Kaur v Minister for Immigration
[2020] FCCA 2975
•26 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2975 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – alleged family violence – Tribunal finding that the applicant had not made a valid claim of family violence – applicant providing a statutory declaration by a psychologist and a medical report by a clinical psychologist – jurisdictional error established. |
| Legislation: Migration Regulations 1994 (Cth) |
| Cases cited: Du v Minister for Immigration [2000] FCA 1115 Minister for Immigration v Ejueyitsi (2007) 159 FCR 94 Pham vMinister for Immigration [2018] FCA 1946 Pham v Minister for Immigration & Anor [2017] FCCA 3272 |
| Applicant: | BALJINDER KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2879 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Aleksov |
| Solicitors for the Applicant: | Saundh, Singh & Smith Lawyers, pro bono publico |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 31 August 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2879 of 2017
| BALJINDER KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Kaur, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) decision made on 31 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Kaur a partner visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 26 October 2020.
On 14 November 2012 Ms Kaur applied for a partner (Provisional)(Class UF) visa and a partner (Migrant)(Class BC) visa on the basis of her spousal relationship with an Australian citizen. On 29 April 2013 a delegate of the Minister granted Ms Kaur a partner (Provisional) visa.
In September 2015 Ms Kaur’s relationship with her sponsor ceased. An officer in the Minister’s Department invited Ms Kaur to comment on the relationship break down, but she did not respond. Accordingly, on 23 December 2015 the delegate refused to grant Ms Kaur the partner (Migrant)(subclass 100) visa because she did not satisfy the criteria.[1]
[1] Court Book (CB) 263
Ms Kaur made an application to the Tribunal for review of the delegate’s decision.[2] Before the Tribunal, Ms Kaur advanced a claim of having suffered family violence from her ex-partner. It was a requirement for the grant of the subclass 100 visa (clause 100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)) that:
[2] CB 305
(4) The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a member of the family unit of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner; …
On 11 May 2017 Ms Kaur, through her representative, submitted a number of documents to the Tribunal in support of her family violence claim.[3]
[3] CB 459
On 31 August 2017 the Tribunal affirmed the decision under review.[4] The Tribunal, by reference to the evidence adduced by Ms Kaur in support of her claim to have suffered family violence, concluded at [11] that Ms Kaur had not made a valid claim for family violence in accordance with the Regulations.
[4] CB 495
The current proceedings
These proceedings began with a show cause application filed on 15 September 2017. The application was initially allocated to the docket of Judge Barnes but on 14 March 2019 her Honour ordered that the matter be transferred to my docket. Ms Kaur filed an Application in a Case on 23 July 2020 seeking an adjournment of the hearing and a transfer of the case to the Melbourne registry of the Court. I declined to transfer the proceedings but made other orders on 17 August 2020, giving Ms Kaur the opportunity to file and serve an amended application and material in support. Ms Kaur obtained legal representation and on 24 September 2020, she filed an amended application raising the following grounds:
4. The Tribunal erred in law in not accepting that the report at Court Book (CB) 463, read with CB 465 was a qualifying evidential item within IMMI12/116. On any reasonable view, that report met the definition of a 'Statutory declaration made by a registered psychologist in a State of Territory who has treated the alleged victim while performing the duties of a psychologist" and included the required detail.
5.The Tribunal erred in law in not accepting that the report at CB 467 was a qualifying evidential item within IMMI 12/116. The Tribunal either did not consider this report, or made some error in its consideration, given that on any reasonable view, that report was a "medical report, hospital report, discharge summary or statutory declaration that is made by ....a person who is registered as a medical practitioner and is performing the duties of a medical practitioner" and included the required detail.
6.The Tribunal erred in law in not accepting the qualifying evidence supplied in support of the family violence.
Ms Kaur abandoned Grounds 1-3 in the original application.
The only evidence I have before me is the court book filed on 22 February 2018.
Both Ms Kaur and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial on 2 November 2020.
Consideration
Ms Kaur’s contentions
The issue is whether Ms Kaur submitted evidential items in support of the claim to have experienced family violence, in accordance with the requirements set down in IMMI 12/116.
One type of acceptable evidence was “Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist” (sixth item in the list at Schedule 1). At CB 463-465 was a declaration with cross referenced report that met this requirement. It identified the points 1 and 3 of the relevant cell under the heading “includes the following detail”. Ms Kaur submits that it met the second point because at CB 463.5, the psychologist states “Based only on reports provided by and descriptions from Baljinder throughout these sessions [six sessions] ….” No more was needed to meet this requirement.
Another type of acceptable evidence is a “Medical report, hospital report, discharge summary or statutory declaration that is made by … a person who is registered as a medical practitioner and is performing the duties of a medical practitioner” and included the required detail (first item in the list at Schedule 1). At CB 467-469 was, in Ms Kaur’s submission, such an item of evidence, which met the requirements.
Ms Kaur submits that, in failing to accept that Ms Kaur had submitted qualifying evidence that was plainly within the legislative requirements, the Tribunal failed to act according to law.
Minister’s contentions
“Relevant family violence” is defined in regulation 1.21. A reference in the Regulations to a person having suffered family violence is a reference to a person being “taken, under regulation 1.23, to have suffered family violence”.[5] Relevantly, regulation 1.23(9) provided:
[5] regulation 1.22(1)
(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; …
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.
Regulation 1.24 provided:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
The “type and number of items of evidence specified by the Minister by instrument in writing” is, it is common ground, a reference to the instrument called IMMI 12/116 dated 22 November 2012 (Instrument). The Instrument specifies the types of evidence that are acceptable under regulation 1.24(b) as set out in Schedule 1 to the Instrument. It further specifies that a minimum of “two items of evidence from the list in Schedule 1 and no more than one type of each type of evidence may be presented for the purposes of paragraph 1.24(b)”.
In this case, there are two types of evidence of potential relevance: first, a “medical report” that is made by a person who is “registered as a medical practitioner and is performing the duties of a medical practitioner”. Evidence of this type must, under the Instrument:
a)identify the alleged victim; and
b)detail the physical injuries or treatment for mental health that is consistent with the claimed family violence.
Secondly, a statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist. Evidence of this type must:
a)state that in their opinion the alleged victim was subject to family violence;
b)detail the reasons for that opinion; and
c)identify the alleged perpetrator.
The Tribunal set out at [8] the documents submitted by Ms Kaur in support of the claim to have suffered family violence. The Tribunal did not accept that the psychologist Mr Belal Ali’s statutory declaration dated 10 May 2017[6] met the requirements of the Instrument, because it did not explain the reasons for the opinion. The reasoning of the Tribunal was that because Mr Ali’s statutory declaration did not meet the requirements of the Instrument, then, regardless of whether Ms Kaur had provided a medical report or reports that met the requirements of the Instrument, Ms Kaur had nevertheless failed to provide two types of evidence as required by the Instrument.
[6] CB 463
The Minister contests that the report of Dr Kiran Sidhu dated 8 January 2017[7] was capable of meeting the requirements of the Instrument as a medical report of a person who is “registered as a medical practitioner and is performing the duties of a medical practitioner”. Dr Sidhu is a consultant clinical psychologist. He appears to be styled “Dr” because, according to the qualifications he lists on his report, he holds a PhD. That is, he is not a medical practitioner. The Instrument itself distinguishes between medical practitioners and registered psychologists.
[7] CB 467
The Minister submits that, even if the report of Dr Sidhu was capable of meeting the requirements of the Instrument as a medical report, for the following reasons the Tribunal was correct, or alternatively it was at least open to the Tribunal to find, that Mr Ali’s statutory declaration did not meet the requirements of the Instrument.
The Instrument required that the statutory declaration “states in their opinion the alleged victim was subject to family violence”. Mr Ali in his statutory declaration opines that Ms Kaur’s relationship with her ex‑husband “was characteristic of domestic and family violence and in particular emotional abuse”. The Instrument required that the statutory declaration “details the reasons for the opinion”. The Minister contends that the only reasons given for that opinion are in the words, “Based only on reports provided by and descriptions from Baljinder throughout these sessions”.
To the extent that these words may be considered “reasons” for the opinion, they are said to be deficient for the purposes of the Instrument. First, they demonstrate that Mr Ali’s opinion as expressed was based only on what Ms Kaur told him. That is not a “reason” to have found that family violence occurred. Secondly, they do not explain, by reference to the definition of “relevant family violence” in regulation 1.21, why, or even if, Mr Ali formed the view that that Ms Kaur was the subject of conduct, whether actual or threatened, that caused her to reasonably fear for, or to be reasonably apprehensive about, her own wellbeing or safety. It must be accepted that the opinion that the Regulations required, through the Instrument, to be given was an opinion that Ms Kaur had been subject to “relevant family violence” as defined in regulation 1.21.
The Minister submits that, even if one were to proceed on the basis that Mr Ali’s report dated 4 May 2017[8] formed a part of the statutory declaration for the purposes of the Instrument, that report does not express any reasons that Mr Ali had as to why, or even if, he formed the view that Ms Kaur was the subject of relevant family violence as defined in regulation 1.21. Mr Ali in the report merely recites what Ms Kaur told him had occurred. Mr Ali does not, in the report, express a view that he accepts that what Ms Kaur told him had occurred. To the contrary, Mr Ali refers in the report to Ms Kaur having “alleged” the various matters she described. Further, and importantly, there is no reference in the report to Ms Kaur having told Mr Ali, or to Mr Ali having accepted, that she had a fear, or apprehension, about her own wellbeing or safety.
[8] CB 465
The Minister contends that it is also unclear whether Mr Ali, in the statutory declaration, actually expressed an opinion as required by the Regulations, by reference to the Instrument. Whilst the Tribunal did not make a finding about this, whether the declaration meets the requirements of the Regulations is ultimately a question of jurisdictional fact for the Court to determine.[9]
[9] Pham v Minister for Immigration & Anor [2017] FCCA 3272, [41] (approved on appeal: Pham v Minister for Immigration [2018] FCA 1946 at [34(2)] (Middleton J)
Mr Ali’s opinion that Ms Kaur’s relationship with her ex-husband as “characteristic of domestic and family violence …” is said not to be an expression of an opinion that she was “subject to family violence”. It is said to be more an expression of an opinion that Ms Kaur’s reports and descriptions of what occurred during her relationship were consistent with, or might have been, “domestic and family violence”. This is said to have been not a sufficient expression of opinion, just as it was not sufficient for a competent person to state that the victim’s presentation is “consistent with” the claim of domestic violence (by reference to an earlier, but comparable, version of the Regulations concerning domestic violence).[10]
[10] Du v Minister for Immigration [2000] FCA 1115 at [18]
Further, whilst it was unnecessary for Mr Ali to cite the definition of “relevant family violence” in the Regulations,[11] the Court must be satisfied, and must be able to infer, that Mr Ali understood what “relevant family violence” meant under the Regulations, and that his opinion as expressed was by reference to that concept. The opinion in fact expressed by Mr Ali in the statutory declaration was that Ms Kaur’s relationship was characteristic of “domestic and family violence and in particular emotional abuse”. The Minister submits that that strongly suggests that Mr Ali’s opinion was that Ms Kaur had (or might have) suffered from a more general kind of abuse or violence, rather than the specific form of violence defined in the Regulations. There is nothing either in the declaration itself, or in the report annexed to the declaration, upon which basis the Court could infer that Mr Ali was aware of the applicable concept of “relevant family violence”, or that his opinion as expressed in the declaration was an opinion that Ms Kaur had been subject to “relevant family violence”.
[11] Minister for Immigration v Ejueyitsi (2007) 159 FCR 94 at [34]
The Minister submits that, for these reasons, the Court should find that the Tribunal was correct in its conclusion that the declaration of Mr Ali did not come within the terms of the Instrument, as required under the Regulations, and that consequently Ms Kaur failed to provide two kinds of evidence as specified in the Instrument and therefore that she had not made a valid claim for family violence in accordance with the Regulations.
Resolution
In her amended application, Ms Kaur asserts that the Tribunal fell into jurisdictional error in failing to treat the statutory declaration of Mr Ali dated 10 May 2017[12] read with the report of Mr Ali dated 4 May 2017[13] as a qualifying evidential item in accordance with the Instrument. Further, she contends that the Tribunal fell into jurisdictional error in failing to treat the report of Dr Sidhu dated 8 January 2017[14] as a qualifying evidential item in accordance with the Instrument.
[12] CB 463
[13] CB 465
[14] CB 467
In my view, the Tribunal did err in the manner alleged by Ms Kaur. It is, in my view, clear that the Regulations and accompanying Instrument are intended to be beneficial delegated legislation and should be given a liberal interpretation. The explanatory statement to the Evidentiary Requirements of the Instrument, in particular at [6] and [7] states:
6. The purpose of the Instrument is to form a part of a preliminary response to the Australian Law Reform Commission’s report titled Family Violence and Commonwealth Laws – Improving Legal Frameworks, which was released on 8 February 2012.
7. The instrument is one of several measures operating to improve the accessibility of the family violence provisions by streamlining the evidence that applicants must provide in order to make a non-judicial claim of family violence. People who have suffered family violence may already have been in contact with a range of support services or state agencies, and records of this contact may already exist. The new evidentiary requirements seek to enable people who are in possession of those documents to enliven a claim of family violence under the Regulations.
As is noted in the parties’ submissions, Ms Kaur needed to provide, relevantly, two documents. The first was a statutory declaration which could be from a range of people, including a registered psychologist, giving an opinion as to whether Ms Kaur had been subject to family violence and giving reasons for that opinion. There is no doubt that the alleged perpetrator was identified as required by the Instrument.
Ms Kaur provided a statutory declaration by Mr Ali which appears at CB 463-464 and incorporates by reference his report reproduced at CB 465-466. I note, in this connection, that the address of Mr Ali given in that report is 73 Governor Macquarie Dr, Chipping Norton which the Tribunal erroneously identified as Dr Chipping Norton at [8] of its decision.[15] Relevantly, in the accompanying report, Mr Ali states that:
On formal assessment, Baljinder certainly presents with elevated depressive symptoms, social avoidance and social phobia which Baljinder scores on a Domestic Violence Safety and Assessment Tool (DVSAT) placing Baljinder in the ‘at risk’ level based on her descriptions of her relationship and alleged treatment by her former husband.
[15] CB 496, second last dot point
In my view, that statement constitutes the necessary opinion and gives the reason for it.
Secondly, Ms Kaur needed to provide a “medical report” by “a registered medical practitioner”.
In my opinion, the report by Dr Sidhu reproduced at CB 467-469 satisfies that description. Dr Sidhu (who obtains his title from a PhD rather than a medical doctor qualification) is a consultant clinical psychologist with a medicare provider number and Ms Kaur was referred to him by her general practitioner. The medical report referred to in the Instrument must be from a person who is “registered as a medical practitioner” or performing the duties of a medical practitioner, or a nurse. The expression “medical practitioner” is not defined. It is not necessary to determine whether any psychologist would qualify as a medical practitioner for the purposes of the Instrument and I note that any registered psychologist could provide a statutory declaration. For the purposes of this decision, I find that a consultant clinical psychologist providing a report on referral from a general practitioner has provided a medical report and is a medical practitioner for the purposes of the Instrument.
Relevantly, the report by Dr Sidhu states:[16]
I am of the opinion that Ms Baljinder Kaur suffers from depression and high level of anxiety. The above incidents of emotional abuse and psychological injuries are substantial contributing factors to Ms Baljinder Kaur’s distress. She denied any other issues impacting her at the time. She reported having supportive and close relationship with her parents, siblings and friends.
Ms Baljinder Kaur presented with high levels of anxiety throughout the sessions. She became tearful on several occasions during counselling sessions particularly while she was talking about her psychological injuries especially the relationship issues with her husband. Also reported that she has frequent nightmares. Prominent features of her presentation include reports of depressed mood, nervousness, fatigue, irritability, poor concentration, lack of energy, flashbacks. She has been on antidepressants at well.
[16] CB 469
In my view, Dr Sidhu’s report is sufficiently detailed to meet the requirements of the Instrument.
I find that the Tribunal erred in finding that Ms Kaur had not made a valid claim for family violence as stipulated under the Regulations.
I note that, for completeness, that at [13][17] the Tribunal states that it had taken into consideration “any evidence submitted prior to the date of this decision”. It does not appear, however, that anything further was submitted other than that which is discussed above.
[17] CB 497
Conclusion
Ms Kaur has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. She should receive the relief she seeks. I will make orders for the issue of writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 November 2020
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