Minister for Immigration and Citizenship v Sok [2008] FCAFC 18

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Sok [2008] FCAFC 18

MIGRATION – application for Partner (Migrant) (Class BC) visa Subclass 100 (Spouse) in Schedule 2 to Migration Regulations 1994 (Cth) – relationship between visa applicant and sponsoring spouse had ceased – question whether visa applicant satisfied criterion set out in cl 100.221 by satisfying requirement of having suffered domestic violence from sponsoring spouse – requirement set out in subclause 100.221(4) – Div 1.5 of Regulations exhaustively set out circumstances in which a visa applicant was "taken" to have suffered domestic violence – where Minister is not satisfied that visa applicant suffered domestic violence, Minister must refer matter to independent expert whose opinion is conclusive – in present case visa applicant did not make claim of domestic violence in application for visa – claim of domestic violence was made for first time to Tribunal – Tribunal referred question whether applicant had suffered domestic violence to independent expert and took independent expert's opinion that visa applicant had not suffered domestic violence as conclusive – whether Div 1.5 bound Tribunal in exercise of its review function – if so, whether Tribunal bound by s 360 of Migration Act 1958 (Cth) to give visa applicant a hearing before deciding to seek opinion from independent expert. Held: (1) Div 1.5 did not apply to Tribunal; (2) Div 1.5 applies only when visa application is considered by original decision-maker so that visa applicant would be taken to have suffered domestic violence for purposes of Regulations only if he or she was taken to have done so in accordance with Div 1.5; (3) if, contrary to (1), Div 1.5 applied to Tribunal, Div 1.5 would not have been invalid by reason of suggested inconsistency with s 360, and Tribunal would not have been bound by s 360 to accord visa applicant a hearing before deciding to seek opinion of independent expert.