there’s three statutory declarations there; there’s one from Mr Revollo, that actually sets up the chronology, and quite well, which would assist you in understanding the chronology.
Q137 M: Yes, and ---.
Mr Silver: Because he didn’t come across - - -
Q138 M: - - - two from, you know, well a psychologist or - - -
Mr Silver: Correct, there’s one from a psychologist, Mr Rodriguez, who confirms the domestic violence and also says he’s satisfied that it was a natural and genuine relationship.
Q139 M: Yes.
Mr Silver: And then there’s one from the social worker and they both confirm that, according to their opinions, he was the victim of domestic violence.
Q140 M: Yes, okay. Well, sir, I’ve got a lot that if I need to consider in this pile of documents and, as I said at the outset of the hearing, I’ll be considering all of that very carefully before I proceed to decision, and I’ll be considering what was said today. Mr Silver, I said at the beginning of the hearing that if there was anything that you wanted to raise that I would give you an opportunity. Is there anything that you want to raise, or was it all - - -
Mr Silver: It’s all covered in the stat decs and the submission. It’s really – our submission is really for you to exercise your discretion.”
  1. In its findings and reasons at [CB 219] the Tribunal noted that its duty was first to decide whether there was non-compliance by the applicant in a way described in the s.107 notice, in this case the provision of incorrect answers to questions in the spouse visa application form lodged on 5 April 2007, namely that he was the father of Diego Luis Zambrana. There was a second non-compliance, that was with s.105, because the applicant had not advised the department of the incorrect information and provided the correct information. The Tribunal noted that in a letter to the department, the applicant, through his representative, conceded the non-compliances on 15 December 2010. At that stage he also provided the department with details of three other children. The applicant had told the department and the Tribunal that the reason that he did not give details of his children was that the person who helped him fill in the form had told him it was not necessary as it was not intended that any of those children would be joining him in Australia.
  2. The Tribunal, having accepted that there was non-compliance in the way described in the notice, turned to consider whether the visa should be cancelled pursuant to s.109(1). It referred to the prescribed circumstances for the purposes of s.109(1)(c) of the Act set out in Regulation 2.41 of the Regulations. Section 109(1)(c) and Reg 2.41 are set out below:

(1) The Minister, after:

(a) deciding under section 108 that there was non-compliance by the holder of a visa; and

(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.”

Reg 2.41

“Whether to cancel visa -- incorrect information or bogus document (Act, s 109 (1) (c))

(a) the correct information;

(b) the content of the genuine document (if any);

(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

(d) the circumstances in which the non-compliance occurred;

(e) the present circumstances of the visa holder;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g) any other instances of non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

Note Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.”
  1. The Tribunal had indicated the approach it intended to take towards these criteria at [15] and [16] [CB 203]:

It then proceeded to deal with each of the criteria in turn. Under the heading “The correct information” the Tribunal opined that the correct information that should have been provided was that the applicant had four children from a previous marital relationship. She noted the applicant’s reasons for not putting details of those children in the form but remarked that the form did provide for the children who would be migrating and those who would not be migrating to be indicated. She thought it was odd that the children had not been included given that there was a capacity to note them as non migrating relatives. In the Tribunal’s view the applicant’s lack of English language skills as an excuse for not completing the form properly were circumvented by the fact that his second wife and the person who assisted in the completion of the forms were both fluent in English. However, the Tribunal did say at [92] [CB 221]:

“[92] In the Tribunal’s view, the decision to grant the applicant a Subclass 309 visa would not have been affected had the correct information been disclosed to the Department, because the relevant assessment was whether the applicant and his second wife and sponsor were in a genuine and continuing spousal relationship at the time of application, and continued to be in a genuine and continuing spousal relationship at the time of the decision with regard to the grant of the visa. The evidence before the Tribunal indicates that the Department was satisfied of the fact, and had the applicant listed his four children as non-migrating non-dependent children, the Tribunal is of the view that this would have had no bearing on the outcome of the visa application based on the relevant consideration as to what constitutes a spousal relationship. The Tribunal notes the applicant’s contention that had his children been listed in the application and been subject to relevant public interest criteria such as 4001, 4002, 4003, 4007 and 4009 that they all would have satisfied and continued to satisfy public interest criteria and there is nothing before the Tribunal to counter this contention.”
  1. The Tribunal did not consider that the content of the genuine document was applicable in this case. In regard to the likely effect on a decision of the correct information the Tribunal stated:
  2. In its consideration of the circumstances in which the non-compliance occurred the Tribunal shortly set out the history and noted that:
  3. In regard to the present circumstances of the visa holder the Tribunal dealt with his accommodation, his work history, his network of friends in Australia, his social life in Australia and his continued support of his children in Bolivia before saying:
  4. The Tribunal then went on to consider the subsequent good behaviour of the visa holder and noted his regret for providing the incorrect information. The Tribunal noted there were other instances of non-compliance, the failure to include the child named in the anonymous tip off, and that the non-compliance occurred four years ago. The Tribunal noted there was no evidence of any breaches of the law since non-compliance and whilst noting that the applicant had not been involved in any voluntary work or paid work in the community he had been working on a full time basis for a painting company for the last twelve months and that a reference to the Tribunal had indicated that the applicant was honest, hardworking and a competent painter. The Tribunal then made reference to the provisions of PAM 3 but did not consider these relevant and it finally concluded at [112]:
  5. In the application filed with this court on 24 June 2011 seeking judicial review of the Tribunal’s decision the applicant gave as his grounds of application:
  6. As Mr Poynder says in his helpful written submissions at [43] – [46]:
  7. The applicant contends that this case can be distinguished from the circumstances which pertained in Minister for Immigration and Citizenship v Khadgi & Anor [25] because in that case the Full Bench, Stone, Foster and Nicholas JJ, held that the consideration to be given to Reg 2.41 criteria by a Tribunal would be very much the product of an applicant’s submissions; so that if an applicant did not make particular submissions about one or other of the criteria it would be difficult to argue that the Tribunal had not given it proper consideration:
  8. The way in which the applicant says that Khadgi is distinguishable from his case is that the material relating to his mental condition as a result of the alleged family violence was clearly put before the Tribunal but was not considered. He says that in those circumstances the matter is more akin to that considered by Wilcox J in Burton v Minister for Immigration[27]:
  9. The respondent accepts, as he has to, that there is no clear reference to these matters in the consideration of the Reg 2.41 criteria in the Tribunal’s findings and reasons but he has two answers to that argument. First, he reminds the court that the Tribunal extracted the material in full of the body of its reasons:
  10. The respondent also pointed out that the Tribunal, in the transcript, expressly undertook to look closely at the material and that the court should be slow to infer that it did not. Reference to the submission is found at [CB 212]. Mr Poynder argues that whilst the submission is reproduced the reports of the psychologist Mr Rodriguez, and the social worker Ms Salina, are not.
  11. The respondent also argue that the criteria, in particular the criteria in question, “the present circumstances of the visa holder”, relate to the present circumstances and not to what might have occurred in the past. The respondent note that most of the acts and opinions expressed in each of the statutory declarations relate to the claim that the applicant had in the past been the victim of domestic violence and then state:
  12. The respondent noted that the views expressed by the experts seemed to indicate that the applicant would make a gradual emotional recovery from his experiences but it seems to me that the references to those statutory declarations made in [16] of their written submissions would indicate some continuing problem:
  13. I would also take issue with the respondent’s suggestion that one cannot remain a victim of domestic violence after the violence has ceased. It seems to me that once one has been the victim of domestic violence one remains a victim of domestic violence although one may be able to get over the trauma. But perhaps this is only a matter of semantics.
  14. A court should be hesitant before drawing an inference that the Tribunal has not taken a particular matter into consideration especially where there is reference to that matter in the decision record. Indeed, even where no reference has been made to a matter, as in the instant case, it would be incorrect to infer from that omission alone that the matter was not considered by the decision-maker. In Steed v Minister for Immigration and Ethnic Affairs[29], the Full Court held that:

This is so even where there is an obligation to consider certain information: Alexander and Others v Australian Community Pharmacy Authority and Others.[31]

  1. There is, however, a distinct inference flowing from the above that may be drawn. Whilst it may be incorrect to infer from an omission to refer to some matter that no consideration of it occurred, the court may reasonably infer from such an omission that the materials were not considered to be relevant by the Tribunal. Indeed, in SZMPT v Minister for Immigration and Citizenship,[32] Jacobson J opined:
  2. This conclusion is consistent with that drawn by the Full Bench in Khadgi where their Honours opined that:
  3. It seems to me from the manner in which the Tribunal phrased its reasoning and from its acknowledgment of the views expressed in Khadgi that it was intending to deal with all relevant considerations. The court does not have to guess at why the Tribunal may not have considered the matters raised in the submission concerning the applicant’s psychological state to be relevant, only whether they were relevant. In my view the applicant’s psychological state was relevant to the criteria of the visa holder’s present circumstances as argued by Mr Poynder. The Tribunal’s actual decision on the matter is confined to one paragraph, extracted at [11] of these reasons. The sole reason appears to be that the applicant has only been in Australia for 4 years and could therefore re-establish himself in Bolivia. No other reasons are given and the Tribunal’s consideration of the 2.41 criteria reveals nothing adverse to the applicant other than his failure to admit to his children, which would not have affected the grant of the visa. The confidence which the Tribunal expresses in this outcome must surely be informed by the applicant’s psychological state, which it would appear the Tribunal did not consider. To this extent the failure to deal with it constituted a jurisdictional error on the part of the Tribunal: Craig v South Australia.[35] I will make the orders requested in the application and order that the respondent pay the applicant’s costs assessed in the sum of $6,240.00.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM


Date: 25 November 2011

[1] “Regulations”.
[2] Migration Act 1958 (Cth) (“Act”) s.5F(2)(c), Regulation 1.15A(1),(2) and (3)).
[3] Regulations, Schedule 2 Clause 100.221(4)(c)(i)(A)).
[4] CB 1 (the letter is not reproduced).
[5] Affidavit of Phillip Silver (Silver affidavit) dated 1 September 2011, Exhibit “A”.
[6] CB 147-154.
[7] CB 148 [5].
[8] CB 164-169.
[9] CB 155-163.
[10] CB 161.
[11] CB 162.
[12] The letter is not reproduced.
[13] CB 2-6
[14] CB 9-15.
[15] CB 19-42.
[16] CB 23-24.
[17] CB 43-54
[18] CB 53-54.
[19] CB 88.
[20] Transcript p 3, Q4, Silver affidavit, Exhibit “B”.
[21] CB 93-103.
[22] CB 100-101.
[23] Aff Phillip Silver T7 Q30 and 31
[24] CB 208-213.
[25] (2010) 190 FCR 248 (“Khadgi”).
[26] Khadgi (at [83]).
[27] [2005] FCA 1455 (“Burton”).
[28] Burton (at 59-60).
[29] (1981) 37 ALR 620 (“Steed”).
[30] Steed at 621 per Fox J.
[31] [2010] FCA 189; (2010) 265 ALR 424 at [84].
[32] [2009] FCA 99 (“SZMPT”).
[33] SZMPT at [18].
[34] Khadgi at [59].
[35] [1995] HCA 58; (2005) 184 CLR 163 at 177.

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