Iftikhar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 607
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Iftikhar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 607
File number: PEG 171 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 20 July 2023 Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misinterpreted the independent expert report – whether the independent expert misinterpreted the evidence before it – whether the independent expert failed to consider all of the evidence – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 351 & 476
Migration Regulations 1994 (Cth), regs 1.21 & 1.23; cl 820.211 in Schedule 2 and Division 1.5
Cases cited: Almpantis v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1076
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v Maman [2012] FCAFC 13
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Perez v Minister for Immigration & Border Protection [2017] FCAFC 180
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 26 June 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 171 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: USMAN IFTIKHAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Pakistan (Court Book (“CB”) 43, 61 & 84). He arrived in Australia in 2013 as the holder of a student visa (CB 210).
On 8 September 2016, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820)/Partner (Residence) (Class BS) (Subclass 801) visa (the “visa”) (CB 1-21). The applicant married his sponsor on 15 January 2015 (CB 8 & 84) and the relevant sponsorship documentation was provided in support of the visa application (CB 22-31). The applicant also provided further materials in support of his visa application, comprising various utility bills, financial documents, a residential tenancy agreement, letters of support, Form 888 – Statutory declaration by a supporting witness relation to a Partner visa application documents, identity documents, police clearances and a completed Form 80 – Personal particulars for character assessment document (CB 32-59).
On 8 February 2018, the Department of Home Affairs (the “Department”) invited the applicant to comment on information received in relation to his relationship status with the sponsor and his visa application (the “first invitation to comment letter”) (CB 63-65). Relevantly, the first invitation to comment letter stated (CB 63):
Information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before a decision is made on your Subclass 820/801 visa application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
Alternatively, if you do not wish to continue with your Partner visa, you can withdraw your application by submitting the attached Form 1446.
Timeframe for response
You must respond to this request within 28 days after you are taken to have received this letter. You should provide your response in writing. As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
Please send your response using the contact details provided below.
On 6 March 2018, the applicant wrote to the Department (via email) requesting an extension of “2 to 3 weeks” within which to provide a response “due to medical reasons” (CB 66).
On 7 March 2018, the Department granted the applicant a “prescribed extension of 7 days from the initial date” and noted that the applicant was therefore required to provide his response by 15 March 2018 (CB 67-68).
On 14 March 2018, the applicant provided the Department with documents (via email) in response to the invitation to comment letter. Relevantly, the applicant provided a Form 1410 – Statutory declaration for family violence claim document, a statutory declaration from a registered psychologist (confirming that the applicant had attended a counselling session with him and attaching a summary of that session) and a medical certificate from a medical practitioner (CB 69-78).
In his statutory declaration, the applicant explained that he had been working away from home for “about a year and a half” and that, initially, this was not a problem for him and the sponsor. However, over time, the applicant explained, the sponsor had become increasingly “agitated” and the couple began to argue “over petty things”. The applicant stressed that the sponsor often “showed signs of aggressive behaviour” when they were together and was occasionally “verbally abusive”. The applicant also referenced a particular instance where the sponsor had “called her friends and they together tried to physically assault [him] and [were] threatening [him]” (the “September incident”) (CB 71).
On 11 July 2018, the Department again invited the applicant to comment on information in relation to his visa application (the “second invitation to comment letter”) (CB 79-81). Relevantly, the second invitation to comment letter asked the applicant to provide evidence that he was the spouse or de facto partner of his sponsor prior to the cessation of his relationship (CB 79).
On 3 August 2018, the applicant provided the Department with extracts of annexures to an affidavit (sworn by the applicant on 31 July 2018), including a copy of his marriage certificate confirming that he and the sponsor were married on 15 January 2015 (CB 82-104).
On 28 November 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 108-153). The delegate was not satisfied that the applicant was the “spouse” or “de-facto partner” of the sponsor as that term is defined in the Migration Act 1958 (Cth) (the “Act”) and the Migration Regulations 1994 (Cth) (the “Regulations”). Accordingly, the applicant did not meet cl 820.211 of the Regulations. Having concluded that the applicant was not the spouse or de facto partner of the sponsor at the time of the visa application, the delegate considered that there was no requirement to address the question of family violence. On the basis of these findings, the delegate refused to grant the applicant the visa (CB 112).
On 13 December 2018, the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision (the “Tribunal”) (CB 154-164).
On 1 December 2020, the Tribunal invited the applicant to comment on or respond to information received by the Tribunal (CB 169-171). Specifically, the Tribunal notified the applicant that it had received information that the applicant’s sponsor had withdrawn her support of his visa application and asked the applicant to provide a response in that regard by 15 December 2020 (CB 170).
On 14 December 2020, the applicant appointed an authorised recipient to act on his behalf in relation to the Tribunal review (the “applicant’s representative”) (CB 178).
On 4 January 2021, the applicant’s representative provided a response to the Tribunal’s invitation (CB 190-194). Essentially, that correspondence explained that the applicant:
(a)had been in a genuine and continuing spousal relationship with the sponsor at the time of the visa application (CB 192);
(b)was no longer in a relationship with the sponsor and their married relationship had ceased (CB 191-192);
(c)
had made a claim of family violence under Division 1.5 of the Regulations
(CB 192-193); and
(d)was still eligible for the grant of the visa because he had suffered family violence (CB 193).
On 13 January 2021, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 16 February 2021 (CB 195-199).
On 10 February 2021, the applicant’s representative sent the Tribunal (via email) further written submissions and a bundle of supporting evidence on behalf of the applicant (CB 209-328).
On 11 February 2021, the applicant’s representative provided the Tribunal with a transcription of a video recording from the September incident (CB 329-330).
On 16 February 2021, the applicant attended a hearing before the Tribunal (CB 331-334). He was assisted at that hearing by his representative (CB 331).
On 26 March 2021, the Tribunal sought an opinion from an independent expert (the “IE”) (pursuant to reg 1.23(10) of the Regulations) in relation to the applicant’s claim of family violence (CB 342 & 352).
On 7 May 2021, the IE conducted an interview (by telephone) with the applicant (CB 343).
On 7 July 2021, the IE provided the Tribunal with a written opinion (the “first IE report”) in relation to the applicant’s claimed family violence (CB 339-359).
On 14 July 2021, the Tribunal invited the applicant (through his representative) to comment on or respond to the first IE report (CB 335-338). A copy of the first IE report was also provided with that correspondence (CB 339-359). Relevantly, the letter stated (CB 337):
•The Independent’s Expert final determination of the claims of domestic/family violence is that [the sponsor]’s alleged conduct did not cause you to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety.
This information is relevant to the review because the Independent Expert has provided an opinion that you have not suffered from domestic/family violence during your relationship with [the sponsor].
If we rely on this information in making our decision, the Tribunal must take the Independent Expert’s opinion to be correct.
You are invited to give comments on or respond to the above information in writing.
On 25 August 2021, the applicant’s representative provided a response to the Tribunal (via email), including written submissions which raised concerns that the “IE was not provided with the entirety of the [a]pplicant’s family violence evidence”. Attached to that submission was a copy of email correspondence between the applicant’s representative and the IE confirming that the IE had not received a copy of a video recording of the September incident (CB 367-378).
On 21 September 2021, the Tribunal wrote to the IE providing a copy of the video recording of the September incident (provided by the applicant) and the submissions provided by the applicant’s representative on 25 August 2021. The Tribunal also requested that the IE provide an updated report as soon as possible (CB 379-380).
On 11 November 2021, the IE provided an updated report to the Tribunal (the “second IE report”) (CB 390-412). The second IE report noted that, having considered the new information provided, the IE’s “opinion of [the applicant’s] claim of family violence [had] not changed” (CB 411).
On 20 December 2021, the Tribunal invited the applicant (through his representative) to comment on or respond to the second IE report (CB 386-389). A copy of the second IE report was also provided with that correspondence (CB 390-412). Relevantly, the letter stated (CB 388):
•An independent expert from [Omitted] has formed the opinion that you have suffered relevant family violence (as defined in r. 1.21 of the Migration Regulations 1994), however, your former sponsor’s alleged conduct did not cause you to reasonably fear for, or to be reasonably apprehensive about, your own wellbeing or safety. A copy of the assessment and opinion is attached.
On 23 December 2021, the applicant’s representative provided submissions to the Tribunal (via email) in response (CB 413-417). Relevantly, the applicant’s representative submitted that, because the “IE [had] found that the applicant [had] suffered relevant family violence”, the Tribunal was required (by reg 1.23(10)(c) of the Regulations) to “take as correct an opinion of an independent expert that the alleged victim [had] suffered relevant family violence” (CB 416).
On 21 June 2022, the Tribunal invited the applicant (through his representative) to appear before it at a further hearing on 18 July 2022 (CB 418-422).
Following the receipt of correspondence from the applicant’s representative requesting that the hearing be rescheduled (to accommodate the applicant’s work schedule), the Tribunal agreed to postpone the further hearing to 22 July 2022 (CB 423-434).
On 22 July 2022, the applicant appeared at the further hearing. He did so with the assistance of his representative (CB 435-438).
On 15 August 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 442-449).
On 24 August 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. That application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is eight pages long and spans 29 paragraphs.
It is not necessary to summarise the Tribunal’s decision in any great detail for the purposes of this judgment. This is so because the applicant’s grounds of review only take issue with the second IE report – not the Tribunal’s decision per se. In the circumstances, as discussed below, if the applicant successfully establishes that the second IE report has not been formed in accordance with law, then the Tribunal’s decision will be vitiated by jurisdictional error.
Here, the Tribunal was satisfied that the applicant and the sponsor “were in a married relationship at the time of the visa application” and that the relationship “had ceased prior to the delegate’s decision”. The Tribunal was therefore required to consider whether the applicant had “suffered family violence committed by the sponsor, within the meaning of the Regulations” (at [12]).
The Tribunal was not satisfied that the applicant had suffered relevant family violence during the course of his relationship with his sponsor. In accordance with reg. 1.23 of the Regulations, the Tribunal referred the matter to an independent expert on two occasions, gave the applicant an opportunity to respond to both the first and second IE reports and, overall, was satisfied that the opinion of the IE was properly made (at [22]-[26]).
As explained by this Court in Almpantis v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1076 (“Almpantis”), because the Tribunal was satisfied that the IE’s opinion was properly made, it had no choice, legally, but to accept that opinion: the Regulations: reg 1.23(10)(c)(ii) of the Regulations.
Relevantly, as outlined in Almpantis, if the IE’s opinion was not properly made, then the Tribunal has “acted on an incorrect basis” and, accordingly, the Court will find that there has been jurisdictional error of the sort this Court can address: Minister for Immigration & Citizenship v Maman [2012] FCAFC 13 (“Maman”) at [64]-[65].
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 24 August 2022 contains three grounds of review, as follows:
1.The Tribunal misinterpreted the independent expert report, which said that I did suffer family violence as defined in regulation 1.21 of the Regulations. The Tribunal should not have followed the report.
2.The independent expert misinterpreted the evidence showing that the sponsor did directly encourage or participate in the actions of her friends and therefore the opinion was not valid, and the Tribunal should not have followed it.
3.The independent expert did not consider all the evidence that I provided and therefore was not valid, and the Tribunal should not have followed it.
On 21 October 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 24 August 2022, a Court Book numbering 451 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 7 June 2021 and the affidavit of service of Benjamin Mayne (affirmed on 8 June 2023 and filed on 9 June 2023).
The applicant appeared before this Court on 26 June 2023 without legal representation. Mr Johnson of counsel appeared (via video link) on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant essentially repeated his grounds of review, explaining to the Court that the IE had found that family violence had occurred, but found that it was not “from the hands of his ex-partner” (the sponsor). Rather, the IE found that the violence was at the hands of the sponsor’s friends. The applicant explained that, during the September incident, the sponsor had invited some of her friends over and “instigated the threats and encouraged the friends to intimidate him” (stressing that they only stopped when the police arrived).
The applicant also explained that there were two reports prepared by the IE and that the second report had to be prepared because the first report did not take into account all of the relevant evidence. Specifically, the applicant referenced the IE’s failure to consider the video evidence that he had provided to the Tribunal in relation to the September incident.
These issues, to the extent that they address jurisdictional error, will be considered below.
RELEVANT LEGISLATIVE PROVISIONS
As outlined above, the Tribunal in this matter was satisfied that the applicant and the sponsor were in a married relationship at the time the applicant submitted his visa application (at [12]).
The applicant thus satisfied the time of application criteria set out in cl 820.211 in Schedule 2 of the Regulations – that is, the applicant was the “spouse” of the sponsor at the time of application.
The Tribunal also found, however, that the relationship between the applicant and the sponsor had ceased prior to the delegate’s decision (at [12]).
Where the relationship between the applicant and the sponsor has ceased, the applicant cannot be granted the visa unless, at the time of decision, the applicant satisfies cl 820.221(3) of the Regulations. Those provisions relevantly provide:
820.22—Criteria to be satisfied at time of decision
820.221
…
(3) An applicant meets the requirements of this subclause if:
…
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
…
has suffered family violence committed by the sponsoring partner;
Here, the applicant made a “non-judicially determined claim of family violence”. That term is defined in regs 1.23(8) and (9) of the Regulations. It is unnecessary to detail those provisions here. It is sufficient to note that the Tribunal accepted that, based on the evidence before it, the applicant had made a valid claim of non-judicially determined family violence (at [15]-[19]).
This Court previously outlined the relevant legislative provisions applicable in matters of this sort in Almpantis (at [39]-[49]) and noted that, when such a claim is made, reg 1.23(10) of the Regulations prescribes how the Minister (or, in this case, the Tribunal) should consider it. Regulations 1.23(10) relevantly provides:
1.23When is a person taken to have suffered or committed family violence?
…
(10)If an application for a visa includes a non‑judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i)the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii)the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
“Relevant family violence” is defined in reg 1.21 of the Regulations and means:
…conduct, whether actual or threatened, towards:
(a)the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim; or
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
In this matter, the Tribunal considered whether the applicant had suffered family violence and, on the evidence before it, the Tribunal was not satisfied that he had suffered relevant family violence (at [20]-[22]).
As outlined above, the Tribunal was then required to seek the opinion of an independent expert (pursuant to reg 1.23(10)(c)(i) of the Regulations).
What constitutes an “independent expert” is also set out in reg 1.21 of the Regulations, as follows:
Independent expert means 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.
There is no dispute that the IE used by the Tribunal in this matter met that definition.
The Tribunal referred the applicant’s matter to the IE.
The IE formed the opinion that the alleged conduct of the sponsor “did not cause [the applicant] to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety”. The IE did find that the September incident did cause the applicant “to reasonably fear for, or to be reasonable apprehensive about, his own wellbeing or safety”, however, the evidence before the IE did not support the applicant’s claim that the sponsor “instigated or encouraged the behaviour of her friends” during that incident.
The Tribunal, by virtue of reg 1.23(10)(c)(ii), took that opinion to be correct. Accordingly, it found that the applicant had not suffered family violence committed by the sponsor and affirmed the delegate’s decision (at [26]-[29]).
The Minister does not dispute that, in certain circumstances, if the IE’s opinion is not formed in accordance with the law, then the Tribunal’s decision will be vitiated by error.
Examples of situations in which the Court has held that an IE’s opinion was not formed in accordance with law include:
(a)where the IE has denied the victim procedural fairness: Maman at [64];
(b)where the IE was under a misunderstanding as to the correct question to be asked and, thereby, asked itself the wrong question: Perez v Minister for Immigration & Border Protection [2017] FCAFC 180 (“Perez”); and
(c)where the IE excluded from its consideration a claim of family violence so made: Perez.
The Court also notes the scope of regs 1.23(9), (13) and (14) of the Regulations in matters of this sort. Those provisions relevantly provide:
1.23When is a person taken to have suffered or committed family violence?
…
(9)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i)a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B)the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i)the alleged victim has suffered relevant family violence; and
(ii)the alleged perpetrator committed that relevant family violence.
…
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non‑judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
The provisions set out above, and their application to this matter, will be addressed further below.
CONSIDERATION
Grounds of review
Ground 1
As outlined above, ground 1 provides:
1.The Tribunal misinterpreted the independent expert report, which said that I did suffer family violence as defined in regulation 1.21 of the Regulations. The Tribunal should not have followed the report.
As set out above, the applicant also raised this concern in his oral submissions to the Court. The applicant stressed that the second IE report stated that he had suffered relevant family violence. Further, the applicant claimed that, while the second IE report had found that the sponsor’s friends had been responsible, the applicant disagreed, the applicant maintained that the sponsor had instigated her friends’ threatening behaviour towards the applicant and encouraged them to intimidate him.
Before addressing this ground, it must first be noted that the Tribunal does not reference the second IE report (dated 11 November 2021) in its written reasons. Instead, the Tribunal references the first IE report (dated 12 July 2021). As correctly submitted by the Minister (at [23] of written submissions filed in this Court on 7 June 2023), however, the “relevant opinion” given in the first IE report made on 12 July 2021 was unchanged in the second IE report made on 11 November 2021. Relevantly, in the second IE report, the IE stated as follows (CB 410-411):
I have read the additional information referred to in Part C (under option 1) and my opinion has not changed as a result…
With consideration of the newly submitted information, my opinion of [the applicant’s] claim of family violence has not changed. My opinion remains that [the sponsor’s] alleged conduct did not cause [the applicant] to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety. I find that the alleged incident at [the sponsor’s] home [in September 2017] did cause [the applicant] to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety, however the evidence before me does not support that [the sponsor] instigated or encouraged the behaviour of her friends.
In circumstances where the relevant opinion of the IE did not change from the first IE report to the second, the Court does not consider that that any error arises from the Tribunal failure to specifically reference the second IE report.
Insofar as the applicant claims that the Tribunal misinterpreted the first or second IE report, the Court notes that, as submitted by the Minister (at [24]-[28] of written submissions filed in this Court on 7 June 2023), the Tribunal must take an IE’s opinion as being correct: reg 1.23(10) of the Regulations.
Here, the Tribunal accepted that the applicant had made a non-judicially determined claim of family violence (at [19]). The relevant family violence that the applicant claimed had occurred related to the sponsor’s aggressive and verbally abusive behaviour towards him and centred around the September incident (where the applicant was at the sponsor’s house and the sponsor had “called her friends and they together tried to physically assault [him] and [were] threatening [him]” (CB 71)).
The opinion that the IE was required to provide was whether the applicant had suffered the relevant family violence and whether the sponsor was had committed that relevant family violence.
In answering that question, the IE’s opinion is clear. As set out above, the IE opined that the sponsor’s conduct did not cause the applicant to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety.
While the IE found that the September incident had caused the applicant to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety, the evidence before the IE did not support the claim that the sponsor had engaged in that conduct. Rather, the IE was of the view that the sponsor’s friends had engaged in such conduct (but that the conduct was not instigated or encouraged by the sponsor).
In this matter, the “alleged perpetrator” of the family violence needed to be the sponsor (who was (at the relevant time) the spouse of the “alleged victim” (the applicant): reg 1.23(9)(b)(i) of the Regulations. The sponsor’s friends were not capable of being considered “alleged perpetrators” of the family violence for the purpose of reg 1.23(9)(b) of the Regulations.
The opinion the IE was required to give in this matter – and which the Tribunal was required to take to be correct – related to whether the sponsor herself had engaged in the alleged conduct constituting relevant family violence. The IE’s opinion was that the sponsor had not engaged in that conduct. Rather, her friends had. The Tribunal took (and was required to take) that opinion to be correct (at [25]).
On the basis of the above, the Court is satisfied that the Tribunal did not misconstrue the IE’s reports. The Tribunal was legislatively required to take the IE’s opinion to be correct and did so.
No jurisdictional error arises in relation to ground 1.
Ground 2
Ground 2 states:
2.The independent expert misinterpreted the evidence showing that the sponsor did directly encourage or participate in the actions of her friends and therefore the opinion was not valid, and the Tribunal should not have followed it.
By ground 2, the applicant takes issue with the IE’s consideration of the evidence in relation to the sponsor’s involvement in or encouragement of the actions taken by the sponsor’s friends.
As outlined above (at [64]-[65]), in certain circumstances, if the IE’s opinion is not formed in accordance with the law, then the Tribunal’s decision will be vitiated by error. That may arise if, for example, the IE misunderstood the question to be asked and, as such, asked itself the wrong question: Perez.
Unfortunately for the applicant, his complaint invites the Court to engage in merits review in relation to the IE’s reports. This Court does not have jurisdiction to do that.
It was not for the Tribunal to engage in merits review of the IE’s opinion or reports. The Tribunal was satisfied that the IE’s opinion was authorised by the Regulations. That is, it was provided by an IE who was suitably qualified to make the assessment and the assessment was properly made (at [26]).
In those circumstances, the Tribunal was required, by virtue of reg 1.23(10)(c)(ii) of the Regulations, to take the IE’s opinion to be correct and did so.
No jurisdictional error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3.The independent expert did not consider all the evidence that I provided and therefore was not valid, and the Tribunal should not have followed it.
The applicant, in oral submissions, explained to the Court that he was concerned that the IE had not been provided all of the relevant evidence by the Tribunal. In particular, the applicant referenced the failure to provide the IE with a copy of the video recording of the September incident.
The Court acknowledges that this video was not initially provided to the IE when the first IE report was provided. However, as outlined above, the video was later provided to the IE (together with the written submissions received by the Tribunal from the applicant’s representative) when a supplementary report was requested.
The IE confirmed receipt of the additional information in the second IE report made on 11 November 2021. Relevantly, the IE stated (CB 408):
1. Additional Information Submitted Following Referral
Please note that a further referral on the basis of additional information will be completed by the same independent expert who provided the opinion in Part B.
Additional information, summarised below, has been received in respect of this claim of family violence:
Attached:
•Representative’s response to the Completed IE Report, dated 25 August 2021
•A video recording provided by the applicant
As outlined above, consideration of the additional information provided by the Tribunal, including the video recording of the September incident, did not change the IE’s opinion (emphasis added) (CB 411):
With consideration of the newly submitted information, my opinion of [the applicant’s] claim of family violence has not changed. My opinion remains that [the sponsor’s] alleged conduct did not cause [the applicant] to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety. I find that the alleged incident at [the sponsor’s] home [in September 2017] did cause [the applicant] to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety, however the evidence before me does not support that [the sponsor] instigated or encouraged the behaviour of her friends.
Further, as set out above, the Tribunal was required to accept as correct the opinion and findings of the IE and did so.
No error arises in this regard.
Ministerial intervention
It is not in dispute that the applicant in this matter suffered an act of violence at the hands of his former spouse’s friends. That incident has undoubtedly had a significant negative impact on the applicant and (arguably) continues to have an impact on his life.
Unfortunately, for the reasons set out above, this Court is unable to assist the applicant (as no issue of jurisdictional error arises).
The Court nonetheless draws the applicant’s attention to the Minister’s discretionary powers. Where, as is the case here, the Tribunal has affirmed a decision refusing to grant the applicant the visa, and that decision has been upheld on review, the Minister has a statutory discretion (pursuant to s 351(1) of the Act) to substitute a more favourable decision.
Whilst this Court has no powers to “refer” a matter to the Minister for further review on the basis of compassion (or otherwise), the applicant is entitled to seek Ministerial Intervention in his own right.
CONCLUSION
The application for judicial review (filed by the applicant on 24 August 2022) and the applicant’s oral submissions before this Court have failed to identify any error on the part of the Tribunal. This Court is also unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 20 July 2023
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