KC v Minister for Immigration
[2015] FCCA 2349
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KC v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2349 |
| Catchwords: MIGRATION – Judicial Review. |
| Legislation: Acts Interpretation Act 1901 Migration Act 1958 (Cth), ss.474, 476 Migration Amendment Regulations 2007 (No.13) |
| Al-Momani v Minister for Immigration & Anor [2011] FMCA 453 Craig v South Australia (1995) 184 CLR 163 Liu v Minister for Immigration and Citizenship [2011] FMCA 601 Maman v Minister for Immigration & Anor [2011] FMCA 426 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZSTR v Minister for Immigration and Border Protection [2014] FCCA 2554 |
| Applicant: | RAGHAV KC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 81 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 13 July 2015 |
| Date of Last Submission: | 13 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brady (direct brief) |
| Counsel for the Respondents: | Mr Richardson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application be dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 81 of 2015
| RAGHAV KC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 13 May 2011 the applicant (a Nepalese national) was granted a Partner (Migrant) Class BC visa. The applicant had applied for that visa on 3 December 2010. The applicant had met an Australian citizen, Ms Filetti (the sponsor) in Nepal in early 2010.
The applicant married the sponsor on 9 May 2010 in Nepal.
After the said visa was granted – the applicant arrived in Australia on 26 May 2011 to live with the sponsor.
Unfortunately, the relationship did not go well for the married couple. On 13 December 2011 the sponsor contacted the relevant Immigration Department. The sponsor explained that her relationship with the applicant had ended and she wished to withdraw her sponsorship of his visa application.
In March 2012 the applicant submitted to the department documentary evidence that he had suffered family violence at the hands of his sponsor. The criteria for the grant of the applicant’s visa are contained in Part 100 of Schedule 2 to the Migration Regulations 1994 (hereinafter referred to as “the Regulations”). The primary criteria contained in the regulations included clause 100.221. That clause required the applicant to be the spouse or the de facto partner of the sponsor – unless the relationship had ended and certain circumstances existed. Those circumstances included the fact that the applicant had suffered family violence committed by the sponsor. In the present case the applicant contends that such family violence at the hands of the sponsor did occur. That is why he submitted the documentary evidence to the department as earlier referred to herein.
In those circumstances the minister was required to and did in fact refer the applicant to an independent expert (IE) for a consideration of whether or not the applicant had been subjected to relevant family violence. This occurred on 12 August 2012. The IE was Lisa Francis, a social worker. In a report dated 27 November 2012 Ms Francis concluded that there was “insufficient evidence” to support a finding that the applicant had been a victim of family violence.
On 28 March 2013 a delegate of the minister concluded that the applicant did not meet the legislative requirements for the visa as specified in sub clause 100.221 and the visa was refused.
The applicant applied for a review of the delegate’s decision to the Migration Review Tribunal (as it was then known). The applicant appeared before the MRT on 29 July 2014. The applicant gave evidence and presented arguments at that time. As was required, a further report was obtained by another IE. Doctor Bruce Watt, psychologist, was appointed as the IE. The applicant attended upon Doctor Watt and Doctor Watt’s report is dated 5 October 2014. It is contained in pages 57-70 of the court book (exhibit 1). Doctor Watt also came to the conclusion that the applicant had not suffered relevant family violence. Pursuant to an invitation from the MRT – the applicant provided comments on the IE report of Doctor Watt.
The Migration Review Tribunal decided, on 13 January 2015, to affirm the decision of the delegate.
On 3 February 2015 the applicant filed an application seeking judicial review of the decision of the Migration Review Tribunal by the Federal Circuit Court of Australia.
Relevant Legislative Provisions
Both the applicant and the first respondent agree that the relevant legislative provisions contained in the applicant’s outline of submissions filed 3 February 2015 are correct. I will therefore include here paragraphs 12-18 of the applicant’s outline of submissions relating to relevant legislative provisions. From paragraphs 12 to 18 inclusive the applicant has stated:-
“12. Division 1.5 of the Migration Regulations 1994 (as in place in mid-2012) contained relevant provisions in relation to the determination of whether a visa applicant has been the subject of “relevant family violence”.
13. Regulation 1.21 defined “relevant family violence” to mean, relevantly:
“Conduct, whether actual or threatened, towards:
(a) the alleged victim;…
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own well-being or safety.”
14. Regulation 1.23 set out when a person was taken to have suffered family violence. Relevantly for this case, the regulations related to so-called “non-judicially determined claims of family violence”.
15. Regulation 1.23(10) provided as follows:
“If an application for a visa includes a non-judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) The Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purpose of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.”
16. Sub-regulation 1.23(13) provided as follows:
“The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for visa includes a non-judicially determined claim of family violence; and
(b)the Minister is required by sub-paragraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.”
17. Sub-regulation 1.23(14) provided as follows:
“For sub-regulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.”
18. An “independent expert” is defined in Regulation 1.21(1) as meaning a person who:
“(a) is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of family violence.””
Grounds for Review
In the application for judicial review filed in the Federal Circuit Court of Australia on 3 February 2015 the following grounds for review are included:-
“1. The Second respondents erred in finding that the opinion of an independent expert (“IE”) appointed under Migration Regulation 1.23 was authorised by the Migration Regulations, and so erred in accepting it as correct for the purposes of Migration Regulation 1.23(10)(c)(ii)”.
Particulars
“(a) The IE erred in failing to apply the test of “relevant family violence” as defined in Migration Regulation 1.21(1), in that:
(i) He wrongly imposed an obligation on the applicant to demonstrate that there was force or threats of violence from the sponsor;
(ii) He wrongly imposed an objective test in determining whether the sponsor’s conduct caused the applicant to reasonably fear for, or be reasonably apprehensive about, his own wellbeing;
(iii) He therefore failed to consider the relevant statutory test which was whether there was “conduct, whether actual or threatened, towards [the applicant], that caused [the applicant] to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety”;
(b) The IE failed to take account of relevant considerations in that he:
(i) failed to consider and determine whether the controlling conduct on the part of the sponsor amounted to relevant family violence;
(ii) failed to consider and determine whether the sponsor’s conduct was causally related to the applicant’s mental condition, such that the conduct amounted to relevant family violence;
(iii) failed to consider and determine whether the sponsor’s conduct in verbally abusing the applicant amounted to relevant family violence;
(iv) failed to consider and determine whether the sponsor’s conduct in making threats to return the applicant to India [sic] and damage his life amounted to relevant family violence;
(v) failed to consider and determine whether threats were made to the applicant by the sponsor and her father in the days immediately after separation and whilst the relationship of marriage between the parties was still existing, and whether those threats amounted to relevant family violence.”
In the Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated, from paragraph 82, inter alia:-
“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
The passage from the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 (as quoted in paragraph 82 of the decision in Yusuf) sets out the guidelines for Courts of first instance in Australia undertaking judicial review of executive (administrative) decisions.
In the grounds for review it will be noted that the applicant has asked the Court to conclude that the IE’s opinion (Doctor Watt’s opinion) was, essentially, flawed because it was (to use the words contained in the first respondent’s written submissions) “infected by jurisdictional error”.
If the Tribunal was not satisfied that the applicant had suffered the relevant family violence – it was required to seek the opinion of an independent expert (IE). This is required by Regulation 1.23(10)(c)(i) of the Migration Regulations. Further, Regulation 1.23(10)(c)(ii) states that the IE’s opinion must be taken as correct. Notwithstanding that the Regulations require that the Tribunal must take an IE’s opinion on the matter to be correct – there still remains a need to ensure that the IE’s opinion is authorised by the Regulations. In this regard I note the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115. In particular I note paragraphs 66 and 69 of that decision where French, North and Merkel JJ stated:-
“66 It is not necessary for the purposes of this case to characterise consideration of the Medical Officer’s opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that 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 in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.
69 …it makes no difference to the outcome of the case that his Honour characterised the decision of the Medical Officer as a judicially-reviewable decision.…If the (Medical Officer’s) opinion is vitiated by error of law the delegate errs in taking it as correct. On the basis already outlined, the Court has jurisdiction to consider the lawfulness of the Medical Officer’s opinion as an element of its consideration of the lawfulness of the delegate’s decision.”
Grounds for Review 1(a)(i) and (iii)
The applicant’s submissions in relation to grounds 1(a)(i) and (iii) are contained under the one heading in the applicant’s written outline of submissions filed 3 February 2015. The applicant’s submissions in relation to this ground of review are conveniently summarised in paragraphs 30 and 31 of the applicant’s written submissions settled by Mr Brady of Counsel on behalf of the applicant. Those paragraphs state:-
“30. At various parts of his reasons, the IE referred to the absence of evidence of “force” or “threats of violence” or “threats, intimidation, physical force or coercion”. In doing so, it is apparent, reading the IE’s reasons as a whole, that the IE proceeded on the basis that it fell for the applicant to prove some sort of physical violence, or threat of physical violence or intimidation.
31. However, to adopt that approach to consideration of the question was inconsistent with the question that the IE actually had to address: was there conduct, whether actual or threatened, towards the applicant that caused the applicant to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety?”
The IE’s opinion (Dr Watt) is contained from page 57 of the court book (exhibit 1). On pages 67, 68 and 69 of the court book there are contained 11 unnumbered paragraphs. For the sake of convenience (and at the request of Counsel for the applicant) I have pencilled paragraph numbers on pages 67, 68 and 69 of the court book – namely paragraphs numbered 1-11. These paragraphs appear under the heading, “Independent Expert’s Opinion”.
Dr Bruce Watt’s opinion states, from page 67 of the court book, inter alia:-
“Independent expert’s opinion
Important: The opinion as to whether the alleged victim has suffered ‘relevant family violence’ must be made according to the definition of relevant family violence in regulation 1.21(1) of the Migration Regulations 1994, given above. This is the only definition of family violence to be used for this purpose.
As an independent expert, as defined in regulation 1.21(1) of the Migration Regulations 1994, it is my opinion, following assessment of the claims of relevant family violence described above, that:
The alleged victim has not suffered relevant family violence (as defined in regulation 1.21(1) of the Migration Regulations 1994), committed by the alleged perpetrator (identified above).
Reasons, referring to evidence this assessment is based upon:
1. Mr K C described having been happy during the early stages of the relationship. This is consistent with the statement from Mr Jefferies, who observed in August 2011 that Mr K C and the sponsor appeared happy to be with each other. During this time, Mr K C made frequent positive comments about the sponsor.
2. The majority of Mr K C’s allegations that he had been the victim of family violence seem more akin general relational disputes, as opposed to acts of family violence. For example Mr K C referred to a dispute whereby he wanted to work night shifts at a hospital. The sponsor’s response seemed to reflect a concern that their working times would not match well together, a concern for their relationship as opposed to an act of family violence.
3. In his application, Mr K C claimed to have been treated as though he was a servant by the sponsor. Contradicting this claim, Mr K C acknowledged that he was willing to complete all of the home duties, with the sponsor working and him not in paid employment. Toward the end of their relationship, when Mr K C obtained paid employment, he stated that he continued to complete all of the home duties. There is no evidence, however, that this arrangement was from force or threat or violence from the sponsor. Mr K C recalled having only asked the sponsor on one occasion to assist with cleaning, to which she did not respond.
…………
8. Mr K C’s concerns regarding the sponsor’s alleged statements that she would return him to India seems unrealistic. He described the sponsor as having communicated with an Immigration Case Worker in an angry manner, thereby able to exert influence upon DIAC. In reviewing the email from the sponsor, her communication would seemed consistent with being assertive and concerned for her husband, not necessarily having any influential connection with DIAC. Mr K C was concerned that a friend of the sponsor would harm him, yet there had been threats or indication from this person that he actually would harm the applicant. Mr K C expressed significant concern that he would be harmed by the father. This concern seemed unrealistic as the father lived in Sydney and did not communicate with Mr K C, thereby no expression of threat was communicated by the father to Mr K C. The only statement from the father to Mr K C was four or five days post separation, whereby the father wanted Mr K C to vacate the unit, which was in his daughter’s name. Similarly, the reported statement by the sponsor telling Mr K C to vacate her unit otherwise she would send a friend occurred four or five days post separation. It is not clear whether the father acted as an agent of the sponsor, as opposed to taking steps of his own initiative to protect his own daughter’s interests.
9. Within his Statutory Declaration, 7 January 2014, Mr K C alleged that he had been subject to sexual abuse by the sponsor. This allegation had not been raised during earlier submissions from Mr K C, and was not reported in the Competent Person assessments. During the current assessment, however, Mr K C did not appear to have been the victim of sexual abuse. At times when Mr K C declined the sponsor’s sexual advances, she reportedly turned away from the sponsor, as opposed to resorting to threats, intimidation, physical force or coercion to obtain sex from Mr K C. When Mr K C engaged in sex, though stated in the interview that he did not want to participate, he made no indication to the sponsor that he did not want to engage in sexual relations. There was no evidence that the sponsor had resorted to threats, intimidation, physical force or coercion to obtain compliance with her instigation of sexual activity. Mr K C described feeling embarrassed, but no indication that he felt fear or apprehension for his wellbeing or safety. Consequently, Mr K C’s statement regarding the alleged sexual abuse does not meet the requirements for family violence.”
The IE has applied the correct test. At the beginning of the IE’s opinion (page 57 of the court book) the IE has set out the correct test. It states:-
“Relevant family violence has the meaning given in Regulation 1.21(1) of the Migration Regulations 1994:
Relevant family violence means conduct, whether actual or threatened towards:
(a) The alleged victim; or
(b) a member of the family unit of the alleged victim ;or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of the alleged victim;
(e) the property of a member of the family unit of the alleged victim; or
(f) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about his or her own wellbeing or safety.”
In my view, the submission put forward on behalf of the first respondent in relation to this issue is correct. The applicant is in fact asking this Court to engage in an impermissible merits review. The IE was well aware of the correct legal test to be applied. He included it at the commencement of his opinion.
The applicant has asked the Court to have regard to the paragraph (which has now been) numbered 3 on page 67 of the court book – within the IE’s opinion. The IE has noted that the applicant “acknowledged that he was willing to complete all of the home duties”. The IE, by noting that there was no evidence “…that this arrangement was from force or threat of violence from the sponsor” – was, merely, making findings of fact. It is quite clear from the IE’s opinion that he did not work on the basis that the applicant was obliged to prove some sort of physical violence, or threat of physical violence or intimidation (as submitted on behalf of the applicant in paragraph 30 of the applicant’s outline of submissions).
In the paragraph (which is now) numbered 8 in the IE’s opinion on page 68 of the court book – the IE has once again made findings of fact. For instance, in relation to the “friend of the sponsor” – the IE has made the following findings of fact, namely:-
a)That the friend of the sponsor had made no threat towards the applicant;
b)That the friend of the sponsor had not given any indication that he would actually harm the applicant;
c)In relation to the sponsor’s father – the IE concluded that the applicant’s concern “seemed unrealistic as the father lived in Sydney and did not communicate with the applicant”; and
d)Accordingly, no expression of threat was communicated by the sponsor’s father to the applicant.
These are examples of findings of fact made by the IE in relation to the friend of the sponsor and the sponsor’s father. They do not indicate to the Court that the IE applied the wrong test. The applicant, in making the submissions concerning this issue – is asking the Court to engage in an impermissible merits review concerning the findings of fact made by the IE.
In relation to the paragraph (which is now) numbered 9 of the IE’s opinion beginning at page 68 of the court book – the findings of fact made by the IE include:-
a)“When the applicant declined the sponsor’s sexual advances – the sponsor turned away from the applicant”. It should be noted that, in fact, on page 69 of the court book (in the paragraph now numbered 9 of the IE’s opinion) the words are included as, “she reportedly turned away from the sponsor”. Clearly that is an error. Clearly it should read “she reportedly turned away from the applicant”. I will allow parties seven days from the date of the delivery of these reasons for judgment to make any further submission should they think it appropriate in relation to that particular matter;
b)The IE also found, as a fact, that when the applicant declined the sponsor’s sexual advances – the sponsor – did not resort to “threats, intimidation, physical force or coercion to obtain sex” from the applicant;
c)Further, the IE made a finding of fact that when the applicant did engage in sex with the sponsor (even though he stated in the interview with the IE that he did not want to participate in such sexual activity) – the IE found as a fact that the applicant made no indication to the sponsor that he did not want to engage in such sexual activity;
d)The IE found, as a fact, that there was no evidence that the sponsor had resorted to threats, intimidation, physical force or coercion in order to obtain compliance with her instigation of sexual activity;
e)Finally, the IE found, as a fact, that the applicant described feeling embarrassed in relation to these situations – but, the IE also found as a fact that there was no indication that the applicant felt “fear” or “apprehension for his wellbeing or safety”.
The paragraph (which is now) numbered 11 of the IE’s opinion on page 69 of the court book is relevant because in this paragraph the IE notes:-
“Of particular concern to Mr K C’s application for family violence, is the circumstances preceding the Protection Order hearing. Mr K C’s vocalisation to the sponsor constituted a threat to harm the sponsor, even if he had no intention to act upon this threat. It seems likely that the sponsor went to another room, telephoned her father and telephoned the police because she felt fearful of Mr K C. Preceding the incident, Mr K C continually spoke toward the sponsor, even though she was not responding to him and while he was aware that she was recording his actions. Each of these points undermines Mr K C’s application for family violence and suggest that he was not fearful or apprehensive for his safety or wellbeing from the sponsor’s actions.”
Therefore, at the commencement of the IE’s opinion and at the conclusion of the IE’s opinion (the last sentence in paragraph 11) the IE has referred to the precise relevant test.
As noted, I do not accept that the IE applied the wrong test. The submissions made on behalf of the applicant in this regard amount to no more than a request by the applicant for this Court to embark on an impermissible merits review requiring, inter alia, an assessment of the correctness of the IE’s findings of fact.
There is no jurisdictional error established by this ground for review.
Ground 1(a)(ii) and (iii) and Ground 1(b)(i) and Ground 1(b)(iv)
In paragraph 26 of the Tribunal’s decision the Tribunal stated as follows:-
“Applying the wrong test: The migration agent submits the second IE improperly applied tests other than the correct test in r1.21(1) of whether there was conduct which caused the applicant to fear for or be reasonably apprehensive about his own wellbeing or safety. The migration agent submits the second IE variously implied a wrong test requiring there to be a threat, wrongly applied an objective test and wrongly disregarded threats made by the father of the sponsor. To the extent the error is the second IE wrongly required there to be a threat, or an objective test, the Tribunal does not agree with the submissions. The purported errors identified by the migration agent are in the view of the Tribunal a misunderstanding of the duty of the second IE. It is open to the second IE to assess the evidence before him and to give his views on the evidence and his reasons for those views, such as the existence or otherwise of threats or of the objective nature of the threats. The duty on the second IE is to then in having regard to the totality of the evidence form an opinion as to whether there was conduct which caused the applicant to fear for or be reasonably apprehensive about his own wellbeing or safety. The second IE did apply the correct test when making his final opinion. To the extent the purported error related to the second IE disregarding the conduct of the sponsor’s father, that conduct is clearly outside the scope of cl.100.221(4) and Division 1.5 of that the applicant has suffered family violence perpetrated by the sponsor. The migration agent has improperly imposed on the second IE the burden of assessing whether the conduct of the father was as an agent of the sponsor. There is no error on the part of the second IE in that regard.”
The Tribunal noted that the applicable definition of “relevant family violence” has both a subjective and objective element.
I note the decision of Emmett FM (as Her Honour then was) in Liu v Minister for Immigration and Citizenship [2011] FMCA 601 at paragraph 23 Her Honour noted, inter alia:-
“It was common ground that the test as to whether the applicant was fearful is a subjective test and not an objective one as suggested by the use of “reasonably”.”
In a decision entitled Al-Momani v Minister for Immigration & Anor [2011] FMCA 453 Driver FM (as His Honour then was) – His Honour noted at paragraph 31 (in relation to the definition of “relevant family violence” in regulation 1.23(2)(b) and in relation to the definition of “family violence” in section 4 of the Family Law Act 1975):-
“In the Family Law context, the determination of whether there has been family violence has both objective and subjective elements”.
It is both helpful and appropriate for this Court to have regard to the explanatory statement which accompanied the Migration Amendment Regulations 2007 (No.13). That is the explanatory statement to the legislative instrument 2007 no. 315 whereby the applicable relevant family violence definition was introduced. The explanatory statement includes the following:-
“Item [7] – Paragraph 1.23(2)(b)
This item amends paragraph 1.23(2)(b) of Division 1.5 of Part 1 of the Principal Regulations by replacing the term and meaning of ‘relevant domestic violence’ with the new term and meaning of ‘relevant family violence’.
Prior to this amendment, paragraph 1.23(2)(b) required two circumstances to exist for there to be ‘relevant domestic violence’: firstly, there needed to be violence by the alleged perpetrator against the alleged victim or the alleged victim’s property; and secondly, the violence by the alleged perpetrator needed to cause the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about the alleged victim’s personal wellbeing or safety. This concept of ‘relevant domestic violence’ is not consistent with the definition of family violence at subsection 4(1) of the FLA.
The purpose of this amendment to paragraph 1.23(2)(b) is to make the meaning of the new term ‘relevant family violence’ consistent with the definition of family violence at subsection 4(1) of the FLA. The meaning of ‘relevant family violence’ provided by new paragraph 1.23(2)(b) differs to the meaning of the old term ‘relevant domestic violence’, and achieves consistency with the FLA definition of family violence, by:
· using the term ‘conduct’ instead of ‘violence’ to refer to the action of the alleged perpetrator;
· clarifying that the conduct of the alleged perpetrator may be actual or threatened;
· using the term ‘towards’ instead of ‘against’;
· expanding the type of persons whom the conduct can be towards, from the alleged victim and the alleged victim’s property to:
o a member of the family unit of the alleged victim,
o a member of the family unit of the alleged perpetrator,
o the property of a member of the family unit of the alleged victim, or
o the property of a member of the family unit of the alleged perpetrator;
· restricting who can fear for the alleged victim’s personal wellbeing and safety, from the alleged victim and a member of the alleged victim’s family to only the alleged victim; and
· introducing the objective test that the alleged victim’s fear for, or apprehension about, his or own personal wellbeing or safety must be reasonable.”
Section 13 of the Legislative Instruments Act 2003 makes it clear (in section 13(1)(a)) that the Acts Interpretation Act 1901 applies in relation to the legislative instrument known as the Migration Amendment Regulations 2007 (No. 13).
Section 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth) makes it clear that in interpreting the definition of (relevant family violence) which was introduced by the Migration Amendment Regulations 2007 (No.13) – the Court is entitled to consider the explanatory memorandum (or indeed the explanatory statement) relating to the provision.
The explanatory statement makes it clear that the Parliament was:-
“Introducing the objective test that the alleged victim’s fear for, or apprehension about, his or her own personal wellbeing or safety must be reasonable.”
Driver FM’s comments at page 31 of the decision in Al-Moman (as quoted above) are indeed correct. I do not consider that Emmett FM was supporting a conclusion that the test in Regulation 1.21 was only a subjective test. I consider that Her Honour was indicating that there was both a subjective and an objective element to the test. If I am wrong in my assessment of Her Honour’s decision in Liu – then, in any event, I am not bound by that decision. I consider that the approach referred to by Driver FM is correct. The explanatory statement clearly supports such a conclusion. There are, indeed, both subjective and objective elements to the definition of “relevant family violence”.
In the paragraph (which is now) numbered 8 in the IE’s opinion on page 68 of the court book it is stated:-
“Mr K C’s concerns regarding the sponsor’s alleged statements that she would return him to India seems unrealistic. He described the sponsor as having communicated with an Immigration Case Worker in an angry manner, thereby able to exert influence upon DIAC. In reviewing the email from the sponsor, her communication would seemed consistent with being assertive and concerned for her husband, not necessarily having any influential connection with DIAC.”
As to the words – “she would return him to India” – the findings and conclusions of the IE are clear. The sentences quoted above from paragraph 8 of the IE’s opinion make it clear that the IE was, essentially, giving the applicant the benefit of the doubt and working on the basis that the sponsor had made statements to that effect. Even if it was the case that the applicant subjectively felt fearful – such concerns, in the opinion of the IE – were “unrealistic”. So that the objective element to the test of “relevant family violence” led the IE to conclude that the applicant’s concerns in this regard were “unrealistic”. In paragraph 34(b) of the applicant’s outline of submissions filed 3 February 2015 it was submitted that the IE had not determined whether the statements (having been made by the sponsor) were such as to cause the applicant “to reasonably fear or to be reasonably apprehensive about his own wellbeing”. I do not agree with this submission on behalf of the applicant. The IE has precisely considered whether or not the applicant reasonably feared or whether the applicant was reasonably apprehensive about his own wellbeing. The conclusion was that – any such concerns of the applicant were “unrealistic”. The comments made by the IE in relation to whether the sponsor could exert influence upon the Department of Immigration and Citizenship serve only, it seems to me, to be a confirmation by the IE of the opinion reached namely that the applicant’s concerns in this regard were unrealistic.
I do not consider that the applicant has demonstrated any error on the part of the IE in this regard. In the paragraph (which is now) numbered 2 of the IE’s opinion on page 67 of the court book it is stated:-
“The majority of Mr K C’s allegations that he had been the victim of family violence seem more akin general relational disputes, as opposed to acts of family violence. For example Mr K C referred to a dispute whereby he wanted to work night shifts at a hospital. The sponsor’s response seemed to reflect a concern that their working times would not match well together, a concern for their relationship as opposed to an act of family violence.”
Once again, I am of the view that the IE’s comments in the paragraph numbered 2 amount to nothing more than the IE considering whether or not the applicant’s alleged fear or apprehension was reasonably held. The IE makes the point (a point which was clearly open to the IE on the information provided to the IE by the applicant) that the majority of the applicant’s allegations that he had been the victim of family violence seemed more akin to “general relational disputes as opposed to acts of family violence”. The “working night shifts at the hospital” issue is referred to by the IE – clearly – as an example of such a “general relational dispute”.
There was no error by the IE demonstrated by paragraph 2 of the IE’s opinion.
In the paragraph which is now numbered 6 in the IE’s opinion at page 68 of the court book it is stated:-
“Fifth, Mr K C submitted that the sponsor did not permit him to meet other people. Contradicting this statement, Mr K C described his own reluctance to venture into the community due to feeling isolated from his community and being fearful of the neighbourhood, as opposed to the sponsor’s own actions. A former friend of the sponsor relayed her perception that the sponsor was controlling of Mr K C. This perception was based on having observed Mr K C not speak up much, and the sponsor moving her hand away when Mr K C attempted to hold her hand. These actions per se, do not necessarily constitute controlling actions. These points of inconsistency undermine Mr K C’s application that he was the victim of family violence causing fear and/or apprehension for wellbeing/safety.”
The applicant had contended that the sponsor had not permitted the applicant to meet people. But the IE did not accept this contention by the applicant. The IE highlighted the applicant’s “own reluctance to venture into the community due to feeling isolated from his community and being fearful of the neighbourhood”. The IE, therefore, did not accept the contention put forward by the applicant in this regard. Further, the IE did not accept that the sponsor had engaged in controlling behaviour as alleged by “a former friend of the sponsor”. It was noted by the IE that the actions referred to by the “former friend” do not necessarily constitute controlling actions. These words from the IE indicate that the IE had concluded that there could have been any number of other reasons why, for instance, the applicant was not speaking much or that the sponsor had moved her hand away when the applicant tried to hold her hand. I do not consider that the applicant has demonstrated any error on the part of the IE in this regard. Indeed, I consider that the submission made on behalf of the first respondent in paragraph 43(b)(ii) of the first respondent’s outline of submissions filed 15 February 2015 is correct – where it is stated:-
“The IE did not accept the contention of fact. By doing so, it was unnecessary for the IE to determine whether the conduct subjectively, or thereafter, objectively caused the applicant to be reasonably fearful for, or be reasonably apprehensive about his own wellbeing or safety.”
Ground 1(b)(ii)
The paragraph marked as 10 in the IE’s opinion at page 69 of the court book states:-
“Approximately one month after separation, Mr K C was diagnosed with depression, prescribed antidepressant medication, and commenced treatment with a psychologist. From Mr K C’s account, he appeared to have suffered symptoms of depression prior to the separation. Such symptoms, however, are not necessarily attributable to the alleged family violence, but may reflect other concerns including the general deterioration of the relationship, dissatisfaction with the delay to find work, being away from his own family and culture, and discontent with the area in which they resided. Specifically, the main source of fear identified by Mr K C, pertained to the neighbourhood that they were residing. He described feeling isolated living in Caboolture, and scared to venture around in the neighbourhood. These experiences, however, are not related to the sponsor’s actions toward Mr K C.”
It was submitted on behalf of the applicant that the IE made no findings as to whether the applicant’s depression (and therefore his “wellbeing”) was caused by the conduct of the sponsor.
The IE is a psychologist and his qualifications are contained at page 70 of the court book. In paragraph 10 on page 69 of the court book the IE states his conclusion on the question of causation:-
“Such symptoms, however, are not necessarily attributable to the alleged family violence but may reflect other concerns including the general deterioration of the relationship, dissatisfaction with the delay to find work, being away from his own family and culture and discontent with the area in which they resided. Specifically, the main source of fear identified by Mr K C pertained to the neighbourhood where they were residing. He described feeling isolated living in Caboolture and scared to venture around in the neighbourhood.”
The IE clearly addressed the question of causation in relation to the applicant’s diagnosis of depression. It is not open to this Court to suggest that the IE should have come to a different decision on causation. Such a review of the merits of the IE’s opinion is not permissible.
In the paragraph which is in fact numbered 11 on page 62 of the court book (part of the IE’s opinion) it is stated:-
“11: Mr K C stated that his biggest fear was that the sponsor said to him that she would destroy his life. He described that in his head, he thought her friend would come and break his arms, or that her father would fly up from Sydney. Mr K C described symptoms of depression which developed during the latter part of the relationship. Such symptoms, however, could reflect general malaise within the relationship, being away from his family and culture, and feeling fearful residing in Caboolture, more so than the allegations of family violence. Following the separation, Mr K C said he lost his job, felt more depressed than during the relationship, lost his appetite and lost weight.”
The submissions on behalf of the applicant on this point are, unfortunately, requiring “minute and overzealous scrutiny of the IE’s decision record”. In this regard I agree with the submission put forward on behalf of the first respondent. The IE was entitled to summarise the evidence as he did so in paragraph 11 of page 62 of the court book. In any event, the IE was, it seems, reflecting the opinion that he had reached in relation to the question of causation (and to which I have referred above). The fact that this paragraph numbered 11 appears at this stage of the IE’s opinion is not relevant. I note what was stated by His Honour Judge Nicholls in SZSTR v Minister for Immigration and Border Protection [2014] FCCA 2554 at paragraph 22 where His Honour stated:-
“[22] However, at the beginning of the hearing, having read all of the material put before the court (including affidavits which were subsequently put into evidence), I suggested to the applicant that in the judicial review of administrative decisions, minute and overzealous scrutiny of the Tribunal’s decision record (as appeared from her written submissions)was at odds with relevant authorities. In particular, I had in mind the High Court’s statement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang) at [30] – [31], per Brennan CJ, Toohey, McHugh and Gummow JJ.”
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 the High Court noted at paragraphs 30 and 31:
“[30] When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best example of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language…nor with unhappy phrasing” of the reasons of an administrative decision maker. The court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
[31] These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and 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. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”.”
The comments made by Judge Nicholls and the comments made by the High Court in Wu Shan Liang are relevant to the manner in which the applicant has sought to scrutinise the decision making of the IE (in particular insofar as it relates to the paragraph numbered 11 on page 62 of the court book).
Ground 1(b)(iii)
In the paragraph now numbered 4 of the IE’s opinion on page 67 of the court book it is stated:-
“There are several points of inconsistency within Mr K C’s allegations of family violence. Firstly, Mr K C initially reported both to a friend and DICA that the sponsor had left him, as opposed to him attempting to escape from the potentially violent situation. Secondly, Mr K C described the sponsor having called him names and teased him for the manner by which he spoke English. Conversely, when working colleagues reportedly made fun of Mr K C, the sponsor stood up for him. As this was at work, it is likely this occurrence was in the later parts of the relationship when Mr K C alleged the family violence had commenced. Thirdly, Mr K C denied that he had ever called the sponsor names or responded to her in an angry manner, other than the incident preceding the protection order. As Mr K C acknowledged having had arguments with the sponsor, it seems unlikely that he had never responded in an angry manner other than the one occasion.”
The IE, in the paragraph numbered 4 on page 67 of the court book did consider the applicant’s contention that the sponsor had “called him names and teased him for the manner in which he spoke English”.
On behalf of the applicant it was submitted that the IE had failed to make any findings about this aspect of the claimed family violence. It was said that in the IE’s opinion – the IE failed to make any findings as to whether the conduct occurred. It was also submitted that the IE had not reached any conclusion as to the whether, if the conduct did occur, it in fact met the definition of relevant family violence.
But it is apparent from the opening words of the paragraph numbered 4 on page 67 of the court book that the IE was not able to reach a concluded view on those issues. The IE pointed out that, “there are several points of inconsistency within (the applicant’s) allegations of family violence”. As an example of the inconsistencies in the applicant’s allegations the IE has noted in particular (in relation to the name calling and teasing) that – notwithstanding the applicant’s contentions in that regard – the IE noted that when work colleagues had apparently made fun of the applicant – the sponsor had stood up for the applicant. So that the IE provided reasons as to why the IE concluded there were “inconsistencies” in relation to (for example) this issue of the name calling which was raised by the applicant. The IE was not necessarily required to make specific findings concerning the precise wording that may or may not have been used by the sponsor towards the applicant regarding the so called name calling. The comments by the IE in the paragraph numbered 4 on page 67 of the court book indicate that the IE considered that name calling “may” have been part of the relationship – but because of the many inconsistencies in the applicant’s allegations – the IE could not be sure. The fact that the IE, because of the inconsistencies he highlighted, was not in a positon to make a specific finding with respect to the name calling does not mean that the IE has failed in his task.
I note the last sentence of the paragraph now numbered 6 of page 68 of the court book:-
“These points of inconsistency undermine (the applicant’s) application that he was the victim of family violence causing fear or apprehension for wellbeing/safety.”
This was a view repeatedly stated by the IE. The inconsistency in the applicant’s allegations and version clearly worked against the applicant – in the opinion of the IE. This Court is not able to (minutely or otherwise) embark upon a merits review of such aspects of the IE’s opinion. Sometimes it is simply not possible for a decision maker to make specific findings one way or another.
Ground 1(b)(v)
Once again the Court has been referred back to the paragraph which is now numbered 8 on page 68 of the court book. The relevant words are as follows:-
“…The only statement from the father to Mr K C was four or five days post separation, whereby the father wanted Mr K C to vacate the unit, which was in his daughter’s name. Similarly, the reported statement by the sponsor telling Mr K C to vacate her unit otherwise she would send a friend occurred four or five days post separation. It is not clear whether the father acted as an agent of the sponsor, as opposed to taking steps of his own initiative to protect his own daughter’s interests.”
It was submitted on behalf of the applicant that the IE did not make any finding as to whether the father’s threats were on his own initiative or rather as agent for the daughter. It was also submitted that there was no specific findings as to whether the threats were made at all.
I do not consider that the IE fell into error by making a reference to statements made to the applicant “post separation”. The IE was clearly referring merely to a particular point in time. The IE was not dismissing the issue because it was “post separation”. That was not a legal error.
In any event the IE was required to determine whether the sponsor had committed family violence. I note the following submission at paragraph 50 of the first respondent’s outline of submissions filed 15 February 2015 where it is stated:-
“50. The IE was required to determine whether the sponsoring partner committed family violence. The enquiry did not broaden to meaningfully consider the conduct of the sponsor’s father. To suggest that there is some issue of agency to be resolved is to misinterpret the test at cl 100.221(4)(c)(i)(A) of the Regulations and Div 1.5 of the Regulations.”
Clause 100.221(4)(c)(i)(A) and (B) state:-
“(4) The applicant meets the requirements of this subclause if:
…
(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…”
The words that are used relate to the question of whether the applicant “has suffered family violence committed by the sponsoring partner”. The submission made on behalf of the first respondent is therefore correct. The enquiry is not broad enough to meaningfully consider the conduct of the sponsor’s father. It was not necessary for there to be a determination of the issue of “agency”.
In any event the statement accepted by the IE (from the father to the applicant) was that the father wanted the applicant to vacate the unit. The IE has not accepted that the sponsor’s father made any threat. It was a request that the applicant vacate the unit.
So the wording used by the IE indicates that he did accept that the father had made a statement to the applicant but it only related to the applicant vacating the unit. The next words used by the IE are as follows:-
“Similarly, the reported statement by the sponsor telling Mr K C to vacate her unit otherwise she would send a friend occurred four or five days post separation.”
I do not consider that the IE has made a specific finding concerning that issue. The IE refers to it as the “reported statement”. The IE has noted that this was an allegation by the applicant. The IE has not accepted that it did occur. The use of the word “reported” would seem to indicate as much. But perhaps this is, once again, applying too much scrutiny to the record of the IE’s opinion. The clear overall conclusion reached by the IE was that, in his opinion, there had not been relevant family violence. I note what was said by Raphael FM (as His Honour then was) in Maman v Minister for Immigration & Anor [2011] FMCA 426:-
“The difficulty that I have…is that whilst it may be possible in some rare instances to find from the published reasons of the independent expert evidence of a failure to carry out the mandated task in accordance with the Regulations, more often than not the matters raised constitute no more than a subtle application for merits review. Here the Independent Expert made it clear in her report that she understood that she was required to work within the relevant domestic violence definition found in the Regulations. It is clear from that part of the report headed “History of claimed domestic violence” that Mr Maman provided the expert with detailed examples of the alleged domestic violence…
…the Tribunal was equally entitled to disregard the further submissions made on behalf of the applicant that were, in reality, only a request for merits review. Given the mandatory wording of the Regulations it was not open to the Tribunal at that stage to make findings upon the merits…”
I consider that this is what the applicant has attempted in this matter. The applicant has attempted, in many respects, to achieve a subtle application for merits review. The applicant has attempted to achieve that outcome in relation to the issue of statements that may or may not have been made to him by the sponsor and/or the sponsor’s father after the separation of the applicant from the sponsor. What is clear enough from the opinion of the IE is that – if anything was, for instance, said by the sponsor’s father to the applicant post separation (or indeed even if something had been said by the sponsor to the applicant) that such comments were not comments which came within the definition of relevant family violence. Much of what has been sought on behalf of the applicant amounts to a “subtle application for a merits review”.
I agree with the submission made on behalf of the first respondent that no jurisdictional error can be established. The opinion of the IE was an authorised opinion. The tribunal’s decision is a privative clause decision under section 474(2) of the Migration Act 1958 and is not reviewable under section 476 of the Act.
That application for judicial review is dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Howard
Associate:
Date: 28 August 2015
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