Liu v Minister for Immigration
[2011] FMCA 601
•5 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 601 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether an independent expert applied an incorrect standard in not being able to establish conclusively if the applicant had been the subject of relevant domestic violence – whether the Migration Review Tribunal committed jurisdictional error by accepting the independent expert’s opinion – writs issued. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1), 474; pt.8 div.2 Migration Regulations 1994 (Cth), Reg 1.23(1C), Reg 1.23(2)(b), Reg 1.23(1A), Cl100.221(2), (2A), (3), (4), and (4A) of Schedule 2 |
| Fang Wang v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 |
| Applicant: | GUANG PING LIU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 769 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 July 2011 |
| Date of Last Submission: | 19 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Leonard Karp |
| Solicitors for the Applicant: | Mr Da Wei David Gu (Christopher Levingston & Associates) |
| Counsel for the Respondent: | Ms Anna Mitchelmore |
| Solicitors for the Respondent: | Ms Hervee Dejean (Australian Government Solicitor) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 769 of 2011
| GUANG PING LIU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 29 March 2011 and handed down on 29 March 2011.
The applicant claims to be a citizen of the People’s Republic of China (“the Applicant”).
The issue in this case is whether the Tribunal erred in accepting the opinion of an independent expert as to whether the Applicant had suffered relevant domestic violence where the independent expert applied a standard of not being able to “establish conclusively” if the Applicant had been such a victim. This issue is considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework and the decision of the delegate of the first respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background and legislative framework
The background and the relevant legislative framework are accurately set out in the written submission of counsel for the first respondent, Ms Mitchelmore, as follows:
“The applicant is a citizen of the People’s Republic of China. In September 1998, the applicant first arrived in Australia on a subclass 456 (Business (Short Stay)) visa (CB 1). When that visa expired, the applicant remained in Australia. According to the decision of the delegate (CB 203), in April 2005 the applicant was located and detained by the Department of Immigration and Citizenship (the Department); and in May 2005, he was removed from Australia.
At the time of his detention, the applicant was in a de facto relationship with a woman whom he met in 2004, Ms Liao. On 2 May 2005, before his removal from Australia, the applicant and Ms Liao were married (CB 71). On his return to China, the applicant lodged an application for a Subclass 100 (Spouse (Migrant)) visa, with Ms Liao as his sponsor (CB 1).
By letter dated 13 November 2006, the applicant was notified by the Department that he had been granted a Sucblass 309 (Spouse (Provisional)) visa, and could return to Australia pending a decision on his application for the permanent visa (CB 75).
According to the delegate, the applicant arrived in Australia on 16 November 2006 (CB 204). On 2 July 2007, the applicant was invited by the Department to submit further documents in support of his application for a permanent spouse visa (CB 78). The applicant provided a number of documents in support of that application, including a statutory declaration made by Ms Liao on 25 July 2007 (CB 100).
By letter dated 22 February 2008, an officer of the Department invited the applicant and his wife to attend an interview on 11 March 2008 (CB 113). According to a file note prepared by the Case Officer, dated 11 March 2008, the applicant attended the interview and informed her that he and his wife had been experiencing problems since about March 2007, and that on 17 February 2008 she had “kicked him out of the family house”, leaving him to sleep in his car (CB 118).
The Case Officer informed the applicant that on the basis of the information he provided, she was not satisfied that the relationship was still genuine and ongoing (CB 118). She explained, however, that he had a number of options, one of which was to continue with the application (CB 119). A letter that she provided to the applicant on the same day identified three circumstances in which an applicant could continue to be considered for a grant of permanent residence on spouse grounds, despite the fact that the relationship had ended; the only ground of potential application to the applicant was if he was “a victim of domestic violence, as evidenced according to the requirements of the Migration Regulations” (CB 115). In this regard, Clause 100.211(4) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) provided at the relevant time:
The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:
(i) continues to be the holder of that visa; or
(ii) …; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) – either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) …
has suffered domestic violence committed by the sponsoring spouse;
(ii) …
A note to cl 100.211(4) referred to Division 1.5 of the Regulations as containing special provisions relating to family violence. A copy of Division 1.5 as it was at the relevant time is attached to the applicant’s submissions. Regulation 1.22(1) provides that a reference in the Regulations to a person having suffered domestic violence “is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence”. Regulation 1.23(1) to (1C) provide as follows:
(1) For the purposes of these Regulations:
(a) a person (the alleged victim) is taken to have suffered domestic violence; and
(b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim;
if:
(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence…; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f) the Minister is satisfied, for paragraph (1B)(a), that the alleged victim has suffered relevant domestic violence; or
(g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence.
(1A) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of domestic violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered domestic violence; and
(b) either of the following circumstances exists:
(i) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim;
(ii) for an alleged victim who is a person referred to in subregulation (2) — the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(A) the alleged victim has suffered relevant domestic violence; and
(B) the alleged perpetrator has committed that relevant domestic violence.
(1B) If an application for a visa includes a non‑judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and:
(a) if satisfied that the alleged victim has suffered relevant domestic violence — consider the application on that basis; or
(b) if not satisfied that the alleged victim has suffered relevant domestic violence — seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
(1C) The Minister must take an independent expert’s opinion on the matter mentioned in paragraph (1B)(b) 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 domestic violence.
Regulation 1.23(2)(b) provides that a reference to “relevant domestic violence” is a reference to violence towards, inter alia, the alleged victim, “that causes the alleged victim to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety”. The term “independent expert” is defined in reg 1.21 to mean a person who “is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence” and is, inter alia, employed by an organisation that is specified in a Gazette Notice for the purpose of making independent assessments of non-judicially determined claims of domestic violence.
The applicant provided documents to the Department in accordance with reg 1.24(1)(b), including a statutory declaration made by him in accordance with reg 1.25 (CB 162), and two statutory declarations made by “competent persons” in accordance with reg 1.24(2) and reg 1.26, namely:
a statutory declaration prepared by Mr Peter Moore, Social Worker, made on 24 April 2008 (CB 141); and
a statutory declaration made by Ms Khai Wong, a registered Psychologist, made on 26 April 2008 (CB 148).
The applicant also provided a copy of a final Intervention Order, which was made by the Magistrates Court at Melbourne on 25 June 2008, in which the applicant was named as the defendant, and Ms Liao as the complainant (CB 177). A copy of the interim Intervention Order had earlier been provided (CB 134).
In accordance with reg 1.23(1B)(b), the delegate referred these materials to an independent expert, namely a Social Worker employed by Centrelink. The independent expert expressed the opinion that the applicant had not suffered relevant domestic violence, as defined in reg 1.23(2)(b) of the Regulations (CB 179).
By letter dated 18 May 2009, the delegate forwarded an extract of the independent expert’s opinion to the applicant and invited him to comment on it, in accordance with s 57 of the Act (CB 195). The applicant’s then agent provided a response on 18 June 2009 (CB 198).
By letter dated 17 August 2009, the delegate notified the applicant that his application for a Spouse visa had been refused (CB 202). Consistently with reg 1.23(1C) of the Regulations, the delegate took the independent expert’s opinion to be correct for the purposes of deciding whether the applicant had suffered domestic violence within the meaning of reg 1.23(1). As the applicant had not, in the opinion of the independent expert, suffered domestic violence within the meaning of reg 1.23, he did not satisfy the criterion in cl 100.221(4) of Schedule 2 of the Regulations, nor did he satisfy any of the other criteria in cl 100.221 (CB 206-207).
On 15 September 2009, the applicant lodged an application with the Tribunal for review of the delegate’s decision (CB 208).”
On 29 March 2011, the Tribunal affirmed the decision of the Delegate not to grant a Partner (Migrant) (Class BC) visa.
On 20 April 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal’s review and decision
The Tribunal’s review and decision is accurately summarised by counsel for the first respondent in her written submissions as follows:
“17. By letter dated 12 November 2009, the Tribunal invited the applicant to attend a hearing before it on 7 January 2010 (CB 222). The applicant accepted the invitation (CB 234) and the hearing proceeded on that date (CB 292). Before the hearing, the applicant’s agent provided a submission to the Tribunal (CB 287), together with a number of statutory declarations, including:
(a) a further statutory declaration from the applicant (CB 279);
(b) further statutory declarations from Ms Wong (CB 237) and Mr Moore (CB 268), the latter of which was substantially the same as his first statutory declaration;
(c) a statutory declaration from Dr Robert Rich, a registered Psychologist (CB 260); and
(d) statutory declarations from three persons with whom the applicant worked, as to the applicant’s circumstances from in or around the middle of September 2007 to early 2008 (CB 248, 252, 256).
18. On 14 January 2010, the Tribunal referred the applicant’s claims to Centrelink, under reg 1.23(1B)(b) of the Regulations (CB 296). On 13 April 2010, Centrelink provided the Tribunal with a copy of an assessment report in relation to the applicant; the assessment was prepared by an employee of Centrelink who held a Bachelor of Social Work (the IE Assessment) (CB 310). The Independent Expert (IE), who conducted an interview with the applicant over a period of three and a quarter hours (CB 312), expressed the opinion that the applicant had not suffered relevant domestic violence within the meaning of reg 1.23(2)(b) of the Regulations (CB 326).
19. By letter dated 15 April 2010, the Tribunal provided the applicant with a copy of the IE Assessment and invited him to comment on it (CB 330). On 18 June 2010 the applicant, by his agent, provided a response, together with further statutory declarations from Dr Rich (CB 345) and Ms Wong (CB 350) which critiqued the IE Assessment. On 11 October 2010, the applicant’s agent provided to the Tribunal a further statutory declaration from Mr Moore (CB 368), and on 18 October 2010 the agent provided a further written submission to the Tribunal, in which he contended that the IE Assessment was invalid (CB 376).
20. On 21 October 2010, following receipt of this further material from the applicant, the Tribunal forwarded it to Centrelink and asked that it be considered, singling out some of the criticisms made on the applicant’s behalf about the IE Assessment (CB 384). In response, a document, titled “Part D: Further Assessment from Centrelink to MRT”, dated 31 January 2011, was provided to the Tribunal (the Further IE Assessment) (CB 387). As the original IE was not available, a senior social worker (the January IE) reviewed the material originally reviewed by the IE, and assessed the further material; the January IE did not consider that this material added to the evidence in support of the applicant’s claims (CB 387).
21. On 10 February 2011, the Tribunal provided a copy of the Further IE Assessment to the applicant and invited him to comment on it (CB 390). By email dated 10 March 2011 (CB 402), the applicant’s agent provided a further statutory declaration from Dr Rich (CB 403); and in a further email of the same date (CB 411), he provided a submission (CB 412) and a further report from Mr Moore (CB 425).
22. By letter dated 29 March 2011, the Tribunal notified the applicant of its decision to affirm the decision of the Minister’s delegate (CB 431). Although the Tribunal found that the applicant had made a non-judicially determined claim of domestic violence under reg 1.23(1A) of the Regulations (at [94]), it was not satisfied that the applicant had suffered domestic violence, as required by cl 100.221(4) of Schedule 2 of the Regulations (at [115], CB 452).
23. In reaching that conclusion, the Tribunal first noted that having considered the evidence put forward by the applicant, it was not satisfied that the applicant had suffered relevant domestic violence. Accordingly, reg 1.23(1)(f) did not apply (at [94], CB 449) and reg 1.23(1B)(b) required it to refer assessment of the applicant’s claims to an independent expert (at [96], CB 449). In relation to that referral process, the Tribunal stated (at [101], CB 450):
The effect of r 1.23(1C) is that in deciding whether an applicant satisfies a prescribed criterion, the Tribunal is bound by the opinion of the independent expert as to whether the alleged victim has suffered relevant domestic violence, and to take that opinion as correct. That is, ‘the obtaining of an opinion satisfies the description in reg 1.23(1B)(b) – ‘the opinion of an independent expert’ – is dispositive of an issue arising in relation to the decision under review by the Tribunal’ (Sok v MIAC [2008] HCA 50 at [40]), ie whether there had been relevant domestic violence. Once such an opinion is obtained, the Tribunal is not permitted to go behind this opinion and must take the opinion as resolving this aspect of the applicant’s claim.
24. The Tribunal considered that the IE Assessment constituted an opinion within the meaning of reg 1.23(1B)(b) (at [103], CB 450):
(a) The author of the opinion held a Bachelor of Social Work and was employed by Centrelink as a Social Worker with responsibility for undertaking independent assessments of non-judicially determined claims of domestic violence (at [104]).
(b) The IE Assessment contained an expression of, and reasons in support of, an opinion about whether the applicant, as the alleged victim, had suffered relevant domestic violence, consistently with the requirements of reg 1.23(1B)(b).
25. The Tribunal considered that the opinion of the IE accurately reflected an opinion as to the correct definition in reg 1.22(1) and reg 1.23(2)(b) (at [106], CB 451). Although the applicant’s representative, and his supporting specialists, disagreed with the opinion expressed in the IE Assessment, the Tribunal considered that unless the opinion was not validly made, it was bound, by reg 1.23(1C) of the Regulations, to accept it as correct (at [100], CB 450).”
The proceeding before this Court
The Applicant was represented before this Court by Mr Karp, of counsel.
Mr Karp confirmed that the Applicant relied on the grounds contained in the amended application filed on 1 July 2011 as follows:
“1. The Tribunal erred in finding that the opinion of an “independent expert” appointed under Migration Regulation 1.23(1B), was authorised by the Migration Regulations, and so erred accepting it for the purposes of Migration Regulation 1.23(1C).
Particulars
(a) In deciding whether the applicant was the victim of “domestic violence” the “independent expert” (IE) considered that:
(i) he had not been subjected to “abuse that was serious, systematic and persistent in nature”, and,
(ii) she had not been able to ascertain that he had been “reasonably fearful” or apprehensive for his personal safety and wellbeing, and
(b) In doing so misconstrued and misapplied the definition of “domestic violence” in Migration Regulation 1.23(2)(b).
(c) The IE used a legally incorrect standard of proof in forming her opinion; that being whether she was able to establish “conclusively” that the applicant was the victim of domestic violence”.
Regulation 1.23(1)(1B) of the Regulations provides that if an application for a visa includes a non-judicially determined claim of domestic violence, as in this case, then the relevant decision maker, in this case the Tribunal, must consider whether the alleged victim has suffered relevant domestic violence.
Regulation 1.23(1)(1B)(b) of the Regulations provides that if the relevant decision maker is not satisfied that the alleged victim has suffered relevant domestic violence, then the relevant decision maker must seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
Regulation 1.23(1)(1C) of the Regulations provides that the relevant decision maker, in this case the Tribunal, must accept the independent expert’s evidence as correct for the purposes of deciding whether the Applicant satisfied the prescribed criteria of whether he suffered relevant domestic violence.
In the case before this Court, the Tribunal was not satisfied that the Applicant had suffered relevant domestic violence, and accordingly, sought the opinion of an independent expert as to whether the Applicant had suffered relevant domestic violence. It is common ground that the independent expert who provided the opinion which was adopted by the Tribunal was properly qualified and validly appointed to provided such an opinion.
The Tribunal accepted the independent expert’s opinion as correct and properly made and, accordingly, found that the Applicant was not taken to have suffered domestic violence.
However, it is a jurisdictional error on the part of the Tribunal to accept the independent expert’s opinion if that opinion is one that is not authorised by the Regulations. This principle was stated by the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [66] in the context of a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs which placed reliance on an opinion of a Medical Officer of the Commonwealth. The Full Court stated at [66] as follows:
“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 upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s476 of the Act provides.”
Grounds 1(a) and 1(b)
At the heart of ground 1 of the amended application is a contention that there was error in the decision of the independent expert that amounted to jurisdictional error and that the Tribunal in accepting the independent expert’s decision itself committed jurisdictional error.
The independent expert was required to provide an opinion as to whether the alleged victim has suffered ‘relevant domestic violence’ according to the definition of relevant domestic violence in Regulation 1.23(2)(b) of the Migration Regulations 1994 (Cth) (‘the Regulations’). Regulation 1.23(2)(b) is as follows:
“(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes 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 well-being or safety.”
In particular, the Applicant contends that the Tribunal erred in accepting the finding of the independent expert that the Applicant had not been able to establish that he had been subjected to abuse that was “serious, systematic and persistent in nature” and the independent expert was therefore unable to ascertain whether the Applicant was “reasonably fearful or apprehensive for his personal safety and wellbeing.”
Counsel for the Applicant contended that the definition of “relevant domestic violence” did not include a requirement that such violence be “serious, systematic and persistent in nature” or that the Applicant need be “reasonably fearful”. Counsel for the Applicant submitted that it was not open for the independent expert to consider the Applicant’s fear based on an objective standard. Counsel for the first respondent agreed with that submission.
The term “relevant domestic violence” in Regulation 1.23(2) of the Regulations does not prescribe the matters that the independent expert may take into account when evaluating the Applicant’s evidence in support of a claim to have suffered such violence.
I accept that the nature of the alleged conduct and the frequency for which it is alleged to have occurred are considerations which could reasonably be relevant to the independent expert’s evaluation of whether the Applicant has been subjected to violence which causes him to fear or be apprehensive about his personal safety and wellbeing. I am satisfied that it was open to the independent expert to take into account whether the violence claimed was serious, systematic and persistent in nature.
The reference in the independent expert’s opinion that because the Applicant had not suffered serious, systematic and persistent violence led it to conclude that the Applicant was not “reasonably fearful” or apprehensive was not a relevant finding. 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 the word “reasonably”.
However, when reading the decision as a whole, I am not satisfied that the independent expert applied such an objective assessment to its consideration of the Applicant’s alleged fear for his personal safety or wellbeing. The independent expert identified with some particularity those matters which caused it concern about the Applicant’s claims to have a subjective fear or apprehension for his safety and wellbeing.
Ultimately, the independent expert concluded that it had not been able to establish that the Applicant was fearful or apprehensive for his safety and wellbeing whilst in the marital relationship with his wife. That conclusion is consistent with the language of Regulation 1.23(2)(b) of the Regulations.
In the circumstances, I am not persuaded that the Tribunal’s irrelevant reference to whether the Applicant was reasonably fearful of domestic violence was a standard which the Tribunal ultimately applied in concluding that the Applicant had not established that he was fearful or apprehensive for his safety and wellbeing.
Accordingly, grounds 1(a) and 1(b) are not made out.
Ground 1(c)
Ground 1(c) of the amended application asserts that the independent expert applied an incorrect standard of proof in saying that the independent expert “has not been able to establish conclusively that (the Applicant) was the victim of domestic violence”.
Counsel for the first respondent conceded that, if the independent expert’s opinion, fairly read, did apply such a standard it would have been an error capable of rendering the Tribunal’s decision subject to jurisdictional error if the standard applied was not authorised by the Regulations (see Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115).
However, counsel for the first respondent submitted that, fairly read, without an eye keenly attuned to error, the Tribunal’s decision did not support a finding that the Tribunal had applied such a standard. I do not agree.
The independent expert said in its concluding paragraph:
“While Independent Expert has not been able to establish conclusively that Mr Liu was the victim of domestic violence in his relationship with Ms Liao, the allegation(s) of threats of deportation, withholding of house keys, withholding of correspondence, social control and (some level of) financial exploitation are acknowledged. However, Independent Expert has not been able to establish that Mr Liu was fearful or apprehensive for his safety and wellbeing whilst in the marital relationship with Ms Liu.” (Emphasis added).
Whist I accept that the ultimate conclusion that the independent expert had not been able to establish that the Applicant was fearful or apprehensive for his safety and wellbeing was a finding and conclusion that was consistent with the requirements of Regulation 1.23(2)(b) of the Regulations, I am satisfied that the reference at the beginning of the paragraph by the independent expert to the Applicant’s failure to “establish conclusively that he was the victim of domestic violence” was language that cannot be excused by a mere looseness of language.
The independent expert used the word “establish”, rather than the words “establish conclusively” earlier in its opinion in relation to its finding that the Applicant had not established that he had been the subject of serious, systematic and persistent domestic violence. Further, the independent expert used only the bare verb “establish” in finding that the Applicant had not been able to establish that he was fearful or apprehensive for his safety and wellbeing.
The use of the verb “establish” reflects the appropriate standard in respect of any of the matters being considered by the independent expert.
Having regard to the use of the verb “establish” elsewhere in its opinion, I am satisfied that, in using the term “establish conclusively”, the independent expert was applying a higher standard than “establish” would connote and a higher standard than was required by the Regulations.
Moreover, the independent expert stated elsewhere in the independent opinion that it had not been able to “conclusively determine” that the Applicant had been financially exploited. Counsel for the first respondent conceded that financial exploitation is capable of amounting to domestic violence. The independent expert was not required to “conclusively determine” that such exploitation had occurred. Rather, the independent expert was required to provide its opinion as to whether the Applicant had suffered relevant domestic violence in accordance with Regulation 1.23(2)(b).
Having regard to the use of the word “conclusively” in defining its determination of the existence of financial exploitation and in using the term “conclusively establish” in considering whether the Applicant had been the subject of domestic violence during the marriage, the independent expert applied a higher standard than the Applicant was obliged to reach in seeking to satisfy the independent expert that the Applicant has suffered relevant domestic violence.
I have considered the submissions by counsel for the first respondent that one should read the independent expert’s decision where it refers to “conclusively determine” and “establish conclusively” as either, “concluding” or “determining” or “establishing”, rather than as being read together.
In my view, there must be some responsibility for the author of such an opinion for the language used. This is particularly so in circumstances where, in other parts of a relatively short opinion, the independent expert has used the standard only of “establish” rather than “establish conclusively”. To construe to “establish conclusively” as only meaning “establish” is not to read the words “establish conclusively” in a common sense way in context. The independent expert must be taken to have meant something different in using “establish conclusively” as opposed to the independent expert’s use of the bare verb “establish”.
In the circumstances, I am not satisfied that the use of such language by the independent expert can be excused on the grounds of looseness of language or approaching the consideration of the independent expert’s opinion with an eye keenly attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 and 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”)).
In Fang Wang v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] – [15] Allsop J referred to the High Court of Australia in Wu Shan Liang:
“14 Without wishing in any way to presume to put a gloss on what the High Court said, I think it is a fair summary of it to say that a beneficial construction should be given to the way Tribunals such as the Tribunal here express themselves, and a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying.
15 Beneficial construction does not mean that the words are construed as meaning something other than what they, in a plain and commonsense way, must be intended to mean. It is the combing through of the reasons with a finely attuned antenna for error that is impermissible.”
Accordingly, I am satisfied that the error by the independent expert in applying such a standard was not a proper exercise of the power conferred by the Regulations and therefore involved jurisdictional error. Counsel for the first respondent did not suggest that it would have been without error for the Tribunal to apply a standard that required a conclusive determination by it that the Applicant had suffered relevant domestic violence.
The duty of the independent expert was to give an opinion as to whether the Applicant had suffered relevant domestic violence in accordance with the definition of relevant domestic violence in Regulation 1.23(2)(b) of the Regulations. It went beyond that obligation in basing its conclusion that the Applicant had not suffered relevant domestic violence on its finding that the Applicant had not established “conclusively” that he had been a victim of relevant domestic violence.
In the circumstances, it was a jurisdictional error on the part of the Tribunal to accept the independent expert’s opinion as leading it to conclude that the Applicant had not suffered relevant domestic violence.
Ground 1(c) of the amended application is made out and the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for determination according to law.
The Court’s concerns about the independent expert’s opinion were put clearly to counsel for the first respondent and explored at hearing. Counsel for the first respondent did not suggest there was no utility in remitting the Tribunal’s decision for determination according to law or that the Court should exercise its discretion not to grant relief for any other reason.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 5 August 2011
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