Sok v Minister for Immigration and Citizenship & Anor [2008] HCATrans 333 (25 September 2008)

Last Updated: 25 September 2008

[2008] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M60 of 2008

B e t w e e n -

SIE SOK

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 25 SEPTEMBER 2008, AT 10.18 AM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC: If the Court pleases, I appear with my learned friend, MR R.M. NIALL, for the appellant. (instructed by Erskine Rodan & Associates)

MS M.A. PERRY, QC: If the Court pleases, I appear with my learned friend, MR W.S. MOSLEY, for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: There is a submitting appearance for the second respondent, which is the Migration Review Tribunal. Yes, Ms Mortimer

MS MORTIMER: If the Court pleases. The question for the Full Court of the Federal Court on appeal in this case was whether the Minister was right to identify an error in the federal magistrate’s finding that the Tribunal had breached its obligation under section 360 of the Migration Act and denied the appellant procedural fairness. In making that argument on that question both parties had assumed and accepted on the appeal, as they had at first instance, that the context in which the Tribunal dealt with Mr Sok’s review correctly involved an application of Division 1.5 of the Migration Regulations. In other words, it was assumed by both parties and the learned federal magistrate that the process by which the Tribunal discharged its duty under section 65 of the Migration Act in relation to claims for visas involving domestic violence was the same process that the Minister was required to follow.

GUMMOW J: You are both in agreement about that, are you not?

MS MORTIMER: We are, your Honour, and subject to any issues that the Court might raise about that, I had proposed to concentrate on my oral submissions on the matter at which the parties are in issue before this Court, which is section 360.

GUMMOW J: Yes. That seems the best course.

MS MORTIMER: If the Court pleases.

HEYDON J: If there is something additional that you wish to say now that is not in the written submissions on the first issue it would be nice to hear it, but if there is nothing additional - - -

MS MORTIMER: Your Honour, there are a couple of additional construction points that we have noticed as we have gone, as one does, more carefully through the visa classes.

GUMMOW J: Perhaps you had better look at them.

MS MORTIMER: Because I need to take your Honours to the regulations, I will make those points as I go, if that is convenient.

GUMMOW J: Yes, thank you.

MS MORTIMER: The approach to the procedural fairness obligation in section 360, in our submission, is best understood by going back to the basic function of the Tribunal on review which, in our submission, is governed by section 338 of the Act, but if I can take your Honours first to section 360 just to remind your Honours about the text of this.

GUMMOW J: It is Division 5, is it not?

MS MORTIMER: It is Part 5, your Honour.

GUMMOW J: Yes, Part 5, Division 5.

MS MORTIMER: Division 5, yes.

GUMMOW J: Is Reprint No 10 the right reprint?

MS MORTIMER: Reprint No 10 is the correct reprint, your Honour.

GUMMOW J: So it starts at 357A?

MS MORTIMER: It does. Now, your Honours, we have made a submission in our written submissions that the nature and content of the obligation under section 360 is in all material respects the same as the nature and content of the obligation under section 425 of this Act in relation to Refugee Review Tribunal. They are expressed in identical terms and this Court - - -

GUMMOW J: Yes. We are more familiar with Part 7 cases, I suppose.

MS MORTIMER: Exactly, your Honour, but, in our submission, there are no material differences either in the function conferred on the Migration Review Tribunal under Division 5 nor in the terms of the section itself, so that, in our submission, the Court can approach in a general sense the nature and content of the obligation under 360 in the way that this Court has approached the nature and content of the obligation under section 425. One of the things that we wish to emphasise in that context is that the opportunity which the Tribunal is required to afford under section 360 must be a meaningful one and it must be one that enables an applicant to do what in this case section 360(1) contemplates can be done, which is two things; to give evidence relating to the issues arising in the review and to present arguments relating to the issues arising.

GUMMOW J: I suppose a question is, this phrase relating to the issues arising, arising at what stage in the review? Do you see what I mean?

MS MORTIMER: Yes, your Honour, in relation to the decision under review. Now, the decision under review is a decision to refuse to grant, in this case, a spouse visa. So the task of the Tribunal is to consider whether it is satisfied, pursuant to section 65, that the applicant meets the criteria for a spouse visa or does not meet the criteria for a spouse visa. That is why we submit that the issues which arise in relation to the decision under review will always involve the criteria that are relevant to the grant of the visa.

HAYNE J: Well, it is not a case that involves – that is the relevant starting point, is it not? You have to start with the criteria for the visa.

MS MORTIMER: You do, your Honour, we accept that and that is a central part of our submission. I made the submission in a qualified way only because there may be other issues which arise in the review that are not related to the criteria, but one must start in terms of the Tribunal’s review function and the way the obligation is expressed in section 360.

GUMMOW J: You say this necessarily arises - - -

MS MORTIMER: It must, your Honour.

GUMMOW J: - - - in response to Justice Hayne’s point, do you?

MS MORTIMER: Where the Tribunal is conducting a full merits review to decide for itself on the material before it whether the criteria for the grant of a visa are met.

HAYNE J: Well, at least it must be so where the refusal is a refusal because criteria are not met, and it is only if criteria are not met that permit it to refuse.

MS MORTIMER: That is so, your Honour.

HAYNE J: So you begin with the criteria.

MS MORTIMER: That is so, your Honour.

CRENNAN J: Well, the regulations make the suffering of domestic violence relevant to the grant of the visa, do they not?

MS MORTIMER: Yes, your Honour, they do. They prescribe that as one of the criteria really by way of an exception to the general situation through which a person may be eligible for this visa. That is right. So it is in that sense that one is driven on the review, in our submission, to ask what must the Tribunal consider and be satisfied about. It must be satisfied about the criteria. The criteria must be an issue arising on the review.

Just to identify, if the Court pleases, where we sourced the submission that the decision under review is to refuse to grant the visa – we sourced that in section 338 of the Act, which is the section that sets out what decisions are reviewable by the MRT. Section 338(2):

A decision –

excluding the words in brackets –

to refuse to grant a non-citizen a visa . . .

So that is, in our submission, where one identifies what the decision under review is.

HAYNE J: But is (2) the relevant species of MRT-reviewable decision? It seemed to me (2)(b) took this particular decision outside that species, the application having been made while Mr Sok was in Cambodia, was it not? It seemed to me likely that it was another species, but is that wrong?

MS MORTIMER: No, your Honour. This is a decision reviewable under 338(2)(a) because this was a decision to refuse a permanent spouse visa, which was a visa which could be granted while Mr Sok was in the migration zone. But I will take your Honour through that because it is, as with much of this Act - - -

GUMMOW J: But these are cumulative.

HAYNE J: And (b) does not work in this case, does it? I am not saying there is not an MRT-reviewable decision. I am saying that this is the wrong species of it.

MS MORTIMER: That (a) is the wrong species, your Honour?

HAYNE J: No, that to come within (2), you have to have a series of cumulative requirements.

MS MORTIMER: I see. Yes, your Honour.

HAYNE J: And (b) is not engaged here, I thought, because I thought both the temporary and the permanent visa were sought while Mr Sok was in Cambodia.

MS MORTIMER: That is so, your Honour. That is correct, yes. My learned junior suggests, your Honour, section 338(7A).

HAYNE J: Yes.

MS MORTIMER: Yes, your Honour, that is the right one.

GUMMOW J: That is the one.

MS MORTIMER: That is the right one. I am grateful to my learned junior. Now, that being the task, to review the decision to refuse to grant, as your Honours have pointed out, that drives one back to the basic function in section 65, which in turn leads the Tribunal to what the particular criteria are.

Now, can I take your Honours to, first, the classes of visas and then the criteria applicable to them for both the temporary and the permanent visa, just so that we can explain to your Honours how the visa process works in relation to this particular applicant. We had provided the Court with a bundle of the extracts of the relevant parts of the regulations and the first one that I wish to take the Court to is the one that starts at page 8 of our bundle. This is the relevant subclass for the temporary visa.

If I might just briefly remind your Honours of the scheme. The regulations, through Schedule 1 and Schedule 2, divide the visas into two species and in Schedule 1 the classes for visas are prescribed and then in Schedule 2 the criteria for each class are prescribed, so one must first identify the class in Schedule 1, and then the matching criteria for it in Schedule 2.

The relevant temporary visa for which Mr Sok applied was a Partner (Provisional) (Class UF) visa. Your Honours will see under clause (3) in the class that one of the requirements in (3)(c) is that the application for the temporary visa – this is on page 8 – must be made at the same time and place as an application for the permanent visa. So this scheme contemplates that when somebody is offshore wanting to enter Australia as a spouse they will do so by applying for two visas at the same time. Your Honours will see over the page, at page 9, there are two subclasses and the relevant subclass is 309, (Spouse (Provisional)).

If one turns then to page 12 of the bundle, your Honours will see the criteria that applied at the time for this temporary visa. Your Honours will see some degree of matching by the name of the subclass. There are primary criteria, 309.2, which are the criteria that the applicant must satisfy, or one member of the family, usually the applicant. Over the page, at page 13, again consistently with many visa classes, the criteria are divided into two kinds – those that must be satisfied at the time of application for the visa and those that must be satisfied at the time of decision.

Your Honours will see the central criterion is in 309.211(2), that a person “is the spouse”. Just to give your Honours the cross-reference, “spouse” is defined in Regulation 1.15A, and we have extracted that in our written submissions. So that is the core criterion. There are a number of others that I do not need to trouble your Honours with, and then at 309.22 are set out the criteria which must be satisfied for the temporary visa at the time of decision. You must continue to satisfy 211, that is you must continue to be a spouse, essentially, of the sponsor.

HAYNE J: Can you tell me where I find in your written submissions the definition of “spouse”? You said it was in there somewhere.

MS MORTIMER: I think it is in a footnote, your Honour, but I will have that checked.

HAYNE J: Yes, if you would not mind. Do not delay, Ms Mortimer. Come back to it when it is convenient to you.

MS MORTIMER: If your Honour pleases, I will come back to it. Essentially, again, the core requirement at the time of decision, the criterion that the decision-maker must be satisfied about, is that there was an ongoing relationship with a mutual and a genuine commitment which is a paraphrase of the definition in regulation 1.15A. Then still on that part of the regulations dealing with the temporary visa, can I ask your Honours to turn to page 17 of the bundle just to point this fact out, that this temporary visa will stay in effect under clause 309.511 until a decision has been made on the application for the permanent visa.

In answer to your Honour Justice Hayne’s question, we have only, I regret to say, paraphrased the criterion at paragraph 35 of our submissions. So that is the temporary visa scheme, both as to the classes and the criteria and having applied for both at once the way the scheme operates, and I will summarise this before I draw your Honours’ particular attention to it, is that in general terms at least two years must pass while a person holds a temporary spouse visa before consideration of the person’s eligibility for a permanent visa is triggered.

The kind of permanent visa that was applied for, your Honours will find at page 10 of the bundle. So the permanent visa which Mr Sok applied for was a Partner (Migrant) (Class BC). That contemplates, as your Honours see in subclause (3), that if you are not already the holder of a temporary visa you can only make that application while you are offshore, which is what happened here. The subclass your Honours will find over the page at page 11, subclass 100, which is the “(Spouse)”.

Then the criteria for that visa your Honours will find starting at page 19 of our bundle, again, divided into “Primary criteria” that, “at least 1 member of a family unit” must satisfy. Your Honours will note clause 100.21, “[No criteria to be satisfied at time of application] because this visa is applied for at the same time as the temporary visa. Clause 100.221, which is the critical criterion in the decision of the delegate and the Tribunal in review in this case, the applicant must meet one of those five subclauses.

The most regular one is subclause (2), that is that a person holds a temporary visa and your Honours will over see over the page, page 20, that, “the applicant is the spouse of the sponsoring spouse”, so, again, picking up that definition about genuine commitment. Then your Honours will see the two-year gap provision in (c), “subject” to some exceptions which we need not trouble your Honours with, “at least 2 years” must have passed.

Subclause (4) on page 21 provides what we have described in our written submissions as an exception to the general requirement for a spouse visa that the marriage be a continuing and genuine one. The first issue that I want to draw your Honours’ attention to is that in (a) the applicant must have first entered Australia as the holder of a 309, which is what happened with Mr Sok, and continue to hold that visa. Then (b) is the criteria about the relationship ceasing. That is not a contested fact and was not before the Tribunal. Then (c) is the central criterion in issue.

The first point to note, in our submission, about the language that is used in the criterion is that the only temporal requirement is in those first words, “after the applicant first entered Australia”. That, in our submission, makes it plain that this criterion is intended to operate at a time after the visa application has been made. It must be, because both the temporary and permanent are applied for at the same time and a person can only enter after the temporary is granted and it is only at a time later than that, after the applicant has first entered Australia as the holder of that temporary visa, that these domestic violence provisions kick in. So that there is no possibility under this scheme that a claim of domestic violence can legitimately be made in the application.

It contemplates the domestic violence arising at a time after the application has not only been made, but the first visa in the two-stage process has been granted. The criterion as expressed is that the person must have suffered domestic violence and the second limb of it is that the domestic violence must have been “committed by the sponsoring spouse”. Those words must be construed, in our submission, by reference to regulation 1.22 of Division 1.5 and that is because, as we have - - -

GUMMOW J: Where do we see 1.22?

MS MORTIMER: Regulation 1.22 of Division 1.5 and your Honours will find that in our bundle on page 3. That provision, in our submission - - -

HEYDON J: We are concerned with (f) and (g), are we, in 1.23(1)?

MS MORTIMER: Yes, your Honour, we will be concerned with those. But firstly, just identifying how domestic violence is defined, it is defined firstly by regulation 1.22(1) applying to all of the regulations, that includes the schedules, and deeming a person to have suffered domestic violence if and only if one can read in one aspect of regulation 1.23 is satisfied. So there is a precise and confined definition of the suffering of domestic violence given in the legislative scheme. The fundamental point we emphasise about that is that the Tribunal can no more reach a state of satisfaction about this criterion than the Minister can without going to Division 1.5. There is only one way to be satisfied about whether that criterion is met and it is by going to Division 1.5. Now, the remainder of the criteria I do not need to trouble your Honours with.

GUMMOW J: Your junior is trying to communicate with you.

MS MORTIMER: I saw that, your Honour. I was just making him wait for a moment. But since he has been so obvious about it, I will make his point, which is that the words “is taken” or “being taken” are expressly by this Act recognised to be words of deeming by section 5(23) of the Act.

KIEFEL J: I am sorry. What was that provision again, Ms Mortimer?

MS MORTIMER: Section 5(23).

HAYNE J: Do we find a definition of the definite article or the indefinite article somewhere in these Acts, Ms Mortimer? It is all that is missing.

MS MORTIMER: Your Honour, yes. Not that we have found. I think there is nothing else that I need to draw your Honours’ attention to in relation to the criteria. As I had then begun to do, one is driven from that criterion in 100.221(4) back to Division 1.5 to the deeming effect in regulation 1.22 and then into the way the regulations operate. This is the part of the submissions that we have both set out in our written submissions and I will not take your Honours through that in any more detail, save to make a couple of points about the language that really go to the section 360 point rather than the Division 1.5 issue.

The first of those is that in regulation 1.23(1)(f) – this is the first picking up of a concept that is familiar and precise in this Act satisfied. That is the same language as section 65 and it has a particular kind of meaning in this legislation, that the decision-maker is to make up his or her own mind.

GUMMOW J: There is authority to that effect.

MS MORTIMER: There is authority to that effect, your Honour, and we will refer your Honours to it, if we may have a moment to do that. The satisfaction is constrained in the terms of the regulation by requiring it to be formed in accordance with (1B) but, nevertheless, it is a satisfaction and we contrast it with (g) because if the Minister has got past the stage of (1B) and into the realms of having sought an expert opinion, there is no qualitative assessment to be made any more. There is a requirement, a legislative direction that the decision-maker take the opinion as correct. That distinction in the language, in our submission, is most important when one looks at the Tribunal’s task of deciding whether the criteria is satisfied and again what are the issues in the review.

GUMMOW J: What if the independent expert cannot be sure, or does not have a concluded view on the matter? Does that mean you just disregard the independent expert, I suppose? I mean, the relevant factum is an opinion of a particular quality.

MS MORTIMER: It is, your Honour, and it may be that if a referral is made and the expert comes back and says, “I cannot give an opinion”, then the Tribunal is back in the realms of (f) and the Tribunal must make up its own mind.

HAYNE J: No. That is inverting the thing, is it not, Ms Mortimer? In particular, is it not omitting the critical step which is critical, I would have thought, to your argument? When we go to (1B), we observe that the Minister must consider whether - - -

MS MORTIMER: Yes, your Honour.

HAYNE J: - - - and then, if satisfied or if not satisfied – and by the time you are coming to translate this to the Tribunal, the Tribunal must consider and, as I understand your argument, you say it must consider it in accordance with the procedures laid down in the Act, including 360. But leave that apart. Step one is to observe that there is an obligation to consider, then if satisfied, one path; if not satisfied, another path.

MS MORTIMER: Yes, your Honour.

HAYNE J: It seemed to me that a critical step in the argument you advance, be it right or wrong, is that you cannot get to the point of being not satisfied without first having considered – and the consideration that is obliged in the case of the Tribunal is rather more elaborated than it is in the case of the Minister.

MS MORTIMER: Yes, your Honour. That is a key part of our argument, and we do say in contrast to the submissions on behalf of the Minister that the task identified before the Tribunal in (1B) does involve the reaching of a conclusion. The Minister’s submission is that it does not, and our submission is that that language must consider – and then your Honours will see over the page, on page 5 of the materials in (1C)(b), the definition of “relevant domestic violence”, which involves a qualitative assessment because it involves a decision whether a person, the victim, has been caused “to fear for, or to be apprehensive about” their personal wellbeing or safety.

HEYDON J: Do you mean regulation 1.23(2)(b)? I think you said - - -

MS MORTIMER: I am sorry, your Honour. Yes, I did. I misidentified it. So we submit there is a qualitative assessment there, and (1B) directs the Tribunal to consider, to make that qualitative assessment and then to reach one of two conclusions: either the Tribunal is satisfied that the person has been given cause to have those fears in relation to the spouse or that the Tribunal is not satisfied. Whichever conclusion is reached then dictates the course the Tribunal must take, because again the regulation is very prescriptive. Having reached that conclusion, if satisfied, then the Tribunal must deal with the application on that basis and, of course, in the scheme as I have outlined it to your Honours, that will be the central issue. There is no marriage any more and if a person can satisfy this criterion, then subject to the usual issues about public interest criteria, they will get the visa.

GUMMOW J: So in the terms of 360 then, whether the Tribunal is or is not satisfied in terms of (1B) becomes an issue arising?

MS MORTIMER: Yes, your Honour. There are several ways one can characterise the issue on the review. It could be whether clause 100.221(4) is satisfied, and that involves a number of sub-issues, if I might characterise them like that, one of which is the formation of the satisfaction under (1B). But the real point of difference, as we understand it between us and the Minister on this, and Federal Magistrate Riethmuller in Victorino, is that – the Minister seeks - - -

GUMMOW J: There seems to be some temporal point taken.

MS MORTIMER: Temporal, but also a different view of what these regulations are about, namely, that they are about evidence gathering, that they are nothing more than a mechanism by which the Tribunal obtains some more information to assist it in its decision.

HAYNE J: But that has to confront the difficulty of 360(2) and the Tribunal, by hypothesis, is not satisfied on the papers that it can decide the matter in favour of the applicant for review.

MS MORTIMER: Yes, your Honour.

HAYNE J: At least as I understand it, the argument against you, as at least revealed so far, would have it that the Tribunal can discharge its obligation to consider by looking at the papers, not being satisfied by the papers that it must make its decision in favour of the applicant for review, and then go off and get what is a conclusive opinion. That seems to cut across the intersection between the obligation to consider, the prescription of how the Tribunal shall go about its task when understood in the terms described in subsections (1) and (2) of section 360.

MS MORTIMER: Yes, your Honour. With respect, we accept that and that is in part why we say there are different levels of generality at which you can look at this. You can look at it – and it is correct, in our submission, to look at it this way – that 360 contemplates if you cannot make a favourable decision on the papers, then you will need to hear from the person, and that is really the general level, the criteria level, has the person suffered domestic violence? If I cannot be satisfied positively about that in the applicant’s favour, then it is still an issue in the review and in my consideration I am required to allow the applicant to present evidence and arguments about it.

So an issue in the review is whether the criteria are satisfied. But our argument, with respect, is stronger than that, because when one looks at how the scheme prescribes for this visa criterion of domestic violence that the decision-maker must be satisfied, there are additional steps that involve satisfaction and conclusion that need to be reached. The choice that is made by the decision-maker at the stage of (1B) in Division 1.5 really does present, in our submission, a fork in the road. The regulations then prescribe the outcome for the grant of the visa in a substantive sense one way or the other. Either the Tribunal’s satisfaction about that criterion is likely to lead to the grant of the visa or the applicant gets a second chance through an independent expert and the Tribunal is never asked again to make a substantive decision about the satisfaction of that criterion.

We submit that the language picking up “consideration” and “satisfaction”, which are the key components in the key parts of the Act as well, makes it very clear that this is an issue on the review and the only meaningful opportunity that the Tribunal can give an applicant who is in these circumstances is one that occurs at a time when the Tribunal is still legally and factually amenable to persuasion.

CRENNAN J: The practical consequence on the facts here is, I guess, that you would say the seeking of the expert opinion was prematurely done.

MS MORTIMER: Was done in breach of section 360, your Honour, yes, because there had been no opportunity given to the applicant to appear before the Tribunal and to persuade the Tribunal from his own evidence about why he was afraid and what he was afraid of and to persuade the Tribunal, from the evidence of his two competent persons who had given the statutory declarations - - -

CRENNAN J: The two corroborators?

MS MORTIMER: His two corroborators – his wife’s mother and brother, yes. That is the qualitative assessment that the definition of suffering domestic violence requires to be done.

HAYNE J: Well, in terms of (1B) I understand your point to be that the Tribunal had not considered whether the alleged victim had suffered relevant domestic violence. It had not considered that because it had not undertaken the task prescribed by section 360(1).

MS MORTIMER: Your Honour, it had undertaken a consideration, but it was a consideration in breach of its obligation.

HAYNE J: It had looked at the papers; it had determined it could not on the papers make the decision favourable to the applicant for review.

MS MORTIMER: Yes, your Honour, and that is what triggered the hearing obligation.

GUMMOW J: Now, the Full Court in its brief treatment of this point at paragraph 72 in effect said, “We endorse Victorino”.

MS MORTIMER: That is so, your Honour, that is so and there are two points that Federal Magistrate Riethmuller made in Victorino.

GUMMOW J: Do we have the full text of Victorino?

MS MORTIMER: Yes, your Honour, it was on our list, in our bundle of authorities and it is - - -

GUMMOW J: Yes[2007] FMCA 1294; , 214 FLR 228.

MS MORTIMER: Yes, your Honour. The relevant part of the judgment that deals with that or the two particular arguments that we have submitted are wrong appear at page 236 in paragraphs 24 and 25. These are the two arguments that the Full Court accepted and these are the very two arguments that Federal Magistrate Riley disagreed with in her judgment at first instance in this case. The first is that what is involved in regulation 1.23(1B)(b) is requiring evidence to be gathered. Your Honours will see halfway down that paragraph the statement:

The Tribunal, at this stage has not yet formed a view or reached any conclusion, merely identified what the real issues are on the material, and what evidence it wishes to gather.

That is a fundamental misconstruction, in our submission, of regulation 1.23(1B), for the reasons we have advanced.

The second reason that is given is the one identified in paragraph 25 which is that a complete comparison can be made with other circumstances in this Act where a decision-maker is bound to take as correct a certificate in relation to other kinds of visas and the example is given of education providers. What is said there is that well, in those circumstances, the Tribunal is bound to take something as correct and there is still some room for a hearing to have some meaning because the person can challenge whether the opinion is one authorised by the regulations.

Now, we make two submissions about that. The first is – and this is the one that Federal Magistrate Riley also identified – that ignores the differences in language between those provisions and the language in (1B). Again, for the reasons that I have already outlined, (1B) contemplates consideration reaching a conclusion as to satisfaction before an independent expert opinion, before there is power to seek an independent expert’s opinion. So there is that textual difference.

The second point is that to construe an otherwise fulsome procedural fairness obligation like section 360 in that narrow way ought not be an approach that is undertaken, unless the language compels it. There is nothing in the language of section 360 applied in this context which would suggest that one should limit it to an opportunity to essentially engage in some judicial review before a Merits Review Tribunal about whether the opinion is one authorised by the regulations.

GUMMOW J: Is paragraph 27 of Victorino a third proposition? There is the reference to “procedural provision”?

MS MORTIMER: Yes, your Honour. I had read that as really tying back to what is said at paragraph 24 about evidence gathering, but we would certainly submit, your Honour, that that is an incorrect characterisation of it, that regulation 1.23(1B) has a substantive operation and requires the Tribunal to undertake a substantive task.

KIEFEL J: You say it is closer to its decision-making process?

MS MORTIMER: Very much so. It is part.

KIEFEL J: For substantive you mean because it is required to act upon it it has moved then into its decision-making process because it is obliged to apply - the finding has been made, it is simply applying it as part of the criteria?

MS MORTIMER: Yes, your Honour. It is its decision-making process.

GUMMOW J: This phrase “procedural provision” may be inappropriate, really, the adoption of paragraph 27 of this concept of procedure.

MS MORTIMER: Yes, your Honour, particularly in a context where what this division of the regulations is doing is wholly prescribing how a decision-maker can reach their satisfaction, some aspects of which will be procedural and some aspects of which will not. Federal Magistrate Riley in this case at appeal book 217 to 218, particularly at paragraphs 25 and 26, dealt with both of those arguments in a way which, in our respectful submission, is correct.

Paragraph 25 deals with the difference in the language between some of the other examples in the Act and 26 deals with – I withdraw that. Paragraph 26 deals with the satisfaction issue. What we have said, if the Court pleases, in our written submissions I will not repeat about the three kinds of support we get for our argument from, first, the language, second, the context and thirdly, the Tribunal’s function. We do place a lot of emphasis, if the Court pleases, on the Tribunal’s function and on the consequence of this argument really diminishing the Tribunal’s function on review. If the Court pleases, those are the submissions - - -

GUMMOW J: You were going to give us some authority on “satisfied”.

MS MORTIMER: I will, your Honour. There are some references, your Honours, in Applicant S20, firstly to Eshetu (1999) 197 CLR 611 at 657, paragraph 146, then also Avon Downs Proprietary Limited v The
Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360. We have taken those cross-references from, as I said, Applicant S20 [2003] HCA 30; (2003) 77 ALJR 1165 in paragraphs [8] and [36].

GUMMOW J: Thank you, Ms Mortimer. Yes, Dr Perry.

MS PERRY: Thank you, your Honour. I propose to rely primarily on our written submissions in relation to the first issue, but may I draw the Court’s attention to a couple of additional authorities that we ought properly to refer to. We make reference in our written submissions to the approach that has been taken by the Full Court of the Federal Court in a number of authorities referring to the decision in Yilmaz in particular. That stream of authority is one which your Honours may recall holds that the Refugee Review Tribunal may entertain an application for review of a decision by the Minister to refuse a protection visa notwithstanding that the original visa application to the Minister was invalid in circumstances where that deficiency is “cured”, one might say in inverted commas, in the application by the time it makes its way through to the Tribunal. In addition to the decision in Yilmaz that we - - -

GUMMOW J: What is the citation of that?

MS PERRY: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495. We refer to it at paragraph 12.4 of our written submissions and also to the fact that that decision was followed subsequently in another decision that we refer to in Thayananthan v Minister for Immigration and Multicultural Affairs, and we give the citation in our written submissions. Very recently, in two cases earlier this year, the Full Court has again looked at those issues. Those cases are SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 and, in particular, at pages 494 to 498 Chief Justice Black and Justice Allsop undertake a relatively extensive consideration of the decision in Yilmaz and subsequent cases and accepted the correctness of the position taken by the Full Court in those earlier decisions, and also accepted the correctness of the decision in Li, to which I think we have also referred in our written submissions, that a valid application for a visa affects the authority of the Tribunal.

GUMMOW J: Li is [2000] FCA 421, is that right?

MS PERRY: I will have to check that citation, your Honour. The other decision which addresses the issue more briefly is Kim v Minister for Immigration and Citizenship [2008] FCAFC 73; (2008) 167 FCR 578 which again accepts the correctness of the line of authority in Yilmaz. That was a decision of Justices Tamberlin, Gyles and Justice Besanko. In relation to the second issue, the question is one that is now essentially confined - - -

GUMMOW J: Is there any reference in these recent cases in the Full Federal Court to the judgment in this case?

MS PERRY: No, your Honour, it is not referred to there. The question which arises in relation to the second issue which lies now really at the heart of the controversy between the parties is one that is confined to the question of statutory construction and that is so given the presence now of section 357A of the Act, that Division 5 of Part 5 of the Act which deals with the conduct of reviews by the Tribunal is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Following the enactment of section 357A, Division 5 of Part 5 of the Act prescribes then a code of procedural fairness applicable to the conduct of review applications by the Migration Review Tribunal which is exhaustive with respect to the matters with which it deals and supplants the common law hearing rule.

Nonetheless, as I will explain later, that is not entirely obviously rendered irrelevant as the purpose of the provisions is to accord procedural fairness. So one looks, in other words, to the concept of procedural fairness at common law in construing the provisions. Now, section 360, of course, as a result, is part now of that exhaustive statement of statutory rules of procedural fairness for the hearing rule and it is, we accept, as we did in our written submissions, of course, that it is of unquestionable importance given now that those statutory rules are exclusive. That is a matter, of course, that this Court has recently emphasised in its judgment in SZFDE.

Starting from the very simple first proposition, section 360, of course, does not expressly prescribe a time at which it comes to operate and nor, of course, does any provision of the Act expressly require that the Tribunal follow a particular sequence of steps. Your Honour Justice Hayne makes that point in your Honour’s judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at paragraph 186.

Now, section 425 of the Act, which is the Refugee Review Tribunal equivalent provision to section 360, contemplates that the Tribunal will have given the applicant adverse material and invited comments on it before the applicant is invited under section 425 or its equivalent here to appear. That is so, albeit that section 424A is not actually exhausted when the Tribunal has invited the applicant to appear and has a continuing operation until the decision is given. We would refer in that regard, in particular, to the reasons of his Honour Justice McHugh in SAAP at pages 312 to 313 at paragraph 52 and also 315 at paragraph 60.

HAYNE J: But is the premise for this branch of your argument that the obtaining of an expert opinion is the obtaining of evidence?

MS PERRY: It is, your Honour. It is part of that process.

HAYNE J: That is the lynchpin of the whole of the argument advanced by the Minister, is it not?

MS PERRY: It is the lynchpin, but the Act effectively prescribes what is primarily a documentary process for the obtaining of evidence, part of which involves section 359A requiring adverse material to be provided to the applicant during the course of that process and that while the hearing is not required to occur at a particular point in time, it is clearly envisaged that it will occur at a time at which a process of evidence gathering will have already occurred. That, in particular, is apparent, we would say, from section 360(2) which provides that subsection (1) does not apply if the Tribunal considers that it should decide the review in the applicant’s favour. That relates back then, one would say, to the powers vested in Division 5 in the Tribunal to go about gathering evidence.

KIEFEL J: Is there anything in the Act that suggests that there is intended to be only one hearing? You have referred to it being an adversarial process – I am sorry, an inquisitorial process - - -

MS PERRY: Yes.

KIEFEL J: - - - which, of its nature, usually departs from the notion of one hearing; it is a continuum of evidence gathering. As issues arise they are addressed. That is the inquisitorial process.

MS PERRY: It is, your Honour. The Act envisages, in our respectful submission, that principally there will be a documentary process undertaken and that at some point those will have sufficiently crystallised, that the Tribunal then holds, as it is required to do, a hearing, unless it is otherwise satisfied or one of the other exceptions in section 360(2) applies. That does not necessarily mean that the Tribunal is confined to the holding of one hearing. However, in our submission, the Tribunal is only required by the Act to hold one hearing.

The Act, as I have submitted, contemplates that the Tribunal will, in the exercise of its inquisitorial powers, have engaged in the process of obtaining additional information or material and, in accordance with the predominantly documentary nature of those procedural codes, that any adverse material that results from those further inquiries will be put to the applicant and the applicant will be given an opportunity to comment on it and that is a process that must occur in writing. Your Honour Justice Hayne made the point in SAAP at page 350, paragraph 192, regarding the primarily documentary nature of the process prescribed.

Now, that is part, we say, of the normal process which may obviate the hearing contemplated by section 360 altogether. As I have mentioned, the Tribunal may be satisfied that the criteria are met without the hearing. The hearing may also be obviated because the applicant has failed to respond within the specified time to a notice under section 159A(1).

We then move to the present context. The statutory declarations which are required to be provided in order to make a non-judicially determined claim of domestic violence are prescribed specifically by regulations 1.31A and 1.24, together with 1.25 and 1.26. We have referred to these in some detail in our written submissions. In order properly to raise the claim, therefore, an applicant is in effect required to put in evidence of a particular kind but is not, of course, precluded from putting in any further evidence in support of that claim.

The way in which the regulations then proceed is that those statutory declarations, together with any additional material from the applicant, comprise in effect the applicant’s opportunity to put its case as to whether the Tribunal should be satisfied that relevant domestic violence has occurred without the need for it to obtain any further independent expert opinion.

So once those documents have been received, the Tribunal then, as the Minister must if it has occurred earlier, consider whether the victim has suffered domestic violence. It is open at that point for the Tribunal to accept the claim of relevant domestic violence without a hearing and without obtaining an expert report. But conversely, of course, it is open to the Tribunal to reach the view that it is not satisfied of the claim of domestic violence on the basis of that material.

Now, at that time, in our submission, when the Minister reaches a view that he is not satisfied the issue is open the regulations then prescribe that a further step must be taken. In effect, they prevent the Minister’s view that he is not satisfied from crystallising into a rejection of the criterion of the application, subject to the hearing, by requiring that he obtain further evidence in the form of an independent expert opinion. So once the request is made for the independent expert opinion that is, in itself, a neutral matter. The opinion could ultimately go either way. It could support or not support the applicant’s claims.

Referring back then to the statutory scheme it is important to bear in mind that the Tribunal, of course, must give the applicant any adverse material that it obtains before reaching a state of non-satisfaction under section 359A. But the Minister’s view that he is not satisfied is not itself adverse information for the purposes of the Act, so as to engage section 359A. Nor, we would say – if we leave aside for the moment that the common - - -

HAYNE J: I am sorry; would you just put that last proposition again? It seemed to me to be eliding two radically separate steps in the process. What is the proposition?

MS PERRY: The proposition is that the Minister’s view that he is not satisfied – or the Tribunal’s view that it is not satisfied - - -

HAYNE J: Well, which is it? Is it the Tribunal’s view that the Tribunal is not satisfied?

MS PERRY: Well, relevantly now in this context it is the Tribunal’s view - that the Tribunal is not satisfied that there has been relevant domestic violence - is not in itself adverse material which would either attract the operation of section 359A so that it must be put to an applicant in writing. Nor, if common law procedural fairness still applied would it be adverse material which would require an opportunity by an applicant to be heard on the issue.

HAYNE J: But be it so, why does it not engage 360(1)? The hypothesis is the Tribunal is not satisfied on the papers that there has been relevant domestic violence. Why does that not at once engage 360(1), when at the level of the Tribunal?

MS PERRY: Your Honour, the reason why we say it does not engage section 360(1) at that point is because the issue is still open. All that has happened at that point in time is that the Tribunal has reached a view that it cannot be satisfied on the material that it presently has that there has been relevant domestic violence. That then triggers a process which involves the gathering of further evidence; in this case evidence which the Tribunal must accept as correct, if properly authorised. But it is nonetheless a part of the process whereby the issues that ultimately the Tribunal will need to decide, are determined.

CRENNAN J: On the facts here, did not the Tribunal give what I will call two or three section 359 opportunities to the applicant to return to the Tribunal?

MS PERRY: Yes, your Honour, in fact the Tribunal gave three. The first related to matters that had been the subject of findings by the Minister. The second and third section 359A notices were given in relation to the adverse expert opinions that had been sought. Now, on the first occasion that an expert opinion was sought, that prompted, following the section 359A notice, a response from the applicant’s representatives who - - -

CRENNAN J: They were the two corroborating statements then made by the mother and the uncle of the spouse. Is that right?

MS PERRY: Yes, they were made subsequently. So just to fit things into the chronology, the first response to the section 359A notice which advised of the adverse expert opinion was one which challenged the authority or challenged the question of whether that opinion had been properly authorised. It alleged bias and a range of other matters. Following receipt of that, the Tribunal decided to seek a second expert opinion and, at that point in time, the applicant put in a further two statutory declarations and requested that they be put to the independent expert and, in fact, that is what occurred and reference is made - - -

CRENNAN J: Was it the same expert giving the opinion on each of those two occasions?

MS PERRY: No. The first one was not identified.

CRENNAN J: That is right, yes. Thank you.

HAYNE J: But by the time the Tribunal held its hearing, that which had been an issue on the review, namely whether there had been relevant domestic violence, was no longer an issue in the review because the Tribunal was bound by the independent expert’s report to resolve that against the applicant. That is the position, is it not?

MS PERRY: The issue at that point, your Honour, is whether that expert opinion is one that was properly authorised.

HAYNE J: That may be an issue, but the issue of whether there has been relevant domestic violence, which was an issue in the review when the applicant commenced it, is no longer an issue in the review after the receipt of the report. Is that not the position?

MS PERRY: It has, as a result of the receipt of the opinion – the issues have been refined. The issues that the Tribunal has to determine have been refined. That is a process that we say legitimately occurs and necessarily occurs as a result of the documentary nature of the process that would normally precede the hearing.

HAYNE J: But the consequence is that the Tribunal decides issues arising in relation to the decision under review without giving the applicant the opportunity to give evidence and present arguments relating to what was an issue arising on the review. Is that not the position that the Minister is advocating?

MS PERRY: Yes, in the sense that the issues have then been refined through the process of evidence gathering, but there is nothing exceptional - - -

CRENNAN J: But have they not been only refined but determined adversely, because the opinion must be taken to be correct?

MS PERRY: Only if the opinion is authorised, and again one comes back to the fact that at the hearing, notwithstanding the fact that a validly authorised opinion must be taken to be correct, that is because there is a piece of evidence that has been obtained that must be obtained if particular preconditions exist - - -

KIEFEL J: But your argument – I am sorry. I might be cutting across your conclusion.

MS PERRY: I am sorry, your Honour.

KIEFEL J: Your argument seems to comprehend only a documentary process with one hearing. I am returning to the matter I raised with you before. Why should one assume that that is the necessary process to be undertaken by a Tribunal when section 360(1) refers to the giving of evidence and presentation of argument relating to the issues arising? They could arise at any time, could they not? There could be split hearings, which I am sure there are. I am sure I have seen many Tribunal hearings where they have been conducted in a process. Why could that not have been undertaken in the present case?

MS PERRY: Your Honour, although it is accepted that the Tribunal can and frequently does split hearings and have hearings on a number of occasions, the requirements of section 360, we would say, assume that there would be a requirement that there only be one hearing. The manner in which it is expressed is simply in terms of the requirement that, “The Tribunal must invite the applicant” to appear - - -

KIEFEL J: But that is when an issue has arisen, one might imply, which requires consideration or which is required to be dealt with at some level before the next process is undertaken. That might arise here, given what Justice Hayne has put to you, given that the determination or the finding on one issue might be effectively determinative.

MS PERRY: The difficulty in regarding section 360(1) as having a sort of continuing role is that issues may arise not simply of the kind that one is dealing with in relation to Division 1.5, but in any number of other ways issues may arise during the course of the Tribunal’s deliberations and one would then run into the difficulty of endeavouring to determine in what circumstances would the Tribunal continue to hold hearings and how would one get behind the normal processes that the Tribunal undertakes.

KIEFEL J: I do not see what is so different from the process that the Tribunal often undertakes in accordance with an inquisitorial process which is to take some evidence and then, if it finds that there is some difficulty reached or further time needs to be taken, further evidence gathered on a topic, it adjourns and returns to it. What is so different from splitting up the process in that way in a common sense approach towards gathering evidence and keeping an eye on its decision-making process than in this case to hear from an applicant, consider the question whether it is satisfied as to whether there was domestic violence before proceeding?

MS PERRY: It may be helpful in that regard to look back to the history of why it is that the independent expert opinion process was - - -

GUMMOW J: Just before you do that, this question of construction at 360 has to be looked at through 357A which is an exhaustive statement, so if, taking on board what Justice Kiefel puts to you, one would ordinarily say that the occasion would arise calling for sequential hearings, you do not, I think, readily deny that by construing 360 in a particular way to narrow the natural justice obligation given that 357A purports to be exhaustive. There is a question that has never yet been litigated as to the validity of a provision like 357A, but the more narrowly you read the product of the conjunction of 357A and 360, seems to me, the more your client is drifting towards the waterfall of validity debates. All I am putting to you is, as a matter of construction one tries to eschew that, I would have thought, and is it not eschewing it in that way, does not that deliver you into Justice Kiefel’s territory, as a matter of construction?

MS PERRY: Your Honour, if I might just pause for a moment to look at the question of procedural fairness and whether the construction for which the Minister advocates would run into difficulties from a procedural fairness point of view. The Minister’s submission is that common law procedural fairness would not require a hearing in this kind of circumstance. The obligation at common law is to give notice of adverse material that is credible, relevant and significant, as, for example, Justice McHugh said on the decision in Ex parte Miah (2001) 206 CLR 57 at 96 to 97, but the formation of a view by a decision-maker of a state of non-satisfaction of the particular criteria is not itself information. Before the Tribunal obtains the expert opinion, in other words, unless it has obtained some further material, there is nothing adverse that would have required to have been put to the applicant - - -

HAYNE J: But the intersection that you observe has to take account of, first, the fact that this additional material is going to be conclusive and, secondly, therefore has to take account of the fact that the common law rules as to procedural fairness are concerned with the decision making of the decision-maker. This is a case where the decision-maker is palming the decision off elsewhere, to put it in the bluntest terms, and - - -

MS PERRY: Your Honour, in this circumstance the expert opinion that may be obtained may itself well not be adverse information, even once it is obtained.

HAYNE J: Of course.

MS PERRY: It can go either way, and that is why ultimately the decision by the Minister, or by the Tribunal relevantly here, the reaching of a state of non-satisfaction by the Minister at this point, is a neutral fact. It does not determine the issue either way. It merely starts a process whereby it can be ascertained - - -

GUMMOW J: But once started it is irreversible; that is the problem.

MS PERRY: Yes, but the irreversibility of the process itself, we would say, is not adversarial.

GUMMOW J: Its product is irreversible.

MS PERRY: Its product, yes, but the commencement of that process is not itself necessarily an adverse process. In fact, what it does is to enable or to prevent the non-satisfaction by the Tribunal member of a particular criterion from crystallising ultimately into review to reject the claim. It enables, in effect, someone independent to come in to give an opinion which may, as I have said, go either way.

If the opinion itself is unfavourable, at that point of course section 359A is triggered and that entitles the applicant to respond and the applicant can respond on the question of whether or not the opinion is of a kind that is authorised by the regulations, and validly so authorised, or travels beyond the limits of what is authorised. We have referred in that regard to the decision of the Full Court in the Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 130, paragraph 66, on this issue.

GUMMOW J: This is some jurisdictional argument, is it not, a mini-jurisdictional argument about the opinion, as it were?

MS PERRY: It is, your Honour, and of course in itself there is no reason why the Tribunal should not be able to embark onto a consideration of that question. The significance of it is dealt with in the decision in Seligman which concerned a different regulation; it concerned regulation 2.25A, which is set out at paragraph 37 of the Full Court’s reasons. That provision, it is acknowledged, is a slightly different provision because it does not require that the Minister reach a state of satisfaction or non-state of satisfaction before seeking the opinion of the Medical Officer of the Commonwealth, rather in determining whether the applicant satisfies certain criteria, the Minister is required at that point to seek the opinion.

Then, as your Honours will see in regulation 2.25A(3), there is a requirement that is akin to that here – namely, that the Minister is to take the opinion of the Medical Officer on a matter referred to in the relevant sub-regulations to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. Their Honours then dealt with that issue at page 130 of their reasons starting at paragraph 66 finding that:

It is not necessary for the purposes of this case to characterise consideration of the Medical Officer’s opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law -

et cetera.

GUMMOW J: All that may be conceded but, nevertheless, if the product of the deliberations of the expert meet the jurisdictional criteria, the product stands.

MS PERRY: It does, your Honour.

GUMMOW J: The threat of that happening, or the imminence of that possibility, may be significant in considering whether there was a natural justice obligation at the earlier stage.

MS PERRY: Your Honour, in our respectful submission, it would be an extension of the existing rules of procedural fairness were one to find in a situation where those rules apply that there would be an obligation at that point to hold a hearing or to give a further opportunity to be heard. In effect, an applicant in this circumstance has been given an opportunity to be heard by reason of putting up the material that they are required, or the applicant is required to put up in support of the claim and they have the opportunity at that point in time to provide any further or additional material on that issue that they may wish to put. They do so in the knowledge, at that initial point in time, that if that material should fail to persuade the decision-maker, the decision-maker will then be bound to follow the course that is prescribed by the regulations and to seek the independent expert’s report.

The rules of procedural fairness in that context, we would suggest, would not require that either there be a provision of a further opportunity once the state of non-satisfaction has been reached in some further provisional sense, to either provide further written material or to hold a hearing. So that if, in the context of the Act as it now stands as an exhaustive statement of the statutory rules of natural – the natural justice hearing rule were to be interpreted in that fashion, it would go beyond what the rules of natural justice or procedural fairness would have required at common law and that, we say, was not the intent in affording the opportunity in section 360.

GUMMOW J: Thank you.

MS PERRY: The reference that your Honour sought earlier of Li, the full citation is Li Wen Han v Minister for Immigration and Multicultural Affairs. It is an unreported decision in [2000] FCA 421. I also wish to draw your Honours’ attention to the fact that we have provided the explanatory statement that accompanied the amendments to the regulations that brought in the power - - -

GUMMOW J: Yes. This is the explanatory statement?

MS PERRY: Yes, it is, your Honour. The only point that I draw to your Honours’ attention is at page 10. I am not sure if your Honours have page numbers that equate to mine.

GUMMOW J: Yes, we do at the top.

MS PERRY: Thank you, your Honour. Under the heading of “Item [3] – Paragraphs 1.23(1)(f) and (g)” in the third paragraph - - -

GUMMOW J: Wait a minute, item - - -

HEYDON J: It is different pagination. We are on page 9.

MS PERRY: My apologies, your Honour. Do your Honours have that particular heading?

GUMMOW J: Yes we do.

MS PERRY: Yes, the third paragraph under that heading explained that the provisions – that is the provisions as they previously stood:

left no scope for the evidence presented to be assessed by the Minister (or delegated decision-maker), although the relevant evidence related to untested claims of domestic violence and was not supported by a court order or finding . . . Statutory declarations about the occurrence of relevant domestic violence need contain very little information in order to meet the requirements set out in regulations 1.25 and 1.26 . . . and previously were not open to assessment by the Minister (or delegated decision-maker), even where they were patently incorrect in fact or inconsistent with other evidence.

So, under the regulations as they were originally made, in effect, the Minister, once the claim was made in accordance with the form that was prescribed by the regulations of a non-judicially determined claim of domestic violence, that was the end of the matter. The Minister – or relevantly for present purposes, the Tribunal – was bound to act on those untested claims. So that the effect then of bringing in the requirement that if the Minister is not satisfied, or the Tribunal is not satisfied on the basis of that material, that an independent expert opinion then be obtained is the substance of the amendment that was made in order to address that issue.

Your Honours, subject to anything further that your Honours may wish to hear me on in relation to the issues, those were the submissions for the first respondent.

GUMMOW J: Yes, thank you, Ms Perry. Yes, Ms Mortimer.

MS MORTIMER: I might start with my learned friend’s last point about the explanatory memorandum because the Minister’s submission is that Division 1.5 is essentially a documentary process. Our response to that is well that used to be the case prior to these amendments and your Honours will find the previous version of Division 1.5 at page 68 of our bundle.

GUMMOW J: We had better look at that, I think.

MS MORTIMER: Yes, page 68.

HEYDON J: Page 68 of what?

MS MORTIMER: Of our bundle of legislative history, your Honours, the ones that I took your Honours to in my submissions. It is paginated down the bottom, thank you. So, this was the version, prior to the amendments and your Honours will see two things. Firstly, the deeming provision operates not on what is or is not included in an application, which is the present version. It operates on when a person is taken to have suffered domestic violence and (f) and (g) – (g) is the relevant one if the Court pleases, 1.23(1)(g) – simply required the presentation of evidence that met the statutory description. That was the sole - - -

GUMMOW J: What did 1.24 say?

MS MORTIMER: On the next page, your Honour. That set out what the statutory declarations had to deal with. In substance, the same kind of process, but the text of the regulation suggested that the mere presentation of statutory declarations which met the description triggered the deeming provision. That was the mischief that the amendments in - - -

GUMMOW J: In other words, the relevant factor was the mere presentation of evidence?

MS MORTIMER: Exactly, your Honour.

GUMMOW J: Without its evaluation?

MS MORTIMER: Yes, and that is made clear by the passage in the explanatory memorandum that my learned friend took your Honours to. The whole point of it was to move from the mere presentation of documentation to assessment and a qualitative judgment to be made by the use of the language “consider” and “satisfaction”. So my learned friend’s submission was correct on the previous version of the regulations, but is plainly not on this one, in our submission. Just for completeness, confirmation that that was the effect of the previous version of the regulations was given by the Full Court of the Federal Court in Cakmak v The Minister [2003] FCAFC 257; (2003) 135 FCR 183. There is another controversial aspect - - -

GUMMOW J: Is that a Full Court decision?

MS MORTIMER: A Full Court decision by their Honours, Justices Gyles, Conti and Allsop.

GUMMOW J: Thank you.

MS MORTIMER: Now, my learned friend also took your Honours through what happened at this Tribunal hearing in relation to the number of opportunities that were given. The point that we have made in our written submissions, which I just want to emphasise again, is that we recognise that what happened in this Tribunal hearing really involved a fundamental misconception about the operation of Division 1.5, and the fact that the Tribunal kept giving hearings or opportunities just reflected the Tribunal’s misunderstanding about how it was bound by that first opinion.

Your Honour Justice Kiefel raised with my learned friend the question about whether section 360 imposes an obligation only once during the review process and our submission is that it does not, that there is nothing in the language of section 360 which would suggest as a matter of construction that once a hearing is given, the obligation is spent.

GUMMOW J: I think Dr Perry says, well, if it does have this running operation, that may take it beyond what the common law would require.

MS MORTIMER: Your Honour, in response to that our submission is it is not a common law obligation, it is a statutory obligation that is imposed on particular terms and it is to allow a person to give evidence and present arguments on the issues arising in the review and the review is a continuous process and, as your Honours in the majority in SAAP pointed out, these obligations are continuous obligations.

KIEFEL J: Perhaps another way of looking at it is it is common law obligation of procedural fairness in relation to a process which is not something known to the common law, that is to say, the one hearing principle.

MS MORTIMER: Yes, your Honour, that is so. But the common law does not know that.

GUMMOW J: But the common law has to take statutes as it finds them and then it works on them.

MS MORTIMER: That is so, your Honour, and here the controlling factor on the Tribunal’s obligation is what are the issues arising in the review and it is in relation to that controlling feature that the Tribunal’s obligation arises. If there is only one issue, then the obligation might be spent after one hearing, but if subsequently, and these are case by case matters, in our submission, a different issue arises, then in a given case section 360 may oblige the Tribunal to give the applicant another opportunity. We do not submit there is any suggestion in the language nor in the purpose of section 360 which would suggest it should be construed as spent after one hearing.

Following on from that, it was suggested by my learned friend that the Tribunal’s decision that is made under regulation 1.23(1B) about whether it is satisfied or not that a person has suffered domestic violence is
a neutral factor. In our submission, it is not a neutral factor. It is plainly if the Tribunal – once the Tribunal reaches the conclusion it is not satisfied, that is a conclusion that is adverse to the applicant’s interests.

But more importantly, in our submission, section 360 fastens on the Tribunal. It is an obligation on the Tribunal. It is not in terms an obligation on the independent expert. So that once the Tribunal’s own decision-making process as a matter of substance has finished, there is nothing for section 360 to bite on or very little for it to bite on.

So, looking at this through the prism of the fact that the applicant has a second chance before the independent expert ignores the fact that 360 bites on what the Tribunal must do in its decision-making process in the review and its substantive decision-making process in the review in this context is at that point in regulation 1.23(1B) in our submission. If the Court pleases.

GUMMOW J: Thank you. We thank counsel for their assistance. We will reserve our decision in this matter and now adjourn until 10.00 am tomorrow.

AT 11.57 AM THE MATTER WAS ADJOURNED