Abulibdeh v Minister for Immigration

[2015] FCCA 2797

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABULIBDEH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2797

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Partner (Temporary) (Class UK) (subclass 820) visa – family violence – whether a male interpreter was provided to the applicant at the Family Violence Assessment – whether there was a denial of procedural fairness in independent reports being conducted by women – whether the Tribunal erred in accepting the findings of the independent domestic violence assessor – whether bias –  no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 476

Migration Regulations 1994 regs.1.15A, 1.21, 1.23, Schedule 2, subclass 820

Applicant: NAJEEB MAHFOUZ AHMAD ABULIBDEH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1474 of 2015

Judgment of: Judge Street

Hearing date: 14 October 2015

Date of Last Submission: 14 October 2015

Delivered at: Sydney

Delivered on: 14 October 2015

REPRESENTATION

Solicitors for the Applicant: Mr D. Leyden
George Pikoulas and Associates

Counsel for the First Respondent: Mr H P T Bevan

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The further amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1474 of 2015

NAJEEB MAHFOUZ AHMAD ABULIBDEH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 for a Constitutional writ in respect of a decision of the Tribunal made on 28 April 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant arrived in Australia on the Prospective Marriage visa (subclass 300). The applicant did not proceed to marry the original sponsor and instead married Lisa Wady on 14 May 2011. The applicant then lodged a Partner visa application on 6 June 2011 based on his marriage with Lisa Wady as sponsor.

2. The delegate identified that certain criteria must be met by the applicant under subclass 820 of Schedule 2 to the Migration Regulations 1994 to be granted a Partner visa and, relevantly, that the applicant and the sponsor must meet the definition of spouse at the time the application was made. The delegate referred to s.5F and reg.1.15A. On 5 November 2011 the Department received a letter dated 18 October 2011 from the sponsor confirming her withdrawal of the sponsorship for the Partner visa application.

3. The delegate found that he was not satisfied the applicant had demonstrated that he lived with the sponsor or continues living with the sponsor as husband and wife and found that the applicant did not meet the definition of spouse as defined in s.5F. On 29 February 2012 the applicant applied to the Tribunal for review of the decision of the delegate. In support of the application for review the applicant provided information to the delegate to support a claim that there had been relevant family violence as defined in reg.1.21 within the criteria found in reg.1.23.

4. The Tribunal held a hearing on 21 January 2014, at which the applicant appeared to give evidence and present arguments and was represented by a migration agent.  The Tribunal was not satisfied that the applicant had suffered relevant family violence committed by the sponsoring spouse, as found in para.29 of the Tribunal’s reasons, and referred the matter as required under reg.1.23 to an independent expert.  That independent expert conducted an interview with the applicant on 13 May 2015 with the assistance of a male interpreter.

5. The independent expert report dated 22 June 2014 relevantly concluded (CB235):

   The alleged victim has not suffered relevant family violence (as defined in regulation 1.21(1) of the Migration Regulations 1994), committed by the alleged perpetrator (identified above).

6. The expert report set out reasons in that regard and specifically said (CB236):

   Mr Abulibdeh’s ability to stand up for his rights, interve when his former partner was allegedly being abusive towards her children and leave the home when he wanted to, indicate that he did not experience reasonable fear for his safety and wellbeing.

7. The expert referred to experiences as a result of the breakdown in the relationship and did not accept that the discord resulted in the experience of family violence within the relationship.  It is clear from the expert report that the expert took into account the material provided by the Tribunal, including the allegations by the applicant that his former spouse began screaming and beating him.

8. That expert report was provided to the applicant and a response to the report dated 14 July 2014 sought to clarify the third paragraph of the expert report talking about withdrawing of sponsorship and hitting the neighbour.  The applicant contended that he did not understand the question properly at that time on that topic and said that he had no interpreter present during the hearing.  It is clear that there was a male interpreter on call during that interview.

9. The response by the applicant also raised the proposition of cultural sensitivity in providing information to the expert, given that the expert was a female.  That sensitivity was one in which the response by the applicant identified that he had acquired the courage from assistance of someone else to be able to talk about the topic at the meeting and hearing, and that the applicant realised he needed to speak about the whole truth.

10. That sensitivity had not prevented the applicant providing in support of the allegations of relevant family violence a statement by a female social worker in which the alleged sexual abuse issue was clearly addressed.  Following that response a further hearing was held by the Tribunal on 24 October 2014 and the Tribunal indicated that it was not satisfied the applicant had suffered relevant family violence committed by the sponsoring spouse.  The Tribunal indicated that the further information provided to the Tribunal by the applicant would be sent to the independent expert so that an opportunity would be given to the expert to take account of the information.

11. In the first expert report dated 22 June 2014, there was an express reference to the fact that the opinion was based on the evidence at the time of the assessment and that if new evidence was submitted before the application was finally determined, the opinion can be reconsidered.  It is in those circumstances that further information was referred back to the expert for further report within the criteria under reg.1.23, and it is clear from that expert’s report that the applicant attended an interview on 18 February 2015 assisted by the presence of a male interpreter.

12. That expert report also addressed the response of the applicant and, in particular, the proposition that the applicant claimed he had misunderstood a question that was put and identified that no further clarification of a lack of understanding was advanced by the applicant.  The report identified concerns in relation to the applicant’s overall credibility in reporting his experiences of the alleged family violence.  It is in those circumstances that the expert report dated 26 February 2015 concluded:

    Therefore my opinion with regard to all of the information available to me is that the alleged victim has not suffered relevant family violence (as defined in regulation 1.21 of the Migration Regulations 1994).

13. Following provision of that expert report a further hearing was held by the Tribunal on 24 April 2015 at which the applicant was again assisted by an interpreter.  The Tribunal relevantly identified:

    3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist.  These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i).  The applicant claims this occurred in this this case.

    4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.211 and 820.221 because the delegate was not satisfied that at the time of the application the applicant and the sponsor were in a genuine and continuing spousal relationship and that at the time of the decision the sponsor had withdrawn her sponsorship of the application.

    Regulation 1.23(10)(c)(i) provides that if the Minister is not satisfied as to the family violence alleged then an opinion of an independent expert must be obtained.

14. The term independent expert is defined by reg.1.21(1) and the independent expert’s opinion must be taken as correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion that requires the applicant for the visa to have suffered family violence under reg.1.23(10)(c)(ii).  Relevantly, the Tribunal found:

    70. Having considered all of the evidence before it, the tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the tribunal sought the opinion of an independent expert. On 22 June 2014 the independent expert provided an opinion that the applicant had not suffered relevant family violence that occurred whilst the parties were in the relationship.

    71. The tribunal provided a copy of the report from the independent expert to the applicant to provide him the opportunity to provide any comment or response pursuant to s.359A of the Act. The applicant provided further information to the tribunal which was in turn referred to the independent expert to take into account. After considering all the information, the independent expert concluded that the applicant had not suffered relevant family violence. This report was dated 26 February 2015.

    72. This further report was provided to the applicant’s agent who claimed that the independent expert had not taken into account all the information, had not taken into account Arabic culture, and was biased. The tribunal does not accept any of these claims.

    73. The reports by the independent expert are thorough and set out all the information taken into account by them. This included interviewing the applicant. There is no information which would indicate the independent expert failed to appropriately take into account all relevant information.

    74. The independent expert is appropriately qualified to carry out the assessment of whether a person has suffered relevant family violence. This includes taking into consideration the various cultural sensitivities of applicants. The tribunal is not satisfied that there is any information which would indicate that the independent expert has failed to take into account all the circumstances of the applicant, including his cultural background.

    75. The applicant claimed that the independent expert was prejudiced against him and he would have preferred another independent expert to do the report. No evidence has been provided upon which the applicant can claim that the independent expert was bias in any way, apart from not accepting the claims made by the applicant and, in doing so, the independent expert has provided cogent reasons as to why these claims were not accepted. The applicant complained that as the independent expert was a woman he was not comfortable to discuss things with her. As the applicant chose to obtain a report from a woman, Veronique Francois, in support of the application, the tribunal does not accept that the applicant would not be able to discuss his claims with a female independent expert or that this caused a flaw in the assessment by the independent expert.  The tribunal finds the independent expert assessed the claims made by the applicant in an open and impartial manner and that the conclusions are justified based on the information before the independent expert and the reasoning applied by the independent expert. The tribunal is satisfied the independent expert took into account all the relevant issues of the applicant, including his cultural background.

    76. The tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of a Gazetted organisation for this purpose, and was properly made.

    77. Under r.1.23 the tribunal is required to take as correct an independent expert’s opinion, properly made. Accordingly, the tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

    78. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.820.221(3) for the grant of the visa. There is no evidence before the tribunal that the applicant meets any of the alternative sub criteria.  As the applicant does not meet an essential criterion for the visa, the tribunal must affirm the decision under review.

15. The grounds of the further amended application are as follows:

    1. The Tribunal erred in finding that the applicant was not a victim relevant document violence as set out in Migration Regulation r 1.23 under Division 1.5 of the Migration Regulations 1994.

    2. LSC Psychology Pty Ltd and erred in finding that the applicant was not a victim of relevant domestic violence as set out in Migration Regulations r 1.23 under Division 1.5 of the Migration Regulations 1994.

    3. The Tribunal and their agent LSC Psychology Pty Ltd appointed under the provisions of Regulation 1.23(10)(c) failed to provide procedural fairness to the applicant.

    4. The applicant was denied procedural fairness. The applicant was not provided with a competent interpreter for all the assessment interviews causing inconsistency in statements made by the applicant.

16. In relation to ground 1, Mr Leyden, the solicitor for the applicant, identified the evidence that was advanced by the applicant to support the contention that there was relevant family violence.  Mr Leyden submitted that on the material that was provided to the Tribunal, the Tribunal should have been satisfied that there had been non-judicially determined family violence.  Mr Leyden referred to the incidents advanced by the applicant, including the allegation of the former sponsored spouse’s screaming and beating of the applicant and, in effect, that the finding by the Tribunal that it was not satisfied that there had been relevant family violence was unreasonable.  It was a matter for the Tribunal to determine on the material before it whether it was satisfied of the relevant family violence within the meaning of the regulations. 

17. It is clear that the Tribunal took into account the evidence and claims of the applicant.  It was clearly a matter for the Tribunal to take into account the applicant’s credit in determining whether it accepted that the applicant was the victim of relevant family violence, and that the finding by the Tribunal that it was not satisfied the applicant had suffered the relevant family violence committed by the sponsoring spouse was open on the material before the Tribunal cannot be said to lack an evident and intelligible justification.   

18. Ground 1fails to make out any jurisdictional error.  

19. In relation to ground 2, the applicant submitted that upon the material provided, it was not open to the expert to come to the finding that the applicant was not a victim of relevant family violence within the regulations.  I accept the first respondent’s submission that this is, in substance, a merits review challenge to the finding of the expert, and fails to identify any jurisdictional error.  The expert report dated 22 June 2014 and further expert report dated 26 February 2015 provide an opinion about whether the alleged victim had suffered the relevant family violence within the criteria under reg.1.23.  That opinion was supported by a rational reasoning process that it is clear that the expert took into account the information provided by the applicant. 

20. Ground 2 fails to make out any jurisdictional error. 

21. In relation to ground 3, there was an oblique contention that the expert had been appointed by, in substance, the Tribunal and therefore the relationship between the Tribunal engaging the expert might give rise to an allegation of bias or apprehended bias.  Bias is an allegation that must be clearly alleged and strictly proven.  The Court is not satisfied that bias has been clearly alleged, and the Court is satisfied it has not been strictly proven.  The referral of the issue to an expert is a matter required under the regulations in circumstances where the Tribunal is not satisfied that the alleged victim has suffered the relevant family violence.  The engagement of the expert by the Tribunal to perform that function is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the expert might not bring an independent and impartial mind to the determination of the matter on its merits. 

22. There is no substance in the contention of any denial of procedural fairness on the basis of bias.  The applicant advanced that there was a denial of procedural fairness by reason of the failure to take further steps to consult with other experts who had provided information to the expert appointed by the Tribunal.  The Court accepts the first respondent’s submission that there was no obligation in the circumstances of this case for the expert to engage in consultation with other persons.  Procedural fairness was afforded in the circumstances of the interviews that took place with the applicant, and this was not a matter where there was any identified issue that could be said to warrant or give rise to any obligation to consult beyond the existence of the ultimate issue that was a matter for the expert to determine. 

23. In relation to the third ground, the applicant also advanced that the inability to cross-examine the expert was a denial of procedural fairness.  The scheme of reg.1.23 provides a cascading opportunity for an applicant to establish relevant family violence, and it is in circumstances where the Tribunal is not satisfied that the alleged victim has suffered the relevant family violence that there is a mandatory requirement for referral to an expert. The Court does not accept that the requirements of procedural fairness give rise to any entitlement to cross-examine that expert in relation to the expert’s opinion.  It is necessary for the Tribunal to be satisfied that the expert has provided an opinion within the regulation, and that the expert holds the relevant qualification. 

24. It is clear from the findings of the Tribunal referred to above that the Tribunal was satisfied that the opinion was one within the regulation, and that the expert held the relevant qualification, and the Tribunal correctly identified that it was required to take the expert’s report as correct.  In circumstances where the Tribunal is required to take the expert report as correct, there is clearly no scope for cross-examination of the expert.    

25. Ground 3 fails to make out any jurisdictional error.

26. In relation to ground 4, there was no identification of any specific matter the subject of a difficulty in respect of interpretation beyond that raised in the applicant’s response dated 14 July 2014.  That was clearly the subject of the further hearing that took place on 24 October 2014 and it was further the subject of reference for a further opinion by the expert and was addressed by the expert in that second report, as well as that second report then being made available to the applicant at the third hearing that took place on 24 April 2015.  There is no substance in the contention of any denial of procedural fairness in relation to any interpretation issue in the interviews with the expert.  To the extent that the applicant has contended that the interpreters were female, the Court does not accept that the contemporaneous evidence supports any such submission. 

1. No particular matter the subject of any interpretation error has been identified either in relation to the interviews with the expert or before the Tribunal, and there is no substance to the contention of a denial of procedural fairness in that regard.  To the extent that it was suggested that there was a denial of procedural fairness by reason of the expert being a female given the cultural sensitivities of the applicant, this was a matter expressly dealt with by the Tribunal in para.75.  The report obtained by the applicant from a woman who was the social worker clearly addressed the alleged sexual abuse in that statement.  The reasoning of the Tribunal in para.75 was clearly open, and there was in this case no denial of procedural fairness by reason of the fact that the expert was a woman.  

2. Ground 4 fails to make out any jurisdictional error.

3. For these reasons, the further amended application is dismissed.  

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 October 2015