Bolat v Minister for Immigration & Anor
[2007] FMCA 1640
•16 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOLAT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1640 |
| MIGRATION – Visa – Partner (Migrant) (Class BC) visa – Migration Review Tribunal – application for review of decision of Migration Review Tribunal to affirm the decision of a delegate of the Minister refusing to grant a Partner (Migrant) (Class BC) visa – domestic violence – opinion of independent expert required – whether the Tribunal fee into error by regarding the opinion of two persons as being the opinion of an independent expert – joint opinion is opinion of an independent expert – whether the Tribunal failed to comply with Migration Act1958 (Cth) s. 39A – certiorari and mandamus. |
| Acts Interpretation Act 1901 (Cth), s.23 Migration Act 1958 (Cth), ss.357A, 359, 359A Migration Regulations 1994 (Cth), rr.1.21, 1.22, 1.23, 1.24 Migration Amendment Regulations 2005 (No. 4) (Cth), sch.3 |
| Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 referred to Ali v Minister for Immigration & Anor [2007] FMCA 1405 followed El Darwich v Minister for Immigration & Anor [2007] FMCA 1350 followed Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 followed |
| Applicant: | AHMET EVREN BOLAT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3588 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 August 2007 |
| Date of Last Submission: | 11 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the second respondent Migration Review Tribunal signed on 30 October 2006 and handed down on 8 November 2006.
That an order in the nature of mandamus is to issue directed to the second respondent requiring it to determine the applicant’s application for a visa according to law.
That the first respondent pay the applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3588 of 2006
| AHMET EVREN BOLAT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a national of Turkey, asks the court for a writ of certiorari to quash the decision of the Migration Review Tribunal made on 30th October and handed down on 8th November 2006, affirming the decision of a delegate of the Minister not to grant him a Partner (Migrant) (Class BC) visa.
The applicant also asks for these orders:
a)An order that a writ of prohibition be directed to the first respondent, the Minister for Immigration and Citizenship, prohibiting the Minister from acting upon or giving effect to or proceeding further upon the Tribunal’s decision;
b)An order that a writ of mandamus be directed to the second respondent, the Migration Review Tribunal, compelling it to redetermine the decision to refuse the visa according to law;
c)A declaration that the decision of the second respondent was made in excess of jurisdiction and is null and void; and
d)An order that the first respondent pay the costs of the applicant.
The applicant relies on these grounds of review:
a)The Tribunal made jurisdictional error regarding the opinion of the two persons as being the opinion of an independent expert as defined in Regulation 1.23(1) of the Migration Regulations 1994.
b)The Tribunal made jurisdictional error in failing to comply with
s. 359A of the Migration Act 1958 in providing a letter to the applicant but where the Tribunal acted so as to preclude the response of the applicant to the matters raised in the letters being taken into account by the relevant decision-maker.
Background
The applicant applied for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) on 12th April 2002, identifying his sponsoring spouse. He was granted a Partner (Provisional) (Class UF) (Subclass 309) (Spouse) visa on 8th November 2002.
He arrived in Australia on 22nd November 2002. On or about
17th June 2005 the sponsor advised the Department of Immigration and Multicultural and Indigenous Affairs that she wished to withdraw her sponsorship of the applicant. The Department acknowledged receipt of that advice by a letter dated 22nd June 2005.
A delegate of the Minister wrote to the applicant that same day, advising him:
I now have received advice that you are no longer living in an ongoing relationship with your sponsoring spouse who has withdrawn sponsorship for your permanent, subclass 100 Partner visa. In the circumstances, there are still three circumstances under which you may still be considered for the grant of a Partner-Permanent visa:
·If your nominator has died; or
·If your relationship ended and you were a proven victim of domestic violence committed by your nominating spouse; or
·If you have custody, joint custody or access to any children of the relationship.
If any of the above provisions apply to you, there is specific documentary evidence that you are required to provide. Please contact this office for further details.[1]
[1] Court Book at 79
The applicant wrote to the delegate on 27th July 2005, enclosing a copy of the lease of the premises where he and his spouse used to live, and saying:
Now she kick me out and she told me our kids are not my kids, kids are from another man. I’m not believing her because I’m sure kids are mine. If kids are mine I will go to court and ask for custody. Please can you give me some more time to find out kids are mine or from another man. I finish court with my wife about my kids custody.[2]
[2] Court Book at 80
The Minister’s delegate wrote to the applicant on 4th August 2005, asking for copies of the children’s birth certificates. The applicant replied on 23rd August 2005, advising that he was unable to provide copies of the birth certificates.
On 30th August 2005 the Minister’s delegate wrote to the applicant and advised him that his application for a visa had been refused.
The applicant applied to the Migration Review Tribunal on
23rd September 2005 for a review of the delegate’s decision.
Migration Review Tribunal Proceedings
The Migration Review Tribunal wrote to the applicant on
27th February 2006, inviting him to attend a hearing on 6th April 2006. The applicant wrote and confirmed that he wished to attend the hearing. He submitted a copy of a psychological report. He also wrote to the Tribunal, saying inter alia:
I ask the Tribunal to look at the letter from the immigration on
22 June 2005 because I think the circumstance number 2 (if your relationship ended and you were a proven victim of domestic violence committed by your nominating souse[3]). My wife committed violence on me because she cheated on me and completely destroyed my future because I do not trust any woman any more & I always think about how this problem happen to me and just stupid to go to work and my wife cheat on me. She make me think all the time finish my life because if I do not have permanent in Australia how now can I go back to my country all people will make fun of me the stupid man. I do not know what the immigration or the Tribunal want me to give to prove that my wife committed violence on me[4].
[3] sic
[4] Court Book at 120
The applicant attended the Tribunal hearing on 6th April 2006 and gave evidence. From the Tribunal Decision Record, it appears that the applicant claimed to have seen his children only once since the parties separated in June 2005. He claimed his wife refused any financial assistance from him by way of maintenance or child support.
The Tribunal recorded that the applicant was unable to provide copies of the children’s birth certificates. He also claimed to have been unable to commence any legal proceedings in respect of the children, saying that his request had been refused when he approached the court.[5]
[5] Court Book at 285
After the hearing, the Tribunal wrote to the applicant on 26th April 2006. The letter was headed Invitation to Comment on Information and referred the applicant to ss. 359A and 359(2) of the Migration Act 1958. The letter set out the requirements of regulations 1.22, 1.23 and 1.24 of the Migration Regulations 1994 and invited the applicant to provide the Tribunal with evidence in support of his claim to have been subject to domestic violence. The letter also invited the applicant to provide the Tribunal with evidence in support of his claim to have legal obligations in relation to a child or children.[6]
[6] Court Book at 124-125
The applicant replied in a letter of 2nd June 2006. The letter contained four documents:
a)A statutory declaration by Nazile Ozer, a registered nurse[7];
b)A statutory declaration by Dr Aladdin Abdullah Emin, a medical practitioner;[8]
c)A statutory declaration by the applicant;[9] and
d)A report by Dr Magnolio Erive, Resident Medical Officer at Auburn Hospital dated 24th February 2005, reporting that the applicant had presented with an injury to his left hand.[10]
[7] Court Book 128-134
[8] Court Book 136-142
[9] Court Book 143-151
[10] Court Book 152-160
The Tribunal wrote to the applicant on 5th June 2006 and advised him:
I wish to inform you that your claim of domestic violence has been referred to an independent expert, namely a Centrelink Senior Social Worker, for an opinion. No action is required from you at the moment. Centrelink will make contact with you soon with further information. In most cases, this will be to arrange an interview.[11]
[11] Court Book 166
The letter also contained a document from the Migration Review Tribunal, headed Domestic Violence Provisions. The document referred to the situation where the Tribunal considered evidence of domestic violence other than court orders, stating:
In cases where evidence other than court orders exists (e.g. statutory declarations, police records, joint undertakings before a court), the Tribunal can accept that domestic violence has occurred. However, if the Tribunal is not sure that domestic violence has occurred, it must seek an opinion from an independent expert.
The independent expert (a Centrelink Senior Social Worker), will provide an opinion to the Tribunal on whether domestic violence has or has not occurred, basing this finding on the evidence provided by the Tribunal and any other evidence that the social worker obtains, including form interviewing the applicant.
The independent expert’s opinion on whether domestic violence has occurred must be taken as correct by the Tribunal.[12]
[12] Court Book at 167
The Tribunal referred the applicant to Centrelink. After interviewing the applicant, Centrelink returned the assessment to the Tribunal.
The assessment included a detailed account of the applicant’s claims.[13]
[13] Court Book 186-189
The assessment also included the Independent expert’s opinion.
The opinion stated that:
Mr Bolat has not suffered relevant domestic violence as defined by the Migration Regulations 1994…
Based on the information collected at the interview, it is out opinion that although Mr Bolat experienced some very difficult times during the course of his marriage, which led to the breakdown of the marriage, there is no supporting evidence to suggest that he feared for his personal well being or safety as a result of the domestic violence.[14]
[14] Court Book at 191
The report was signed by two people:
a)Mary Magias, Bachelor of Social Work; and
b)Angela Ziochos, Bachelor of Social Work.
Below their names and qualifications appeared the name of the Centrelink office and a contact telephone number.[15]
[15] Court Book at 192
The Tribunal wrote to the applicant on 30th August 2006, in a letter headed Invitation to Comment on Information. The letter referred to the provisions of s. 359A of the Migration Act and invited the applicant to comment on this information:
·On 5 June 2006 the Tribunal wrote to you to inform you that your claims of ‘relevant domestic violence’ were being referred to a Centrelink Senior Social Worker for an independent expert opinion.
·On 22 August 2006 the Tribunal received a response from Centrelink and it was the opinion of the independent experts who assessed your claims that you had NOT suffered ‘relevant domestic violence’ committed by the alleged perpetrator (being your former spouse). A copy of the assessment is attached.[16]
[16] Court Book 196-197
The letter told the applicant that the information was relevant to the review because:
a)as he was no longer in a spousal relationship with his sponsor;
b)as the Tribunal was bound to accept the opinion of the independent expert that he was not the victim of relevant domestic violence; and
c)as he had not provided any evidence that he met other relevant criteria,
then the Tribunal had to find that he did not meet the criteria for the grant of the visa and had no choice but to affirm the delegate’s decision. The Tribunal’s letter invited the applicant to provide written comments on that information.[17]
[17] Court Book 197
The applicant consulted a migration consultant who made a written submission on his behalf on 6th October 2006.[18] Along with the written submission, the consultant provided statutory declarations by the following:
a)The applicant;[19]
b)Dr Susan Debra Pulman, a clinical and forensic neuropsychologist;[20]
c)Nazile Ozer, registered nurse;[21] and
d)The applicant (essentially the same declaration)[22].
[18] Court Book 208-213
[19] Court Book 214-221
[20] Court Book 222-230
[21] Court Book 231-237
[22] Court Book 238-244
The Tribunal Decision
The Tribunal signed its decision on 30th October 2006 and handed the decision down on 8th November 2006. A copy of the Tribunal Decision Record appears on pages 276 to 287 of the Court Book.
The Tribunal considered the applicant’s domestic violence claim, including the statutory declarations of Nazile Ozer and Dr Aladdin Emin and found that the applicant had made a non-judicially determined claim of domestic violence. Noting that the evidence of domestic violence in the two statutory declarations appeared to be based largely on the claims made by the applicant, the Tribunal decided in accordance with r.1.23 (1B)(b) of the Migration Regulations to seek the opinion of an independent expert as to whether the applicant had suffered domestic violence.
The Tribunal stated:
On 22 August 2006, the independent expert provided an opinion that the review applicant had not suffered relevant domestic violence. The author of that opinion holds a Bachelor of Social Work and is employed by Centrelink. The Tribunal has been advised and is satisfied that all Centrelink Social Workers are professionally qualified and their qualifications confer eligibility for membership of the Australian Association of Social Workers (AASW). Therefore, the Tribunal is satisfied the author of the opinion is a person suitability qualified to make this assessment. The Tribunal is satisfied that the opinion is properly authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, and an employee of Centrelink, which is currently the only organisation specified by Gazette Notice for this purpose. The Tribunal further finds that the opinion properly relates to ‘relevant domestic violence’.[23]
[23] Court Book at 283
The Tribunal referred to the applicant’s comments of 6th October 2006 in reply to the Tribunal’s s. 359A letter of the 30th August 2006, but was not satisfied that the applicant had addressed the Tribunal’s obligation under reg 1.23(1C) of the Migration Regulations.
The Tribunal stated:
The Tribunal is satisfied that it has an independent expert’s opinion, properly made, that the review applicant has not suffered the relevant domestic violence. Accordingly, under r. 1.23(1)(g) the Tribunal finds that the alleged victim is not taken to have suffered domestic violence and the alleged perpetrator is not taken to have committed relevant domestic violence.[24]
[24] Court Book at 284
The Tribunal found that the applicant did not meet the relevant criterion in cl.100.221(4)(c)(i) of Schedule 2 of the Migration Regulations because:
a)the relationship between the applicant and his sponsoring spouse had ceased; and
b)the applicant was not taken to have suffered domestic violence committed by the sponsoring spouse.
The Tribunal then considered whether the applicant had shown that he had obligations towards a child or children of the relationship under
cl. 100.221(4)(c)(ii) of Schedule 2 of the Regulations, as he had claimed. The Tribunal noted that it had invited him to provide evidence in support of that claim in its s. 359 letter of 26th April 2006.
The Tribunal noted that:
a)The applicant claimed at the hearing to have seen the children only on one occasion since the parties separated.
b)The applicant claimed not to pay any maintenance or other financial support for the children.
c)The applicant provided photographic evidence of him holding one child.
d)The applicant claimed his wife had told him the children were not his.
e)The applicant was unable to obtain birth certificates of the children.
f)The applicant claimed to have been unable to commence any legal proceedings in respect of the children.[25]
[25] Court Book 285
The Tribunal was not satisfied on the evidence before it that the applicant was the biological father of the children or had any obligations towards them.
The Tribunal found that the applicant did not meet essential criteria for the grant of a Partner (Migrant) (Class BC) visa and affirmed the decision not to grant the visa to the applicant.
Application for Judicial Review
The applicant commenced proceedings on 4th December 2006 by filing an application and an affidavit in support. He filed an amended application in court on 23rd August 2007.
The Applicant’s Submissions
Counsel for the applicant, Mr Young, referred to the Tribunal’s finding that it was not satisfied that the applicant or his migration agent had addressed the Tribunal’s obligation under Regulation 1.23 (1C) which required it to take as correct the independent expert’s opinion about whether the alleged victim had suffered relevant domestic violence.
He submitted that nothing in Division 1.5 of the Regulations allows for the role of the independent expert to be delegated to a committee or two or more persons. The plain intent is that there will be a single independent expert who will give his or her opinion as to whether the applicant has suffered domestic violence or not.
Mr Young submitted that there is no legislative fiat for such a course and, in particular, no place for the operation of s. 23(b) of the Acts Interpretation Act1901 (Cth). He referred the court to the decision of the High Court of Australia in Bodruddaza v Minister for Immigration and Multicultural Affairs[26] where their Honours said at [72]:
The plaintiff relies upon the presumption that words in the singular number include the plural [56][27]
[26] [2007] HCA 14
[27] Referring to Acts interpretation Act 1901 (Cth) ss 23, 46(1)
He went on to submit that the Tribunal appeared to be unaware that two persons had purported to act as the independent expert, referring to the ‘author’ of the opinion as holding the degree of Bachelor of Social Work and being employed by Centrelink.[28] He submitted that:
There were two authors of the opinion and it would appear (although it is not absolutely clear) that both of them were employed by Centrelink.[29]
[28] Court Book at 283
[29] Applicant’s written submissions at [23]
Mr Young submitted that it was irrelevant whether both of the signatories to the opinion were employed by Centrelink. The Tribunal had, he submitted, that the opinion was provided by a person who was suitably employed (qualified?) to make the assessment and an employee of Centrelink.
Mr Young contended that in overlooking the ‘committee nature’ of the opinion, the Tribunal failed to have regard to the content of the Regulation that the independent expert is a single person and the functions cannot be exercised concurrently by more than one person. Further, the Tribunal made a jurisdictional error in having regard to the opinion at all and also made jurisdictional error by regarding the opinion of the two persons who had given it as an opinion that the Tribunal was required to take as correct.
As to the applicant’s other ground, Mr Young described the process in which the Tribunal engaged in relation to the s. 359A letter as ‘farcical’. The Tribunal invited the applicant’s comments on the letter which it had sent to him on 5th June 2006 but the applicant had been advised on that date that no action was required of him at that time.
Mr Young went on to submit:
To seek from the applicant his comments as to the actions of the MRT in referring his claims of relevant domestic violence to a Centrelink social worker for an independent expert opinion almost 3 months before the MRT sought his opinion on that action was the antithesis of fairness. By the time of the letter of 30 August 2006 seeking his comments on the action of the MRT in referring the matter for independent expert opinion, the MRT had already received the opinion of the tow social workers purporting to act as the independent expert, that he had not suffered relevant domestic violence. Therefore, nothing that the Applicant could say or do was capable of affecting the decision which had been made on 5 June 2006. For the MRT to state that it was providing him with a fair process in order to be able to respond to material before the MRT was simply untrue. The MRT had prevented the applicant from making any submission to it in relation to its proposal to refer the question of whether he had suffered relevant domestic violence to an independent expert for opinion[30].
[30] Applicant’s Written Submissions at [28]
Mr Young referred to the Domestic Violence Referral Form, which has a space for the Tribunal to complete, saying:
Additional information, summarised below, has been received in respect of this claim of domestic violence:[31]
[31] Court Book at 193
The form provides a space for that information and then provides:
Please indicate below whether your opinion, given in Part B of this form, is changed as a result of this additional information.[32]
[32] Ibid
Mr Young submitted that the Tribunal chose not to refer the considerable material, including an opinion of a clinical and forensic neuropsychologist, that the applicant had been subjected to domestic violence of an emotional and psychological nature due to threats and intimidation by his former spouse back to “the committee of independent experts”.[33] The Tribunal stated that, having read the opinion of Dr Pulman, the neuropsychologist, it was not satisfied that her opinion alleviated the Tribunal’s original concern, which was that the statutory declarations attested to the evidence given by the applicant.
[33] Applicant’s Written Submissions at [32]
Thus, Mr Young submitted, the Tribunal “thereafter became the independent expert.” [34] It was only by referring the applicant’s response to the Centrelink social workers could any meaning be given to the content of the s. 359A letter. By failing too refer the applicant’s response to the s. 359A letter to the Centrelink social workers the Tribunal ensured that fairness was not accorded to the applicant.[35]
[34] Applicant’s Written Submissions at [35]
[35] Applicant’s Written Submissions at [36]
Mr Young submitted that the purpose of s. 359A is to provide statutory fairness. It is only applicable where the comments made by the applicant are capable of affecting the outcome. It is pointless providing information to the Tribunal if the Tribunal does not pass those comments on to the independent expert.
Mr Young submitted that s. 359A has to have a practical effect.
The requirement that the further information be put back to the independent expert arises from the reality of s. 359A.
By not doing so, counsel for the applicant submitted that the Tribunal failed to comply with its obligation under s. 359A of the Migration Act.
The First Respondent’s Submissions
Counsel for the first respondent, Mr Johnson, submitted that the Tribunal was obliged by regulation 1.23(1C) to ‘take as correct (the) independent expert’s opinion, properly made, about whether the alleged victim suffered domestic violence’. Regulation 1.23(1C) provides that:
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 domestic violence.
Mr Johnson submitted that this was the basis upon which the Tribunal’s decision relevantly rested. He also pointed out that at paragraphs [43] and [44] of its decision[36] the Tribunal explained why it was not led to a different conclusion by other opinions put forward by the applicant (see also at [40]-[41]).[37] Those opinions, he submitted, did not displace the Tribunal’s obligation under regulation 1.23(1C). The Tribunal was, in any event, not satisfied as to the merits of the opinions put forward by the applicant that he had suffered relevant domestic violence.[38]
[36] At Court Book 284
[37] At Court Book 283
[38] First Respondent’s Outline of Submissions [7]-[10] filed 17 April 2007
In a further outline of submissions filed on 16th August 2007,
Mr Johnson dealt specifically with the two grounds upon which the applicant relied in his amended application.
Noting the applicant’s contention that, as there were two persons giving a joint opinion, rather than one person, this was not “an independent expert” opinion of the kind that regulation 1.23(1B)(b) envisages being sought, Mr Johnson submitted that each of the two persons who prepared the report held the degree of Bachelor of Social Work and was employed by Centrelink, a gazetted organisation as envisaged by the definition of ‘independent expert’ in regulation 1.21.
Mr Johnson submitted that the Tribunal did not make a jurisdictional error by treating the joint opinion of the two social workers as it would treat an expression of the same opinion by only one person. It was the same opinion.
Mr Johnson went on to submit that the regulations are capable of sensible operation where the ‘independent expert’s opinion’ is a joint opinion by two people. The effect of s. 23 of the Acts Interpretation Act is that sub- regulation 1.23(1C) can be read as if the reference to an ‘independent expert’s opinion’ or, to ‘independent expert’s opinions’.
If joint experts disagree as to the result, then they will not provide a report which satisfies the description of an ‘independent expert’s opinion…about whether the alleged victim has suffered domestic violence’. They would provide either a joint opinion that expresses conflicting conclusions, or two conflicting opinions. Neither would trigger the binding operation of sub-regulation 1.23(1C).[39]
[39] First Respondent’s Further Outline of Submissions [6]
Mr Johnson submitted that the position was not in substance different from that which arises where a single expert gives an opinion that is entirely equivocal, in the sense that that he or she neither expresses the opinion has or has not suffered relevant domestic violence. If a single expert does not express a concluded opinion whether the alleged victim has suffered domestic violence, the binding effect of sub-regulation 1.23(1C) is not engaged. The Minister can then, if satisfied on reading the equivocal opinion that the domestic violence has occurred, consider the application on that basis under sub-regulation 1.23(1B)(a); or, if not satisfied, again seek the opinion of an independent expert under sub-regulation 1.23(1B)(b).[40]
[40] First Respondent’s Further Outline of Submissions [7]
An expression is only binding, he submitted, if, despite any expressions of doubt, it reaches a conclusion whether the alleged violence has occurred. It is only in that event that sub-regulation 1.23(1C) has a substratum to operate upon. Provided there is a single opinion, the provision is triggered and it matters not whether the opinion is from two qualified experts or from one.[41]
[41] First Respondent’s Further Outline of Submissions [8]
Mr Johnson submitted that the Tribunal did not make jurisdictional error by applying regulation 1.23(1C) to the independent experts’ opinion in this case.
Turning to the applicant’s other ground, the claim that the Tribunal failed to comply with s. 359A of the Migration Act, Mr Johnson submitted that the applicant’s argument was that the Tribunal was obliged to put the further material, obtained and supplied by the applicant after the s. 359A was sent, to the independent experts to see if the opinion was the same.[42]
[42] First Respondent’s Further Outline of Submissions [13]
Mr Johnson submitted that there was no such obligation. On the contrary, once the independent expert’s opinion under regulation 1.23(1B)(b) becomes available to the Tribunal, regulation 1.23(1C) is triggered and the Tribunal is bound by regulation 1.23(1C) to ‘take an independent expert’s opinion on the matter mentioned in paragraph (1B)(b) to be correct for the purpose of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa …to have suffered domestic violence’. There was no obligation upon the Tribunal to do any more than it did once the applicant’s response to the s. 359A invitation was received.[43]
[43] First Respondent’s Further Outline of Submissions [14]
Mr Johnson submitted that the applicant’s argument relied upon the form that was used, which in part seemed to envisage the possibility of further information being put to see if the independent expert’s opinion was then still the same, but the form does not override regulation 1.23(1C), or the authority that the Tribunal derived from regulation 1.23(1C) to proceed to decide the matter as it did.[44]
[44] First Respondent’s Further Outline of Submissions [15]
Counsel for the first respondent referred the court to the decisions of Nicholls FM in Ali v Ministration for Immigration & Anor[45] and Turner FM in El Darwich v Minister for Immigration & Anor[46], both of which related to the provision of a joint opinion of two persons.
[45] [2007] FMCA 1405
[46] [2007] FMCA 1350
Conclusions
The applicant relies on two grounds of review.
First Ground – Whether the Tribunal made jurisdictional error by regarding the opinion of the two persons as being the opinion of an independent expert.
Schedule 3 of the Migration Amendment Regulations 2005 (No 4) added to Subregulation 1.21(1) the definition of independent expert:
[2] Subregulation 1.21(1), after definition of competent person
insert
independent expert means a person who:
(a) is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of domestic violence.
An examination of the assessment in this matter shows that it has been signed by two people, each of whom has the degree of bachelor of Social Work. The only reasonable interpretation of the document is that each person was employed by Centrelink at its Fairfield office. Centrelink is the only organisation that is specified by a Gazette Notice for this definition. All Centrelink Social Workers are professionally qualified and their qualifications confer eligibility for membership of the Australian Association of Social Workers (AASW).[47]
[47] Court Book 181, 283
Each of the authors of the document qualifies as an independent expert for the purpose of the definition. The question to be decided is whether a joint report by two such persons is an independent expert’s opinion for the purposes of subregulations 1.23(1B) and 1.23(1C).
In my view, it is a matter of no consequence whether the assessment is prepared by more than one person. It will still qualify as an independent expert’s opinion provided that:
a)each of the authors is a suitably qualified person;
b)the assessment is unanimous; and
c)the assessment is unequivocal.
I am reinforced in this view by the decisions of Nicholls FM in Ali v Minister for Immigration & Anor[48] and Turner FM in El Darwich v Minister for Immigration & Anor[49], both of which decisions are directly on point.
[48] [2007] FMCA 1405
[49] [2007] FMCA 1350
In Ali, Nicholls FM held:
The applicant also complains about the qualifications of the Centrelink independent expert. I note in this regard that, from the material available to the Court, the independent expert’s opinion…was in fact provided by two independent experts.
The form is signed…by tow experts, one from the Fairfield Centrelink Office, and the other from the Burwood Centrelink Office. Nothing turns for the purposes of the regulation on the fact that there were two independent experts.[50]
[50] [2007] FMCA 1405 at [22]
In El Darwich, Turner FM considered a similar situation:
The Tribunal sought the opinion of an independent expert; reg.1.23(1B)(b) was therefore complied with. The opinion which resulted…is the opinion of an independent expert and the opinion of a second independent expert. Their opinion is the same.
[14] By reg. 1.23(1C) the Tribunal was required to 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’. Both independent experts gave the same opinion. The fact that two independent experts expressed the same opinion does not prevent the opinion from being the opinion of an independent expert on the matter.[51]
[51] [2007] FMCA 1350 at [13]-[14]
I am satisfied that the decisions in Ali and El Darwich are on point and are, with respect, correctly decided.
The applicant’s first ground does not succeed. The Tribunal did not make a jurisdictional error by regarding the opinion of the two persons as being the opinion of an independent expert.
Second Ground – Whether the Tribunal made jurisdictional error in failing to comply with s. 359A of the Migration Act 1958
The basis of this ground is that the Tribunal forwarded a letter to the applicant on 30th August 2006, drawing his attention to the assessment of the independent experts that he had not suffered relevant domestic violence and seeking his comments on that information. The applicant replied in writing and provided a fresh report from Dr Susan Pulman, a clinical and forensic neuropsychologist.
The Tribunal considered the applicant’s submission and Dr Pulman’s report, but did not forward that information to the independent experts in order that they might reconsider their opinion. The applicant claims that this constitutes a breach by the Tribunal of s. 359A of the Migration Act.
The Tribunal did not refer the further information to the independent experts for these reasons:
[43] As set out, the above decision is based on the Tribunal’s understanding that it need conduct[52]a de novo review of an applicant’s claims as to domestic violence, but that by virtue of
r. 1.23(1C), the Tribunal is required to take as correct an independent expert’s opinion, properly made, about whether the alleged victim suffered relevant domestic violence. The Tribunal does not understand that subsequent (new) evidence as to domestic violence (i.e. after relevant Centrelink advice has been received), and provided by an applicant, invoked further obligations to re-consider their domestic violence claim/s. If this was the case, the Tribunal would assume that the consideration of domestic violence claims could continue ad infinitum, or at least as long as an applicant was able to lodge fresh evidence of their domestic violence claim/s.
[44] However, if the Tribunal is incorrect in its immediately abovementioned understanding of its obligations, after having read the ‘new’ statutory declarations, the Tribunal is not satisfied that they alleviate its original concerns; that is, the statutory declarations attest tot evidence given by the review applicant.
In one case where this was not apparent it was claimed (by Dr Susan Pulman) that the review applicant acted similarly to ‘many spouses in abusive relationships’ by remaining in the family home. The applicant also made submissions disputing findings in the Centrelink advice (which had been sent to him for comment). That said, the Tribunal is not satisfied the fresh evidence provided in support of his domestic violence claim is sufficiently different from his earlier claims that it need again be referred to Centrelink for further consideration.[53]
[52] Should this read “need not conduct”?
[53] Court Book at 284
Section 359A(1) of the Migration Act imposes this obligation upon the Tribunal:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied upon in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Section 359A is part of Division 5 of Part 5 of the Migration Act. Section 357A provides , relevantly:
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) (not relevant)
(3) (not relevant)
It is well established that s. 357A of the Migration Act excludes the operation of the natural justice hearing rule at common law (Minister for Immigration and Multicultural and Indigenous Affairs[54]).
The obligations upon the Tribunal are set out in Division 5.[54] (2006) 151 FCR 214
Clearly, the Tribunal was obliged to put the contents of the independent experts’ assessment of domestic violence to the applicant as required by s. 359A. The assessment that he had not suffered relevant domestic violence was clearly information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision.
Section 359A(1)(c) required that the applicant be given the opportunity to comment on or respond to the information. This means that the applicant was entitled not only to provide comments but to provide further evidence about his claim.
In my view, the section does require that the Tribunal should reconsider the applicant’s domestic violence claim if the applicant produces fresh evidence. Section 359A is not meant to be an empty and meaningless section. It is clearly intended by the legislature to have some practical effect, because it is contained within the Subdivision that sets out an exhaustive statement of the natural justice hearing rule.
The Tribunal was obliged to follow the independent expert’s assessment as to whether or not the applicant was a victim of relevant domestic violence. The Tribunal could not substitute its own view.
Dr Pulman’s report was clearly relevant evidence that the independent experts may or may not have considered would alter their opinion as to whether the applicant was the victim of relevant domestic violence. The referral and assessment even provided for the receipt and consideration of such additional relevant evidence, but the Tribunal made its own decision not to refer this evidence to the independent experts.
In my view this constituted jurisdictional error. I propose to grant the application with costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 28 September 2007
4
4