Armstrong and Anor v Minister for Immigration and Anor (No.2)

[2017] FCCA 2058

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARMSTRONG & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2058

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Partner (Migrant) (Class BC) visas – failure of the Tribunal to forward the photographs to the independent expert denied the applicant procedural fairness – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36, 359A(4)(b), 359B, 375, 476

Migration Regulations 1994, regs.1.21, 1.22, 1.23, sch.2 cls.100.221, 100.321

First Applicant: SUREERAT ARMSTRONG

Second Applicant: TANAKARN SI-ON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2474 of 2016

Judgment of: Judge Street

Hearing date: 15 August 2017

Date of Last Submission: 15 August 2017

Delivered at: Sydney

Delivered on: 15 August 2017

REPRESENTATION

Counsel for the Applicant: Mr R Nair
On a direct access basis

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. Pursuant to r.11.11 of the Federal Circuit Court Rules 2001, the first applicant is appointed the litigation guardian of the second applicant

2. The need for the notice under r.11.13 of the Federal Circuit Court Rules 2001 is dispensed with.

3. A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision dated 16 August 2016.

4. A writ in the nature of mandamus is issued requiring the second respondent to determine the application for review according to law.

5. The first respondent pay the applicants’ costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2474 of 2016

SUREERAT ARMSTRONG

First Applicant

TANAKARN SI-ON

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 August 2016 affirming a decision of the delegate not to grant the applicants Partner (Migrant) (Class BC) visas.

2. The first applicant is the mother of the second applicant and has been appointed the litigation guardian of the second applicant. The first applicant is a national of Thailand and applied for the visas on 22 May 2012. 

The delegate’s decision

1. The delegate refused the grant of the application on 5 May 2015 because the applicant did not satisfy cl.100.221 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) because the delegate was not satisfied the applicant continued to be the spouse of the sponsor.

2. The delegate’s decision relevantly identified that on 13 January 2015, the Department received information that the relationship with the sponsor had ceased on 3 December 2014. The delegate’s decision referred to the relationship reconciling on 13 January 2015, and being informed on 19 March 2015 that the relationship had ceased. 

3. On 10 December 2014, the delegate wrote to the applicant identifying that the Department had received information that the relationship between the applicant and the sponsor had ended and invited the applicant the opportunity to comment. On 20 March 2015, the delegate wrote to the applicant identifying the Department had received information that the relationship between the applicant and the sponsor had ended and invited the applicant to comment. 

The Tribunal’s decision

1. The applicant lodged an application for review which included the decision of the delegate and accordingly, the delegate’s decision was information that the applicant provided for the purpose of the application for review within s.359A(4)(b) of the Migration Act.

2. By letter dated 8 April 2016, the applicant was invited to attend a hearing on 18 May 2016. The letter identified that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal record identifies that the applicant attended a hearing on 18 May and was assisted by the applicant’s representative. 

3. Following the hearing, on 30 May the applicant’s migration representative provided documents to the Tribunal that included a statutory declaration by a psychologist dated 25 May 2016 in support of the allegation that the applicant had suffered domestic family violence, and a statutory declaration by Dr Jill Catherine      McDonell supporting an allegation that the applicant had been the subject of alleged family violence. Relevantly, that statutory declaration referred to the doctor having seen photographs of a bruise to the applicant’s right eye, and having seen photographs of the applicant’s bruised breast consistent with a history of an alleged injury.

Family Violence Referral Form M52

1. On 3 June 2016, the Tribunal sent a completed Family Violence Referral Form M52, supporting documents and audio recording of the Tribunal hearing in relation to an independent expert. It is not apparent that the email was copied to the migration agent.

2. Relevantly, the form included a Part C referring to “Further Referral - Additional Information Submitted Following Referral or Opinion Not Valid - New Opinion Required”. That form had underneath it “AAT to complete” and a reference “You must choose either option 1 or 2.” The first option referred to additional information submitted following referral. The second form referred to opinion not valid, requiring a new opinion.

Independent Expert report

1. On 30 July, an independent expert provided a report to the Tribunal which found that the applicant had not suffered family violence as defined within the definition and provided reasons in support of that finding. The report annexed Part C of the Family Violence Referral Form, which provided an opportunity for further referral, for the Tribunal to complete.

Letter dated 1 August 2016 inviting the Applicants to comment on or respond to information

1. The Tribunal wrote to the applicants’ migration agent on 1 August 2016 providing a copy of a letter to the applicants which attached the Family Violence Assessment and Independent Expert’s opinion. The letter to the applicants referred to a requirement to invite the applicant to comment or respond to certain information. 

2. The letter purported to comply with the requirements of s.359B of the Migration Act and referred to the information being relevant because it may cause the Tribunal to find that the applicant has not suffered relevant family violence. The Tribunal’s letter noted that as the relationship had broken down and as evidence had not been provided that the applicant met any of the alternative criteria for the grant of the visa, the Tribunal may find that the applicants do not meet the requirements for the grant of a partner visa for which the applicant applied. The letter identified a timeframe for comments for response.

Response dated 15 August 2016 to the Tribunal’s letter

1. The migration agent on 15 August 2016, sent a letter to the Tribunal which relevantly said:

   “Attached is some more text messages that my client has instructed me to forward to the Tribunal on her behalf. At this stage, we do not have any further evidence to confirm my client has been a victim of DV.”

2. The email attached a number of photographs, which appear to be photographs of the applicant on 24 January 2015, 12 December 2014, 17, 19 and 20 November 2014. Those photographs in relation to 24 January 2015 show what appear to be contusions to the applicant’s left and right arm, as well as a wound to the applicant’s left foot, and a scratch on the first applicant’s knuckles on 24 January 2015. It is difficult to distil the nature of the significance of the photograph of 12 December 2014. The photographs of November, however, appear to identify contusion to the first applicant’s left lip and left eye, as well as contusions to the first applicant’s right arm. 

The hearing before the Tribunal

1. The Tribunal in its reasons identified that the applicants appeared before the Tribunal on 18 May to give evidence and that the applicants were represented by a migration agent. The Tribunal referred to the requirements of reg.1.23 of the Migration Regulations 1994 (“the Regulations”) in relation to relevant family violence as defined in reg.1.21 of the Regulations.

2. The Tribunal noted that the applicant provided a copy of the primary decision and that the applicant entered Australia in November 2012. The Tribunal made reference to December 2014, where the Department received advice that the relationship with the sponsor had ended, and that the applicant subsequently advised the couple attempted a reconciliation. The Tribunal made reference to the primary decision, that in March 2015, the Department was again advised that the applicant’s relationship with the sponsor had ceased.

3. The Tribunal made reference to there being evidence before the Tribunal concerning the various aspects of the relationship. The Tribunal also referred to the applicant’s oral evidence to the Tribunal and made reference to the sponsor having written to the Tribunal identifying there was a close relationship in the months after the applicant’s arrival in Australia, and despite problems that developed, the relationship was a genuine one.

4. The Tribunal observed that there was sufficient evidence to satisfy the decision-maker that the applicant and sponsor were in a genuine relationship resulting in the grant of a temporary partner visa to the applicant. The Tribunal also noted the relationship lasted for over two years before it broke down in 2014. On the totality of evidence, the Tribunal was satisfied the applicant and sponsor were in a partner relationship and that that relationship had ceased.

Consideration of the applicant’s claim of family violence

1. The Tribunal made reference to whether or not there was a claim of family violence and the Tribunal found that a non-judicially determined claim of family violence had been made under reg.1.23 of the Regulations.

2. The Tribunal then referred to the evidence of the applicant during the hearing in relation to whether the family violence had been suffered and the Tribunal found the applicant’s evidence unconvincing. The Tribunal made reference to being mindful that the applicant never referred to family violence in her dealings with the Department and such claims have been raised for the first time only recently.

3. The Tribunal also took into account evidence of the applicant’s friends who referred to the physical violence. The Tribunal, however, having considered all of the evidence before it, was not satisfied for the purposes of reg.1.23 of the Regulations that the applicant had suffered family violence.

4. It was in those circumstances that the Tribunal identified seeking an opinion of an independent expert. The Tribunal made reference to the independent expert opinion provided on 30 July 2016 that the applicant had not suffered relevant family violence.

5. The Tribunal identified writing to the applicant consistent with the requirements of s.359A of the Migration Act inviting the applicant’s comments on that information. The Tribunal relevantly said at paragraph 15 of the Tribunal’s reasons that:

   “The applicant replied on 15 August 2016 by providing additional photographic and other evidence.  Such evidence does not establish, and the applicant does not argue, that the IE opinion was invalid.

6. The Tribunal found that it was satisfied an opinion authorised by the Regulations had been provided and had been made by an independent expert who was a person suitably qualified to make the assessment, being an employee of an organisation specified for the purpose, and was properly made. The Tribunal found that it was required to take as correct the independent expert’s opinion, by reason of being properly made.

7. The Tribunal noted that the opinion was that the applicant did not suffer family violence. The Tribunal accordingly found the applicant was not taken to have suffered family violence committed by the sponsor for reg.1.22 of the Regulations, and found the applicant did not meet cl.100.221(4) of Schedule 2 to the Regulations.

8. The Tribunal found there was no evidence the applicant meets the remaining provisions in cl.100.221 of Schedule 2 to the Regulations and the Tribunal was not satisfied the applicant met the requirements of that clause. Accordingly, the Tribunal found the second applicant did not meet cl.100.321 of Schedule 2 to the Regulations.

9. The Tribunal concluded that the claim of family violence had not been established and that the applicant did not meet the requirements of cl.100.221(4) (b) and (c) of Schedule 2 to the Regulations for the grant of the visa. The Tribunal found the applicant failed to meet an essential criterion for the visa and the Tribunal affirmed the decision under review.

Before this Court

1. The grounds of the amended application are as follows:

   Ground One: The Tribunal denied the applicants statutory procedural fairness when it failed to provide the applicants with a copy of the Certificate issued to the Tribunal under s.375A of the Migration Act 1958 (“s.375A Certificate”) or to otherwise disclose to them this Certificate.

   Particulars:

   i) The Tribunal received (CB 130) a “Certificate and Notification", under s.375A of the Migration Act 1958, from the delegate of the first respondent regarding the “disclosure of certain information only to the” Tribunal.

   ii) Notwithstanding that the Tribunal (CB p.166) told the applicants that specified folios in relevant files could not be provided to the applicants “because they are subject to a certificate made by the department (Department of Immigration and Border Protection) under s.375A of the Migration Act which certifies their disclosure to be contrary to the public interest'', the Tribunal did not disclose this “s.375A Certificate” to the applicants; the Tribunal did not provide the applicants with a copy of this s.375A Certificate.

   iii) Accordingly, the Tribunal denied the applicants procedural fairness (Minister for Immigration and Border Protection v Singh [2012] FCAFC 183 (Kenny, Perram and Mortimer JJ)).

   Ground Two:

   Particulars:

   The Tribunal made a jurisdictional error when it took into account the “opinion of an independent expert". The opinion the Tribunal sought was not the opinion authorised by law.

   i) The opinion that the Tribunal had to seek of the independent expert was whether the first applicant had “suffered the relevant family violence".

   ii) “Relevant family violence” is defined as “conduct ... that causes the alleged victim to reasonably fear for, or be reasonably apprehensive about, his, or her, own wellbeing or safety.”

   iii) The opinion sought by the Tribunal was whether “relevant family violence that causes the alleged victim to reasonably fear for, or be reasonably apprehensive about, his, or her, own wellbeing or safety .. has occurred.” This is not the question or opinion authorised by law.

   Ground Three: The Tribunal made a jurisdictional error when it purported to take into account the “pinion of an independent expert” where this opinion is invalid because the independent expert misconstrued and misapplied the law.

   Particulars:

   i) The test for whether the first applicant had suffered “relevant family violence” has both a subjective and an objective component.

   ii) The independent expert conflated the subjective and objective elements and misconstrued and misapplied the law. This is jurisdictional error invalidating the independent expert's opinion.

   iii) The Tribunal made a jurisdictional error when it relied on the independent expert's invalid opinion.

   Ground 4: The Tribunal denied the applicants procedural Fairness when it failed to refer to the “independent expert” the additional evidence the applicants provided in response to the invitation under s.359A of the Migration Act inviting the applicants to comment on, and respond to, the independent expert’s report.

   Particulars

   i) The independent expert's report stated that “it was based on the evidence available at the time of assessment” and that “this opinion can be reconsidered” if “relevant new evidence is submitted before the application is finally determined”.

   ii) The independent expert challenged the objectivity of, and clearly discounted, the evidence of a medical practitioner, Dr. Jill McDonald, as to the applicant having suffered family violence because as the independent expert stated it "is unclear whether Dr.  McDonald was able to act objectively in this instance as a competent person given her pre-existing knowledge of Ms. Armstrong".

   iii) In her statutory declaration in support of Mrs Armstrong's claim of family violence, Dr. McDonald referred to photographs she had seen of Mrs Armstrong's injuries resulting from family violence. There is no reference to these photographs in the independent expert's reports. They were not provided to the independent expert before that expert provided her report.

   iv) In response to the invitation under s.359A of the Migration Act, the applicant provided the Tribunal with additional evidence including photographs of injuries she suffered and it is clear from the context that these are injuries sustained as a result of the family violence she claimed. The Tribunal did not provide these photographs to the independent expert before the Tribunal made its purported decision. This is jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, Mr Nair of counsel submitted that the material the subject of the certificate was potentially relevant because it identified a communication to support a loving relationship between the parties. I accept the first respondent’s submission that the material, the subject of the section s.375 certificate was at best neutral and was not relevant to the issue of domestic violence as raised by the applicant.

2. Mr Nair of counsel took the Court to the Tribunal’s reasons in which the Tribunal referred to having considered all of the evidence before it not being satisfied, for the purposes of reg.1.23 of the Regulations, that the applicant had suffered relevant family violence. I do not regard that reference in the Tribunal’s reasons as supporting the conclusion that the Tribunal took into account or had regard to the material the subject of the s.375 certificate.

3. In the present case, I find that the material the subject of the s.375 certificate was not relevant to the issues before the Tribunal and that the applicant suffered no practical injustice by reason of the non-disclosure of the invalid certificate and the non-disclosure of the documents the subject of that certificate. In these circumstances, there is no jurisdictional error as alleged in ground 1.

4. Further, I find that the documents the subject of the certificate occasioned no practical injustice. For this reason, if a relevant error had been made out on this ground, I would refuse relief on discretionary grounds.

Ground 2

1. In relation to ground 2, Mr Nair of counsel submitted that the form the subject of the referral posed the wrong question by reason of referring, on the final page headed Independent Expert’s Opinion, to the following quote:

   “In my opinion, relevant family violence that causes the alleged victim to reasonably fear for or to be reasonably apprehensive about, his or her personal wellbeing or safety (tick relevant box).”

2. Under the quote there are two boxes, “has occurred” and “has not occurred.” Mr Nair of counsel submitted that the reference to relevant family violence posed the wrong question, that the question should have referred to conduct and that reg.1.21 of the Regulations did not ask a question as to whether relevant family violence had or had not occurred. 

1. The expert’s opinion in the report is to be read as a whole. The report correctly identifies the meaning of relevant family violence at the commencement of the report. Materially, it provides as follows:

   Relevant family violence has the meaning given in regulation 1.21 of the Migration Regulations 1994:

   relevant family violence means conduct, whether actual or threatened, towards:

   (a) the alleged victim; or

   (b) a member of the family unit of the alleged victim; or

   (c) a member of the family unit of the alleged perpetrator; or

   (d) the property of the alleged victim; or

   (e) the property of a member of the family unit of the alleged victim; or

   (f) 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.

2. I accept the first respondent’s submission that the question posed in relation to the form under the independent expert’s opinion on a fair reading, is identifying conduct in the context of the reference to relevant family violence. I do not accept the submission that the independent expert posed and answered the wrong question, and that the opinion was not an opinion that met the requirements of reg.1.23 of Schedule 2 to the Regulations as found by the Tribunal. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Nair of counsel referred to the independent expert’s reasoning, part of which referred to an incident that occurred and a statement that the applicant did not desist in grabbing the phone, suggesting that any possible fear was not overwhelming. Mr Nair of counsel submitted that the independent expert has incorporated an onus of overwhelming in determining whether the criteria was met.

2. I accept the first respondent’s submission that the report is to be read as a whole and that on a fair reading of the report as a whole, the independent expert did not apply any onus of proof or a requirement that the fear be overwhelming in determining whether the relevant family violence was made out. The Tribunal did not misconstrue or misapply the law. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Nair took the Court to the Family Violence Referral Form and in particular Part C. Mr Nair emphasised, and he was correct to do so, that the determination of family violence was in the circumstances of this case, a matter for the independent expert and not for the Tribunal. 

2. On a fair reading of the migration agent’s letter dated 15 August 2016, the letter was providing further information alleging domestic family violence. On its face, that was information that reflected the existence of photographs referred to in the statutory declaration provided by Dr McDonell. 

3. Whilst I accept the first respondent’s submission that the independent expert did accept that incidents occurred, that there were struggles in that regard and that on the face of the material, the independent expert took into account the statutory declaration that identified that the doctor had seen photos. In my opinion, the provision of the letter annexing material purporting to support the existence of family violence was a matter of sufficient materiality that gave rise to a requirement of procedural fairness in the circumstances of the present case to provide the photographs to the independent expert. I find the failure to provide the photographs to the independent expert was a denial of procedural fairness.

4. Part C of the Family Violence Referral Form provides an opportunity for additional information to be submitted following referral which would enable the Tribunal to refer that material to the independent expert to determine whether or not the relevant family violence was made out.

5. The photographs of potential physical abuse are abhorrent and whether the photographs may or may not have affected the decision of the independent expert, is a matter in respect of which the applicant has lost the opportunity of that material being put before an independent expert by the conduct of the Tribunal. I find the photographs have real potential materiality for the independent expert in this case.

6. The Tribunal’s finding that the applicant did not argue that the report was invalid, did not address the issue as to whether or not that material should have been provided to the independent expert. I do accept that the applicant had an opportunity to provide that material, had she so wished, at the interview that took place between the independent expert and the applicants referred to in the independent expert’s report. However, that does not properly answer why the material provided by the migration agent’s letter dated 15 August 2016 was not then provided to the independent expert by the Tribunal.

7. It was not for the Tribunal to determine the issue of domestic family violence and the report form plainly provided an opportunity to provide additional information. This is not a case where on the material before the Court, the applicant was invited to provide further information prior to the referral to the independent expert, albeit the applicant attended a hearing in respect of which the applicant had been informed, prior to that hearing, that the Tribunal was unable to make a favourable decision on the information it had been provided. 

8. I accept the submissions of Mr Nair of counsel that the failure of the Tribunal in the present case to forward the photographs purporting to reflect the nature of the domestic violence upon the applicant, at least in relation to the incident described by the applicant to have occurred on 24 January 2015, was material information that as a requirement of procedural fairness, the Tribunal should have sent to the independent expert.

9. The Tribunal has not provided an adequate explanation for not forwarding the photographs to the independent expert in the present case. In all the circumstances, the failure to provide such photographs to the independent expert denied the applicant procedural fairness in the conduct of the review, I find this denial of procedural fairness amounts to a jurisdictional error. 

Conclusion

1. Accordingly, relief will be granted.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 September 2017