Doan v Minister for Immigration & Multicultural Affairs [2000] FCA 909 (6 July 2000)

Last Updated: 7 July 2000

FEDERAL COURT OF AUSTRALIA

Doan v Minister for Immigration & Multicultural Affairs [2000] FCA 909

THE KIEN DOAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 339 OF 2000

LINDGREN J

6 JULY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 339 OF 2000

BETWEEN:	THE KIEN DOAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	6 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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	N 339 OF 2000

BETWEEN:	THE KIEN DOAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	6 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 The Applicant ("Mr Doan") applies for review of a decision of the Migration Review Tribunal ("MRT") affirming a decision of a delegate of the respondent (respectively "the Delegate" and "the Minister") that he not be granted a visa in the Extended Eligibility (Temporary) (Class TK), Subclass 820 (Spouse) class and General (Residence) (Class AS), Subclass 801 (Spouse) class.

2 Section 29 of the Migration Act 1958 (Cth) ("the Act") provides that subject to the Act, respondent ("the Minister") may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

(a) travel to and enter Australia;

(b) remain in Australia.

It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3 Section 31 of the Act provides that there are to be prescribed classes of visas and that the regulations may prescribe criteria for a visa or visas of a specified class. The section also provides that a visa is a visa of a particular class if the regulations made under the Act specify that it is a visa of that class.

4 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.

5 The MRT's decision was a "judicially reviewable decision" (s 475(1)(a)), Mr Doan was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

Procedural background

6 Mr Doan arrived in Australia on 15 October 1994. On 18 January 1995 he lodged an application dated 17 January 1995 for a visa in the Extended Eligibility (Temporary) (Class TK), Subclass 820 (Spouse) class and General (Residence) (Class AS), Subclass 801 (Spouse) class. The Delegate refused the application on 30 May 1998 on the ground that his marital relationship was no longer "continuing" and that he no longer had a nominator for his application. The Department of Immigration and Multicultural Affairs ("the Department") wrote to Mr Doan on 1 June 1998 advising him of that refusal.

7 On 25 June 1998 Mr Doan applied to the Migration Internal Review Office ("MIRO") for review of the Delegate's decision. On 17 December 1998 MIRO affirmed the Delegate's decision on the ground that Mr Doan was no longer the spouse of the Nominator within the meaning of reg 1.15A of the Migration Regulations 1994 ("the Regulations").

8 On 13 January 1999 Mr Doan applied under ss 338 and 347 of the Act to the Immigration Review Tribunal for review. As from 1 June 1999 the reviewing tribunal became the MRT. The MRT conducted a hearing on 22 February 2000. On 15 March 2000, the MRT affirmed the Delegate's decision that the visa not be granted.

9 On 12 April 2000, Mr Doan filed his application in this Court for review of the MRT's decision.

The Regulations

10 Regulation 2.01 of the Regulations provides that for the purposes of s 31 of the Act, the prescribed classes of visas are, relevantly, such classes as are set out in the respective items in Schedule 1. Regulation 2.02 provides that Schedule 2 is divided into Parts, each identified by the word "Subclass" followed by a 3-digit number (being the number of the Subclass of visa to which the Part relates) and the title of that Subclass. Regulation 2.03 provides that the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant Part of Schedule 2 or, if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

11 A note at the commencement of Schedule 1 provides that that Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. Item 1211 is headed "Extended Eligibility (Temporary) (Class TK)". It is not in dispute that Mr Doan satisfied the Schedule 1 criteria as he lodged an application in accordance with Item 1211(1)-(4).

12 It is also not in dispute that Mr Doan was required to satisfy Schedule 2 criteria. The relevant Subclass in Schedule 2 is "Subclass 820 Spouse". The clauses and subclauses appearing under that heading were amended by the Migration Regulations (Amendment) 1995 (SR 1995 No 117) dated 30 May 1995 which were notified on 6 June 1995 and commenced to operate on 3 July 1995. That is, the amendments commenced after Mr Doan lodged his visa application on 18 January 1995 but before the Delegate's decision on it on 30 May 1998. Regulation 48 of the amending Regulations was a transitional provision and it is common ground that the effect of it was that it was the Regulations as amended that governed Mr Doan's application. Accordingly, I need not address the content of the Regulations as they existed on 18 January 1995 and my references below to the Regulations are to the Regulations as amended.

13 Clause 820.21 in Schedule 2 was headed "Criteria to be satisfied at time of application" and cl 820.22 was headed "Criteria to be satisfied at time of decision". In order to satisfy the criteria applicable at the time of his application, Mr Doan was required, relevantly, to be the spouse of an Australian citizen who nominated him: subcl 820.211(2). Subregulations 1.15A(1) and (1A) were as follows:

"(1) For the purposes of these Regulations, a person is the spouse of another person if:

(a) the 2 persons are:

(i) married to each other under a marriage that is recognised as valid for the purposes of the Act; or

(ii) de facto spouses of each other, ...; and

(b) the Minister is satisfied that:

(i) the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between the 2 persons is genuine and continuing; and

(c) the Minister is satisfied that the 2 persons are:

(i) living together; or

(ii) not living separately and apart on a permanent basis."

14 In order to satisfy the criteria applicable at the time of the decision on his application, Mr Doan was required to continue to meet the requirements applicable at the time of his application or, in the alternative, to meet the requirements of subcl (2) or (3) of cl 820.221. Mr Doan did not, at the time of the Delegate's decision on 30 May 1998, continue to meet the former requirements because, for one thing, his Australian citizen spouse had withdrawn her nomination of him. Accordingly, he could satisfy the criteria applicable at the time of the Delegate's decision only if he satisfied subcl (2) or (3) of cl 820.221. It is only subcl (3) that is relevant here. It provided as follows:

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

(a) the applicant would continue to meet the requirements of subclause 820.211 (2) ... except that the relationship between the applicant and the nominating spouse has ceased; and

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

(i) either or both of the following:

(A) the applicant;

(B) ...;

has suffered domestic violence committed by the nominating spouse;

(ii) .....................................................................................

Note For special provisions relation to domestic violence, see Division 1.5."

(my emphasis)

15 Division 1.5 of the Regulations comprised regs 1.21-1.27. Division 1.5 was headed "Special provisions relating to domestic violence". Regulation 1.21 was headed "Interpretation". It defined "violence" to include "a threat of violence". Regulation 1.22 provided that a reference in the Regulations to a person having suffered domestic violence is a reference to a person being taken, under reg 1.23, to have suffered domestic violence. Regulation 1.23 provides that the "alleged victim" is taken to have suffered domestic violence, and the "alleged perpetrator" is taken to have committed domestic violence in relation to the alleged victim, if:

"(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or

(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or

(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or

(f) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or

(g) if the alleged victim is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:

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

(ii) the alleged perpetrator has committed that relevant domestic violence." (my emphasis)

16 Subregulation (2) of reg 1.23 provides in para (a), relevantly, that a spouse of the alleged perpetrator is one of the persons referred to in para (1)(g). As well, para (2)(b) provides that in para (1)(g):

"a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety."

17 It clearly appears from the nature of paras (c) to (f) of subreg 1.23(1) above and from para (b) of subreg 1.23(2) that domestic violence is intended to signify violence of a certain level of seriousness. Regulation 1.24 is as follows:

"(1) The evidence referred to in paragraph 1.23(1)(g) is:

(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:

(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and

(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or

(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.

(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:

(a) the same subparagraph of paragraph (a) of the definition of competent person; or

(b) subparagraph (b)(ii) of that definition."

18 Regulation 1.25 deals with the statutory declaration by an alleged victim. On the facts of this case, it would have been required to be made by Mr Doan. Regulation 1.25 sets out what a statutory declaration by an alleged victim must contain.

19 Regulation 1.26 deals with the statutory declaration of a "competent person". It sets out the required content of such a statutory declaration.

20 The expression "competent person" is defined in subreg 1.21(1) as follows:

"competent person means:

(a) in relation to domestic violence committed against an adult:

(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or

(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or

(iii) a person who:

(A) is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and

(B) is performing the duties of a registered nurse; or

(iv) a person who:

(A) is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and

(B) is performing the duties of a social worker; or

(v) a person who is a court counsellor under the Family Law Act 1975; or

(vi) a person holding a position of a kind described in subregulation (2); or ... "

21 Subregulation 1.21(2) provided as follows:

"(2) The positions referred to in subparagraph (a)(vi) of the definition of competent person in subregulation (1) are:

(a) manager or coordinator of:

(i) a women's refuge; or

(ii) a crisis and counselling service that specialises in domestic violence; or

(b) a position with:

(i) decision-making responsibility for:

(A) a women's refuge; or

(B) a crisis and counselling service that specialises in domestic violence;

that has a collective decision-making structure; and

(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service."

22 It is not in dispute that Mr Doan did not comply with the requirements set out above. I have set the provisions out at some length in order to emphasise the concern of the Regulations to ensure that a visa applicant should not enjoy the benefit of the subject exception to the general requirement that there be a genuine and continuing married relationship at the time of the decision unless the domestic violence directed against the visa applicant by the spouse be sufficiently serious and be clearly proved, by appropriate means, to have occurred.

The reasons for decision of the MRT

23 The MRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the relevant law. It then turned to consider Mr Doan's claims and evidence. The following is a summary of the MRT's account of them.

24 Mr Doan is twenty-eight years old and a citizen of Vietnam. He arrived in Australia on 15 October 1994 on a Student (Temporary) (Class TU) visa. In December 1994 he met the person who was later to become his wife and his Nominator, Thi La Doan, for the first time. On 14 January 1995 they married in Fairfield. Four days later, on 18 January 1995, Mr Doan lodged his application for a Class TK visa. This also became an application for a Class AS visa because, where an applicant meets the requirements for a Class TK visa, the applicant is automatically granted a Class AS visa. Of the three Subclasses specified in Class TK at the time, the relevant one was Subclass 820 (Spouse).

25 On 28 February 1995 Mr Doan failed to meet his course requirements.

26 The Department received from the Nominator a statutory declaration dated 13 June 1997 stating that the marital relationship had broken down, that the parties had separated on 25 May 1997 and that she wished to withdraw her nomination of Mr Doan.

27 The MRT noted that the central issue for determination was whether Mr Doan satisfied cl 820.22 in the light of the fact that the Nominator had withdrawn her nomination of him and that the relation between the couple was no longer continuing. The MRT set out the heading to cl 820.22 and subcl 820.221(1) as follows:

"820.22 Criteria to be satisfied at time of decision

820.221 (1) In the case of an Applicant referred to in subclause 820.211(2) ... the applicant either:

(a) continues to meet the requirements of the applicable subclause; or

(b) meets the requirements of subclause (2) or (3)."

28 The MRT noted that Mr Doan did not meet the requirements of para 820.221(1)(a) because, by the time of the decision, he did not continue to meet the requirements of para 820.211(1)(c) because, by that time, the Nominator had withdrawn her nomination of him and the relationship between the couple was not longer continuing. Under subcls 820.221(2) and (3), there were only three situations in which an application might continue to be assessed for the grant of a Class TK visa in these circumstances. These were the death of the nominating spouse; an ending of the relationship due to domestic violence committed by the nominating spouse; and a situation [not presently relevant] relating to a child or children. The MRT stated:

"The Applicant has not submitted any evidence to suggest that any of the above have occurred and therefore, the Applicant does not satisfy subclause 820.221."

29 Notwithstanding this conclusion, the MRT dealt with a submission made by Mr Doan at the hearing that the marriage was genuine from the outset and that he should be allowed to remain in Australia on the basis of the fact that he and his wife had lived together for two years, four months and eleven days prior to his realisation that his wife was involved with another man.

30 The MRT considered the facts that were before it as to the circumstances of the marriage, and questioned Mr Doan about the marriage and the period leading up to it. The MRT found Mr Doan,

"to be a most devious person who would not deliver a direct answer to questions."

The MRT found that the evidence of his witness, Ba Toan Pham, and of Mr Doan with regard to his wedding and associated functions was inconsistent with the photographs of the wedding, which bore the date 5 January 1995. As well, Mr Doan and Mr Pham contradicted each other as to the time and place of the wedding functions.

31 Mr Doan commenced English classes in Brisbane two days after he arrived in Australia on 15 October 1994. Two weeks later he went to Sydney to see a person he described at the hearing as his `friend', but in his visa application as his `aunt'. Belatedly, in response to questioning, he explained that she really was an aunt, though not a blood relative. He claimed that he met his Nominator on the night of his arrival in Sydney. He, his friend and the Nominator went out for the night and she (the Nominator) returned to her house while he went to stay with his friend. Mr Doan did not see the Nominator again until he returned to Sydney two weeks later. On this occasion he spent two days with her and then returned to Brisbane. He did not return to Sydney until two days before the wedding on 14 January 1995.

32 Accordingly, Mr Doan's testimony was that he spent one evening and two days in the company of the Nominator before coming from Brisbane to Sydney to marry her, although he also claimed to have made phone calls to her. The claim that he returned to Sydney on 12 January 1995 for a wedding on 14 January 1995 was, of course, inconsistent with the date on the wedding photos, 5 January 1995.

33 Mr Doan was unable to tell the MRT where the Nominator lived, despite the fact he claimed to have moved in with her two days before the wedding and to have lived with her at the same address for about two months following the wedding.

34 The MRT also described the evidence given by Mr Doan as to the circumstances of the Nominator herself when they married as "grossly conflicting".

35 The MRT telephoned Mr Doan's witness, Mr Pham, who had provided a statement dated 8 February 2000 to the MRT. When asked when he had first met Mr Doan he said "mid 1997". Yet in his statement he claimed he had known Mr Doan for over four years, that is, since February 1996 at the latest. That period covered the time during which he had worked in the factory where Mr Doan worked. The MRT had difficulty with the evidence of Mr Pham as he went on to claim that, "a few months later I was invited to his wedding party." Mr Doan had himself previously given evidence that he had worked for two years since his marriage in a laundry and that he then went to work at the factory where, as at the time of the hearing, he worked with Mr Pham.

36 The MRT concluded,

"The Tribunal found that the marriage of the Applicant and the Nominator was not a genuine and continuing marriage from the beginning having regard to the conduct of the Applicant and the subsequent evidence before the Tribunal. The Tribunal finds also that the Applicant has failed to satisfy the requirements of sub-clause 820.221 as the Nominator has withdrawn her nomination and therefore at the time of decision the relationship is not continuing. The Tribunal finds that the Applicant has failed to satisfy it that he is entitled to the exceptions set out in sub-clauses 820.221 (2) and (3). The Tribunal finds that the Applicant fails to satisfy the prescribed criteria for any of the sub-classes of the General (Residence)(Class AS) Spouse visa sub-class 801, Aged Parent visa sub-class 804, Skilled visa sub-class 805, Family visa Sub-class 806, Interdependency sub-class 814 and Close Ties visa sub-class 832." (my emphasis)

Reasoning on the present application for an order of review

37 On the hearing, Mr Doan filed, with leave, an amended application. I will not set out the grounds of the amended application here but will deal with them in the course of my Reasons which follow. He relied upon paras 476(1)(a), (c), (e) and (g) of the Act.

38 Notwithstanding the lengthy account that I have given above of the Regulations, I am able to state briefly my reasons for thinking that Mr Doan's application of this Court should be dismissed. At the forefront of Mr Doan's submissions is the proposition that the MRT was not supervising an adversarial contest but was engaged in an administrative enquiry and that it should have taken up and pursued a question as to whether Mr Doan was the victim of domestic violence at the hands of the Nominator. Mr Doan relies on a letter dated 27 January 2000 from his solicitors, Andrew Lui Lawyers, to the MRT and on his written statement dated 15 February 2000, both of which were before the MRT, as raising the issue of domestic violence.

39 In their letter to the MRT dated 27 January 2000, Andrew Lui Lawyers stated as follows:

"In brief, Mr DOAN is stating that he and his wife genuinely applied for his permanent residency in January of 1995, that when reassessed at the end of two years, there was no problem with their relationship. However, following an incident in their own home on the 10 May 1997, were [sic] Mrs DOAN was found by her husband, naked in their bed with another man, her attitude and actions can only be described as cold and heartless. From that moment on, Mr DOAN was then victimised and made to suffer the most degrading form of domestic violence by his wife, until he was kicked out of his own home on the 25 June 1997." (my emphasis)

40 In his statement dated 15 February 2000, Mr Doan stated as follows:

"One day, I felt very tired and I came home from work at 3pm, earlier than usual. When I opened the door, I was very surprised because my wife and Nhat were together, naked in our bed. I could not believe what was happening. I wished that was only an illusion but it was the truth. I was furious, I scratched Nhat's shoulders, I thought I could kill him. My wife pulled at my hands to let him go, so he ran out of there. When I was calm down I understood that I could not make a murder, so I did not do anything because of the conscience of man. But who could think for my circumstance at that time? What could I do? Calling the police to do what? I knew that it was our private problem. So I did not do anything but I asked my wife why she did like that. She kept quiet. My wife then made me move out from my bedroom. I had to sleep in the living room on the sofa bed. My wife invite Nhat to stay and sleep in my bed together with her.

For two weeks I tried to stay in the house, I was just hoping she would wake up and save our marriage. But she just did not care about me at all. She throw my clothing out of my room and told me to go. She just try to torture me, she slept together with Nhat in our bedroom, I must listen to them in the night. This man having sex with my wife. I was going crazy, I could not sleep, I am so depressed and upset, I did not know what to do. I try to talk to her but she just quarrel with me. I only talk to my good friend Ba Toan Pham, about what is happening to me. Also, I went to see Mr Tas and tell him what she is doing to me. After two weeks, my wife finally kicked me out of the house and I go to stay with Bo Toan Pham."

41 In my opinion, this material, reasonably understood, did not amount to an allegation that Mr Doan had suffered domestic violence committed by his Nominator. There is no suggestion that Mr Doan had been assaulted. The case presented by Mr Doan was that he was humiliated by his wife's continuing adultery in the home where he was living and that it was this that caused the marital relationship to end. I think that the MRT was entitled to state that Mr Doan had "not submitted any evidence to suggest that" domestic violence had occurred.

42 It is true that the words "domestic violence" occur in the letter dated 27 January 2000 from Andrew Lui Lawyers to the MRT, but in view of the fact that Mr Doan's statement did not refer to any physical violence, I think the MRT was entitled to treat the expression "domestic violence" in the solicitors' letter as referring to a sustained emotional affront done to their client by the Nominator. This construction is consistent with other material placed before the MRT on behalf of Mr Doan by his solicitors that referred to "torture and humiliation" material, "agony" and "sadistic plan" in contexts which are clearly attempts to express indignation over the treatment that Mr Doan received, rather than physical violence.

43 What I have said is sufficient to dispose of the present application. There is, however, a further matter. In finding that the marriage was not a genuine one, the MRT was finding that the marriage was a sham, the result of a conspiracy by Mr Doan and the Nominator to deceive the authorities. This finding necessarily had implications for the allegation of adultery by the Nominator in and after May 1997. Implicitly, the MRT found that Mr Doan was not an unsuspecting then outraged husband at all. For this further reason, it was not incumbent on the MRT to make the further enquiries as submitted by Mr Doan.

44 A final matter is that Mr Doan relies upon s 476(1)(g) of the Act, complaining that the MRT's state of non-satisfaction was based on a fact that did not exist (cf s 476(4)(b) of the Act). I refer to what the Full Court of which I was a member said recently in relation to the availability of this ground in cases of "non-satisfaction" in Minister for Immigration and Multicultural Affairs v Li Yue [2000] FCA 856 at [53]- [54]. Mr Doan has not proved that the MRT based its state of not being satisfied on any particular fact which in truth did not exist.

Conclusion

45 For the above reasons the application will be dismissed with costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 6 July 2000

Counsel for the Applicant:	Mr V Wan
Solicitors for the Applicant:	Hovan & Co, Solicitors
Counsel for the Respondent:	Mr J Smith
Solicitors for the Respondent:	The Australian Government Solicitor
Date of Hearing:	3 July 2000
Date of Judgment:	6 July 2000