Kocakaya v Minister for Immigration
[2012] FMCA 709
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOCAKAYA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 709 |
| MIGRATION – Review of Migration Review Tribunal’s decision – spousal visa – family violence – non-judicial determination of claimed family violence – Tribunal not satisfied – referred to independent expert who found family violence not substantiated – Applicant contended Tribunal did not address and examine evidence of family violence in statutory declarations to form a state of satisfaction necessary before referral to independent expert – there were no reasons provided for the referral – application dismissed. |
| Family Law Act 1975, s.114 Migration Act 1958 (Cth), ss.359A, 359A(4), 368 Migration Regulations 1994, Regs.1.21, 1.21(i), 1.22, 1.23, 1.23(1), 1.23(1)(f), 1.23(2), 1.23(10)(c), 1.23(10)(c)(i), 1.23(1)(c)(ii), 1.23(9), 1.24, 1.25, 1.26, 1.26(f) Schedule 2, cl.100.22, cl.100.221(4) Migration Regulations (Amended) 1995, Division 1.5 Migration Amendment Regulations (No.12) 2009 Statutory Declarations Act 1959 |
| Craig v South Australia (1995) 184 CLR 163 Hadchity v Minister for Immigration & Citizenship [2010] FCA 144 Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 Kozel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 138 FCR 181 Meroka v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 117 FCR 251 SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 94 ALD 298 Re: Voon and the Medical Board of the ACT (1993) 31 ALD 655 |
| Applicant: | ENGIN KOCAKAYA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1748 of 2011 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 1 June 2012 |
| Date of Last Submission: | 1 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Fernandez |
| Counsel for the Respondents: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 13 December 2012 is dismissed.
The applicant pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1748 of 2011
| ENGIN KOCAKAYA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 13 December 2011 the Applicant seeks to review a decision made by the Migration Review Tribunal (the Tribunal) on 10 November 2011, which decision affirmed an earlier decision by the First Respondent's delegate not to grant the Applicant a Partner (Migrant) (Class BC) visa.
At the conclusion of verbal submissions made on 1 June 2012, Mr Fernandez for the Applicant intimated that he knew of authorities in support of a contention made, but was unable to recall them.
Leave was granted for him to provide those authorities, which he did. Solicitors for the First Respondent provided a post hearing note challenging the relevance of such authorities. The issues raised are discussed below.
Background
The Applicant is a citizen of Turkey. He was sponsored by Ms Yalcin in connection with his Subclass 100 visa which was granted on
26 May 2008. He arrived in Australia on 30 June 2008.
On 30 September 2009 the Department of Immigration and Citizenship (the Department) wrote to the visa Applicant requesting evidence in support of his application for a permanent spouse visa.
On 18 January 2010 Ms Yalcin contacted the Department and stated that she and the Applicant had been separated for one year. Contrary to this assertion the Applicant wrote to the Department an email on
14 July 2010 which stated that he was still married to the sponsor and there had been no change in their circumstances. He claimed to be still living with the sponsor at the nominated address in Sunshine West.
On 18 November 2010 the Applicant, through his agent, requested his application for a spousal visa be considered, notwithstanding the cessation of a continuing spousal relationship, under the provisions allowing such where there is family violence. The agent stated that the Applicant's relationship with his sponsor ceased in December 2008 and that the Applicant "has suffered from stress, pain and depression due to the verbal abuse and torture by Hatis Kocakaya during their spousal relationship". The agent stated that the sponsor was trying to lose weight but was unable to do so, and consequently became abusive, angry and threatening towards the Applicant.
The agent further stated that the Applicant suffered from stress, anxiety and depression which required medical attention, during his relationship, but he was "unable to approach medical professional to seek medical treatment, due to lack of English speaking skill".
The agent stated that the Applicant changed his address in
December 2008 but did not know that he should have given his new address to the Department, as he does not speak English. The agent, however, did not provide any documentary evidence to support the Applicant's allegations of family violence.
Thereafter the Department wrote to the Applicant advising him of what evidence ought to be provided in support of his application based upon domestic violence and in the relevant correspondence sent on
29 November 2010 the Department spelt out the evidentiary requirements stipulated by r.1.24 of the Migration Regulations 1994 (the Regulations); namely:
a)his own statutory declaration, a copy of the record of assault and a statutory declaration from a competent person; or
b)his own statutory declaration and two statutory declarations from differently qualified competent persons.
Thereafter the agent provided the Department with:
a)
A statutory declaration by the Applicant which named his spouse/sponsor as the perpetrator of violence against him.
He claimed that the relevant family violence was perpetrated against him between September 2008 and December 2008. In that declaration he claimed that he had been the victim of "threatened violence, verbal abuse, torture and threat of life and wellbeing". He claimed he consulted a doctor who provided him with a mental health plan and suggested he see a psychologist for further treatment. He further claimed that on 15 December 2008 the sponsor "threw him out" of the family home.
b)
A statutory declaration provided by Dr Ufuk Uluca, a medical practitioner, stated that the Applicant consulted him from September 2008 to January 2009. The doctor said he was suffering from "stress, depression, anxiety, threat of violence and fearful condition". The doctor records that the Applicant had told him that he was "verbally abused and tortured by his wife … due to her weight gain problem". Dr Uluca had expressed the opinion that the Applicant "suffered threat of violence from his wife … during their spousal relationship during Sep 2008 - December 2008". He further concluded that,
"I strongly believe that he is in a better situation now but suffered family violence during 2008 Sep to December 2008".
c)A statutory declaration signed by Mr Fatih Yargi who describes himself as a welfare coordinator. Mr Yargi states the Applicant consulted him in December 2008 and told him that he was threatened, verbally abused and tortured by Ms Yalcin. Mr Yargi stated that he provided the Applicant with counselling and suggested he consult his doctor.
Thereafter the Department sought confirmation from the Applicant that the statutory declarations were provided by "competent persons" by providing evidence of their professional qualification. Evidence was forwarded confirmatory of the doctor's qualification as a "competent person", and in respect of Mr Yargi, he was described as a public officer at Australia Light Foundation.
On 2 February 2011 the Department advised the Applicant, in writing, of its decision not to grant his visa as the delegate noted in effect that no evidence had been provided to qualify Mr Yargi as a competent person. The visa was refused by the delegate on the basis that the delegate could not be satisfied that the Applicant had suffered family violence.
Tribunal hearing and decision
Prior to the hearing before the Tribunal which took place on
21 July 2011, the Tribunal wrote to the Applicant inviting him to provide evidence in accordance with the Regulations in support of his claim. At the conclusion of the hearing, however, the Tribunal intimated that it might refer the matter to an independent expert to assess the Applicant's family violence claims and on 30 August 2011 it did so. The Applicant was informed of that referral.
The Tribunal received the independent expert's report which concluded the Applicant had not suffered relevant family violence.
Having received the report the Tribunal forwarded it to the Applicant, inviting him to comment on information it considered would form the reason, or part of the reason, for an adverse decision. The details and particulars of that information were provided in the correspondence.
In response, the Applicant provided his comments which the Tribunal took into consideration when making its determination.
In determining the matter the Tribunal made the following critical findings:
a)The Applicant and his spouse/sponsor were in a spousal relationship but the relationship had ceased.
b)The Applicant's evidence in support of his claim to have suffered relevant family violence had been evidenced in accordance with the Regulations.
c)The Applicant had raised a claim of non-judicially determined family violence in accordance with r.1.23(9).
d)The Tribunal was not satisfied the Applicant, as the alleged victim, had suffered relevant family violence and, accordingly, sought the opinion of an independent expert. The Tribunal found the independent expert was qualified to make an assessment of the Applicant's claims and the opinion provided properly related to "relevant family violence".
e)The Tribunal found the independent expert's opinion was that the Applicant had not suffered relevant family violence. The Tribunal accordingly found the Applicant is not taken to have suffered family violence and was not entitled to the grant of a visa.
Legislative framework
The legislative framework in which the determination of the Tribunal was made is as follows.
To be granted a Partner (Migrant) (Class BC) visa there are relevant time of decision criteria to be met as set out in cl.100.22 of Schedule 2 of the Regulations. However, a visa Applicant seeking a partner visa in circumstances where the relationship forming the basis of the application has ceased, may still be granted the visa where, amongst other criteria, the Applicant has suffered "family violence" committed by the sponsor for the visa.[1]
[1] See cl.100.221(4) of Schedule 2 of the Regulations.
Special provisions relating to claims of family violence were asserted in the Regulations by the Migration Regulations (Amended) 1995. Further amendments were made in 2009.[2] In summary, Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature.
[2] See Migration Amendment Regulations (No 12) 2009
Under r.1.22 of the Regulations a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered or committed family violence.
Under r.1.23 a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa Applicant includes a non-judicially determined claim and either the Minister is satisfied that the alleged victim has suffered family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. In cases where family violence is alleged, a Tribunal may exercise all of the powers and discretions conferred by Division 1.5 of the Regulations on the Minister to determine whether a person is taken under r.1.23, to have suffered or committed family violence. Accordingly, a claim of family violence for the purposes of r.1.23(1) can be made either to the Minister as it was at first instance, or to the Tribunal on review.
A visa application is taken to include a non-judicially determined claim of family violence where the Applicant seeks to satisfy a prescribed criterion that the Applicant or another relevant person has suffered family violence and either a joint undertaking to a court has been made by the alleged victim and the alleged perpetrator or evidence is provided in accordance with r.1.24 is provided.
The evidence required in r.1.24 is a statutory declaration under r.1.25 together with either a statutory declaration under r.1.26 by a "competent person" and a copy of a record of assault; or two statutory declarations under r.1.26 by competent persons who hold different qualifications. For the purposes of Division 1.5, a statutory declaration is defined in r.1.21 as a statutory declaration under the Statutory Declarations Act 1959.
For the purposes of Division 1.5, "competent person" is identified in r.1.21(1), which clearly includes a medical practitioner and various other persons defined, including a person performing the duties of a social worker.
Where, however, the Tribunal is not satisfied that the alleged victim has suffered family violence despite the provision of the requisite evidence and any other evidence or argument put by the Applicant,
the Tribunal must seek the opinion of an independent expert about whether the alleged victim had suffered family violence.[3] The Tribunal must also take as correct the opinion of the expert as to whether the alleged victim has suffered family violence.[4] If the opinion is that the alleged victim has suffered relevant family violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence for the purpose of the relevant criterion.
[3] See r.1.23(10)(c)(i) of the Regulations
[4] See r.1.23(10)(c)(ii)
Grounds for review
The grounds for review as set out in the application are as follows:
(1)The Tribunal has breached s.368 of the Migration Act 1958 (the Act) in that by saying that it had considered all of the evidence before it and not referring to the evidence on which the findings of fact were based.
(2)The Tribunal has breached s.368 of the Act by its failure to provide reasons for the decision.
(3)The Tribunal has incorrectly interpreted s.359A of the Act by giving notice to the Applicant pursuant to that section.
(4)The Tribunal has breached r.1.23(2) by its failure to ask of the Applicant all the questions that the Tribunal is to ask to reach the state of satisfaction.
(5)The Tribunal was in error in seeking the opinion of an independent expert before it reached a state of satisfaction thereby abdicating its powers but also giving information to the independent expert which was not correct.
(6)The Tribunal has failed to set the parameters for the expert to reach an opinion.
(7)The Tribunal has failed to interpret the provisions of Division 1.5 of the Regulations correctly.
In written contentions of fact and law in support of the review grounds the Applicant simply stated the following:
At paragraph E91 (sic) of the Tribunals' (sic) decision, the member says:
After considering all of the evidence before it, including the evidence of a non-judicially determined claim of family violence before the Tribunal, the Tribunal was not satisfied that the alleged victim has suffered relevant family violent.
It is incumbent on the Tribunal, to specify what "all of the evidence before it was" and its failure to do so, constituted a jurisdictional error. Further, having referred the matter to an independent expert for an opinion, it was trite for the Tribunal to write to the Applicant as seen in pages 242 and 243 of the Court Book.
It is not clear from a perusal of page 216 to page 224, as to where the information contained in these pages was sent to the independent expert. If that was so, then the Tribunal has made a further jurisdictional error by releasing this information to the independent expert, when in fact, the information ought to have been considered by the Tribunal in reaching a state of satisfaction. Again, at paragraph 93, the tribunal states:
The Tribunal has had regard to the applicant's response.
This again, is not in keeping with the regulations which the Tribunal has apparently extracted on page 243 of the Court Book. The applicant will seek to rely at the hearing on each of the grounds mentioned in his application.
In response to the Applicant's contentions of fact and law the
First Respondent also filed written contentions which addressed each of the grounds for review. But before addressing those, it is necessary to consider the verbal contentions of the Applicant made to the Court by Mr Fernandez.
Much time was spent by Mr Fernandez articulating the essential ground for review as understood by him and upon which the Applicant relied. He argued, as I understand his submissions, that there was a breach of s.368 of the Act, which section requires the Tribunal to give written reasons for its decision. In particular, that there was an obligation on the part of the Tribunal to articulate an examination of the evidence set out in the requisite statutory declarations which form the basis of the opinion reached by the deponents. Mr Fernandez complains that the Tribunal only expressed satisfaction that the Regulations had been complied with. It was conceded by all that the Regulations stipulate that the statutory declarations must provide evidence upon which the opinion of each deponent was formed.[5] Mr Fernandez, as I understand his submission, argued that the following paragraph in the Tribunal's reasons for decision was lacking for the purpose of reaching a required state of satisfaction,
it needed to explore the evidence, before a referral can be made to an independent expert. That paragraph provides:
91.After considering all of the evidence before it, including the evidence of a non-judicially determined claim of family violence before the tribunal, the tribunal was not satisfied that the alleged victim had suffered relevant family violence. The tribunal finds, therefore, that r.1.23(1)(f) is not met. In accordance with r.1.23(1B)(b), on 30 August 2011 the tribunal sought the opinion of an independent expert about whether the alleged victim had suffered relevant family violence. On 7 October 2011, the independent expert provided an opinion that the alleged victim has not suffered relevant family violence.
[5] See r.1.23, 1.24 and 1.26.
Mr Fernandez argued that such an expression as "after considering all of the evidence before it" is not sufficient and that there was a requirement to delve into and examine the evidence proffered by the deponents. He further contends, as I understand him, that r.1.26(f) casts an obligation on the Tribunal to articulate in writing an examination of the evidence provided in the declarations.
In support of his contention that such an obligation exists Mr Fernandez relies upon the decision of Ryan J in Kozel v Minister for Immigration & Multicultural & Indigenous Affairs[6] and an earlier decision of his Honour in Meroka v Minister for Immigration & Multicultural & Indigenous Affairs. [7]
[6] (2004) 138 FCR 181
[7] (2002) 117 FCR 251
In my view, the authorities relied on by Mr Fernandez do not support his basic contention. Those authorities refer to the need for the statutory declarations to comply with the apposite regulations and in particular there needs to be set out in the declarations the evidence upon which the opinion expressed by the competent person is based. In my view, r.1.26(f) casts an obligation upon the deponent in relation to the quality of the evidence that is relied upon for the purpose of forming the opinion which in turn would attract the jurisdiction to consider a claim of family violence. The obligation is cast on the deponent. In my view, there is no relationship between r.1.26(f) and s.368 of the Act.
As I understand Mr Fernandez's contention, he relies on the two decisions of Ryan J as a basis for founding the proposition that the Tribunal has some additional obligation to give reasons in relation to the evidence that is relied upon for the purpose of raising a claim of family violence, and attracting the Tribunal's jurisdiction to determine such a claim. This, in my view, is misconceived. As stated, Ryan J’s decisions in Meroka and Kozel are directed at a different point, and that point is to what extent is the Tribunal entitled to go behind the findings of the independent expert? I am confident that that is what those two cases are concerned with and they do not form an authority for the proposition that the Tribunal has an obligation to set out evidence in relation to r.1.26(f). The obligation that Mr Fernandez kept coming back to, that is the obligation to set out the evidence on which the competent person's opinion is based, is merely an attempt to transpose r.1.26(f), which is an obligation cast on the deponent, onto the Tribunal where such is clearly in my view not the legislative intention.
The ground as finally articulated in verbal submissions before me, and on which the Applicant primarily relies, is without substance and is not proved.
The Applicant also seized upon an admission made by the First Respondent, as a model litigant, that the independent expert in his report, and the Tribunal in [91] of its decision, made reference to r.1.23(1B)(b), which was a reference to the regulations as they stood prior to the amendments referred to above made in 2009. As stated earlier, Mr Fernandez believed he knew of authorities which supported the view that an error such as this would amount to a jurisdictional error. After the close of the hearing Mr Fernandez informed the court that he relied upon two authorities, whose name were misdescribed. However, it is evident that he was relying on SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs[8] and also Re: Voon and the Medical Board of the ACT.[9] I am in agreement with the First Respondent's contention that those authorities relied upon do not support the Applicant. They are properly described as cases that provide examples of jurisdictional error as defined in Craig v South Australia[10] and are readily distinguishable from the case before the court.
[8] (2007) 94 ALD 298
[9] (1993) 31 ALD 655
[10] (1995) 184 CLR 163
In SZIFI, the Tribunal had mistaken the relevant country of reference and thereby completely failed to address the facts of the claim.
In those circumstances, the Tribunal was found to have made a jurisdictional error by asking itself the wrong question. I am satisfied, however, that in the case before me, the error was one of mere misdescription of a regulation number where the substance of the regulation was applied. There is no basis for finding that the independent expert or Tribunal were misdirected or asked themselves the wrong question.
I am not sure of the relevance of Voon in the context of the present case as it was a decision from the Administrative Appeals Tribunal of the Australian Capital Territory and not binding on this Court. Nothing in that decision concludes that a misdescription of a regulation constituted a jurisdictional error. That case had to consider significant amendments that were substantive and actually went to the powers of the Board. To the extent the relevant Medical Board erred by applying a repealed version of the legislation to the matter before it, the case is distinguishable from that before me. In the case before me,
the Tribunal did not err by applying a repealed form of legislation - rather the Tribunal made the error identified in the First Respondent's written submissions which contended that the reference to the regulations as they stood prior to the amendments effected by the changes in 2009 did not reveal any error on the part of the independent expert's opinion that could have impacted on the Tribunal's jurisdiction. This was because the amendment effected by the 2009 Regulations in relation to the definition of family violence merely renumbered the regulation defining the term and introduced "family violence" terminology. The substantive finding was that there was no evidence that the Applicant experienced any relevant family violence, or reliable evidence that any conduct, whether actual or threatened, caused the Applicant to be reasonably fearful, or to be reasonably apprehensive about his wellbeing or safety. This was the relevant issue to be determined by the independent expert.
In my view, the Tribunal's referral to the independent expert accorded with the statutory scheme and the independent expert addressed the task required by the scheme. In the circumstances of this case, the reference to the earlier regulation number is, in my view, a misdescription where the substance of the independent expert's task complied with the regulatory regime applicable at the time. This error does not amount to a jurisdictional error. It did not amount to a misdirection of itself.[11]
[11]See Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 at [14] per Jagot J and generally on jurisdictional error, see Craig v South Australia (1995) 184 CLR 163 at 177 per Brennan, Deane, Toohey, Gaudron and McHugh JJ
Mr Fernandez made reference to selected parts of the transcript, as appears in the supplementary court book, in support of the Applicant’s contention that the Tribunal had predetermined that the matter was going to be referred to an independent expert without paying due regard to, and considering, the evidence set out in the supporting statutory declarations. On a fair reading of the transcript, in my view, it clearly indicates that there was no preconceived intention on the part of the Tribunal prior to the hearing to engage an independent expert to “abrogate” its responsibility. Indeed, it concluded the hearing by stating:
Okay, that's the material in front of me. I may have to refer it off to an independent expert.
In my view, that is not an indication the Tribunal’s intention all along was to refer it off, and that it was merely going through the motions of a hearing. In my view, the whole of the supplementary court book stands as testament to a genuine engagement with all the issues and the material by the Tribunal. There was a genuine hearing giving the Applicant every opportunity to present evidence and arguments in support of his claims.
In respect of Mr Fernandez's written contention in support of the ground for review that was strong in its assertion the Tribunal should have given detailed reasons for the referral to the independent expert, in oral submissions he conceded that the reliance of the
First Respondent on the decision of Edmonds J in Hadchity v Minister for Immigration & Citizenship[12] was authority that answered this ground. In Hadcity his Honour at [20] said in response to a similar argument:
20.I cannot agree. The inference is well and truly open from the fact that the Tribunal referred the matter to Centrelink on 21 or 25 February 2008, that the Tribunal was not satisfied that the appellant had suffered domestic violence. The fact that it did not express that lack of satisfaction in its reasons is not to the point; it was under no obligation to record its lack of satisfaction either in its reasons or elsewhere. Moreover, since by the time the Tribunal came to deliver its first decision and reasons, the Tribunal understood, on the basis of the Full Court's decision in Sok, that the domestic violence claim was not able to be considered, there was no reason to expect the tribunal's lack of satisfaction to be recorded in those reasons. I would conclude, and so find, that what occurred is precisely as set out in [78] of the Tribunal's second decision. In the face of that conclusion, the contention that the opinion of an independent expert obtained prior to the quashing of the first decision was invalidly obtained, cannot be sustained.
[12] [2010] FCA 144
I agree with the First Respondent's contention that, based upon the above authority, there is no obligation, either separately or in the material decision, to give reasons for the referral to an independent expert, but even if there is, for the sake of argument, [91] of the Tribunal's reasons for decision clearly states that:
The tribunal was not satisfied that the alleged victim has suffered relevant family violence.
The Tribunal then finds that the requisite level of satisfaction is not met pursuant to the Regulations and accordingly sought the opinion of an independent expert as to whether the victim had suffered relevant family violence.
I believe the above covers those grounds for review which were pressed by Mr Fernandez in the hearing before me, but should there be extant grounds not properly covered which are set out in the application for review then I intend to address those grounds in the same order as set out in the application for review.
In respect of the first ground that the Tribunal has breached s.368 of the Act, which section obliges the Tribunal to give written reasons for its decision, by:
a)not referring to the evidence on which the findings of fact were made; or
b)failing to provide reasons for decision,
I repeat those aspects of my reasons set out above that are pertinent to this issue but add I am satisfied that the Tribunal has given appropriate findings on the questions of fact it was required to consider which were material to the decision it made and the reasons for reaching the decision. It is clear, in my view, that the Tribunal directed its mind to the material facts required to be considered by reference to r.1.21 to r.1.26 where a claim of non-judicially determined family violence is raised. Accordingly, I am not satisfied that the Tribunal has breached its obligations pursuant to s.368 of the Act.
In respect of the ground alleging that the Tribunal breached s.359A of the Act in that the Tribunal incorrectly interpreted that section by giving notice to the Applicant pursuant to it, I note that, apart from that bald assertion, no particulars were provided and no oral submissions were made in support. Be that as it may, in my view, there can be no foundation for that ground. Section 359A obliges the Tribunal to give an Applicant written notice of any reason it considers would be the reason, or part of the reason, for affirming the decision under review. That obligation is expressed in mandatory terms and is subject only to the exception specified in s.359A(4). In response to that mandatory obligation, after seeking and obtaining the opinion of an independent expert, the section was enlivened and the Tribunal wrote to the Applicant as required enclosing a full a copy of the expert's opinion. The conduct of the Tribunal in this regard does not reveal jurisdictional error on its part. This ground is rejected.
The Applicant also asserts the Tribunal was in breach of r.1.23(2) by its failure to ask the Applicant all the questions that the Tribunal is to ask to reach a state of satisfaction. Regulation 1.23(2) provides that an alleged victim is taken to have suffered family violence where a court has granted an injunction under s.114 of the Family Law Act 1975.
In respect of the proceeding before the court for review, the Applicant made no claim that a court had granted an injunction pursuant to the Family Law Act, and such a consideration is irrelevant. The court was not obligated in those circumstances to ask questions apposite to r.1.23(2). No jurisdictional error has been established in respect of this ground for review and it is rejected.
A further ground for review stipulated in the application was the assertion:
The Tribunal was in error in seeking the opinion of an independent expert before it reached the state of satisfaction thereby abdicating its powers but also giving information to the independent expert which was not correct.
Regulation 1.23(10)(c) requires, when the Minister is not satisfied the alleged victim has suffered relevant family violence, the obtaining of the opinion of an independent expert. The Tribunal stated that it was not so satisfied and therefore sought the opinion of an independent expert. As stated earlier, there was no obligation to give reasons as to why the Tribunal was not so satisfied.[13] In any event, the mere referral of the matter to an independent expert for opinion is an implicit confirmation that the Tribunal was not satisfied.
[13] See Hadchity v Minister for Immigration & Citizenship[2010] FCA 144
The suggestion that by so referring the matter for an opinion of an independent expert the Tribunal is abdicating its power is unjustified. The Regulations clearly provide for this process where there is, despite compliance with the Regulations in respect of the nature and content of statutory declarations in support of family violence, there is not in the mind of the Tribunal a state of satisfaction that such violence has occurred. To seek an opinion of an independent expert complies with the legislative framework and there is nothing in the Tribunal's reasons for decision that indicates anything other than compliance with that framework.
The next ground for review was an allegation that:
The Tribunal failed to set parameters for the expert to reach an opinion.
Again this was a ground that was not further particularised or addressed in oral submissions. In response to it I note that the regulations are silent on the method and content of any referral to an independent expert for assessment. There is nothing on the material before the court that would suggest anything other than a referral that contained an accurate record of the Applicant's claims in the material before the Tribunal and appraised the independent expert on matters relevant to the assessment in a comprehensive and balanced way. Furthermore the referral gave an accurate definition of the phrase "family violence", which was the central issue the independent expert was required to assess. This ground, for what it is, is not made out.
The final ground relied on in the application is that:
The Tribunal has failed to interpret the provisions of Division 1.5 of the Regulations correctly.
Again no further particulars were provided in relation to that ground, nor was that particular ground addressed in written and oral submissions. Again the only potential error in this regard on the part of the Tribunal was a reference to r.1.23(1B)(b) of the Regulations rather than r.1.23(10)(c). This is clearly a reference to the old regulation applying and does not take account of the amendment in 2009 as previously discussed. It is an error of fact and it does not affect the Tribunal's jurisdiction. There is, in effect, no material difference in the obligation that existed pursuant to the old regulation and that of the new. Under either version of the regulation, the obligation to refer the matter to an independent expert for assessment is enlivened where the Tribunal is not itself satisfied the alleged victim suffered relevant family violence. This ground is not made out.
Conclusion
For the above reasons, the application for review filed on
13 December 2011 has failed to demonstrate a jurisdictional error on the part of the Tribunal and should therefore be dismissed, with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Date: 21 August 2012
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