Al-Momani v Minister for Immigration
[2011] FMCA 453
•31 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AL-MOMANI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 453 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner residence visa – issue of family violence referred to independent expert, who found the applicant was not a victim of family violence although the relationship was characterised by mutual violence – whether the Tribunal was bound to accept the opinion of the expert and whether the Tribunal should have found that the expert arrived at her opinion unlawfully considered – applicant invited to comment on adverse information in the report of the expert – whether the applicant’s response should have been referred to the expert for reconsideration considered. LAW REFORM – Observations on the desirability of a definition of family violence in the Migration Regulations that is consistent with that proposed in the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. WORDS AND PHRASES – “Family violence”. |
| Family Law Act 1975 (Cth), s.4 Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth) Migration Act 1958 (Cth), ss.5, 29, 31, 41, 357A, 359A, 474 Migration Regulations 1994 (Cth) |
| Alameddine v Minister for Immigration & Anor [2010] FMCA 313 Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 Gungor v Minister for Immigration & Anor [2011] FMCA 516 JG & BG (1994) FLC 92-515 Minister for Immigration v Seligman [1999] 85 FCR 115 N & M (2006) FLC 93-296 Sok v Minister for Immigration [2005] FCAFC 56 |
| Applicant: | ALA ALI SALEEM AL-MOMANI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 533 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 15 June 2011 |
| Date of Last Submission: | 20 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms L Clegg, with Mr H Chiu |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari shall issue removing the record of the Tribunal decision made on 23 February 2011 into this Court for the purpose of quashing it.
A writ of mandamus shall issue remitting the matter to the Migration Review Tribunal for rehearing according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 533 of 2011
| ALA ALI SALEEM AL-MOMANI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 23 February 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Residence) (Class BS) visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Jordan, now 31 years of age (court book “CB” 3). On 3 June 2008 he applied to migrate to Australia as the partner of Sahar El Faouri, an Australian citizen living in Perth (CB 1-34-34). They had met in Jordan on 9 April 2006 and decided to marry on 20 March 2007 (CB 13). The couple were married on 25 April 2008 in an Islamic ceremony in Perth (CB 27).
Mr Al-Momani was granted his subclass 820 visa on 22 December 2008 (CB 39-41).
On 29 March 2009 the Department of Immigration wrote to
Mr Al‑Momani inviting comment on information that the relationship between him and Ms El Faouri had ceased (CB 44). On 15 May 2009 Mr Mahmoud Ajjai, Mr Al-Momani’s newly instructed migration agent informed the Department that Mr Al-Momani had been the victim of family violence (CB 51-52). Mr Al-Momani would have been entitled to a permanent spouse visa if, among other things, the relationship had ended due to his having suffered “family violence” (see Migration Regulations1994 (Cth) (“Migration Regulations”), Schedule 2, clause 801.221(6)(b) and (c)(i)).
Mr Al-Momani’s migration agent submitted a statutory declaration from Mahmoud Abu-Arab, a clinical psychologist (CB 57-61), and a further statutory declaration from Sana Salame, a social worker (CB 64-69). These were statutory declarations of “competent persons” (defined in regulation 1.21) which were necessary to prove a “non judicially determined claim of family violence” pursuant to regulations 1.26 and 1.24(1)(b) read with regulation 1.23(1A)(b)(ii). Both were of the opinion that Mr Al-Momani had been the victim of family violence.
The Regulations make provision in relation to, but do not define “family violence”. There is a definition of “relevant family violence”. “Relevant family violence” was at the relevant time defined in regulation 1.23(2)(b) as follows:
(b)a reference to relevant family violence is a reference to conduct, whether actual or threatened, towards:
(i) the alleged victim; or
(ii)a member of the family unit of the alleged victim; or
(iii) a member of the family unit of the alleged perpetrator; or
(iv)the property of the alleged victim; or
(v) the property of a member of the family unit of the alleged victim; or
(vi) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
Mr Al-Momani made his own claims in a statutory declaration at CB 52-55. This was necessary in terms of regulation 1.24(1)(a) read with regulation 1.25.
Upon provision of that evidence the Minister’s delegate acted in accordance with regulation. 1.23(1B) which stated, as relevant:
(1B) If an application for a visa includes a non‑judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence (whichever of the circumstances mentioned in paragraph (1A) (b) exists) and:
(a)if satisfied that the alleged victim has suffered relevant family violence — consider the application on that basis; or
(b)if not satisfied that the alleged victim has suffered relevant family violence — seek the opinion of an independent expert about whether the alleged victim has suffered relevant family violence.
The delegate was not satisfied that Mr Al-Momani was the victim of relevant family violence and referred the question to an “independent expert” (“IE”)[1]. The IE reported that in his opinion Mr Al-Momani was not the victim of “family violence” (CB 81-83). Regulation 1.23(1C) stated, relevantly:
(1C)The Minister must take an independent expert’s opinion on the matter mentioned in paragraph (1B) (b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
[1] This is a defined term currently in regulation 1.21.
Mr Al-Momani was given a copy of the IE’s report (CB 85-87).
His agent provided a response which was referred to the IE for comment (CB 88-89). The IE confirmed his opinion (CB 91-93). On 29 June 2010 Mr Al-Momani’s application for a visa was refused (CB 95-105). He applied for review to the Tribunal on 16 July 2010 (CB 112-119).
Mr Al-Momani attended a hearing at the Tribunal on 3 November 2010 (CB 127). The Tribunal member then referred the matter to Centrelink for a further Family Violence Assessment (CB 133). A different IE determined that Mr Al-Momani was not the victim of “relevant family violence as defined” (CB 144-5).
The IE had certain documents before her, including a statement written by Ms El Faouri to a “Sheik” alleging that Mr Al-Momani was the perpetrator of violence and making certain other allegations (CB 141-2), and a letter from Ms El Faouri to DIAC alleging that
Mr Al-Momani married her for migration purposes (CB 142).
In her report the IE stated (CB 144, 161):
Mr Abu Arab advised that Mr Al-Momani left the marital home following an incident involving his wife allegedly throwing a book at him. IE notes that Mr Al-Momani stated that he left the marital home following his wife allegedly threatening that he would be returned to Jordan. ...
Information provided by Ms Salame (social worker) reported that the couple married in April 2008. IE recalled the marriage occurring in May 2008. Ms Salame’s report details that Mr Al-Momani’s wife allegedly contacted his employer claiming that he was working illegally. Mr Al-Momani reported that his brother-in-law contacted his employer post separation to report of (sic) this information. Ms Salame further reports that Mr Al-Momani’s wife made constant threats of harm in relation to her brother’s (sic) however IE notes that Mr Al-Momani made no mention of this in his written statement or during interview.
The conflicting information raises concerns about the authenticity of information contained in the statutory declarations....”
The IE continued (CB 145, 162):
In regard to the marriage of Mr Al-Momani and Ms El Faouri, it appears that their relationship was characterised by mutual violence. IE has drawn that conclusion given the evidence purportedly provided to Ms Al-Momani (sic – Ms El Faouri) from the Sheik. Given this information, IE considers that a relationship consisting of mutual violence tends to negate the issue of a power imbalance which can be a precursor to forms of violence.
The Tribunal then gave Mr Al-Momani a copy of the IE’s report pursuant to s.359A of the Migration Act (CB 149-162). The migration agent replied (CB 166-8) and attached documentation disputing the facts found and the conclusion reached by the IE (CB 166-177).
The Tribunal member considering herself bound by the regulation 1.23(1C) to accept the IE’s opinion, and accordingly affirmed the decision under review (CB 190).
The application, evidence and submissions
These proceedings began with a show cause application filed on
23 March 2011. Mr Al-Momani now relies upon an amended application filed in court by leave on 15 June 2011. The grounds in the amended application are:
1. The Tribunal erred in finding that the opinion of an “independent expert” appointed under Migration Regulation 1.23(1B), was authorised by the Migration Regulations, and so accepting it for the purposes of Migration Regulation 1.23(1C).
Particulars
(a) The “independent expert” took into account an alleged lack of a power imbalance between the applicant and his former spouse, and
(b) In doing so misconstrued and misapplied the definition of family violence in Migration Regulation 1.23(2)(b).
2. The Tribunal erred in finding (by inference) that the Independent Expert had arrived at her opinion lawfully.
Particulars
(a) The applicant was denied procedural fairness by the Independent Expert, in that she failed to put to the applicant information that was relevant, credible and significant, to [h]er opinion.
Further Particulars
Failure to disclose the content of two letters written by the applicant’s former spouse to DIAC and dated 6 February 2009, and 23 June 2009 (at CB 141-2).
3. The Tribunal denied the applicant natural justice.
Particulars
(a) Failure to refer the applicant’s reply to a letter written to him pursuant to s.359A of the Migration Act to the independent expert appointed under Migration Regulation 1.23(1B) in circumstances where the opinion of the independent expert was binding on the Tribunal pursuant to Migration Regulation 1.23(1C).
I received as evidence the court book filed on 4 May 2011, a declaration by Sahar El Faouri which is undated but by which Ms El Faouri withdrew her sponsorship of Mr Al-Momani[2] and a letter dated 23 June 2009 from Ms El Faouri to the Minister’s Department concerning her withdrawal of her sponsorship.
[2] Exhibit A1
Counsel for Mr Al-Momani made the following initial submissions in relation to the Tribunal decision:
The applicable definition of “relevant family violence” is set out … above. It does not refer to “a power imbalance” as being relevant to the existence of family violence. The questions for the IE were, in terms of the definition of “relevant family violence” in Reg 1.23(2)(b),
(i)Was there conduct either actual or threatened towards Mr Al-Momani,
(ii)That caused him to reasonably fear for or be apprehensive about his wellbeing or safety.
Because she imposed a criterion which was not relevant to the governing definition, thus misconstruing and misapplying that provision, the IE erred in her jurisdictional task. In Silva v Minister for Immigration & Anor [2007] FMCA 1955 it was held that a jurisdictional error made by an IE undermined the Tribunal’s reliance on her opinion or report. That is the case here.
Moreover, the Tribunal gave Mr Al-Momani a letter written pursuant to s 359A of the Migration Act. Mr Al-Momani replied through his migration agent. Because of the effect of Reg 1.23(1C) the reply was completely worthless unless it was referred to the Independent Expert for evaluation. This is particularly so as regards the IE’s reliance on information provided, apparently to Ms El Faouri from the Sheik.
This was not done, effectively denying the applicant a right to be heard. Since there is nothing in Division 5 of Part 5 of the Migration Act (i.e. that upon which s 357A acts) which covers the conduct of an independent expert, or the interaction between the Tribunal and an Independent Expert, it would follow that Mr Al-Momani is entitled to procedural fairness as it is understood at common law. I submit that the Tribunal’s issuing of a s 359A letter and not referring the response to the IE was a breach of procedural fairness.
The Minister relevantly contended as follows in initial written submissions:
Ground one: error of law by considering power imbalance in relationship
The Minister accepts that if the independent expert commits an error of law such that the question asked by him or her did not relate to the Regulations, then an error in the expert’s decision may infect a decision of the Tribunal if it proceeds to rely on the expert’s erroneous decision: see Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [65].
However there was no error of law or misconception committed by the Independent Expert in the present case.
The applicant appears to argue that consideration by the Independent Expert of the existence (or otherwise) of a “power imbalance” in a marital relationship as a matter relevant to the occurrence of “relevant domestic violence” amounts to an error of law.
This proposition is absurd. The fact that the “governing definition” does not refer to “power imbalances” in a marital relationship (paragraph 17, applicant’s submissions) is not to the point.
The observation by the Independent Expert that the relationship was characterised by mutual violence and that a “relationship consisting of mutual violence tends to negate the issue of a power imbalance which can be a precursor to forms of violence” is merely an instance of the Independent Expert applying her specialised knowledge and expertise to the task at hand.
The applicant’s contentions in respect of this ground overlook the rationale for the delegation of the narrow factual question posed by Reg 1.23(2)(b) to the Independent Expert; namely that she is the expert to whom a task is delegated and the reason for the delegation is that she is better equipped than the Tribunal to decide the ultimate question.
As Branson J (with whom Marshall J agreed) observed in Sok v Minister for Immigration (2005) 144 FCR 170 at [26]: “…a question of judgment is involved in determining whether particular conduct constitutes ‘violence’ ” and it is “a judgment in respect of the domestic violence with which the regulation is concerned upon persons whose skills and experience have been assumed to fit them to make it.” [emphasis added].
This theme was taken up by Riethmuller FM in Victorino v Minister for Immigration [2007] FMCA 591 at [15]: “It is not an unusual process in administrative law, or indeed even in other areas of law, for there to be a deeming provision. It must also be borne in mind that administrative processes are designed by Government to meet the needs of the particular function they perform. Many decisions of the executive are based upon expert opinions or reports, particularly where fact finding in the judicial style is simply impractical due to the subject matter or other exigencies of the issue. There is no necessary inconsistency in providing for a hearing and providing for independent expert evidence on a particular factual issue that is binding on a usually non-expert decision maker. The use of independent experts is a process is well established in administrative decision making.”
…
Ground [three]: natural justice
…
First, the question is whether the Tribunal’s decision is affected by jurisdictional error. The Independent Expert is not a party to the proceedings. No relief is sought against the Independent Expert. Nor would relief of the kind sought against the Tribunal be available against the Independent Expert. Accordingly, the Court’s role is necessarily limited to an evaluation of the Tribunal’s conduct and reasoning, as opposed to the conduct and reasoning of the Independent Expert.
…
It cannot be the case that it is necessary in every case to refer a response to a s 359A letter to the expert: see Wu v Minister for Immigration [2011] FMCA 14 at [44] – [48].[3]
Yet, the applicant has not identified what information in the letter is the information that was necessary to put before the Independent Expert for the applicant to be afforded common law natural justice. In the context of the narrow question for the Independent Expert, when the information in the s 359A response is put to scrutiny – particularly in light of the matters raised at paragraphs 3 and 4 above – it is difficult to see that the letter contained material of any new and/or further significance at all. In particular, the applicant was aware of the allegations made by Ms El Faouri to the Sheik. He apparently gave the Independent Expert that material. Clearly, there was an opportunity for him to address this material at the interview hearing before the Independent Expert. Whether he did so is not known, but in the circumstances it was a matter for him how he dealt with material he himself put before the Independent Expert.
[3] In Wu v Minister for Immigration [2011] FMCA 14, Cameron FM found that s.359A had no application once a matter had been referred to an expert for independent opinion as to whether a visa applicant had been the victim of domestic violence. Cf. Alameddine vMinister for Immigration [2010] FMCA 313 at [18] – [19]; Bolat v Minister for Immigration [2007] FMCA 1640 at [80] – [82].
I invited further written submissions from the parties in relation to the additional ground 2 in the amended application, especially having regard to the recent decision of this Court in Maman v Minister for Immigration [2011] FMCA 426. Counsel for Mr Al-Momani provided additional submissions on that ground which were filed on 29 June 2011. Relevantly, those submissions are:
I rely generally upon Maman, but would perhaps reason a little differently, as follows;
(a) The IE is an officer of the Commonwealth, being an employee of Centrelink.
(b) The IE’s opinion was in the circumstances of this case required by the Tribunal pursuant to Migration Regulations 1.23(1B) and 1.23(1C) as they stood at the relevant time.
(c) That opinion was a “decision” within the meaning of s.474(3)(h) of the Migration Act, being conduct preparatory to the ultimate decision, being that of the MRT.
(d) It is also a “migration decision” within the definition of that term in s.5 of the Migration Act.
(e) That opinion, if made lawfully, is binding upon the MRT. If not made lawfully it is not binding (Minister for Immigration v Seligman (1999) 85 FCR 115).
(f) To make a decision lawfully the IE must comply with the requirements of natural justice, unless those requirements are abrogated, “by plain words of necessary intendment) (Annetts v McCann (1990) 170 CLR 596, 598, Saeed v Minister for Immigration (2010) 241 CLR 252).
(g) There is nothing in the Migration Act as a whole, or in Part 5 thereof in particular, which deals with the conduct of an IE in coming to an opinion.
(h) Therefore the IE has to comply with natural justice which requires that information which is, “credible, relevant and significant” be disclosed to an applicant for comment (Kioa v West (1986) 159 CLR 550, 628-9 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88).
Therefore, Maman is correct, and the IE is required to comply with the requirements of natural justice.
The evidence by which the Court should infer that the IE did not comply with the requirements of natural justice in not disclosing information at CB 142 is as follows;
(a) It is stated to be “confidential” by the IE (see CB 141) and is cordoned off from the balance of the IE’s report.
(b) The IE does not suggest in her detailed and lengthy report that this information was disclosed to the applicant.
(c) Nor does the IE record anything that may be in the nature of a response from the applicant to information that may have been disclosed.
(d) The first reference to the letters from the ex wife to DIAC or the contents thereof apart from being referred to as “confidential” in the IE report, is in the agent’s reply at CB 166ff to the Tribunal’s s.359A letter at CB 149-50. This indicates that the information was not discussed in the Tribunal hearing, or disclosed to the applicant beforehand.
The information at CB 142 was clearly “credible, relevant and significant” given the IE’s finding at CB 145.2 that the relationship between the applicant and his ex wife was characterised by mutual violence.
The Minister filed additional written submissions on 20 July 2011. Those submissions address the applicant’s amended ground 2 in the further amended application. The Minister notes that the applicant relies upon the decision of this Court in Maman and notes that at the trial of this matter the Minister’s counsel had submitted that Maman was “plainly wrong”. An appeal has been lodged. However, the Minister now accepts that an independent expert does owe a common law duty of procedural fairness to an applicant who claims to have suffered family violence for the purposes of Division 1.5 of the Migration Regulations and whose claims are referred to the expert under the Migration Regulations. The Minister contends that it is unnecessary for the Court to consider (as Raphael FM did in Maman at some length, upon which the applicant’s submissions in the present case rely) whether the decision of the independent expert was made by an officer of the Commonwealth, or one which was reviewable in its own right in the Federal Magistrates Court. In Seligman the Full Court observed at [69][4]:
On this approach it makes no difference to the outcome of the case that his Honour characterised the decision of the Medical Officer as a judicially-reviewable decision. If the opinion is vitiated by error of law the delegate errs in taking it as correct. On the basis already outlined, the Court has jurisdiction to consider the lawfulness of the Medical Officer's Opinion as an element of its consideration of the lawfulness of the delegate's decision …
[4] see also Bui v Minister for Immigration (1999) 85 FCR 134 at [36] – [56] per French, North and Merkel JJ and in Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 per Sackville J at 370
Accordingly, the Minister withdraws his earlier submission that this aspect of the reasoning of this Court in Maman is plainly wrong.
However, the Minister contends that given the very narrow nature of the independent expert’s inquiry, and the confidential nature of information given by (relevantly) former spouses to the Tribunal, the content of the natural justice obligation is limited. In some or even many cases the content may be reduced to nothing. The application of this point to the present case is developed in the Minister’s further submissions.
The Minister contends that there is no strict legal duty on the Tribunal to consider whether there had been a breach of procedural fairness.
He submits that there is no separate, stand-alone obligation (see Raphael FM in Maman at [3](c) – (h) and at [46] especially the last sentence) on the Tribunal to consider whether the expert provided procedural fairness. The Tribunal is either bound by the expert’s opinion or it is not; the validity of the opinion is an objective issue.
A mere failure to consider this issue where there has been no error committed by the independent expert should not invalidate the Tribunal’s reliance on a report that was properly made. To this end the Minister also contends that the reasoning in Gungor v Minister for Immigration [2011] FMCA 516 at [19] is wrong. There, his Honour observed (in obiter) that the Tribunal had a duty to consider the content of a response by an applicant to a s.359A letter and refer it back to the independent expert - or, if not, provide reasons why it did not.[5]
The Minister submits that a failure to do these things would not, of itself, amount to jurisdictional error.
[5] A failure to consider is not a ground of review in this case. In this case the Tribunal considered the applicant’s response to its s.359A letter and decided not to take the steps suggested by the applicant (which did not include sending the matter back to the independent expert): see CB 190 at [37].
The Minister further submits that there are three reasons why the Court would conclude that the IE did not deny the applicant procedural fairness. The first is that there is said to be no evidentiary basis for the Court to conclude that the substance or gist of the information in the letters in exhibits A1 and A2 were not put to the applicant for comment by the IE. Secondly, the Minister submits that the substance of the factual issues raised by exhibits A1 and A2 were raised in material already given to the IE by the applicant. The Minister emphasises that the applicant himself gave a letter from Ms El-Faouri to the Sheik at the time of his interview with the IE (CB 141, 143). Thirdly, the Minister submits that the content of the obligation to accord procedural fairness was reduced to nothing in the circumstances of the case.
In this regard, the Minister submits:
In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 99 [25] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ noted that “The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case”. Likewise, in Kioa v West (1985) 159 CLR 550 at 612 - 613 Brennan J said that the “The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”[6] Indeed Brennan J contemplated that there could be circumstances where the content of the obligation is reduced to “nothingness”.[7]
[6] See also Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 490 [25] per Gleeson CJ; Ex ParteMiah (2001) 206 CLR 57 at 98 [143] per McHugh J; Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at 415 – 418.
[7] Kioa v West (1985) 157 CLR 550 per Brennan J at 615 – 616: “It must therefore be accepted, as one commentator points out” (G. Johnson "Natural Justice and Legitimate Expectation in Australia" (1985) 15 Federal Law Review 39, at p.71) that "the contents of natural justice range from a full-blown trial into nothingness".
When the content of the letters in Exhibits A1 and A2 are put to serious scrutiny, in the context of the very narrow question the independent expert was bound to determine (namely, simply whether the applicant himself was a victim of family violence), it may be concluded that the material in the letters had no relevance, and certainly no significance to the question before the independent expert.
The letters do little more than confirm that the former spouse had withdrawn her sponsorship of the applicant. Exhibit A1 merely confirms the applicant’s own case that he was in a fragile and emotionally charged relationship which had irretrievably broken down. The letters say nothing whatsoever about the core case that was advanced by the applicant in connection with his claim to have suffered family violence. It should be remembered that the independent expert was not considering whether Ms El-Faouri had been the victim of relevant family violence. To this end, there was no case “put against”[8] the applicant by Ms El-Faouri – so it was not necessary for the independent expert to resolve competing versions of whose fault it was that the relationship broke down, or determine the applicant’s motivation for entering into the marriage. While the letters contain information which cast the applicant in an unfavourable light, they are general in their nature. While they might have been relevant and significant to the now hypothetical question of whether the parties were in a genuine and continuing relationship, the letters are not relevant – or at the very least not significant – to the question of whether the applicant himself was the victim of family violence.
[8] In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Gaudron J observed at [99] that the 'basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her', citing Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11 at 18 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 112 per Mason J; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 495 per Murphy J; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 350, 360 and 376; Kioa at 569, 582, 602, 628, 633.
Further, and in the alternative, the Minister contends that the letters (or at the very least Exhibit A1 dated 6 February 2009) were implicitly given by Ms El-Faouri in confidence. Although they did expressly seek confidentiality, the circumstances and the nature of the information itself reveal that it was well open to the independent expert to consider herself bound by confidentiality obligations, as she clearly did: see reference at CB 141.9 to the material being “Confidential”.
The content of the natural justice obligation can be reduced to nothing when material is given confidentially. In this respect the words of Brennan J in Kioa v West at 628-629 have particular resonance:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise... The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary, at p 97:
To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair."
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.
[case references, citations removed, emphasis added]
These passages were referred to by the High Court in Applicant VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [17] where the Court noted that the decision maker may not dismiss information from further consideration (and thereby avoid the obligation to divulge it) unless the information is “evidently not credible, not relevant or of little of no significance to the decision that is to be made”. In Applicant VEAL, the information could not be dismissed from further consideration, as it was directly relevant and highly significant to the applicant’s claims: see at CLR 97 [20]. However, it is submitted that that is not the case here.
In Applicant VEAL, the Court emphasised the desirability that there be no impediment to the giving of information to authorities about claims that are made for visas. The “problem of confidentiality” could be solved in that particular case by the Tribunal disclosing to the appellant the substance of the allegations without telling him who had made them: CLR 100 at [29].
However, in spouse visa cases a requirement to disclose even the gist of the so called ‘adverse’ information runs a very substantial risk of exposing the identity of the informer. In such cases it will often be only a former spouse who has the motive to inform, and who possesses information of the kind being disclosed. In the context of claims and counterclaims of aggression and violence there is very real risk that the applicant in such a case (and certainly in the present case) would almost certainly conclude that the identity of any declared ‘anonymous’ informant is his or her former spouse.
The combination of such a real and appreciable risk, the fact that the information was implicitly given and treated by the independent expert as being given in confidence, and the relative insignificance of the information, supports a conclusion that even the gist of the information did not need to be disclosed in the particular circumstances of this case.
Consideration
The legislative scheme
The policy underlying the legislation is that a spouse or de facto partner whose relationship broke down because of family violence, who holds or seeks a spouse or partner visa should not lose the visa and, if still applying for it, can still obtain the visa. Regulation 1.23 currently defines when a person is taken to have suffered or committed family violence:
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim) is taken to have suffered family violence; and
(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed -- injunction under Family Law Act 1975
(2) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.
(3) For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.
Circumstances in which family violence is suffered and committed -- court order
(4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b) unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator -- that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed -- conviction
(6) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:
(a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or
(b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.
(7) For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Circumstances in which family violence is suffered and committed -- non-judicially determined claim of family violence
(8) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10)If an application for a visa includes a non-judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert's opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is satisfied under paragraph (10) (b) that the alleged victim has suffered relevant family violence.
(12) For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10) (c) (ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
The expression “family violence” is not otherwise defined in the Regulations but the expression “relevant family violence” was at the relevant time defined in regulation 1.23(2)(b) in the terms quoted above at [7][9]. That definition is now contained in regulation 1.21(1). The definition of “relevant family violence” is similar to the current definition of “family violence” in s.4 of the Family Law Act 1975 (Cth) (“the Family Law Act”):
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
[9] The expression appears to have had its genesis in the defined expression “relevant domestic violence” included in regulation 1.23(2)(b) in 1995.
That definition in the Family Law Act would be transformed by the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (currently before Parliament) which would insert the following definition of family violence in proposed s.4AB of the Family Law Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
In the family law context, the determination of whether there has been family violence has both objective and subjective elements[10]. Family violence covers a wide range of controlling or other behaviours, commonly of a physical, sexual and/or psychological nature, which involves fear, harm, intimidation and emotional deprivation.
It includes behaviour towards a family member that is physically or sexually abusive; is emotionally or psychologically abusive; is economically abusive; is coercive; or in any other way controls or dominates the family member and causes that family member to fear for the safety or well being of a family member or another person[11].
[10] See N & M (2006) FLC 93-296
[11] See JG & BG (1994) FLC 92-515
As is noted by this Court and the Family Court of Australia in its publication Family Violence Best Practice Principles family violence takes many forms and the Courts differentiate between the types of violence. Because individual families and relationships are dynamic and unique, care is required when any system of classification is applied. There is nevertheless a growing acceptance[12]. That violence can generally be defined as being in four categories. These are:
a)coercive controlling violence;
b)violent resistance;
c)situational couple violence; and
d)separation instigated violence.
[12] JB Kelly & MP Johnson, “Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions” (2008) 46 Family Court Review, page 476
While the literature and authorities support the proposition that a power imbalance is a common feature of coercive controlling violence it is not an essential feature of family violence generally.
This Court and the Family Court also emphasise the need to take account of the cultural context in dealing with allegations of family violence. The way in which decision makers attempt to understand the dynamics of family violence and abuse is informed by the diverse cultural context in which it occurs and by the experience of people from different ethnicities, backgrounds and language groups. It is important to recognise that the concept of “culture” is not fixed and immutable. Attempting to ascribe certain characteristics to particular cultural groups may lead to erroneous generalisations based on racial or ethnic identification[13]. Making assumptions or generalisations about racial, ethnic or religious groups ignores the intersection between, for example, culture and socio-economic status, age, disability, sexual orientation, place of residence, immigration status and homelessness.
[13] Sujata Warrier, “It’s In Their Culture: Fairness and Cultural Considerations in Domestic Violence” (2008) 46 Family Court Review 537, page 539
Nevertheless, the Family Law Courts recognise, insofar as broad statements can be made about violence and culturally and linguistically diverse communities, that research has tended to suggest that cultural values and immigration status increase the complexities normally associated with family violence and abuse. In the summary of the available research, the Australian Institute of Criminology has stated that women from culturally and linguistically diverse backgrounds are generally less likely to report cases of family violence[14]. Policy and service responses, including by those making decisions under the Migration Act, need to be undertaken with an understanding of complex cultural dynamics and the interrelationship between violence, cultural and religious identity and social marginalisation.
[14] Dr Lorana Bartels, “Emerging Issues in Domestic/Family Violence Research”, Research and Practice Report No 10, Australian Institute of Criminology, April 2010, page 5
The complexities of the assessment of what was then known as domestic violence in the migration context were squarely addressed by Branson J, with whom Marshall J agreed in Sok v Minister for Immigration[15] where her Honour said:
[15] [2005] FCAFC 56 at [3]-[34]
Before turning to the two issues in respect of which I take a different view from Hely J, it is convenient to outline briefly the statutory regime that provides the background to these issues.
The Migration Act 1958 (Cth) (‘the Act’) authorises the Minister to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or both (s.29). The Act provides for different classes of visas. Some classes of visas are provided for by the Act and others are prescribed by regulations made under the Act (s.31). The regulations made under the Act may prescribe criteria for visas of a specified class (subs 31(3)) and may provide that visas of a specified class are subject to specified conditions (s.41).
Division 2.1 of Part 2 of the Migration Regulations 1994 (‘the Regulations’) prescribes various classes of visas by reference to Schedule 1 of the Regulations. The division also makes provision for subclasses of a particular class of visa (reg 2.02). The criteria for the grant to a person of a visa of a particular class are prescribed by reference to Schedule 2 of the Regulations.
Item 1129 of Schedule 1 of the Regulations provides for a class of visa called Partner (Migrant) (Class BC) with the subclasses 100 (Spouse) and 110 (Interdependency). This appeal calls for consideration of the entitlement of the appellant to a Partner (Migrant) (Class BC) Subclass 100 (Spouse) visa (‘the Visa’).
It is accepted that, to be entitled to the Visa, the appellant must satisfy the criterion set out in subclause (4)(c)(i) of item 100.221 of Schedule 2 of the Regulations. That criterion is relevantly that, after the appellant first entered Australia, he has suffered domestic violence committed by his sponsoring spouse.
Relevant Domestic Violence
The first of the critical issues to which I have referred above is the issue of whether, in the context of regulation 1.23(2)(b) of the Regulations, the noun ‘violence’ requires the application, or the threat of the application, of physical force.
Division 1.5 of Part 1 of the Regulations is headed ‘Special provisions relating to domestic violence’. As Hely J has pointed out, regulation 1.22(1) provides that a reference in the Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence. Regulation 1.23 is in this sense a deeming provision.
The denotation of the word ‘violence’ in par (2)(b) of regulation 1.23 is the ultimate issue of statutory construction before this Court. Indeed, subject to the matters discussed at [28]-[34] below, it is the only issue that is required to be determined on this appeal. Determination of that issue calls for careful consideration of, amongst other things, the context in which the word has been used. For this reason is it appropriate to reproduce much of regulation 1.23.
‘1.23 When is a person taken to have suffered or committed domestic violence?
(1) For the purposes of these Regulations:
(a) a person (the alleged victim) is taken to have suffered domestic violence; and
(b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim;
if:
(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or
(g) if the alleged victim is a person referred to in subregulation (2) -- the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:
(i)the alleged victim has suffered relevant domestic violence; and
(ii) the alleged perpetrator has committed that relevant domestic violence.
(2) In paragraph (1) (g):
(a) ...
(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.’
Regulation 1.24 provides:
‘1.24 Evidence
(1) The evidence referred to in paragraph 1.23 (1) (g) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or
(b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a)the same subparagraph of paragraph (a) of the definition of competent person; or
(b)subparagraph (b) (ii) of that definition.’
It is important also to note the terms of regulation 1.21, the interpretation provision for Division 1.5 of Part 1 of the Regulations. Regulation 1.21 defines ‘violence’ to include a threat of violence. It also defines ‘competent person’ in relation to domestic violence committed against an adult to mean, in effect, a registered medical practitioner, a registered psychologist, a registered and practising nurse, a qualified and practising social worker, a court counsellor under the Family Law Act 1975 (Cth) or a person holding a position of responsibility in a women’s refuge or a crisis and counselling service that specialises in domestic violence.
It is now settled law that, in construing statutory provisions, a court must have regard to the context in which the relevant provision is found to ensure that the meaning of the provision is determined ‘by reference to the language of the instrument viewed as a whole’ (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ, cited in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]).
It is plain that the context in which the word ‘violence’ is used in par (2)(b) of regulation 1.23 is a context concerned with domestic violence. As Hely J has pointed out at [58]-[59] below, the expression ‘domestic violence’ has for some time in Australia been understood to encompass a wide range of behaviours only some of which involve actual or threatened physical harm (see also Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562; 98 FCR 291 at [12]- [15]; Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482; 117 FCR 251; but to the contrary effect, see Doan v Minister for Immigration and Multicultural Affairs (2000) FCA 909 at [42]).
Further, it is clear that the executive branches of Australian governments use the expression ‘domestic violence’ to encompass an abuse of power within a domestic relationship such that the less powerful partner in the relationship experiences fear of psychological or physical harm. In addition to the material referred to by Hely J at [58]-[59], reference may be made to the various definitions of ‘domestic violence’ contained in the Domestic Violence Interagency Guidelines (see In my view, material that illustrates the meaning attributed to the expression ‘domestic violence’ by the executive branch of the Australian government has particular significance in the circumstance of regulation 1.23. Regulation 1.23 is found in an instrument of delegated legislation made by the Governor-General acting with the advice of the Executive Council (see s 504 of the Act and s 16A of the Acts Interpretation Act 1901 (Cth)).
Australian legislatures can also be seen to understand the expression ‘domestic violence’ to encompass more than acts of physical violence (see, for example, Domestic and Family Violence Protection Act 1989 (Qld) s 11(1)(c); Domestic Violence Act 1994 (SA) s 4(2); Domestic Violence Act 1992 (NT) s 4; Protection Orders Act 2001 (ACT) s 9).
In Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257; 135 FCR 183 (‘Cakmak’) the Full Court gave consideration to the proper construction of regulation 1.23. The Full Court at [60] said:
"Violence" is an ordinary English word. The phrase "domestic violence" refers to the social context of its occurrence. ... The phrase is not a term of art.’
The matters identified at [14]-[16] above demonstrate, in my respectful view, that their Honours were wrong to conclude that the expression ‘domestic violence’ is not a term of art in contemporary Australia. Their Honours’ conclusion was reached, as [68] of the judgment in Cakmak reveals, in the absence of relevant submissions from either party. Cakmak had been argued before the primary judge on the basis that the word ‘violence’ meant not only physical violence but included emotional or psychological violence (see [8] of Cakmak). Counsel for the Minister did not argue to the contrary on the appeal to the Full Court (see [68]). I turn to the significance of these circumstances at [31]-[33] below.
In giving consideration to the meaning attributed to the word ‘violence’ in accepted dictionaries, their Honours at [60] of the judgment in Cakmak noted the definition contained in the Macquarie Dictionary (3rd Ed), which importantly is an Australian dictionary. That definition is as follows:
‘Violence: noun 1. rough force in action: the violence of the wind. 2. rough injurious action or treatment: to die by violence. 3. any or unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury; wrong; outrage. 4. a violent act or proceeding. 5. rough or immoderate vehemence, as of feeling or language; fury; intensity; severity. 6. a distortion of meaning or fact [Middle English, from old French, from Latin violentia vehemence].’ (emphasis added)
However, relying principally, as it seems, on definitions contained in the Oxford English Dictionary (2nd Ed) and the New Oxford Dictionary of English, their Honours at [61] observed:
‘In some contexts in ordinary usage, the notion of "violent" as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone’s behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. It is the plainest use of language, we think, that to "commit" or "perpetrate" violence or the threat of violence involves the act, or threat of, application of physical force.’
With respect to their Honours, I do not consider that the accuracy of the final sentence in the above quotation is self-evident – particularly in the context of regulation 1.23 which, as mentioned above, is a deeming provision. The critical words for present purposes are not those in pars (a) and (b) of regulation 1.23(1) but rather those in regulation 1.23(2)(b), namely ‘violence against the alleged victim ... that causes the alleged victim ... to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety’.
As the Full Court in Cakmak appreciated, the word ‘violence’ is sometimes used without any connotation of physical force. One such context, in my view, is where, there being a significant power disparity between two individuals, the more powerful of them unjustly and deliberately exercises his or her greater power so as to dominate or control the less powerful individual. This is the usage of ‘violence’ that I understand to be reflected in the third of the meanings attributed to the noun ‘violence’ by the Macquarie Dictionary (3rd Ed). See also the extract from Laing and Bobic (2002) referred to by Hely J at [58] below.
Like Hely J, I conclude that in the context of regulation 1.23 there is ambiguity inherent in the term ‘violence’. It is thus necessary to determine the meaning to be attributed to that term in regulation 1.23(2)(b) by reference to indicators to be found in the context provided by Division 1.5 of Part 1 of the Regulations.
As mentioned above, Division 1.5 of Part 1 of the Regulations is headed ‘Special provisions relating to domestic violence’. Domestic violence, understood as I think that it must be as a term of art, will ordinarily involve an abuse of power by one of the partners to a domestic relationship. Because of the general understanding in Australia of the nature of domestic violence (see [14]-[16] above), in the context of an Australian regulation concerning domestic violence it might be expected that the noun ‘violence’ would be intended to encompass more than physical violence. This expectation in respect of the use of the noun in regulation 1.23(2)(b) is confirmed, in my view, by the fact that the violence to which regulation 1.23(2)(b) refers is violence that causes, relevantly, the alleged victim to fear for, or be apprehensive about, his or her ‘personal well-being or safety’. While the intended content of the word ‘safety’ in the context may be open to debate, I do not think that it is open to be seriously contested that an individual’s ‘personal well-being’ is generally understood to encompass his or her psychological health. If the violence referred to in regulation 1.23(2)(b) were intended to be limited to physical violence, it may be doubted that the reference to ‘personal well-being’ was necessary; the reference to ‘safety’ would appear to be all that was required.
Further, I agree with Hely J that the inclusion of registered psychologists (and I would add social workers and those involved in positions of responsibility in women’s shelters and crisis and counselling services that specialise in domestic violence) within the class of persons who may provide statutory declarations as evidence that the alleged victim has suffered relevant domestic violence points towards the word ‘violence’ being used in regulation 1.23(2)(b) in a sense that extends beyond physical violence. If the word ‘violence’ were intended to include only physical violence it might have been expected, in my view, that at least one of the two ‘competent persons’ whose supporting evidence was required would be a medical practitioner or nurse. I further agree with Marshall J that it is significant that a person may be taken to have suffered domestic violence under regulation 1.23(1)(c) of the Regulations notwithstanding that he or she did not suffer physical violence (see also the observations of Hely J at [69]-[73] below).
I should add that I do not find persuasive the argument that if ‘violence’ in the context of regulation 1.23 is found to include more than physical violence it will prove difficult in practice to differentiate between conduct that falls within the terms of regulation 1.23(2)(b) and conduct that does not. That difficulty will exist even if ‘violence’ is confined to physical violence. The line between an assault that constitutes ‘violence’ in the relevant sense and an assault that does not will not always be easy to draw. Tickling and pinching, for example, might ordinarily be expected to fall on one side of the line and punching on the other – but this may not always be the case. Inherent in the notion of ‘violence’, whether physical or non-physical, is an element of vehemence or severity. For this reason a question of judgment is involved in determining whether particular conduct constitutes ‘violence’. Provided that the conduct complained of is capable of being regarded as ‘violence’, the regulation places the burden of making that judgment in respect of the domestic violence with which the regulation is concerned upon persons whose skills and experience have been assumed to fit them to make it.
I conclude that the better view of the true meaning of regulation 1.23(2)(b) is that the ‘violence’ there referred to is not restricted to physical violence. It seems to me that this conclusion accords with notions of fairness and with what may be assumed to be the policy lying behind regulation 1.23(1)(g). Without wishing in any way to diminish the horror of physical violence, it seems unlikely, in my view, that it was intended that while a person who had experienced an act of physical violence at the hands of his or her spouse might be able to bring himself or herself within regulation 1.23(1)(g), a person who had suffered the psychological violence of, for example, being compelled by non-physical means to be complicit in the sexual abuse of a child would necessarily fall outside the regulation.
Should this Full Court defer to the views expressed in Cakmak?
The second of the critical issues to which I have referred above is the issue of the significance for this Full Court of Cakmak. The view expressed by the Full Court in Cakmak as to the meaning to be attributed to the word ‘violence’ in regulation 1.23(2)(b) was obiter; the Full Court at [71]-[73] agreed with the conclusion of the primary judge that the Tribunal was entitled to conclude that the evidence presented to the Tribunal did not suggest that the conduct complained of in that case had been done by or on behalf of the applicant’s spouse.
Nonetheless, I agree with Hely J that ordinarily the appropriate approach where one Full Court entertains reservations about a decision of an earlier Full Court is the approach adopted in NATB & Others v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; 133 FCR 506. The Court in that case at [61] concluded:
‘Although, perhaps, some of their observations were obiter, we should decide inconsistently with their Honours in the earlier Full Court only if "compelled to the conclusion that the earlier decision is wrong" (Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 269), "convinced that that is wrong" (Chamberlain v The Queen (1983) 72 ELR at 8-9), and only after exercising "great care" and if persuaded that the earlier decision was "clearly erroneous" (Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 at 560); and cf, to a similar effect, Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 at [25] per Heerey J, and [56]--[57] per Allsop J (with whom Emmett J agreed); Brooks v Commissioner of Taxation (Cth) [2000] FCA 721; (2000) 100 FCR 117 at 121; and Prebble Pty Ltd v Commissioner of Taxation [2003] FCAFC 165; (2003) 131 FCR 130 at [9]--[13] per Hill and Hely JJ. ....’
In Telstra Corporation Ltd v Treloar [2000] FCA 1170 (FC); [2000] FCA 1170; 102 FCR 595 Finkelstein J and I, after acknowledging at [23]-[25] the rationale behind the doctrine of stare decisis and the caution with which appellate courts generally act before reviewing earlier decisions, at [27]-[28] observed:
‘The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter.
The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense. In this case, the number of individuals who will relevantly be affected by the construction of the statute may be assumed to be, by reason of the passage of time, relatively small.’
However, I do not understand the authorities to suggest that the approach adopted in the two cases referred to above is to be followed automatically without regard to the circumstances in which the earlier decision was published. For example, the approach need not be followed where the per incuriam rule has application (see Foster v Northern Territory of Australia [1999] FCA 1235 (FC) at [32]).
The course adopted by the Full Court in Cakmak was unusual. Their Honours gave detailed consideration to the proper construction of a provision, the language of which raises issues of some difficulty, in circumstances in which the dispute between the parties did not require that consideration and their Honours had received no relevant assistance from counsel. While I am not ‘compelled’ to the conclusion that their Honours’ conclusion concerning regulation 1.23(2)(b) was wrong and I do not regard the construction adopted by their Honours as ‘clearly wrong’, I do regard at least one aspect of the process of reasoning adopted by their Honours as clearly wrong. I take the view that their Honours were clearly wrong in concluding that the expression ‘domestic violence’ is not a term of art in contemporary Australia. On this aspect, at least, of their Honours’ reasoning I consider that their Honours were significantly disadvantaged by not receiving the assistance of counsel. I doubt that their Honours would have taken the same view of the expression ‘domestic violence’ if the material referred to in [14]-[16], or some of it, had been drawn to their attention. It seems likely that at least some of that material would have been drawn to their Honours’ attention had the issue which this Full Court is required to determine been argued in Cakmak.
It may be that the per incuriam rule reaches to Cakmak. It is not necessary for me to reach a conclusion on this question. It is sufficient for me to conclude, as I do, that the circumstances in which the obiter observations in Cakmak were published are sufficiently out of the ordinary to make the approach referred to above one that is not binding on this Full Court.
In my view the interests of justice require that the appellant in this case should not be disadvantaged in a matter potentially as significant as his right to remain lawfully in Australia by reason of an obiter conclusion of an earlier Full Court reached without relevant material being drawn to that Full Court’s attention. That is, this being the first case in which the proper construction of regulation 1.23(2)(b) has been argued before a Full Court, I consider that the appellant is entitled to have his appeal determined on the basis of the construction of the regulation that this Full Court, or a majority of its members, considers to be its proper construction. (emphasis added)
Importantly, the Executive Government, in framing Regulation 1.23(1B) chose to adopt a relatively narrow interpretation of family violence in defining “relevant family violence”. The definition of “relevant family violence” focuses in particular upon coercive controlling violence, rather than violent resistance, situational couple violence and separation instigated violence. As was alluded to by Branson J the definition of relevant family violence connotes an abuse of power within a domestic relationship such that the less powerful partner in the relationship experiences fear of psychological or physical harm. The Regulations require the issue of whether there has been relevant family violence to be referred to an IE. If the Minister is not satisfied that the alleged victim has suffered relevant family violence the Minister must seek the opinion of an IE about whether the alleged victim has suffered the relevant family violence. The Minister’s delegate or the Tribunal are required to take the IE’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
The Regulations unhelpfully juxtapose family violence with “relevant family violence” which, consistently with the analysis above, is but a small subset of the range of forms of family violence that exist.
The opinion of the IE about whether the alleged victim has suffered “relevant family violence” does not necessarily have any implication for whether the visa holder (or some member of the family of the visa holder) has suffered “family violence” in the broader sense. If a visa holder submits to a decision maker a claim of family violence that is different from the definition of “relevant family violence” it may not be necessary for the decision maker to seek the opinion of an IE. Further, an opinion of an IE on whether a visa holder (or a member of his or her family) was a victim of relevant family violence may be irrelevant to a claim of family violence which is different from relevant family violence as defined. Decision makers, including the Tribunal, under the Migration Act, must consider the claims that are made by the applicant before them. If, for example, an applicant claims to be the victim of situational couple violence, which is not represented as “relevant family violence” (but is nevertheless family violence), the Tribunal may fall into error by dealing with the matter as a claim of relevant family violence when it is not. In addition, if an applicant claims several forms of family violence, one form of which constitutes a claim of relevant family violence, and the Tribunal relies upon an opinion of an IE in relation to the claim of relevant family violence, but does not deal with the applicant’s claim of other forms of family violence, the Tribunal would fall into error for overlooking an element or integer of the applicant’s claims.
These issues represent a potential legal minefield. That minefield could be avoided if the definition of “relevant family violence” were to be replaced with the proposed definition of “family violence” in the Family Law Act referred to at [30] above if that definition is enacted. That definition has the advantage that it focuses specifically on coercive controlling violence which carries with it the concept of an abuse of power, while maintaining the concept of induced fear.
The Australian Law Reform Commission (ALRC) in its issues paper 37[16] has found general support for a definition of family violence in the Migration Regulations that is consistent with a proposed national response to family violence. The issues are further explored in the ALRC’s discussion paper number 76 issued this month.
[16] ALRC, Family Violence and Commonwealth Laws – Immigration Law (2011), Question 1
It is unnecessary to speculate further on those issues in the present case. These are adversarial proceedings and the Court must look to the grounds of review advanced by the applicant.
The grounds of review
Mr Al-Momani asserts that the Tribunal erred in finding that the opinion of the IE appointed under regulation 1.23(1B) was authorised by the Migration Regulations and so accepting it for the purposes of regulation 1.23(1C). He asserts that the IE misconstrued the definition of “family violence” in regulation 1.23(2)(b) by placing weight on the lack of a power imbalance between the applicant and his former spouse. As has already been pointed out above from the judgment of Branson J in Sok and the academic literature, a power imbalance is a feature of some forms of family violence, in particular, coercive controlling violence. It is not necessarily a feature of violent resistance, situational couple violence and separation instigated violence. Mr Al-Momani’s claims are summarised by the Tribunal in its reasons at [21] (CB 187-188):
The applicant said that when he first arrived in Australia, he held a Student visa and he came to study Hotel Management. His spouse suggested that they should get married straight away and that she would help him with his studies. He did this for her, he gave up his studies and they got married. At first he lived with her family until they were able to furnish the house. The problems started when she was pressuring him to find a job but he was not allowed to work. They pressured him to work ‘cash in hand’ but he refused. Later on he was given permission to work. While he stayed with her family, he found out that she was a completely different person to the person he knew. During that period she used to insult him and tell him that he was different because he was from Jordan. Later things got worse and she started abusing and insulting him using bad language and she made him feel as if he was nothing. She complained about his clothes and his haircut. One day they were having an argument and she hit him with a book. He found a job as a kitchen hand in a hotel but they insisted that he give up the job. He had only been in Australia for a short time but they wanted him to buy a house. He worked three jobs and was very tired but she always complained and made the rules in the house. He said that his wife started to threaten him through her father and brothers that if he did not do what she wanted, she would have him sacked. They told the restaurant that if they did not sack him, they would come and kill him with the knife. He had asked the Immigration to contact the employer to confirm that information. The applicant said that his wife started to be aggressive and threatened him all the time and hit him and he started becoming scared of her. One day his wife kicked him out of the house. It was very cold and he slept in the car. He then decided to rent their own house. He rented the house and asked his wife to move out but she refused and threatened him. The applicant said that his wife and her brothers were chasing him everywhere and they used to threaten him all the time and she was very demanding. He has an allergy to cats and she used to throw a cat at him just to harm him. He felt that his life was in danger.
In its terms, this should properly be seen as a claim of coercive controlling violence and was in its terms, a claim of “relevant family violence” in that Mr Al-Momani asserted that the violence caused him to be apprehensive about his well being and safety. In contrast to the first IE, whose report had been obtained by the delegate, the second IE, in providing a report to the Tribunal, appropriately limited herself to the question of whether Mr Al-Momani had suffered relevant family violence (not the broader issue of whether he had suffered family violence). The IE said (CB 145):
In regard to the marriage between Mr Al-Momani and Ms El Faouri, it appears that their relationship was characterised by mutual violence. IE has drawn this conclusion given the evidence reportedly provided to Ms [sic] Al-Momani from the Sheik. Given this information IE considers that a relationship consisting of mutual valance tends to negate the issue of a power imbalance which can be a precursor to forms of violence.
Therefore IE considers that there is no evidence that Mr Al-Momani experienced relevant family violence as defined nor is there any reliable evidence that any conduct, whether actual or threatened, caused Mr Al-Momani to reasonable [sic] fear for, or to be reasonably apprehensive about, his own well being or safety.
I take this statement to be an expression of opinion by the IE that the family violence experienced by Mr Al-Momani (and Ms El Faouri) was not coercive controlling violence in which a power imbalance was present and power was abused by the dominant partner, but was rather an example of situational couple violence where there was no power imbalance and no abuse of power. The IE further concluded that in those circumstances there was not any reliable evidence that the family violence caused Mr Al-Momani to reasonably fear for, or to be reasonably apprehensive about, his own well being or safety. In my view, on the material before her, the IE, while expressing her views generally, was entitled to conclude that the situational couple violence experienced by this couple, in the absence of a power imbalance, did not support the contention that Mr Al-Momani experienced relevant family violence as defined. That did not mean that Mr Al-Momani did not experience family violence. It meant that he had not experienced “relevant family violence” as defined which required him to establish, among other things, that the family violence caused him to reasonably fear for or be apprehensive about his well being or safety.
I find that the IE did not misconstrue or misapply the definition of “relevant family violence” in the Migration Regulations as it stood at the time. I accordingly reject ground 1.
Ground 2
Having regard to the observations of the Full Federal Court in Seligman at [69] I agree with the Minister that it does not matter whether the Court reviews a report of an IE directly as a judicially reviewable decision because, if the Tribunal relies upon an invalid IE report it would commit a jurisdictional error itself. Further, even accepting that an IE must observe procedural fairness in investigating and reporting on the question of whether an applicant has experienced relevant family violence, the extent of that obligation imposed upon an IE must be minimal. There are three reasons for this. The first is the confined nature of the enquiry which the IE is to address. That was simply to investigate the circumstances bearing upon the applicant’s claims and to prepare a report expressing an opinion for the purposes of the Regulations, in particular on the question of the existence or non existence of relevant family violence as defined.
The second is that in order to undertake the task imposed upon an IE, the IE must be free to obtain information in confidence. That will often mean obtaining information from the alleged perpetrator, the alleged victim, or other members of the family involved. It will frequently be inappropriate to disclose to an applicant the detail of information received or the identity of who provided it because if such disclosure was required it would be difficult, if not impossible, for the IE to carry out his or her task. In this emotionally charged area the persons involved can be expected to be unwilling to disclose information that will be passed on to a hostile former partner or family member. This aspect was emphasised by the Minister in submissions dealing with the decision of the High Court in VEAL. I accept those submissions.
Thirdly, and importantly, the Tribunal itself under its procedural code must accord procedural fairness to an applicant. In the ordinary course, as occurred here, this will involve inviting comment from an applicant on the report of an IE pursuant to s.359A of the Migration Act.
The existence of that obligation in the statutory code binding the Tribunal in my view relieves the IE from following a like procedure for the purposes of preparing the report. I reject the second ground of review.
Ground 3
Mr Al-Momani asserts that the Tribunal denied him natural justice in failing to refer his reply to the invitation to comment issued to him pursuant to s.359A of the Migration Act to the IE for comment.
The Tribunal’s failure to refer the applicant’s response to the second IE for comment may be contrasted with the approach taken by the delegate, who did precisely that (CB 88-89). The first IE confirmed his opinion to the Minister’s Department (CB 91-93).
In Gungor v Minister for Immigration & Anor [2011] FMCA 516 this Court considered this ground of review in a case involving the same IE and a report in similar terms. Raphael FM dealt with that issue in the following terms at [14]-[18]:
The second part of this ground, being the failure to refer the applicant’s response to the s.359A letter back to the expert for consideration, raises interesting questions. There is obviously tension between the obligation on the Tribunal to accept an IE’s report and that articulation of the natural justice hearing rule found in s.357A and Division 5 of the Act. Mr Karp, for the applicant, suggested that the wording of the 359A letter constituted a representation which would have given the applicant a legitimate expectation that any comments which he did make would be forwarded to the IE. A similar suggestion was made to me in Alameddine v Minister for Immigration [2010] FMCA 313. In this regard I said:
“[16]Although the applicant could not point to any statutory obligation to do so, the Court considered whether the expert’s statement that, upon receipt of new information the opinion could be reconsidered, combined with the Tribunal’s action in inviting comment on the opinion, could give rise to a legitimate expectation that the Tribunal would pass on the information. I considered this ground of review in SZEUI & Ors v Minister for Immigration & Anor [2007] FMCA 2134 at [11]:
“[T]here must be some doubt now as to the extent of any legitimate expectation doctrine following the views expressed by the High Court in Re Minister for Immigration; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 and the views of Gummow J concerning estoppel in administrative law found in Minister for Immigration v Kurtovic (1990) 21 FCR 193. There is also s.422B of the Act to be taken into account which makes s.424A part of a code and an exhaustive statement of the requirements of the natural justice hearing rule.”
In that case it was not necessary to decide the issue since the material which the applicant alleged should have been put to him on the basis of legitimate expectation was excluded by s.424A(3)(b).
[17]In Re Minister for Immigration; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 (“Ex Parte Lam”) (a case which was decided before s.422B was inserted into the Act) Gleeson CJ commented at [34]:
“…it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”
[18]On this basis, legitimate expectation may still be a useful way of characterising some procedural unfairness which falls outside the ambit of Division 5 or, at least, giving practical content to procedural obligations prescribed by the legislation. However, the applicant has not pointed to any failure of the Tribunal to comply with the procedural code set out in Division 5, nor has he shown any other basis for finding a breach of procedural fairness. Even if there was some other basis on which to find that the failure to pass on the information was a breach of procedural fairness, the applicant would still be required to show that he had suffered some detriment in reliance on the expectation. In Ex Parte Lam at [36] Gleeson CJ noted:
“The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.”
In the instant case, it is not clear that the applicant suffered any detriment in relying on the expectation. He has not said what more favourable course he might have taken had it not been for his expectation that the Tribunal would pass on the information. It may also be argued from a reading of the s.424A letter [in fact s.359A letter] and the particulars outlined therein that the Tribunal was not inviting comment on the individual findings of the expert but rather the ultimate decision and whether it was properly made. In this sense the Tribunal’s actions could not be said to give rise to an expectation that submissions of the sort made would be passed onto the independent expert.”
Mr Karp was unable to provide me with any authority that went directly to the point in this particular type of case. He relied heavily on what fell from the Full Court; Northrop, Miles and French JJ in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
An interesting opinion on the nature of legitimate expectations can be found in Canada (Attorney General) v Mavi [2011] SCC 30 where the Supreme Court of Canada (McLachlin CJ; LeBel, Deschamps, Fish, Abella, Charron, Rothstain and Cromwell JJ concurred with Binnie J who provided a test for the application of the doctrine of legitimate expectations stating at [68]:
“Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the presentations said to give rise to the legitimate expectation are clear, unambiguous and unqualified, to the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.
The test therefore comprises multiple components. Firstly, representations must be made by a government official within the scope of his or her authority. Secondly, the representations must be about an administrative process that the government will follow. Thirdly, the legitimate expectation to which the representation gives rise must be clear, unambiguous and unqualified. Fourthly, it must be procedural in nature and, fifthly, it must not be in conflict with the decision-maker’s statutory duty. If these conditions are met then the government may be held to its word. In such a case, Binnie J held that a failure to abide by the representations in a substantial way would be a breach of the duty of fairness.”
I am of the view that the only representation that an applicant in the position of Mr Gungor could properly argue was being made to him by the Tribunal was that it, the Tribunal, would consider any representations that were made. I cannot see that the Tribunal could be held to have made a representation so clear, unambiguous and unqualified that it would provide Mr Gungor with a legitimate expectation that the comments which he made to the Tribunal would be passed to the IE for her consideration and response. I am of the view that there are only two categories of matters upon which the Tribunal would be required to act should they appear in a response to a s.359A letter. The first is the provision of what is truly new evidence and the obligation to consider it arises from the wording found in bold at the completion of the IE report:
“If relevant new evidence is submitted before the application is finally determined this opinion can be reconsidered.”
The second type of comment which I believe the Tribunal is obliged to take into account would be submissions that the IE’s report was not “properly made”, that is something which would affect the Tribunal’s decision to the extent of invalidating it if the complaint was justified: Minister for Immigration v Seligman [1999] 85 FCR 115; Silver v Minister for Immigration [2007] FMCA 1955; Maman v Minister for Immigration [2011] FMCA 426. I hold to the view which I expressed in Maman that if a response to a 359A letter articulates a matter which would constitute the failure to properly make the report (in that case a failure to provide the applicant with procedural fairness) then the Tribunal is under an obligation to consider the representations and either refer the matter back to the IE or explain in its own reasons why it did not do so. I also remain of the view expressed in Maman that the Tribunal is under no obligation either to refer back to the IE or to comment upon representations that do no more than seek a further merits review of the IE’s decision. This is what the instant applicant’s representations were doing. For these reasons I would not find that the Tribunal fell into jurisdictional error in the manner suggested by Ground 2 of the grounds of the Amended Application. (emphasis added)
While my reasons differ, I agree with Raphael FM that there may be circumstances where the Tribunal is required to refer back to an IE matters raised by an applicant in his or her response to an invitation to comment on a report disclosed pursuant to s.359A[17].
Such circumstances would, in my view, include circumstances where:
a)the report is based on information that the applicant was not shown by the IE or had an opportunity to comment upon to the IE and, if he had had that opportunity, the report might be different; or
b)the matters raised by the applicant in responding to the invitation to comment about the report cast doubt upon the validly of the report such that the Tribunal could not be satisfied that it was bound by the report.
[17] His Honour had earlier explored these issues in Alameddine v Minister for Immigration & Anor [2010] FMCA 313
In the first circumstance, the obligation to refer the applicant’s response back to the IE reflects the need for the Tribunal to provide a meaningful opportunity for the applicant to comment. Like the hearing opportunity afforded pursuant to s.360 the opportunity to comment must be more than an empty shell or hollow gesture. Ordinarily, the Tribunal is bound by the IE’s opinion. The opportunity to comment would have no substance if the Tribunal were free to ignore comment that reflects an attempt to change the IE’s opinion that the applicant has previously been denied the chance to make. To the extent that the Tribunal considers itself bound by the opinion it would need to refer back to the IE a challenge to the merits of the opinion that was not available before the IE, because the IE did not disclose relevant material to the applicant.
In the second circumstance, if an applicant’s response challenges expressly or by implication the obligation on the Tribunal to adopt the IE report, the Tribunal would be bound to consider that challenge and, if in doubt, seek the further opinion of the IE.
In the present case, the invitation to comment issued by the Tribunal contained the following particulars of information before the Tribunal on which the applicant was invited to comment (CB 149):
· You applied for a Partner visa on 3 June 2008 on the basis of a sponsorship by Ms El Faouri. That sponsorship was subsequently withdrawn.
· In May 2009 you wrote to the Department of Immigration stating that your relationship with Ms El Faouri broke down and that you were a victim of family violence.
· The Tribunal referred your claims to and independent expert. On 21 January 2011 the Tribunal received the opinion of the independent expert that you have not suffered relevant family violence.
The IE’s opinion was attached to the Invitation to Comment, together with the family violence referral form used to record the IE’s contact with Mr Al-Momani as well as third party contact and submissions. This included allegations made to the Minister’s Department by
Ms El Faouri in two letters which were apparently treated as confidential by the IE and were not previously available to
Mr Al-Momani. The information in the letters is summarised by the IE at CB 142. As well as alleging violence by Mr Al-Momani,
Ms El Faouri withdrew her sponsorship of him and made other allegations, the combined effect of which was obviously intended to secure Mr Al-Momani’s removal from Australia.
The applicant responded to the invitation to comment through his migration agent and that response is reproduced at CB 166-169.
That response was as follows:
Thank you for your facsimile concerning our client in which you request our to certain information [sic]
Please note the following documents are enclosed:
– Certificate of non-conviction from Jordan
– Certificate that he has never been married in Jordan
– Medical report about his mother
– Prescription from his treating doctor who later referred him for further psychological treatment
– Copies of his contract with Burswood Entertainment showing that he first started in the bar and three months later when his wife objected he moved to the restaurant nonetheless that also was not acceptable by his wife.
– Copy of his marriage certificate.
The above documents are relevant for the following reasons:
– They demonstrate beyond any reasonable doubt that our client’s ex wife was a fabricator and manipulator whose sole purpose was to harm her husband and to kick him out of the country. She abused him and threatened him. That is evidence in the following:
·She claimed that she was told that he was married to an Irish girl in Jordan. Had that been true he would have been able to go to Ireland instead of coming to continue his studies in Australia.
·She would have also been informed about his marriage as they are second cousins and any marriage within the extended family normally becomes known to all family and friends.
·He has not run from the police and there is nothing against him in his home country
·Her letter to the Sheikh is full of fabrications. She tells the Sheikh that she does not want to see her husband neither she wants to marry him knowing that they were already married. At the same time neither our client or his in laws can kick some one out of Australia. He knows that his wife’s sister in law is an Australian citizen and no one can harm her.
·Our client’s mother has a medical condition that stops her from travelling and as such she is not going to threaten her daughter in law in any way. Her daughter in law is also aware of that medical condition.
·The mere fact that she has written to Immigration two letters shows that she was trying to influence DIAC in order to kick him out of the country.
·The above documents also demonstrate that our client was honest and truthful all through. Most of his claims of family violence were documented.
– We claim that there are no discrepancies in our client’s statements to the two competent workers. In our letter dated 19 April 2010 to DIAC we pointed out the following:
· On 13 February 2008 he arrived in Sydney on a student visa. Two months [later] his wife asked him to move to Perth in order to become closer.
· On 25 April 2008 he got married in accordance with Islamic law
· On 11.05.2008 they had their marriage party
· On 30.05.2008 they obtained their Australian certificate of marriage
– Accordingly all dates are correct. Under Islamic law, once a marriage contract has been signed by both parties and two witnesses she becomes his wife. Normally that marriage is consummated either on that day or after the marriage party.
– In that letter we also pointed out that his wife and her brother tried their best to harm him and threatened him. A male called Burswood Entertainment and claimed that Ala was working illegally. The Casino contacted Immigration and found that it was not true. Our client was informed and he requested Human Resources to put that on the record. Then he changed his employer and started working for Chacos Chicken. Her brother Mazen called Sam and told him that if he does not kick him from his employment his father in law would come and kill him with a knife. Then his wife and Mazen called again and spoke with the owner Jeryes and asked him to kick him out of his job. We at the time wrote the names and telephone numbers of the owner and his brother in law and asked to be contacted because they did not want to put that in writing. Certainly the IE would have had seen that letter and either DIAC or the IE could have made those telephone calls.
–We would appreciate if you could get in contact with Burswood Entertainment on 08-93627777 and speak to the HR department and inquire about the incident knowing that his employment number was 355459.
As for the Chacos Chicken the owners and their telephone numbers appears below.
Jeryes … and
Sam …
– The IE also saw in her own hands the message of threat that was sent to our client by his father in law. It was a text message to our client’s mobile phone. It is still there. That is nun [sic] disputable evidence that his father in law did threaten him. In addition to the threats of his wife and his brother in law. Those threats led him to become apprehended [sic] for his safety so he left Perth and came back to Sydney where he is compelling [sic] his masters’ degree.
–In Sydney he sought professional help and his doctor put him on Anti depressants. Later he referred him to a clinical psychologist for further treatment.
Yours faithfully,
A.T.I.S.
Mahmoud Ajjawi
The response is an example of the first circumstances explained at [50] above. The Tribunal as [38] of its reasons (CB 190) proceeded on the assumption that the IE’s opinion was “properly made” and that the Tribunal was “required to take it as correct”. The response provides additional documents and contests the veracity of the assertions by
Ms El Faouri as well as affirming the veracity of the assertions by
Mr Al-Momani. In substance the response is that Mr Al-Momani was being truthful and had been the subject of coercive controlling violence by Ms El Faouri and that her assertions to the contrary were false. Importantly, in my view, the response draws attention to the obvious intention of Ms El Faouri to secure Mr Al-Momani’s removal from Australia and suggests a malicious motivation which makes her allegations unreliable.In my view, in circumstances where an IE’s report is received based upon untested assertions which the applicant has not seen and which he contests in responding to an invitation to comment on the report, the Tribunal is bound to invite the IE to comment on the response and to confirm or vary his or her opinion in light of the response. If that were not the case then the invitation to comment would be meaningless because the Tribunal would be bound to adopt the report notwithstanding the response. This was not a case where the applicant was challenging expressly or by implication the binding nature of the opinion. The applicant was challenging the veracity of information upon which the opinion was based. Accordingly, in order to complete its procedural duty pursuant to s.359A, the Tribunal needed to refer the applicant’s response to the IE and obtain her response to it. The failure to do so was a breach of s.359A and the Tribunal thereby fell into jurisdictional error.
It follows that the applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 31 August 2011
2
47
4