Bhalla v Minister for Immigration
[2015] FCCA 2381
•1 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHALLA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2381 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Tribunal) – Migrant (Class BC) Visa – whether applicant denied procedural fairness due to a failure to allow a legal representative to accompany her – whether the applicant suffered relevant family violence – whether independent expert erred in finding no relevant family violence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 363, 363A, 366A, 476 |
| Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 WABZ v Minister for Immigration, Multicultural Affairs and Indigenous Affairs (2004) 134 FCR 271 |
| Applicant: | UPASANA BHALLA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1354 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 1 September 2015 |
| Date of Last Submission: | 1 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1354 of 2015
| UPASANA BHALLA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of the decision the Tribunal made on 28 April 2015 affirming the decision of the delegate not to grant the applicant and partner a Migrant (class BC) visa. The Tribunal identified the primary criteria as follows:
3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.100.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.100.221(4)(b), and (c)(i). The applicant claims this occurred in this case.
The Tribunal noted that the delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate accepted the findings of an independent expert who found that the applicant had not suffered relevant family violence committed by the sponsoring spouse.
In the application for review the applicant appeared before the Tribunal on 14 November 2014, to give evidence and present arguments and was assisted by an interpreter, as well as being represented by a migration agent. The Tribunal was not satisfied that the applicant suffered relevant family violence and in accordance with cl.1.23(10), referred that matter to an independent expert for assessment. The Tribunal noted the documents that were provided to the independent expert and noted that an expert report was provided to the Tribunal, dated 3 February 2015. There is no issue that the relevant person was an expert, within the meaning of the regulation, and that expert report concluded that the applicant had not suffered relevant family violence.
The Tribunal thereafter held a further hearing at which the applicant appeared on 24 April 2015 to give evidence and present arguments in respect of the independent expert’s report. Again, the applicant was assisted by an interpreter and represented by a migration agent. At that hearing issues were raised as to whether the expert report was one affected by a denial of procedural fairness because of a refusal to permit the applicant’s legal representative to attend before the independent expert. A further criticism was raised in relation to the process of the expert.
The Tribunal found that the applicant and the sponsor were in a partner relationship, and that that relationship had ceased. The Tribunal noted:
30. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).
31. In the present case the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.
The Tribunal turned to the issue of whether there had been family violence within the regulation and identified that this was a case where the applicant had raised a non-judicially determined claim of family violence within cl.1.23. The Tribunal noted that the Tribunal:
39.…was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with the regulations, the tribunal sought the opinion of an independent expert. On 3 February 2015 the independent expert provided an opinion that the applicant had not suffered relevant family violence.
The Tribunal expressly rejected the alleged denial of procedural fairness, noting in that regard that the process of the Tribunal was inquisitorial, as the applicant had an opportunity to present her claims and arguments in relation to whether she had suffered the relevant family violence, and was given an opportunity after the report to advance issues in relation to that report. The Tribunal found:
45. Despite the fact that the tribunal had concluded that the applicant had not suffered relevant family violence, pursuant to the regulations the claims were referred to an independent expert for their assessment. Parliament has required this process to take place to allow the applicant an opportunity to discuss their claims before an expert in the field. It is not a judicial process, but a security net for the applicant on the basis that the tribunal has already concluded that the applicant has not suffered relevant family violence. The process is designed to allow the applicant to feel more relaxed in a less formal setting to be able to speak to the independent expert about the allegations of family violence. It is at the discretion of the independent expert as to how to ensure a fair and just process during this interview. There is no right of representation or role for a migration agent during this process. The Family Court has made similar findings in respect of requests by lawyers to attend or record interviews conducted by family consultants when preparing family reports.
46. The tribunal is satisfied that the opinion of the independent expert is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the tribunal is required to take as correct an independent expert’s opinion, properly made.
47. Accordingly, the tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.
48. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the tribunal must affirm the decision under review.
The amended application raises the following grounds:
1. The Tribunal erred in considering that it was required by Migration Regulation 1.23(10)((c)(ii) to accept the opinion of the “Independent Expert” that the applicant had not suffered from relevant domestic violence, as correct.
2. Alternatively to Ground 1 above, the Tribunal erred in considering that it was bound by a purported opinion of an independent expert to find that there had not been relevant family violence within the meaning of Migration Regulation 1.22. The document which the Tribunal considered was the opinion of an independent expert within the meaning of Migration Regulation 1.23 was not a valid opinion as it was not formed in accordance with law.
Particulars
(a) The independent expert had denied procedural fairness to the Applicant by refusing to allow the Applicant to be accompanied by a legal representative at interview and by refusing to allow the interview to be recorded by the Applicant.
(b) The independent expert's opinion was based entirely on his assessment of factual claims made by the Applicant and others. At no time did the independent expert attempt to make a professional clinical assessment of the Applicant's psychological state to determine whether she had the clinical profile of a person who had been the victim of family violence.
(c) The independent expert misunderstood the legal definition of relevant family violence, in that he failed to consider that the passivity of the Applicant's husband in the face of abuse by the Applicant's brother-in-law could constitute complicity in the abusive behaviour and therefore amount to relevant family violence.
Ground 1 was the subject of a formal submission of error by counsel on behalf of the applicant. Given the observations of Justice Katzmann in the Full Court decision in Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 at [86], Mr Karp conceded that this Court would follow the dicta of Justice Katzmann in that case, and whether or not binding I regard what was said by Justice Katzmann as correct. Therefor ground 1 was not made out.
In relation to ground 2, it was common ground that there could be a denial of procedural fairness by an independent expert that would give rise to jurisdictional error. The applicant maintained that it was jurisdictional error by the independent expert in this case not to permit the legal representative to attend the interview with the independent expert. Counsel for the applicant drew the Court’s attention to what was said in the Full Court of the Federal Court in WABZ v Minister for Immigration, Multicultural Affairs and Indigenous Affairs (2004) 134 FCR 271 at [295] to [296] (paras.69 to 73) and at [305] to [306], paras.107 to 111.
It is relevant in relation to the applicant’s argument that there is a statutory scheme of procedural fairness in relation to proceedings before the Tribunal, and in that regard I take into account specifically s.360, as well as the powers under ss.363, 363A and 366A. Given these statutory procedural fairness rights provided to an applicant before the Tribunal there is no warrant for reading in a requirement in relation to an expert determination that an independent expert must allow the applicant to be accompanied by a legal representative.
It is of significance that the process in relation to the determination of whether someone has suffered or committed family violence is the subject of a number of cascading alternatives; relevantly, that family violence may be the subject of judicial determination in which case within the provision of the regulation there is conclusivity for a specified judicial determination. Regulation 123 also provides for non-judicial determination, and in that regard there is an opportunity for the applicant to persuade the Tribunal that the applicant is the victim of relevant family violence. That process occurred in the present case, as identified in the reasons above.
It was only as a result of the Tribunal not being satisfied that the alleged victim had suffered the relevant family violence that the regulation required the referral for an expert determination. I do not accept that the expert determination was one in respect of which there was any denial of procedural fairness by the expert refusing to permit the applicant to be accompanied by a legal representative at that interview or, relevantly, by refusing to allow the applicant to record the interview. Neither matter, in my opinion, can be implied as a requirement of procedural fairness in the context of the expert determination provided for under the regulations. Ground 2(a) fails to make out a jurisdictional error.
In relation to ground 2(b), the applicant contended that the expert opinion was based entirely on the assessment of factual matters and that there is no application of the clinical expertise of the expert in determining whether the applicant had been the victim of family violence. It is clear from the expert report read as a whole at pp.417 to 430 together with the identification of the material that was provided to the tribunal that this is not a case where it can be said that the expert’s opinion was based entirely on the assessment of factual claims made by the applicant. It is clear that the expert properly identified the relevant regulatory regime and the particular regulatory questions that arose, and, in my opinion, there is no warrant for any suggestion that the expert failed to bring the clinical expertise of the expert to bear in determination of the expert determination.
Mr Karp of counsel noted that the expert had not engaged in any direct analysis of whether the applicant suffered from post-traumatic stress, as had been identified in an earlier medical report. It is clear from expert’s notes that the earlier medical report and diagnosis of post-traumatic stress was a matter on which the expert focused and had regard, as recorded in the notes of the expert, and there was no requirement for the expert to engage in a clinical analysis of the applicant’s post-traumatic stress disorder or alleged disorder in making the determination.
In my opinion, the language and structure of the expert’s reasons in the report at 428 to 430 are consistent with the application of the expert’s clinical expertise in making the determination. This is supported in particular by the reference to there being an extremely fractious relationship. Further, I note that at p.425 in the court book, the opening sentence of identifying the issues raised with the applicant by the expert exploring with her the responses to these various events is entirely consistent with an application of clinical expertise. Ground 2 is not made out.
In relation to ground 3, Mr Karp of counsel drew attention to the role of the alleged perpetrator under the regulations and sought to argue that the alleged perpetrator in this case was one in which the applicant’s spouse or de facto partner was, in fact, the alleged perpetrator by reason of the passive behaviour identified by the expert. Mr Karp of counsel contended that that passive behaviour of the applicant’s partner in essence constituted the relevant family violence being perpetrated by the applicant’s husband. In this case, the expert identified the applicant’s claims relating to physical abuse from her brother-in-law as well as claims of alleged physical abuse by her husband. The expert expressed the opinion in a summary form to the following question:
14: In the IE’s opinion, did the conduct in the incident(s) described at Part B 12 cause the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety? Tick and explain why/why not (a ticked box alone is not sufficient).
X No
Yes
Given all of the issues raised by Ms Bhalla I explored with her the responses to these various events. Ms Bhalla said that she would feel bad when her husband did things to her. She said she felt like running away but then she had thoughts of her parents. She said she used to say to her husband that he might change and become better. I noticed in her Statutory Declaration that she said that she was frightened. When I explored that with her she said nobody would know. She said she worried about her parents. She said “they (Mr Bhalla and his brother) put a case of domestic violence” on her but it was dismissed at court. She saw all that as relevant to her fear of being killed. Although there is no obvious connection between her having won the criminal case and her fear of being killed by the brothers. She said she became depressed and could not sleep and she said such emotions began during the period of time that she was living with her partner.
Mr Bhalla left the relationship thus ending it. As noted despite her concerns Ms Bhalla sought to reconcile the relationship. It seems such reconciliation was motivated out of a sense of shame and desperation to try and make her marriage work, but is contrary to the behaviour of some who is in fear of being killed.
The expert also set out an opinion in summary form as follows:
In my capacity as an independent expert, I have assessed the claims of relevant family violence described by the alleged victim and recorded above. In my opinion, relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own personal wellbeing or safety (tick relevant box)
has occurred
X has not occurred
The expert then set out “reasons for my decision” which relevantly included:
…A concern about the escalation in claims is therefore held. However even allowing for the escalation in claims this appears to have been an extremely fractious relationship. It is likely the relationship between the brother in law and Ms Bhalla was at times abusive, although whether it occurred at the behest of Mr Bhalla or whether it occurred as him being a passive onlooker is a matter of debate. Certainly as time went on he is alleged to have become more involved in the physicality and the 16th December incident clearly indicates an altercation between him and Ms Bhalla did take place.
…
Over time Mr (sic) Bhalla has attributed to the husband aspects of the abuse she experienced from the brother in law. Her accounts of what has happened have changed over time, representing a pattern of escalation of claim. Mr Bhalla’s probably passivity in the face of his brother’s alleged improper and abusive behaviour is unfortunate, but there is no sense that the failure to act protectively is the same as encouraging the brother to abuse the wife, or enlisting the brother to do so. It is likely that Ms Bhalla was exasperated by her brother in law. It cannot be concluded in the current assessment that Ms Bhalla held a reasonable fear of her husband or reasonable apprehension as to her safety or well being from the behaviour of her husband.
Mr Karp of counsel contended that the expert had failed to consider whether that passivity on the part of the husband in relation to the abuse by the applicant’s brother-in-law therefore constituted a participation or complicity in that abusive behaviour so as to constitute relevant family violence by the husband.
I note that the commencement of the expert report correctly identifies the function to be performed by the expert relevantly as follows:
This part of the form is to be used to record the independent expert’s contact with the alleged victim of family violence and a professional opinion as to whether the alleged victim has suffered relevant family violence (defined below) committed by the alleged perpetrator.
Relevant family violence has the meaning given in paragraph 1.21(1) of the Migration Regulations 1994, i.e.:
“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 the reasonably apprehensive about, his or her own wellbeing or safety”.
It is clear under reg.1.23 that the expert is required to express an opinion as to whether the alleged victim has suffered the relevant family violence by the alleged perpetrator. Regulation 1.23(10) includes the issue of “by the alleged perpetrator” as is made clear on a reading of the regulation as a whole, and in particular the meaning of “the victim” as well as the work done by reg.1.23(13). It is clear that the independent expert did take into account the conduct of the applicant’s husband and did evaluate that passivity in relation to determining whether there was the relevant family violence.
It is in these circumstances that there is no jurisdictional error of the kind alleged in para.2(c). The amended application is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 8 September 2015
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