Karsten v Minister for Immigration and Anor (No.3)
[2019] FCCA 1560
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARSTEN v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2019] FCCA 1560 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant the applicant a Partner (Residence) (Class BS) visa on the ground the applicant had not provided any evidence that applicant’s sponsor perpetrated domestic violence against the applicant – whether the opinion of the independent expert that the applicant was not the victim of relevant domestic violence was based on a misunderstanding of the notion of “relevant domestic violence” – independent expert did proceed on the basis of such misunderstanding, and the opinion the independent expert provided was not one authorised by law resulting in the Tribunal making a jurisdictional error by taking that opinion to be correct – whether Tribunal made a jurisdictional error by failing to disclose the existence of a s.375A Certificate – applicant failed to discharge onus that the Tribunal’s failure to disclose the s.375A Certificate was material. |
| Legislation: Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AG Migration Act 1958 (Cth), ss.5F(2), 375A, 438, 476, 501 Migration Regulations 1994 (Cth), regs.1.21, 1.22, 1.23, 1.24, 1.25, 1.26 |
| Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 CQZ15 v Minister for Immigration & Anor [2016] FCCA 2788 Malik v Minister for Immigration & Multicultural Affairs [2000] FCA 562 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 Sok v Minister for Immigration and Citizenship [2008] HCA 50 Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 |
| Applicant: | CHRISTOPH HERMANN KARSTEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 316 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 May 2018 |
| Date of Last Submission: | 28 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Ms E Anang of Christopher Levingston & Associates |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The decision of the Migration Review Tribunal made on 9 January 2015 affirming the decision of a delegate of the first respondent made on 10 April 2013 not to grant the applicant a Partner (Residence) (Class BS) (Partner visa) visa is quashed.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Migration Review Tribunal to review the decision of the delegate of the first respondent made on 10 April 2013 not to grant the applicant a Partner visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 316 of 2015
| CHRISTOPH HERMANN KARSTEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Germany, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Migration Review Tribunal (Tribunal) affirming a decision by a delegate of the first respondent (Minister) not to grant the applicant a Partner (Residence) (Class BS) visa (Partner visa).
Background
The applicant applied for a combined UK Partner (Provisional) visa (subclass 820 visa) and Partner visa on 12 February 2002. That application was based on the applicant’s marriage to his sponsor. On 24 April 2002 the applicant was granted a subclass 820 visa.
On 19 September 2003 Australia received an extradition request from Germany in relation to a warrant for the applicant’s arrest concerning events that occurred in Germany in 1997. The applicant was taken into custody by the Australian Federal Police on 7 December 2006 and extradited to Germany on 30 July 2007. On his return to Germany the applicant was convicted of an offence and sentenced to 3 years and 6 months imprisonment.
The applicant returned to Australia on 16 May 2010 after serving his prison sentence. The applicant was assessed against the “character test” under s.501 of the Migration Act 1958 (Cth) (Act) but a delegate of the Minister decided, on compelling and compassionate grounds, not to cancel the subclass 820 visa. On 6 September 2011 the applicant applied for a protection visa, but a delegate of the Minister refused that application.
Applicant claims he suffered domestic violence
On 7 February 2013 the applicant provided a statutory declaration to what is now the Department of Home Affairs (Department) in which he claimed he was the victim of family violence.[1] This was relevant to the applicant’s application for a Partner visa because, under cl.801.221(6)(c)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as it applied at the time the Tribunal made its decision,[2] an applicant for a Partner visa who held a subclass 820 visa could still qualify for a Partner visa if the applicant and the sponsor’s relationship had ceased, provided, among other things, either or both of the applicant or “a dependent child of the sponsoring partner or of the applicant or of both of them or a dependent child of the sponsoring partner or of the applicant or of both of them”, has “suffered domestic violence committed by the sponsoring partner”.
[1] CB71
[2] For reasons stated below, the version of the Division 1.5 of Regulations that applied to the applicant is that which existed on 1 July 2005, being the date on which the Migration Amendment Regulations 2005 (No. 4) (SLI No 143 of 2005) came into effect.
Relevant provisions
Relevant to the grounds on which the applicant relies in the application before me is the meaning of having “suffered domestic violence committed by the sponsoring spouse”. This expression is defined in Division 1.5 of the Regulations. Because the provisions of that Division have been amended from time to time, and a substantial period passed between the day on which the applicant was granted a subclass 820 visa and the day the Tribunal decided not to grant the applicant a Partner visa, it will be necessary first to identify the version of the Regulations the Tribunal was required to apply.
Division 1.5 was introduced into the Regulations by the Migration Regulations (Amendment) No 117 of 1995 (Cth). It was first amended in the manner provided for by Schedule 3 to the Migration Amendment Regulations 2005 (No. 4) (SLI No 143 of 2005) (2005 amendments). [3] The amendments applied to applications for a visa made on or after 1 July 2005 or made, but not finally determined, before 1 July 2005.[4] Division 1.5 of the Regulations was next amended by the Migration Amendments Regulations 2007 (No. 13) (Cth), but those amendments applied in relation to applications for a visa made on or after 15 October 2007.[5] Division 1.5 was next amended in the manner provided for by Schedule 6 to the Migration Legislation Amendment Regulation 2012 (No.5) (Cth). Those amendments came into effect on 24 November 2012.[6] Finally, minor amendments were made to Division 1.5 by the Migration Amendment (Redundant and Other Provisions) Regulation 2014 (Cth).
[3] 2005 amendments, reg.4
[4] 2005 amendments, reg.5
[5] Migration Amendments Regulations 2007 (No. 13) (Cth), reg.3
[6] Migration Legislation Amendment Regulation 2012 (No.5) (Cth), reg.2(b)
The result is that, at least for the purposes of the issues that arise on the application before me, the provisions of Division 1.5 of the Regulations that applied at the time the Tribunal considered the application for review before it are those that existed as at 1 July 2005, being the day on which the amendments provided for by Schedule 3 to the 2005 amendments came into effect. Most of the relevant provisions are reproduced in an attachment to the Tribunal’s reasons for decision;[7] and there is no dispute that these are the regulations that applied to the applicant’s application for review to the Tribunal. This, then, leads me to set out the relevant provisions of Division 1.5.[8]
[7] CB399-400
[8] For ease of expression, I will refer to the relevant provisions in the present tense, always bearing in mind that, for the most part, it is the provisions of Division 1.5 as they existed on 12 February 2012 that apply.
I begin with reg.1.22 of the Regulations which provides that a reference in the Regulations to “a person having suffered domestic violence” or to “a person having committed domestic violence in relation to a person” is a reference to a person being taken, under reg.1.23, to have suffered domestic violence or to a person being taken, also under reg.1.23, to have committed family violence in relation to that person, respectively. Subregulation 1.23 relevantly provides:
For the purposes of these Regulations:
(a)a person (“the alleged victim”) is taken to have suffered domestic violence; and
(b)another person (“the alleged perpetrator”) is taken to have committed domestic violence in relation to the alleged victim;
if:
. . . .
(g)the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence.
The circumstances in which the Minister is required by reg.1.23(1C) of the Regulations to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence are set out in reg.1.23(1B), which provides as follows (emphasis added):
If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence . . . and:
(a)if satisfied that the alleged victim has suffered relevant domestic violence – consider the application on that basis; or
(b)if not satisfied that the alleged victim has suffered relevant domestic violence – seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
The operation of reg.1.23(1B) depends on the meaning of the expressions “non-judicially determined claim of domestic violence”, “relevant domestic violence”, and “independent expert”. The first of these expressions is defined in reg.1.23(1A) of the Regulations as follows:
For these Regulations, an application for a visa is taken to include a non-judicially determined claim of domestic violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered domestic violence; and
(b)either of the following circumstances exists:
(i)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim;
(ii)for an alleged victim who is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(A) the alleged victim has suffered relevant domestic violence; and
(B) the alleged perpetrator has committed that relevant domestic violence.
Under reg.1.23(2) of the Regulations, the persons for the purposes of reg.1.23(1A)(b)(ii) include, among others, “a spouse of the alleged perpetrator”. The evidence required by reg.1.24 must be a statutory declaration under reg.1.25 together with two statutory declarations under reg.1.26 of the Regulations. Reg.1.25 requires, among other things, that the statutory declaration be made by the spouse of the alleged perpetrator, and that it sets out the allegation and the name of the person alleged to have committed the relevant domestic violence. Reg.1.26 of the Regulations requires that the statutory declaration be made by a “competent person”, within the meaning given to that expression by reg.1.21(1), and the statutory declaration must, among other things:
a)state that in the competent person’s opinion relevant domestic violence has been suffered by a person;
b)name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
c)set out the evidence on which the competent person’s opinion is based.
The expression “relevant domestic violence” is defined in reg.1.23(2)(b) of the Regulations as:
violence against the alleged victim or his or her property that causes the alleged victim, or member of the alleged victim’s family, to fear for, or be apprehensive about, the alleged victim’s personal well-being or safety.
The expression “independent expert” is defined in reg.1.21(1) to mean:
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.
The final provision to note is reg.1.23(1C) of the Regulations which provides:
The Minister must take an independent expert’s opinion on the matter referred to in paragraph (1B)(b) to be correct for the purpose of deciding whether the alleged victim satisfied a prescribed criterion for a visa that requires the applicant for a visa, or another person mentioned in the criterion, to have suffered domestic violence.
The effect of these provisions is that if a person who applies for a visa makes a non-judicially determined claim of domestic violence, and the existence of domestic violence is a prescribed criterion for the grant of a visa, the Minister is required to consider the application for a visa on that basis if satisfied the alleged victim has suffered relevant domestic violence but, if not so satisfied, the Minister must seek the opinion of an “independent expert” about whether the alleged victim has suffered relevant domestic violence, and must take to be correct the opinion given by the independent expert.
The applicant’s claims of domestic violence before the delegate
The applicant supported his claim that he was a victim of domestic violence with three statutory declarations, one made by the applicant, one made by Dr Johnston, a general practitioner, and one made by Ms Ott, a psychologist. In his statutory declaration,[9] the applicant claimed that when he returned to Australia his wife’s daughter (L) was seeking the applicant’s attention with problems she claimed she was having. After initially supporting L by believing her, the applicant concluded she was lying to him and told her he would not support L anymore “regarding her attention seeking lies and her destructive behaviour”. L was deliberately destroying or damaging the applicant property and property he and his wife shared on almost a daily basis. After the applicant informed L he would not tolerate her behaviour, L spread lies that the applicant had attempted to assault L, and the applicant’s wife “fully supported this misbehaviour of” L. The applicant sought refuge accommodation to avoid L. As he was getting ready to move out permanently the applicant’s wife “cleared the bank accounts” and left the applicant without any funds. The applicant claimed that “these events had a traumatic impact on me and I am in psychological treatment since”.
[9] CB72
On 10 April 2013 the delegate refused to grant the applicant a Partner visa. The delegate found that the statutory declarations Ms Ott and Dr Johnson provided did not meet the requirements of reg.1.26 and, for that reason, there was no basis for finding the applicant had made a “non-judicially determined claim of domestic violence”.[10]
[10] CB92-96
Proceeding in Tribunal up to issue of Expert’s opinion
In support of his application for review, on 24 October 2013 the applicant submitted further statutory declarations, one by the applicant made on 17 October 2013,[11] and one by each of Dr Johnston and Ms Ott made on 16 October 2013. Each of the statutory declarations was in the prescribed form (Form 1040). Part B of the form was required to be completed by the person alleging domestic violence, and the person was requested to describe the “relevant domestic violence experienced, including individual incidents, and who experienced the domestic violence”, and, “where possible”, what happened, when the domestic violence occurred, how frequently it occurred, and when the most recent incident occurred. The applicant completed this part of the statutory declaration by claiming as follows:
a)Earlier in his relationship with the sponsor the sponsor’s son was destroying the applicant’s property on a regular basis. The applicant was convinced that the sponsor instigated her children’s conduct because the sponsor encouraged her children with their behaviour by buying them presents immediately after their “destructive and bullying actions”.
b)L “crashed my car deliberately”, and the sponsor “forced me to beg for money from my family to fix the car and other property destroyed by my wife or her children”.
c)When the applicant was incarcerated the applicant had to ask his family to provide money to buy a laptop to assist the applicant’s case, but the sponsor “spent [t]hat money elsewhere”. The applicant asked the sponsor to sell the applicant’s car to cover his legal costs. The sponsor, however, delayed selling the car, but when she sold it she sold it for $3,000 when the car was worth $10,000, and the money in any event disappeared, making the applicant even more dependent on the sponsor.
d)The sponsor bought a car for $24,000 which she could not pay off. The applicant’s sister paid off the car, but the sponsor refused to let the applicant use the car for a job.
e)In 2010 the applicant asked his family for money for a vacation which the applicant required to recover from “the constant bullying and destruction by my wife and her children”; but the sponsor spent the money immediately. The applicant then “did not have the chance to get a break from the constant bullying”.
[11] CB159
Ms Ott provided information in Part D of a separate Form 1040.[12] That section required the person completing it to state the occupational group of which the person completing Part D was a member, to set out the evidence that indicates to the person completing this part of the form that the alleged victim is the victim of “family violence”, including evidence of specific incidents of family violence, the dates on which the incidents occurred, and the impacts of these incidents on the alleged victim, including physical, emotional, and state of mind. Ms Ott completed this part of Form 1040 by stating the following:
a)The applicant was referred to the practice at which Ms Ott works for counselling regarding depression, and he has attended that practice since that day. This occurred at the time the applicant had temporarily left the family home. During counselling sessions the applicant described the behaviour of the sponsor and her children towards the applicant.
b)The applicant had been living with the sponsor since 2001. He was asked to provide money for various family luxuries but he was not permitted to use these things without the sponsor’s permission, which was rarely forthcoming.
c)The sponsor did not encourage the applicant to make social connections, but instead preferred the applicant to take care of things at home.
d)The sponsor made it clear to the applicant he was not a priority in her life, constantly taking the children’s side despite clear evidence of their misdemeanours, such as destruction of his property.
e)The sponsor was controlling of both the applicant’s activities and their finances. She made all of the budget decisions for the household.
f)L’s behaviour towards the sponsor was “increasingly bullying and aggressive, which [the applicant’s] wife openly encouraged and would not support him”.
g)The applicant became fearful the sponsor would make allegations against him “as there had been some comments made to control his behaviour that threatened such allegations”, such as “in a period where she was demanding money, she told [the applicant’s] sister that she could allege he had threatened her daughter”.
h)The applicant moved out “when things became extremely stressful, but was hoping they might be able to resolve some of the issues and reconcile”, but the sponsor “was unwilling to have a relationship where he was not a partner but in a subordinate role”.
[12] CB164
In that part of Form 1040 that requested the person completing the form to state the conclusions that have been reached, Ms Ott said:
[The applicant’s] symptoms of depression included poor self-esteem, depressed mood, sleeping difficulties, low motivation and concentration. As time progressed, and since the end of the relationship; [sic] I have observed an increase in self-esteem and confidence, motivation and concentration. He exhibits none of the previous symptoms, and his mood has elevated. I therefore attribute his depression to the previous relationship issues.
I believe that the relationship with his ex-wife meets the criteria for domestic violence: she controlled all of their activities and finance, he was not permitted to make social contacts nor have control of his own money, he was in fear and distress by her behaviour which included permitting the destruction of his property and implied and actual threats that she would cause trouble for him with authorities and immigration if he did not comply with her directions or demands”.
In his statutory declaration Dr Johnston stated he had been treating the applicant for severe symptoms of depression since November 2010 and in the course of “our extensive and regular consultations he reported a long history of mental/psychological domestic violence by his wife, controlling their finances and denying him [his] own financial means or social contacts”, and that “[i]f he refused to submit to her she would threaten to have him deported by giving false information to immigration authorities, or have him falsely accused of abusing his children”.[13] Dr Johnson expressed the opinion that the “given facts as stated” earlier in his statutory declaration “clearly resemble domestic violence as per above mentioned definition”.
[13] CB172
On 19 November 2013 the applicant appeared before the Tribunal by video link to give evidence and present arguments. After hearing the applicant’s evidence the Tribunal went through documents it proposed to send to an independent expert if the Tribunal were not to be satisfied the applicant suffered relevant domestic violence. The Tribunal concluded as follows:[14]
The tribunal was not satisfied that the applicant had suffered relevant domestic violence. The tribunal is not satisfied that any of the behaviour of the sponsor’s children was done at her instigation or that either that behaviour or the claims of financial control by the applicant [sic] caused the applicant to fear for or be apprehensive about his personal well-being or safety.
[14] CB394, [28]
Given these conclusions, on 22 November 2013 the Tribunal referred the matter to an independent expert (Expert) for assessment.[15] The Tribunal did so by providing a prescribed form titled “Family Violence Form 52”. The form stated that it was “to be used to refer to non-judicially determined claims of family violence to an independent expert”, and later set out the definition of “family violence” in reg.1.21 of the Regulation impliedly requesting that the Expert determine whether there was family violence within the meaning of that definition. As the Tribunal later realised, however, the definition of “family violence” contained in the form was that provided for by the Regulations which had been amended, and which, therefore, did not apply to the applicant’s case.
[15] CB176
It is not apparent from the material before me the basis on which the Tribunal sought the opinion of the Expert. It appears the Tribunal assumed it could exercise the power reg.1.23(1B)(b) of the Regulations conferred on the Minister to seek the opinion of an “independent expert”. The parties before me assumed the Tribunal had the power to seek the opinion of an independent expert. That assumption is correct, because it has been held that the Tribunal could exercise for itself the power reg.1.23(1B)(b) of the Regulations conferred on the Minister to seek the opinion of an “independent expert”.[16]
[16] Sok v Minister for Immigration and Citizenship [2008] HCA 50
On 9 January 2014 the Expert provided to the Tribunal a completed “Family Violence Referral Form M52” in which she recorded the opinion that the applicant had “not suffered relevant family violence”.[17] By letter dated 13 January 2014 the Tribunal provided a copy of the report to the applicant, and invited him to provide written comments.[18] The applicant did so by letter dated 30 January 2014.[19] The Tribunal responded by sending to the applicant a letter dated 5 February 2014 inviting the applicant to appear before it on 27 March 2014 to give evidence and provide arguments.[20]
[17] CB246
[18] CB251
[19] CB265
[20] CB271
By email sent on 4 April 2014 an officer of the Tribunal provided the Expert a form titled “Domestic Violence Referral Form 52”.[21] In the email the officer stated as follows:
Unfortunately the date of the visa application was incorrectly recorded in the DIBP decision and the IE Referral request completed by [the Expert] in the relation to [the applicant) (refer below).
I have completed a new M52 Referral Form with the correct date of visa application and the correct regulations for assessment of [the applicant’s] claims of Domestic Violence.
Can [the Expert] please complete this M52 (on the basis that the date of visa application was 12 February 2002) based on the information [the Expert] has before her. There is no need to interview [the applicant] again.
[21] CB282
Expert’s opinion
By email sent on 21 April 2014 the Expert provided an “updated report” (Report).[22] The Report confirms the Expert interviewed the applicant on 5 and 12 December 2013, and set out in some detail information under the heading “Relationship with former partner”. Here the report describes the circumstances in which the applicant met the sponsor; it notes the applicant provided “very few specific details of the relationship”; and it records the applicant’s account of his relationship with the sponsor: the applicant and sponsor married on 8 February 2002; from early on the sponsor requested money from the applicant; in retrospect the applicant believed the sponsor was motivated to be in a relationship with him because it gave her access to his and his family’s money; the applicant was in remand in Canberra for 18 months while resisting an extradition request from Germany and the sponsor visited him weekly; and the applicant received money from his family in Germany to help him fight his legal case but it never reached him because the money was paid into a joint account with the sponsor.
[22] CB285
The Report then set out the applicant’s account of the claimed domestic violence. The applicant reported his relationship with the sponsor got worse over time; the first sign of problems was in 2011 when, after the applicant refused the sponsor’s request that he obtain more money from his family in Germany, she threatened to report the applicant to immigration and have his visa revoked; at other stages of his interview the applicant said he was the victim of bad behaviour from the sponsor’s children, and the sponsor supported her children with this, but the applicant was unable to provide clear dates or the ages of the children, so it was not clear whether these events occurred before he was incarcerated or after he returned to Australia in 2010; the only specific details related to the children damaging the applicant’s property when the children were of primary school age; the applicant said he was distressed the sponsor did not reprimanded her children, and the applicant believed she initiated their behaviour because she approved of it, and the children received expensive gifts despite their treating the applicant poorly; the sponsor never physically assaulted him, but he did observe the sponsor slap L in the face and the applicant believed she might do the same to him; the applicant’s wife threatened to report the applicant to the police for harming L and threatened to report him to the Department so he would be made to leave Australia; the applicant said the sponsor was controlling with money by demanding money from him and his family; she deprived the applicant of friends; and the sponsor prevented the applicant from pursuing a career because she would not help him look for a job or give him some leads on where to look.
The Report next refers to the applicant’s expressions of fear for his safety and wellbeing. It records the applicant claimed he definitely feared for his wellbeing, and that he might be wrongfully charged for an offence in Australia; and the sponsor knew about the applicant’s fear of returning to Germany, and her threats to return him home frightened him. The applicant also said he was afraid of physical harm, stating he did not know whether the sponsor would “intend to do harm with her own hands or by others”.[23]
[23] CB293
After setting out the professional services the applicant obtained in relation to his claimed domestic violence, the Report set out the Expert’s opinion; the Expert concluded the applicant “has not suffered relevant domestic violence (as defined in regulation 1.23(2)(b)) of the Migration Regulations 1994), committed by the alleged perpetrator”. [24] The Report then set out “[r]easons, referring to evidence this assessment is based upon”. The Expert first referred to the material she considered, noting that the applicant was “a poor historian” because he provided “very little specific details to support actual events that caused him fear or distress”. The Expert then referred to the applicant’s claims concerning how his stepchildren treated him and his property. The Expert concluded this did not constitute relevant domestic violence because the sponsor did not perpetrate it. The Expert further said:[25]
The behaviour of the sponsor (if accepted as [the applicant] reported) does not constitute evidence that the children acted as wilful agents on behalf of the sponsor. Based on the evidence presented by [the applicant], the children’s behaviour, however concerning to him, represented behaviour that would be considered normal, misbehaviour of children of this age.
[24] CB296
[25] CB296
The Expert finally referred to what she identified as three allegations of abuse, and expressed her opinion about those allegations (emphasis added):[26]
[The applicant] reported three allegations of abuse from his ex-wife: a) that she controlled his money and demanded money from him and his family; b) that she threatened to have him deported; and c) that she threatened to make a false allegation that he had harmed her daughter in some way. [The applicant] reported that he felt financially and socially controlled and was in fear of legal repercussions including being afraid for his life if he returned to Germany.
[The applicant] reported being afraid of the consequence of his Visa being denied and being required to return to Germany. However, threats of being deported from Australia are not sufficient evidence of domestic violence in their own right.
[The applicant] reported that the sponsor had never physically abused him. His concern regarding financial restriction was not a problem for him until the end of the relationship when his wife threatened to do things that may cause him to be returned to Germany when he did not comply with her demand to get more money from his family. Up until this time, he apparently went along with the financial arrangements, including sharing a bank account. The financial dispute post-separation is not unusual in a normal marital breakdown and does not constitute proof of domestic violence.
There is no evidence from [the applicant] nor from competent persons Dr Johnson and Ms Ott that relevant domestic violence occurred during the relationship.
[26] CB296-297
Proceeding before Tribunal after issue of Expert’s opinion
By letter dated 30 April 2014 the Tribunal provided to the applicant a copy of the Report apparently pursuant to s.359A of the Act, stating that the Tribunal considered that the Report would be the reason or part of the reason for affirming the decision under review.[27] The letter invited the applicant to comment or respond to the information contained in the Report. The applicant responded by letter dated 21 May 2014.[28] By letter dated 27 May 2014 the applicant was again invited to appear before the Tribunal to give evidence and present arguments,[29] and the applicant appeared before the Tribunal on 27 June 2014.[30] On 15 August 2014 the Tribunal forwarded to the Expert Part D of the “Domestic Violence Referral Form M52” together with supporting documents.[31] These included the applicant’s letters dated 30 January 2014 (which responded to the Expert’s report of 6 January 2014) and 27 May 2014.
[27] CB301
[28] CB313
[29] CB316
[30] CB323
[31] CB326
On 9 September 2014 the Expert provided to the Tribunal a document titled “Part D: Further Assessment from LSC Psychology to MRT” (Further Report).[32] The Further Report begins by stating the Expert had read the additional information referred to in Part C and “my opinion has not changed as a result”. The Further Report then responds to the letters from the applicant dated 30 January 2014 and 27 May 2014. Given no party has relied on the contents of the Further Report, it is unnecessary for me to describe its contents.
[32] CB366
By letter dated 25 September 2014 the Tribunal provided to the applicant a copy of the Further Report, and invited the applicant to give his comments.[33] The applicant provided his comments in a letter dated 28 October 2014.[34] By letter dated 19 November 2014 the Tribunal invited the applicant again to appear before it to give evidence and present arguments,[35] but it is unclear whether the applicant did appear on the appointed day of 17 December 2014.[36]
[33] CB362
[34] CB373
[35] CB376
[36] CB381
Tribunal’s reasons
The Tribunal was satisfied the applicant and the sponsor were in a spousal relationship, and the spousal relationship had ceased; that the applicant had provided the evidence as required by reg.1.24, being a statutory declaration made by the applicant, as required by reg.1.25, and two statutory declarations by “competent persons”, as required by reg.1.26, and that, therefore, a non-judicially determined claim of domestic violence had been made under reg.1.23(1A) of the Regulations. The Tribunal found, however, that the Expert’s opinion contained in the Report was authorised by the Regulations; and that all relevant information was provided to the Expert to allow her to make a proper assessment of the applicant’s claims of domestic violence, with the applicant being permitted to provide all relevant material to the Expert; and that under reg.1.23(1C) of the Regulations the Tribunal was required to take as correct an independent’s expert’s opinion, properly made. Given the Expert’s opinion was that the applicant has not suffered relevant domestic violence, the Tribunal further found the applicant is not taken to have suffered domestic violence committed by the sponsor for the purposes of reg.1.22 of the Regulations. The Tribunal, therefore, affirmed the delegate’s decision.
Grounds of application
The applicant relies on the further amended application that was filed in Court on 28 May 2018, which contains the following two grounds:
1.The Migration Review Tribunal (MRT) erred when refusing the application for a Partner (Residence)(Class BS) visa by reason of the failure of the Applicant to satisfy the requirements of clause 801.221(6)(c) because the MRT considered that it was obliged by r.1.23(1C) of the Migration Regulations 1994 (Cth) (Regulations) to take as correct, and in fact took as correct, an opinion of Dr Antoinette Harmet (the Opinion) that the applicant had not suffered “relevant domestic violence” in circumstances where the Opinion was vitiated by error and was not an “Opinion” within the meaning of the Regulations.
(a)The MRT considered that r.1.23(1C) of the Migration Regulations 1994 (Cth) (Regulations) obliged it to take as correct the Opinion: MRT Decision at [53].
(b)The MRT in fact took the Opinion as correct: MRT Decision at [53].
(c)The MRT was only obliged to take the Opinion as correct if the Opinion was properly formulated in accordance with the law.
(d)It is an error for the MRT to take as correct an opinion that is not properly formulated in accordance with law.
(e)The Opinion was not properly formulated in accordance with law because Dr Harmer proceeded upon a misconstruction or misconstructions of “relevant domestic violence” in cl.123(2)(b) of the Regulations and failed to correctly apply that definition by:
(i) holding that a threat of deportation is not capable of constituting or evidencing “relevant domestic violence”;
(ii) holding that fear of returning to a country of origin – either by itself or in conjunction with a further fear of legal or personal repercussions – is not capable of constituting or evidencing “relevant domestic violence”;
(iii) holding that the course of conduct in which the applicant contended that his ex-wife had engaged – including ongoing disagreements, a lack of respect, financial control and financial disputes – was not capable of constituting or evidencing “relevant domestic violence”.
(f)Further, the Opinion was not properly formulated in accordance with law because Dr Harmer failed to consider or properly consider a claim by the applicant that the applicant’s ex-wife had threatened to falsely allege that the applicant had assaulted his daughter which caused the applicant to fear for or be apprehensive about his personal well-being or safety.
2.The Tribunal’s failure to disclose the existence of a s375A certificate (dated 29 July 2013) and the documents and information that were the subject of the certificate to the applicant constitutes a denial of procedural fairness.
Ground 1
Ground 1 makes two claims. The first is that the Expert failed to apply the correct definition of “relevant domestic violence” by holding that:
a)a threat of deportation is not capable of constituting or evidencing “relevant domestic violence”;
b)fear of returning to a country of origin – either by itself or in conjunction with a further fear of personal repercussions – is not capable of constituting or evidencing “relevant domestic violence”; and
c)the course of conduct which the applicant contended the sponsor had engaged in, including ongoing disagreements, a lack of respect, financial control, and financial disputes, was not capable of constituting or evidencing “relevant domestic violence”.
The second claim ground 1 makes is that the Expert failed to consider, or properly consider, a claim the applicant made that the sponsor had threatened to allege falsely that the applicant had assaulted the sponsor’s daughter which caused the applicant to fear or be apprehensive about his personal wellbeing or safety.
Parties’ submissions
In his written submissions the applicant states his claims a little differently. He there claims:
a)the Expert correctly identified the applicant relied on the following matters as constituting relevant domestic violence:[37]
[37] Applicant’s Written Outline of Submissions, [41]
i)the sponsor controlled the applicant’s money and demanded money from him and his family;
ii)the sponsor threatened to have the applicant deported; and
iii)the sponsor threatened to make a false allegation that he had harmed the sponsor’s daughter in some way;
b)the Expert failed to consider the following additional matters on which the applicant relied as constituting relevant domestic violence:[38]
i)the sponsor’s ongoing disagreements with the applicant; and
ii)the sponsor’s lack of respect towards the applicant; and
c)the Expert failed properly to consider the applicant’s claim that the sponsor’s threat to make a false allegation that he had harmed the sponsor’s daughter in some way constituted relevant domestic violence.[39]
[38] Applicant’s Written Outline of Submissions, [43]
[39] Applicant’s Written Outline of Submissions, [44]
The applicant further submits that the matters on which the applicant relied for claiming he was the victim of domestic violence amount to psychological violence and, for that reason, falls within the definition of “domestic violence” given in reg.1.23(2)(b) of the Regulations, as that paragraph was explained by the Full Federal Court in Sok v Minister for Immigration & Multicultural & Indigenous Affairs.[40]
[40] [2005] FCAFC 56
Counsel for the Minister, in his written submissions, submits there is no basis for suggesting the Expert ignored any of the applicant’s claims. Counsel submits the Expert was only required to produce an “opinion”, and was under no statutory obligation to give reasons. Counsel relies on the Full Federal Court’s judgment in Yaacoub v Minister for Immigration and Border Protection[41] which sets out the following passage from the reasons for judgment French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (emphasis added by the Full Federal Court):[42]
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282]. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision [Migration Act 1958 (Cth), s 66(2)(c), (3).], and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[33], [66]-[73]]. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power” [Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84]]; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272].
[41] [2018] FCAFC 39, [34]
[42] (2015) 258 CLR 173 at 185-186 [25]
Counsel for the Minister further submits that while “violence” is not limited to physical violence, the Expert did not suggest otherwise.
These competing submissions raise three questions.
a)What is the proper construction of “violence” in the definition of “relevant domestic violence” given in reg.1.23(2)(b) of the Regulations?
b)Did the Expert, as claimed in ground 1, proceed on the basis that:
i)a threat of deportation is not capable of constituting or evidencing “relevant domestic violence”;
ii)fear of returning to a country of origin – either by itself or in conjunction with a further fear of personal repercussions – is not capable of constituting or evidencing “relevant domestic violence”; or
iii)the course of conduct in which the applicant contended the sponsor had engaged in, including ongoing disagreements, a lack of respect, financial control and financial disputes, was not capable of constituting or evidencing “relevant domestic violence”;
and, in so doing, misunderstood the meaning of “relevant domestic violence” as that expression is defined in reg.1.23(2)(b)?
c)Did the Expert fail to consider or properly consider any material aspect of the applicant’s claim of domestic violence?
Meaning of “violence”
The word “violence” as used in reg.1.23(2)(b) of the Regulations was considered by the Full Federal Court in two cases. The first is Cakmak v Minister for Immigration and Indigenous Affairs, where the Full Federal Court said:[43]
“Violence” is an ordinary English word. The phrase “domestic violence” refers to the social context of its occurrence. This is reflected in the spousal and familial relationship found in the regulations. The phrase is not a term of art. It describes something: “violence” occurring in the domestic context. “Violence” has the following meanings in accepted dictionaries . . .
In some contexts in ordinary usage, the notion of “violent” as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone’s behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. It is the plainest use of language, we think, that to “commit” or “perpetrate” violence or the threat of violence involves the act, or threat of, application of physical force. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little by way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling, expressions of contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement.
However, belittling, lowering self esteem, “emotional violence” or “psychological violence” and such behaviour as surrogates or synonyms for violence is, we think, to broaden the scope of the regulations beyond their words. There must be “violence”, or the “threat of violence”, involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety.
[43] [2003] FCAFC 257, [60-61]
In Sok a majority of the Full Federal Court disagreed with the Full Federal Court’s conclusion in Cakmak that “violence,” as used in in reg.1.23(2)(b) of the Regulations, is limited to physical violence. Branson J (with whose reasons Marshall J agreed) said:[44]
. . . Inherent in the notion of ‘violence’, whether physical or non‑physical, is an element of vehemence or severity. For this reason a question of judgment is involved in determining whether particular conduct constitutes ‘violence’. Provided that the conduct complained of is capable of being regarded as ‘violence’, the regulation places the burden of making that judgment in respect of the domestic violence with which the regulation is concerned upon persons whose skills and experience have been assumed to fit them to make it.
I conclude that the better view of the true meaning of regulation 1.23(2)(b) is that the ‘violence’ there referred to is not restricted to physical violence. It seems to me that this conclusion accords with notions of fairness and with what may be assumed to be the policy lying behind regulation 1.23(1)(g). Without wishing in any way to diminish the horror of physical violence, it seems unlikely, in my view, that it was intended that while a person who had experienced an act of physical violence at the hands of his or her spouse might be able to bring himself or herself within regulation 1.23(1)(g), a person who had suffered the psychological violence of, for example, being compelled by non-physical means to be complicit in the sexual abuse of a child would necessarily fall outside the regulation.
[44] [2005] FCAFC 56, at [26-27]
Branson J did not offer any comprehensive explanation of the notion of non-physical “violence”. It is reasonable to suppose, however, that her Honour would have favoured the construction of “violence” given by Wilcox J in Malik v Minister for Immigration and Multicultural and Indigenous Affairs which the Full Court reproduced in its reasons and which it disapproved.[45] In Malik Wilcox J said:[46]
. . . . Mr Newman, solicitor for the applicant . . . argues that “domestic violence” does not necessarily require physical assault; it is sufficient there be psychological violence, if this has an emotional or psychological consequence.
Mr Allatt, solicitor for the Minister, accepts that the concept of domestic violence does not necessarily involve physical assault. Psychological violence, such as belittling, intimidating, or frightening, may be sufficient. However, he argues that, for there to be domestic violence, there must be hostile conduct by one person towards another.
It seems to me Mr Allatt is correct. This is the way in which the term “domestic violence” is used in the regulations. The term is not defined. Probably the drafter primarily had in mind physical violence, but the word “physical” is not used. So it is reasonable to accept that the term may cover cases where the damage suffered by an applicant is not physical. Nonetheless, it is important to note that the description in reg 1.23(2)(b) refers to “violence against the alleged victim” that causes the alleged victim to fear for, or be apprehensive about, the victim's personal well being or safety. Regulation 1.23(g) talks about the “perpetrator” of violence. In other words, “domestic violence” is conduct against the victim, usually a course of conduct, that causes the victim to have fear or apprehension about her or his personal well-being or safety. It is not sufficient that there be conduct which has had the effect of causing diminution of a person’s feeling of well being. There must be conduct, of one party towards the other, which has the consequence of causing fear or apprehension.
In the present case there is no suggestion of the wife having engaged in a course of conduct of intimidation, belittling, frightening or similar conduct towards the husband. There seem to have been some matrimonial differences, and then a break up of the marriage in the context of an accusation about bigamy. There is no suggestion of the applicant having been caused to suffer fear or apprehension.
[45] [2003] FCAFC 257, at [56]
[46] [2000] FCA 562, at [13-16]
In Sok Branson J found that the Full Federal Court in Cakmak was “clearly wrong” in concluding that the expression “domestic violence” is not a term of art in contemporary Australia.[47] It appears that her Honour was of the view that the meaning of “domestic violence”, as a term of art, is to be derived from the material to which Hely J referred to in Sok,[48] and also from the “various definitions” of “domestic violence” given in the “Domestic Violence Interagency Guidelines”.[49] Branson J, however, did not state what “domestic violence” as a term of art meant. That is not surprising because the principal question of construction that was before the Full Federal Court in Sok was whether “domestic violence” was restricted in the manner found by the Full Federal Court in Cakmak; and where it is claimed that a particular statutory word or expression bears a technical non-legal meaning, evidence may be received to establish the existence of such technical meaning and whether there was an accepted technical meaning at the time of enactment,[50] but it appears that no party tendered any evidence on these questions.
[47] [2005] FCAFC 56, at [32]
[48] Hely J identified the material at [58]-[59]
[49] [2005] FCAFC 56, at [31] – should this be [15]?
[50] See Herzfeld, P., Thomas, P., and Tully, S., Interpretation and Use of Legal Sources, The Laws of Australia Thomson Reuters, 2013, at [25.1.1030]
No party before me submitted that the expression “domestic violence” as used in reg.1.23(2)(b) of the Regulations is a term of art; and no party, therefore, has adduced any evidence of the meaning of that expression, assuming it is a term of art. It is true that the applicant, in his written submissions,[51] refers to Branson J’s observations that “the executive branches of Australian governments use the expression ‘domestic violence’ to encompass an abuse of power within a domestic relationship such that the less powerful partner in the relationship experiences fear of psychological or physical harm”.[52] That, however, cannot be taken as a construction of the expression “violence” or of “domestic violence”. At most, this part of her Honour’s judgment is to the effect that the meaning of “domestic violence” is to be ascertained by reference to the material identified by Hely J and by her Honour.
[51] Applicant’s Written Outline of Submissions, [46]
[52] [2005] FCAFC 56, at [15]
In my opinion, then, the effect of the authorities is that “violence”, as that word appears in reg.1.23(2)(b) of the Regulations, is not restricted to acts or threatened acts of physical violence; it includes belittling, intimidating, frightening, or similar conduct directed to the person claiming to be the victim of domestic violence. If, contrary to the opinion I have expressed, in Sok Branson J did make a finding about the meaning of “domestic violence” as a term of art, her Honour held that “domestic violence” means “an abuse of power within a domestic relationship such that the less powerful partner in the relationship experiences fear of psychological or physical harm”.
Did the Expert proceed on an incorrect understanding of the meaning of “relevant domestic violence”?
The Applicant identifies three matters he submits manifests an incorrect understanding by the Expert of the meaning of “relevant domestic violence”.
The first is the contention that the Tribunal proceeded on the basis that the threat of deportation is not capable of constituting or evidencing “relevant domestic violence”. Here the applicant relies on the Expert’s statement that “in their own right” threats of being deported from Australia are not sufficient evidence of domestic violence. It is not entirely clear how the Expert’s statement is to be construed. On the one hand, the Expert’s statement implies that, by itself, threats to deport are incapable of constituting domestic violence. On the other hand, the statement also implies that such threats are relevant if there is other evidence to support a conclusion of domestic violence. In my opinion, the more reasonable construction of this part of the Expert’s reasons is that the Expert intended to convey that, by themselves, threats of deportation are not sufficient evidence of domestic violence but, when considered in combination with other matters, may be relevant to determining whether there has been domestic violence. The question is whether this manifests any misunderstanding of the true meaning of “relevant domestic violence”.
A starting point in answering this question is the recognition that a sponsor who is married to the holder of a subclass 820 visa is in a position of power over the holder. The source of the power is the combination of two things. One is that it is a criterion for the granting of a Partner visa that the sponsor and holder of a subclass 820 visa must continue to be in a “married relationship” within the meaning of s.5F(2) of the Act. The second is that it is within the power of the sponsor to end the relationship, with the consequence that the holder of a sub class 820 visa will be unable to satisfy a criterion for the grant of a Partner visa and thus be exposed to deportation from Australia.
In these circumstances, it is easy to imagine a state of affairs where the sponsor could threaten to exercise his or her power to end the marriage relationship as a means of intimidating, belittling, or frightening the sponsor’s partner who holds the subclass 820 visa, or as a means of effecting the “coercion, humiliation, surrender or abasement”[53] of the holder of the subclass 820 visa. The most obvious circumstances are where the holder of a subclass 820 visa is afraid or is unwilling to return to his or her own country of origin, and the sponsor is aware of the holder’s fear or unwillingness to return to his or her own country, and takes advantage of that fear or unwillingness by threatening to terminate the marriage, either for the purpose of humiliating the holder of the subclass 820 visa, or for the purpose of coercing the holder to do something the holder would otherwise be unwilling to do. In my opinion, the threat by a sponsor to have the holder of a subclass 820 visa deported to his or her country of origin in circumstances where the holder is afraid or otherwise unwilling of returning to his or her own country of origin, and the sponsor is aware of the holder’s fear or unwillingness to return to his or her own country of origin, is capable by itself of constituting “relevant domestic violence” as that expression is defined in reg.1.23(2)(b) of the Regulation.
[53] Cakmak v Minister for Immigration and indigenous Affairs [2003] FCAFC 257, at [61]
The applicant claimed the sponsor threatened to have him deported in circumstances where the applicant claimed he was afraid, and the sponsor was aware he was afraid, of being returned to Germany. The applicant claimed the threat was made when he refused comply with the sponsor’s request that the applicant obtain money from his family. That claim was capable of constituting “relevant domestic violence”. The Expert rejected this part of the applicant’s claim by stating that threats of being deported from Australia could not by themselves constitute sufficient evidence of “domestic violence”. In my opinion, this manifested a misunderstanding by the Expert of the meaning of “violence” or of “relevant domestic violence” as defined in reg.1.23(2)(b) of the Regulations.
Although I have not relied on this in the conclusion I have already reached, it may be worth noting that the Expert might have been of the view that a threat to deport could never, either alone or in combination with other matters, constitute “relevant domestic violence”. That the Expert may have held this view is apparent from what the Expert said in the Further Report:[54]
[The applicant’s] fear appears to be primarily in relation to his fear of having to return to Germany (where he fears for his life) or being charged with an offence in Australia. The IE formed the opinion that if it were not for his fear of having to return to Germany, [the applicant] may not have chosen to stay in this unhappy and possibly abusive relationship. The IE understands the criteria as being that fear of returning to the country of origin is not relevant as an example of family violence.
[54] CB371
The second matter on which the applicant relies for submitting the Expert misunderstood the meaning of “violence” is the submission that the Expert found that holding a fear of returning to a country of origin – either by itself or in conjunction with a further fear of legal or personal repercussions – is not capable of constituting or evidencing “relevant domestic violence”. The Expert did not in the Report expressly make a statement to this effect; but her statement that “threats of being deported from Australia are not sufficient evidence of domestic violence in their own right” implies that the Expert was of the view that a person’s fear of being deported to his or her country of origin cannot by itself be relevant to determining whether the person was a victim of domestic violence. In my opinion, that is incorrect. It is the fear of return that gives rise to the power in the sponsor to humiliate the holder of a subclass 820 visa or to coerce the holder to do something the holder would otherwise be unwilling to do. Thus, by implicitly proceeding on the view that a person’s holding a fear of returning to his or her own country of origin was not relevant to determining whether the person suffered “relevant domestic violence”, the Expert manifested a misunderstanding by the Expert of the meaning of “violence” or of “relevant domestic violence” as defined in reg.1.23(2)(b) of the Regulations.
The third matter on which the applicant relies for submitting the Expert misunderstood the meaning of “violence” is the submission the Expert proceeded on the view that the course of conduct in which the applicant contended the sponsor had engaged in, including ongoing disagreements, a lack of respect, financial control, and financial disputes, was not capable of constituting or evidencing “relevant domestic violence”. I do not accept the Expert proceeded on this view. First, the Expert set out in detail what the applicant said about the nature and history of his relationship with the sponsor. That indicates the Expert acquainted herself with the matters on which the applicant relied. Second, the Expert said that in forming her opinion that the applicant has not suffered relevant domestic violence committed by the sponsor, the Expert had taken into account the documents provided to her as well as the content of two interviews with the applicant. That suggests that in addition to acquainting herself with the material on which the applicant relied, the Expert considered that all of the material on which the applicant relied was at least potentially relevant to determining whether the applicant was subjected to domestic violence.
Consequences of proceeding on incorrect understanding of “relevant domestic violence”
I have found that the Expert proceeded on an incorrect understanding of the expression “relevant domestic violence”. There are two consequences. The first is that the Expert’s opinion was not one arrived at according to law and, therefore, is not an “opinion” authorised by reg.1.23(1C). The second consequence is that, being an opinion that was not authorised by reg.1.23(1C), it was not an opinion on which it was open for the Minister and, on review, the Tribunal, to take as correct. As stated by the Full Federal Court in a different, but analogous context:
The delegate [here, the Tribunal] is only entitled and obliged to take that opinion [here the Expert’s opinion] as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.
It follows, therefore, that ground 1 succeeds, and the Tribunal’s decision is liable to be set aside.
Ground 2
Ground 2 is as follows:
The Tribunal’s failure to disclose the existence of s 375A certificate (dated 29 July 2013) and the documents and information that were the subject of the certificate to the applicant constitutes a denial of procedural fairness.
There is no question that a delegate of the Minister issued a certificate purportedly pursuant to s.375A of the Act (375A Certificate) claiming that the disclosure of the documents described in the 375A Certificate would be contrary to the public interest because the documents contain “information that could reveal departmental operational procedures and methodologies, including discussions related to international intelligence organisations, not considered to be in the public interest”.[55] And there is no question that the Tribunal did not disclose the 375A Certificate to the applicant.
[55] CB103
At the hearing before me counsel for the Minister sought to read an affidavit of Mr Leerdam, a solicitor for the Minister, exhibiting some, but not all, of the documents referred to the 375A Certificate (Produced Documents). The purpose of the affidavit was to establish that the Produced Documents were irrelevant to the questions the Tribunal was required to consider and, for that reason, the Tribunal’s not disclosing the documents covered by the 375A Certificate could not have made any difference to the outcome of the Tribunal’s review of the applicant’s case. Counsel for the Minister further submitted that from the irrelevance of the Produced Documents I should infer that the other documents described in the 375A Certificate that do not form part of Produced Documents (Not Produced Documents) are also irrelevant and, for that reason, the non-disclosure of the 375A Certificate did not effect any practical injustice on the applicant.
Ms Anang, who appeared for the applicant, objected to my reading Mr Leerdam’s affidavit. Ms Anang relied on the grounds on which the applicant in “CQZ15” relied. I take that to be a reference to the judgment of Judge Riley of this Court in CQZ15 v Minister for Immigration & Anor where her Honour declined to read an affidavit that disclosed the contents of documents covered by a certificate purportedly issued under s.438 of the Act.[56] I read Mr Leerdam’s affidavit subject to relevance. In my opinion, the affidavit is relevant. In an appeal from the later orders made by Judge Riley in CQZ15, the Full Federal Court held that an affidavit exhibiting documents that are the subject of a certificate purportedly issued under s.438 of the Act is admissible for the purpose of establishing that the Tribunal’s failure to disclose such certificate could not have deprived the applicant before the Tribunal of an opportunity to advance his or her case.[57] The High Court upheld the Full Federal Court’s ruling.[58]
[56] [2016] FCCA 2788
[57] Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, at [69]
[58] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [56], [121]
Counsel for the Minister also submitted that the 375A Certificate is valid; and, whether or not it is valid, counsel for the Minister informed me that the Minister elected not to exhibit the Not Produced Documents because the Minister claims those documents are the subject of public interest immunity. Ms Anang did not call for the production of the Not Produced Documents and, for that reason, the Minister was not required to assert any claim of public interest privilege. I must assess ground 2, therefore, on the basis that only some of the documents covered by the 375A Certificate are in evidence before me.
Before I consider ground 2, it will be necessary to identify the relevant principles that I am bound to apply. These are to be found in the judgments of the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA).[59]
[59] [2019] HCA 3
Principles
SZMTA concerned three appeals from orders of the Full Federal Court, each of which concerned certificates that were issued purportedly pursuant to s.438 of the Act (438 certificate). There are two reasons for judgment in SZMTA, one given by Bell, Gageler, and Keane JJ (plurality judgment), and the other given by Nettle and Gordon JJ (non-plurality judgment).
All justices were of the opinion that the issue to the Tribunal of a 438 certificate or purported 438 certificate obliged the Tribunal to disclose to the applicant the 438 certificate.[60] There is a difference between the plurality judgment and the non-plurality judgment about the consequences of the Tribunal’s failing to disclose to the applicant the issue of a 438 certificate.
[60] [2019] HCA 3, [28], [115]
According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[61] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[62] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[63]
[61] [2019] HCA 3, [4]
[62] [2019] HCA 3, [45]
[63] [2019] HCA 3, [4]
According to the non-plurality judgment, a breach by the Tribunal of an obligation to disclose a 438 certificate gives rise to a jurisdictional error.[64] Unlike the plurality judgment, however, whether or not the breach is material is not relevant to whether the Tribunal made a jurisdictional error. In other words, materiality of error is not a criterion of jurisdictional error.[65] Materiality, however, may be relevant to whether the Court should refuse relief.[66]
[64] [2019] HCA 3, [117]
[65] [2019] HCA 3,[92]
[66] [2019] HCA 3, [121], [123], [128]
Did the Tribunal make a jurisdictional error?
Ground 2 is to be determined by applying the principles identified in the plurality judgment. That is so, even though those principles related to 438 certificates, and not to certificates issued under s.375A of the Act. The two provisions are substantially the same; and they appear in substantially similar statutory contexts.
The Minister put in issue the materiality of the Tribunal’s failure to disclose to the applicant the 375A Certificate. The applicant, therefore, bears the onus of showing that the Tribunal’s failure was material. Ms Anang submitted that the Produced Documents were prejudicial to the applicant’s interests. The Produced Documents include a submission by an officer of the Department to a delegate of the Minister about whether the applicant satisfied the “character test” as provided for in s.501(1) of the Act, and whether a decision should be made under that subsection (501 submission).[67] The submission sets out matters relevant to the applicant’s conviction in Germany, including the seriousness of the offending conduct. In that section the delegate summarised in some detail the sentencing remarks of the German Judge. Ms Anang submitted that had the 375A Certificate been disclosed to the applicant, he would have made submissions about it. The nature of the submissions the applicant may have made are set out in a document that I marked MFI1. I did not admit the document into evidence because I ruled it was not relevant. I did say, however, that I would refer to it in my reasons for judgment.
[67] Exhibit A
MFI 1 is an email from the applicant to Ms Anang, and it sets out responses to particular paragraphs of the 501 submission. In relation to each of paragraphs 11, 12, and 13 of the 501 submission the applicant states: “Immigration is lying. This is not written with this meaning in the judgment. Immigration is deliberately lying to mislead further decision”. The response to paragraph 11 is that it “is just a ridiculous assumption with the intent to mislead further decisions”. The response to paragraph 15 is an unparticularised assertion that the applicant requested “[s]everal times” to have a meeting with “immigration to discuss my case”. It is unnecessary to set out the remaining responses.
In my opinion, the disclosure of Exhibit A could not have made a difference to the opinion the Expert gave or to the decision the Tribunal made. The delegate’s decision referred to the applicant’s having been extradited to Germany, tried, and convicted in Germany;[68] and the Expert in the report dated 6 January 2014 and in the Report referred to the applicant having been tried and convicted in Germany, and these reports had been provided to the applicant for his comments. Thus the applicant had an opportunity to give evidence and make about the conviction; and it is apparent the applicant did. The Report refers to the applicant having reported that the German police and political system were very corrupt, that there were multiple charges that were made up against him, and that he received death threats.[69] Further, there is nothing to suggest that the Expert or the Tribunal relied on the applicant’s having been convicted in Germany, or that the Expert or Tribunal relied on any information contained in the 501 Submission.
[68] CB93
[69] CB242, 292
Ground 2, therefore, fails.
Conclusion and disposition
Given the applicant has succeeded on ground 1, I propose to make an order quashing the decision of the Tribunal, and an order pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) requiring the Administrative Appeals Tribunal to reconsider the application for review made to the Tribunal according to law. I propose to deal with the question of costs when I pronounce my orders.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 13 June 2019
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