Gounder v Minister for Immigration
[2015] FCCA 1658
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOUNDER v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1658 |
| Catchwords: ADMINISTRATIVE LAW – Review of decision of Migration Review Tribunal – whether the Tribunal gave no reasons for its conclusion that it was not satisfied that the applicant had suffered relevant family violence – whether the Tribunal’s decision was affected by jurisdictional error by reason that it sought a report from the same company of independent experts as the first Tribunal and/or by reason that independent opinion relied on by the first Tribunal was provided to the independent expert used by the present Tribunal without any explanation of the flaw in the first report – present Tribunal bound to use the same company/provider of independent experts by legislative instrument – no jurisdictional error or procedural unfairness – application dismissed. PRACTICE & PROCEDURE – Whether applicant could rely on amended application filed late and without leave. |
| Legislation: Migration Act 1958 (Cth), ss.349, 368 Migration Regulations 1994 (Cth), regs.1.22, 1.23, cl.801.221 of sch.2 |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Hadchity v Minister for Immigration & Citizenship (2010) 266 ALR 579 Isbester v Knox City Council [2015] HCA 20 Kocakaya v Minister for Immigration & Citizenship [2013] FCA 55 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration & Multicultural Affairs v Jia (2001) 75 ALJR 679 Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 SZTGS v Minister for Immigration & Border Protection [2014] FCA 908 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 |
| Applicant: | RUNESHWARAN SHIVA GOUNDER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 239 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 5 May 2015 |
| Date of Last Submission: | 5 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the First Respondent: | Mr D. Hughes |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicant have leave to rely upon the amended application filed on 20 April 2015.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 239 of 2015
| RUNESHWARAN SHIVA GOUNDER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of Fiji who met a woman, Ms Raju, in Fiji in December 2007 and formed a relationship with her. In December 2008 he obtained a subclass 300 prospective marriage visa on the basis of that relationship and moved to Australia. The applicant and Ms Raju were married in Australia on 18 April 2009. On 9 July 2009, with Ms Raju as his sponsor, the applicant applied for two partner visas: a Class UK (Partner-Temporary) (subclass 820) visa and a Class BS (Partner-Residence) (subclass 801) visa. Although these visas are applied for at the same time, the usual course is that the former visa is granted in the first instance and, some 2 years later, consideration is given to the grant of the latter, permanent visa.
The Temporary subclass 820 Partner visa was granted on 17 October 2009. However, on 6 April 2010 Ms Raju advised the Department that the relationship between her and the applicant had broken down and that she wished to withdraw her sponsorship.
Although it is ordinarily a criterion for the grant of the permanent visa that the applicant remains sponsored by their spouse, there are certain circumstances in which an applicant may be eligible for the grant of a visa even if the relationship has ceased. One such circumstance is where the relationship has ceased and the applicant suffered “family violence” committed by the spouse: cl.801.221(6) of sch.2 to the Migration Regulations 1994 (“Regulations”).
Shortly after the applicant was informed by the Department that his spouse had withdrawn her sponsorship, the applicant engaged a migration agent who wrote to the Department claiming that the applicant had suffered family violence. The agent provided statutory declarations in support of that claim from two psychotherapists. A delegate of the first respondent (“Minister”) then referred the matter to Centrelink for an independent expert opinion. On 20 May 2011 the expert provided an opinion that the applicant had not suffered relevant family violence. Extracts of that opinion were sent to the applicant’s agent by the delegate under the cover of a letter dated 26 May 2011, inviting the applicant to comment on them. By way of email, the applicant’s agent made submissions on the opinion and attached further reports from the two psychotherapists
The delegate relied upon the independent expert’s opinion and so refused the visa application on 24 June 2011. The applicant then applied to the second respondent (“Tribunal”) for review of that decision. After a hearing on 23 July 2013, the Tribunal referred the claim of family violence to LSC Psychology (“LSC”) for a further independent expert opinion. A clinical psychologist, Alison O’Neill, provided a report on 8 October 2013 in which she gave the opinion that the applicant had not suffered relevant family violence. On 11 October 2013, the applicant was invited to comment on that opinion.
In response to Ms O’Neill’s report, the applicant’s agent argued that Ms O’Neill had made up her mind prior to interviewing the applicant and had ignored relevant documents including a police report. He argued that, in light of the applicant’s claims, it may be appropriate that the Tribunal refer the applicant to another independent expert or obtain transcripts of the interview to determine whether his allegations were corroborated. The applicant also made a number of complaints about the independent expert in a statutory declaration accompanying the agent’s submission. Amongst those complaints was that the expert, “being a lady cannot imagine the pain for being kicked in the testicles” and, that because she lacked knowledge of other cultural values, was not able to determine the level of mental torture.
The Tribunal seems to have then realised that it had sent the applicant an incomplete copy of the report of Ms O’Neill. It remedied this by sending the full report to the applicant and inviting him to respond to it. In response, the applicant’s agent essentially repeated his earlier submissions. The Tribunal forwarded these responses to the Ms O’Neill, asking her to consider that material and advise whether she wished to make any further comment or to revise her assessment.
Ms O’Neill prepared a further report on 2 December 2013. In it, she addressed the material sent to the Tribunal by the applicant in response to her first report and stated that the additional documentation had not altered her opinion that the applicant was not the victim of family violence. The Tribunal sent the applicant a copy of the further report by Ms O’Neill inviting his comment on it and then invited him to a further hearing before it. That further hearing took place on 17 December 2013. The Tribunal made a decision on 9 January 2014 to affirm the delegate’s decision.
The applicant applied to this Court for judicial review of the Tribunal’s decision. By order dated 26 May 2014, the Court, by consent, issued writs of certiorari and mandamus in respect of the Tribunal’s decision. In its order, the Court noted the following:
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error. The Second Respondent erred in taking as correct an opinion of an independent expert where that independent expert failed to afford the applicant procedural fairness. The independent expert relied upon information contained in a prior independent expert report and a summary of the hearing before the Second Respondent (the Tribunal) in a manner adverse to the applicant, and failed to afford the applicant an opportunity to address that information.
When the matter was remitted to the Tribunal for further determination the Tribunal, constituted by a different member, invited the applicant to attend a hearing on 20 August 2014. On 18 August 2014, the applicant’s agent provided submissions to the Tribunal in support of the applicant’s review application. At the hearing on 20 August 2014, the applicant gave evidence concerning the family violence that he claimed to have suffered. On 29 August 2014 an officer of the Tribunal sent a “Family Violence Referral Form” to LSC requesting a further opinion from a different independent expert. Amongst the documents sent to LSC for this purpose was a copy of the orders made by this Court on 26 May 2014 (described as “Federal Court Decision”).
By email dated 30 August 2014 LSC requested confirmation that the Tribunal required a fresh assessment and the production of a new report. On 1 September 2014 an officer of the Tribunal replied:
Because the case has been returned to the Tribunal from the Federal Circuit Court, the case needs to be looked at again.
The Member has confirmed that the Tribunal requires a fresh Part B report, and that it, if possible it (sic) be undertaken by a different clinician.
…
LSC responded to this email indicating that the case had been allocated to a Dr Lennings. Dr Lennings interviewed the applicant for approximately two hours on 17 September 2014 and made a report on 22 September 2014 giving his opinion that the applicant had not suffered relevant family violence.
On 25 September 2014 the applicant’s agent was sent a copy of this report and the applicant was invited to attend a further hearing on 10 November 2014. The applicant responded in a submission forwarded by his agent to the Tribunal on 4 November 2014. The agent also provided submissions on 6 November 2014 arguing that the assessment could not be considered just and fair because it came from the same company that had prepared the early report and it might be considered that it might be reluctant to contradict that earlier report. It is further argued that the assessment lacked sufficient cultural understanding and that implied bias might have occurred. The agent also sent the Tribunal the report of a psychologist, Belal Ali.
The applicant attended a further Tribunal hearing on 10 November 2014 and on 12 January 2015 the Tribunal made its decision to affirm the decision of the delegate.
The Tribunal was satisfied that the applicant and Ms Raju were married at the time of the application but that the relationship had since ceased. It then considered whether the applicant had suffered family violence committed by the sponsor within the meaning of the Regulations. It concluded on the basis of statutory declarations lodged in support of the application that a non-judicially determined claim of family violence had been made under reg.1.23 of the Regulations. It then stated:
[37]Having considered all the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with the regulation, the Tribunal sought the opinion of an independent expert. …
The Tribunal then considered Dr Lennings’ report and the complaints made by the applicant and his agent in respect of it before concluding:
[58]The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of 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.
In light of that, that Tribunal found that the applicant was not taken to have suffered family violence committed by the sponsor and so did not meet the requirements for the grant of the visa. For that reason the Tribunal affirmed the decision of the delegate.
The applicant now seeks judicial review of the Tribunal’s decision of 12 January 2015.
Preliminary issue
A preliminary issue arose in the proceedings after the applicant filed with his written submissions an amended application on 20 April 2015, without leave. That is not a course to be encouraged. The applicant had earlier been directed to file any amended application by a particular date and failed to give any explanation as to why he had not complied with that order. Lawyers appearing in this Court should be aware that failure to comply with Court orders may result in personal costs orders against them or a reduction in any costs order in favour of their clients.
In any event, the Minister did not object to the amendments in so far as they related to the original grounds in the application but did object to the addition of a further ground. The bases for this objection were, first, that he was unable to meet the ground as it had not been subject of any written submissions filed prior to the hearing; and secondly, that there was insufficient merit in the ground. The second argument seemed to undermine the first and, in order to facilitate the efficient conduct of proceedings I reserved the question relating to the amendment and heard argument on all of the grounds. In the event, Mr Hughes, who appeared for the Minister, was able to address the additional ground and, at the end of the hearing, the sole basis for his objection to the amendment was that it had no prospects of success.
In my view, the role of this Court as a trial Court weighs heavily in favour of allowing arguments to be raised unless to do so would cause irremediable prejudice to an opposing party or to other litigants before the Court. Any prejudice to a party can ordinarily be met by an order for costs and, as I have said, that may include an order that a legal representative pay those costs personally. It advances the interests of the administration of justice to have full argument and consideration of grounds at first instance rather than for the first time on appeal. Of course there may be other considerations that weigh against the granting of leave to raise further grounds particularly at late stages in litigation. Amongst those is where an amendment requires an adjournment. Given the heavy workload of this Court, the likely result of any adjournment will be either that the hearing of another matter will have to be vacated to accommodate the present matter or the present matter be stood over for many months either to a call over or to another date for hearing. In this case none of those matters was relied upon by the Minister and I can see none for myself. For those reasons, I will grant the applicant leave to rely on the amended application filed on 20 April 2015.
The grounds in the amended application as amended are as follows:
1.The Second Respondent made jurisdictional error by exercising the power or duty under reg.1.23(10)(c)(ii) of the Migration Regulations 1994 in relation to the selection of the independent expert in a manner which was:
(a) unreasonable; and/or
(b) gave rise to a reasonable apprehension of bias; and/or
(c)without regard to the definition of ‘Independent Expert’ as defined in Regulation 1.21(1).
Particulars
The Respondent selected as the independent expert the same company (LSC Psychology) as had been involved in the independent expert opinion in the First Tribunal decision.
2.The Second Respondent made jurisdictional error at [37] of its decision by failing to provide any basis for its finding that the applicant had not suffered relevant family violence.
…
5.The Second Respondent made jurisdictional error in that in the selection of, and circumstances in relation to the Referral to the Independent Expert, the Applicant was denied procedural fairness.
Particulars
i.see 1 above;
ii.Referral Form M52 sent to LSC Psychology on 20 August 2014;
iii.Failure to make clear the terms of and effect of the Consent Orders made in the Federal Circuit Court on 26 May 2014.
iv.Email exchange between LSC Psychology and the Second Respondent on 30 August 2014 and 1 September 2014…
Relevant statutory provisions
The criteria for the grant of the subclass 801 partner visa were set out in cl.801 of sch.2 to the Regulations. One of those criteria was that the applicant must continue to be sponsored by their sponsoring partner: sub-cl.801.221(2)(b)(i). As already noted, there are a number of exceptions to that requirement including that, where the relationship with the sponsor has ceased, the applicant for the visa has suffered “family violence” committed by the sponsor: sub-cl.801.221(6)(b) and (c)(i).
Regulation 1.22(1) provides that “a reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.”
Regulation 1.23 provides for a number of different ways in which a person might be taken to have suffered family violence. Where, as in the case of the applicant, there are no judicial pronouncements or Court orders made in respect of that question, there may be a non-judicially determined claim of family violence: see regs.1.21 and 1.23(9). Sub-regulation 1.23(9) sets out a number of evidentiary matters that are required in order for such a claim to have been made. In this case, the Tribunal was satisfied that such a claim had been made and there is no issue in respect of that finding.
Sub-regulations 1.23(10) and (13) are critical to the issues in these proceedings. They provide:
(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.
…
(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.
“Independent expert” is defined in reg.1.21 as a person who:
(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.
It was common ground that the then Minister had, on 19 March 2013 made a legislative instrument within the meaning of the definition of independent expert. That instrument, IMMI 13/023, provided:
I, BRENDAN O’CONNOR, Minister for Immigration and Citizenship,…
REVOKE Instrument number IMMI 05/064, signed on 22 June 2005, specifying Centrelink as an organisation for the purposes of the definition of independent expert in regulation 1.21 of the Regulation; AND
SPECIFY the Department of Human Services as an organisation for the purposes of the definition of independent expert in regulation 1.21 of the Regulations in relation to claims of family violence referred to the independent expert prior to the commencement of this Instrument; AND
SPECIFY LSC Psychology as an organisation for the purposes of the definition of independent expert in regulation 1.21 of the Regulations in relation to claims family violence referred to the independent expert on or after commencement of this Instrument.
This Instrument, IMMI 13/023, commences on the day after registration on the Federal Register of Legislative Instruments.
The instrument was registered on 2 April 2013.
Consideration
Ground 2
It is convenient to deal with the second ground first. This ground is addressed to the implicit requirement in sub-reg.1.23(10)(c) for the Tribunal to consider for itself whether the applicant had suffered relevant family violence. The applicant argued that the Tribunal gave no reasons for its conclusion that it was not satisfied that the applicant had suffered relevant family violence. That much may be accepted. The totality of the Tribunal’s consideration of this matter was set out at [37] of its reasons which is set out at [15] above. The issue is, however, whether anything follows from that.
Mr Young, who appeared for the applicant, argued that the Tribunal’s non-satisfaction in this context was a jurisdictional fact and that the Tribunal was required to give some exposition of a rational basis for its conclusion as to that fact. The basis of that submission was the requirement under s.368 of the Migration Act (“Act”) to give reasons for its decision. That section provides:
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application – indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f)records the day and time the statement is made.
The immediate difficulty with the applicant’s submission is that s.368 only operates in respect of the Tribunal’s “decision on a review”. That decision is the decision on the exercise of the Tribunal’s power under s.349 of the Act rather than any anterior procedural matter made in the course of the conduct of the review. For that reason, in my view, s.368 has no application to the determination by the Tribunal under sub-reg.1.23(10)(c) and the cases relied upon by the applicant, such as SZTGS v Minister for Immigration & Border Protection [2014] FCA 908 and Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 are not relevant to the issues in this case.
In any event, I am bound by authority to find that the Tribunal is not obliged expressly to state its lack of satisfaction (or, necessarily, the reasons for it) prior to the referral of the matter to an independent expert assessment or indeed at all: Hadchity v Minister for Immigration & Citizenship (2010) 266 ALR 579 at 583 [20]; Kocakaya v Minister for Immigration & Citizenship [2013] FCA 55 at [29].
I note that the Minister did not accept the submission that the question raised in reg.1.23(10)(c) was a jurisdictional fact. He argued that the issue here did not fall within the meaning of that phrase as explained by Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 (see also Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64). That may well be, however, as discussed in Aronson and Groves, Judicial Review of Administrative Action, Law Book Co 2013, 5th edition at [4.470]ff, there are varying widths to the meaning ascribed to that expression. It is not necessary from present purposes to resolve this issue. The simple point is that, regardless of the nature of the question posed by the regulation, there was no obligation on it to give any reasons. On that basis, it is difficult to infer, and I do not, that the Tribunal failed in any way in its consideration of whether it was satisfied or not that the applicant suffered relevant family violence.
For those reasons the second ground is rejected.
Grounds 1 and 5
The applicant argued that the first and fifth grounds could and should be considered together. They both concern the actual referral by the Tribunal to the independent expert for determination of the question whether the applicant had suffered relevant family violence. The difference between the two grounds is that the first ground rests on the fact that, on remittal, the Tribunal referred the question to the same organisation (LSC) which had provided the report to the Tribunal as originally constituted whereas the fifth ground is based upon the fact that a copy of Ms O’Neill’s report (which had been found to have been made in denial of procedural fairness) was provided to Dr Lennings without any explanation of the flaw in Dr O’Neill’s report.
In his written submissions the applicant argued that LSC ought not to have had the matter referred to it on the second occasion because it was possibly not capable of making an independent assessment as required by the first part of the definition of independent expert in reg.1.21. The assumption behind this submission is that Dr Lennings was likely to give considerable weight to the opinion of Ms O’Neill because he was employed by the same organisation. This, in turn, it was argued, supported the conclusion that a fair minded lay observer properly informed as to the nature of the tasks to be undertaken, the matters in conduct and the prior conduct of the relevant decision-maker, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982.
This last argument reveals a slight shift from the way in which the ground is framed in the application to the applicant’s written and oral argument. In the application, the ground is framed so that the apprehension of bias is said to have arisen in respect of the Tribunal rather than in respect of Dr Lennings. In any event, however the argument might be framed, it faces the insuperable difficulty that the Tribunal had no choice in the matter.
Once the Tribunal had determined that it was not satisfied that the applicant had suffered relevant domestic violence it was required by sub-reg.1.23(1)(c)(i) to seek the opinion of an independent expert. The definition of that term in reg.1.21(1) included, as noted above, that the expert be employed by or contracted to provide services to an organisation that is specified in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence. The Minister had made such an instrument, namely IMMI 13/023, which specified relevantly only one organisation, LSC.
In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Mason CJ and Brennan J said at 89:
… The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which set up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute …
(references omitted)
See also the discussion of the principle by Gillard J in Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51 at [143] to [177].
If it were the case that the principles of procedural fairness prevented the Tribunal from seeking an opinion from a relevantly qualified person engaged by LSC, the function of the Tribunal as required by the Act and Regulations would be frustrated. Thus, far from maintaining the integrity of the Tribunal’s process, it would have the opposite effect: cf Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 359 [65] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Ebner was decided in the context of the judicial process where the principles of apprehended bias were developed partly by reference to the need to maintain confidence in that process. In applying the principles outside of that process, account must be taken of the different nature of the body or tribunal and the different character of its proceedings: Minister for Immigration & Multicultural Affairs v Jia (2001) 75 ALJR 679 at 710, 711 [181], [187] per Hayne J (with whom Gleeson CJ and Gummow J agreed at 696 [100]); Isbester v Knox City Council [2015] HCA 20 at [22] per Kiefel, Bell, Keane and Nettle JJ and [57] per Gageler J. Further, regard must be had to the statutory provisions applicable to the proceedings and the particular subject matter with which the decision is concerned: Re Refugee Review Tribunal; ex parte H at 983 [5]. As already discussed, the relevant statutory provisions in this case did not allow the Tribunal to take any course other than seeking an opinion from a relevantly qualified person engaged by LSC.
For that reason the first ground is rejected.
The fifth ground is based upon the possibility that Dr Lennings might have been influenced by the opinion of Ms O’Neill which, according to the decision of this Court, was infected by a denial of procedural fairness. The facts relied upon by the applicant are, first, that in email correspondence with LSC the Tribunal did not make plain the basis upon which the Court had set aside the earlier decision of the Tribunal. Rather, it had simply said that because the case had been returned to the Tribunal by the Court the case needed to be looked at again and, “if possible” the new review had to be undertaken by a different clinician. Next, the applicant relies upon the fact that in his report, Dr Lennings apparently misunderstood the reasons for the Court’s order. Dr Lennings said:
I had a number of documents in relation to this matter including the summary of the first Tribunal on the 9th January 2014 and an Order by Judge Lloyd Jones of the Federal Circuit Court of Australia requiring the matter to go back to the MRT in regards to difficulties with this case.
The reference here to “difficulties” reveals, it was argued, that Dr Lennings did not understand that there had been a denial of procedural fairness.
Further, in his report, Dr Lennings had regard to, and thereby, it may be inferred, placed weight upon, Ms O’Neill’s opinion. Dr Lennings wrote:
I had an opportunity to read all of those reports and the basic thrust of those reports is that whilst Mr Gounder had experienced considerable sadness and distress as a consequence of what was very largely a distorted family dynamic provided by the intrusion of his in-laws, Mr Gounder was not a victim of family violence. There is some concern, particularly in the reports of Ms Alison O’Neil, that some elaboration of his concerns had taken place as a consequence of the effluxion of time.
As I have already noted, Counsel for the Minister was able at the hearing to address this ground in spite of not having had written submissions from the applicant specifically in respect of it. His arguments were: first, that it was important to have regard to the context of the report, namely the obligation on the Tribunal to seek an opinion from a relevantly qualified person engaged by LSC; secondly, any unfairness that could have potentially been caused by Dr Lennings’ misunderstanding of the Court order was capable of being cured once the applicant received a copy of the report; thirdly, the consent orders made by the Court were provided to Dr Lennings and the requirements of procedural fairness were not such that the Tribunal itself had to inform Dr Lennings any further as to the nature of those orders: the applicant himself could, if he had thought it relevant, have done so; and, fourthly, in order to make good the proposition that Dr Lennings’ report was somehow infected by what was referred to as the contaminated report of Ms O’Neill, the applicant was required to identify with some specificity those aspects of Ms O’Neill’s report which were so infected.
The first difficulty with this ground is that I disagree with the basic proposition underlying it, namely that Dr Lennings might have misunderstood the effect of the orders of this Court. The Tribunal provided a copy of those orders which were plain on their face. The summary of those orders by Dr Lennings in his report to the effect that there were “difficulties with this case” was just that, a summary. In my view, it was, as far as it went, an accurate summary. Further, the fact that Dr Lennings stated that he had read Ms O’Neill’s report cannot in my view give rise to any apprehension either that Dr Lennings was not aware that the report was made in denial of procedural fairness or that, for any other reason, Dr Lennings gave weight to the opinion expressed in it in a way which was unfair.
First, there is nothing to indicate that Dr Lennings gave any weight to the opinion or any statement of fact in Ms O’Neill’s report. The purpose of his reference to it was simply to indicate that he had read all of the material sent to him by the Tribunal. The balance of Dr Lennings’ report indicates that he applied his own professional opinion to all of the material before him. Secondly, by the time the matter was remitted to the Tribunal, the applicant was on notice of any material in Ms O’Neill’s report that formed the basis of the order setting aside the first Tribunal’s decision. Thus, if her opinion might have been different in light of the applicant’s response to any of the material upon which it was based, that did not mean that the applicant was denied the opportunity to present whatever arguments or material he desired to the Tribunal or indeed to Dr Lennings. Thirdly, as submitted by the Minister, it was well within the applicant’s ability to address the Tribunal on any shortcomings in Dr Lennings’ report by reason of his reference to Ms O’Neill’s opinion. There was, in short, no practical unfairness visited upon the applicant by reason of the reference by Dr Lennings in his report to the impugned report of Ms O’Neill.
For those reasons, the fifth ground is rejected.
Conclusion
There is no jurisdictional error affecting the Tribunal’s decision. The application must be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 19 June 2015
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