Khan v Minister for Immigration

[2019] FCCA 293

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 293

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – relationship with the sponsor broken down – allegation of family violence – receipt of an independent expert’s report – whether the Tribunal erred by relying upon the report considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.357A, 359A, 477
Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Maman [2012] FCAFC 13

Applicant: MOHAMMED ZILPUKAR KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2744 of 2017

Judgment of: Judge Driver

Hearing date: 11 February 2019

Delivered at: Sydney

Delivered on: 11 February 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application filed on 1 September 2017 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2744 of 2017

MOHAMMED ZILPUKAR KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Mr Khan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 July 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Khan a partner (residence) visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 4 February 2019. 

3. On 25 July 2014 Mr Khan applied for a partner visa on the basis of his relationship with his sponsor and spouse, Ms Farouk.  It was a criterion for the grant of the visa that at the time of decision Mr Khan be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, but that if the relationship had ceased, that Mr Khan had suffered family violence committed by the sponsoring partner.[1]

   [1] Migration Regulations 1994 (Cth), clause 801.221(6)

4. On 10 February 2016 the delegate refused to grant Mr Khan a visa.[2]  Mr Khan applied to the Tribunal for review of the delegate’s decision.  In a written submission to the Tribunal Mr Khan explained the circumstances of his relationship with his sponsor, and the fact that his sponsor had withdrawn her sponsorship of him for the partner visa.[3]  In the submission Mr Khan stated:

   I am suffering emotionally and psychologically and I hope that the Tribunal can treat my application as a victim of domestic violence.

   [2] Court Book (CB) 160

   [3] CB 228

5. The Tribunal invited Mr Khan to attend a hearing on 17 January 2017,[4] which Mr Khan attended.[5]  On 22 February 2017 Mr Khan provided to the Tribunal a statutory declaration relating to family violence, a psychological evaluation prepared by Zeinab Allaw dated 20 February 2017, and a statutory declaration from a social worker (Lisa Laba Sarkis) dated 30 January 2017.  Mr Khan provided the Tribunal with a further report from Ms Allaw dated 31 March 2017.[6]

   [4] CB 222

   [5] CB 232

   [6] CB 260

6. On 21 April 2017 the Tribunal made a family violence referral to an independent expert.[7]  The Tribunal advised Mr Khan of the referral.[8]  On 5 June 2017 the independent expert produced a report (IE report).[9]  The independent expert opined that relevant family violence that caused the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his own personal wellbeing or safety had not occurred, and that the alleged perpetrator’s conduct was neither actual nor threatened.[10]

   [7] CB 262

   [8] CB 280

   [9] CB 281

   [10] CB 291

7. On 3 July 2017 the Tribunal invited Mr Khan pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) to comment on the IE report.[11]  A copy of the report was attached to the Tribunal’s invitation.  On 8 July 2017 Mr Khan provided the Tribunal with a response to the Tribunal’s invitation to comment.[12]

   [11] CB 319

   [12] CB 338

8. On 27 July 2017 the Tribunal affirmed the decision under review.[13]  The Tribunal was satisfied that Mr Khan and the sponsor had been in a partner relationship and that the relationship had ceased.[14]  The issue for the Tribunal was whether Mr Khan had suffered family violence within the meaning of the Migration Regulations 1994 (Cth) (Regulations).

   [13] CB 341

   [14] [12]; CB 343

9. The Tribunal referred to the materials provided by Mr Khan in support of his claim of having suffered family violence.[15]  The Tribunal was satisfied that Mr Khan had made a non-judicially determined claim of family violence.[16]

   [15] [18]; CB 343

   [16] [19]; CB 343

10. The Tribunal found by reference to the IE report that it was required pursuant to regulation 1.23 of the Regulations to take as correct the independent expert’s opinion that Mr Khan had not suffered relevant family violence.[17]  The Tribunal was satisfied that the assessment by the independent expert was as per the Regulations.[18]  Accordingly the Tribunal was not satisfied Mr Khan met the criteria for the grant of the visa.[19]

    [17] [24]; CB 344

    [18] [25]; CB 344

    [19] [27]; CB 344

The present proceedings

1. These proceedings began with a show cause application filed on 1 September 2017.  Mr Khan continues to rely upon that application.  There are two grounds in it: 

   1.The decision of the Tribunal is affected by error of law as I was denied natural justice as I did not receive a comment on my comment to the Independent Expert opinion.

   2.The Tribunal determined that I am not a victim of domestic violence because it relied on the Independent Expert's opinion who misunderstood my harm and fear at the hand of my ex-wife and ignored my sensitivity and the effect on me as a vulnerable person.

2. The application is supported by a short affidavit filed with it, which I have received. 

3. The application was filed a short time outside the period prescribed under s.477(1) of the Migration Act, but on 4 June 2018, I granted an extension of time under s.477(2).

4. I also have before me as evidence the court book filed on 8 May 2018.

5. The Minister’s submissions deal with the relevant legislative provisions at [10] and [11].  I adopt those submissions. 

6. Regulation 1.23(10) and (13) are relevant.  They provided:

   (10)If an application for a visa includes a non-judicially determined claim of family violence:

   (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

   (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

   (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

   (i)     the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

   (ii)     the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

   ...

   (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

   (a)an application for a visa includes a non-judicially determined claim of family violence; and

   (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

7. The phrase “independent expert” is defined in regulation 1.21 as a person who:

   (a)is suitably qualified to make independent assessments of non-judicially determined claims of  family violence; and

   (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of  family violence.

8. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from Mr Khan today.  Mr Khan was assisted by Mr Toufic Laba Sarkis and handed up a document which I accepted as written submissions.  Those submissions go to the detail of the report of the independent expert and indicate Mr Khan’s disagreement with that report.  Mere disagreement with a report is, however, not sufficient.  In order to establish jurisdictional error by the Tribunal, Mr Khan needs to establish some legal error in, or in relation to, the report of the independent expert. 

9. Mr Khan alleges bias by the independent expert at [15] of his submissions.  The allegation of bias focuses on criticism made by the independent expert of the social worker assisting Mr Khan, who is Mr Laba Sarkis’ daughter.  Relevantly, in the independent expert’s report, reproduced at pages 329 and 330 of the court book, the independent expert criticises the report prepared by Ms Laba Sarkis, noting that she is a relative of Mr Laba Sarkis and noting what the expert refers to as emotive language in the report, an incomplete diagnostic picture of Mr Khan’s symptoms, and the use of an out-of-date diagnostic manual.  Those criticisms were, in my view, open to the independent expert on the material available and the criticism does not point to, let alone establish bias, whether actual or apprehended.

10. In other respects, in my opinion, while Mr Khan takes issue with findings made and conclusions drawn by the independent expert, the dispute does not rise above a disagreement over the opinions formed by the independent expert. 

11. These issues are addressed in further detail in the Minister’s submissions in relation to the grounds of review advanced.  I agree with those submissions. 

First ground

1. The first ground does not reveal error in the Tribunal’s decision.  The Tribunal’s obligations of procedural fairness to Mr Khan were limited.[20] The Tribunal invited Mr Khan to comment on the IE report pursuant to s.359A(1) of the Migration Act. Mr Khan responded. The Tribunal took Mr Khan’s response into account in its reasons for decision.[21] The thrust of Mr Khan’s response to the IE report was that he said that the independent report had misunderstood his fear of harm and did not understand that he was a vulnerable person. Mr Khan asked to be referred to another independent expert. The Tribunal is not required under the Migration Act to respond to an applicant’s response to an invitation to comment given under s.359A(1).

   [20] Section 357A of the Migration Act

   [21] [22]; CB 344

2. The Tribunal was required to take the independent expert’s opinion to be correct, unless the opinion was invalid.  As the Full Federal Court said in Minister for Immigration v Maman:[22]

   To satisfy the requirements of that provision, an “opinion” must have been one that was formed in accordance with law, including the common law requirement to comply with the rules of procedural fairness. It is only such an “opinion” which could be clothed with the conclusiveness of reg. 1.23(1C), namely an “opinion” which the Minister must take as “correct”.

   [22] [2012] FCAFC 13 at [64]

3. Mr Khan has not established that the independent expert’s opinion was one not formed in accordance with law, or was formed without complying with the rules of procedural fairness. Mr Khan’s response to the Tribunal’s s.359A(1) invitation did not challenge the validity of the independent expert’s opinion, but simply asserted that it was wrong. Mr Khan’s response did not purport to raise any new factual claims.

4. No error is established in the Tribunal’s decision.

Second ground

1. The second ground essentially repeats Mr Khan’s assertions he made to the Tribunal in his response to the invitation to comment on the IE report.  The ground does not establish error.  Once the Tribunal formed the view that the IE report was valid, which view was correct, the Tribunal was required to take the independent expert’s opinion as correct.  That is, the Tribunal was not entitled to question the opinion, or to re-assess for itself the material that was before the expert and come to its own view.

2. To the extent Mr Khan is taken in this ground to challenge the validity of the IE report, the contention should be rejected.  The independent expert identified the relevant law pursuant to which the opinion sought was being provided, noting regulation 1.21 of the Regulations.[23]  Further, the independent expert set out in the report, in some detail, the substance of Mr Khan’s claims and his responses given during his interview with the expert.  The expert noted the documents she had reviewed as part of the assessment.[24]  It is not apparent that Mr Khan was denied procedural fairness during the process, in that he attended the interview with the expert.

   [23] CB 283

   [24] CB 289-290

3. On its face the opinion of the independent expert is valid.  The Tribunal was accordingly required to take the opinion to be correct.

4. The ground fails to identify any jurisdictional error in the Tribunal’s decision.

Conclusion

1. I conclude that Mr Khan is unable to demonstrate that the Tribunal fell into jurisdictional error in its decision.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Khan was concerned that he may require time to pay or the opportunity to pay by instalments.  I will not require payment of the costs by any particular time. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       12 February 2019