Maman v Minister for Immigration
[2011] FMCA 426
•8 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAMAN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 426 |
| MIGRATION – Review of MRT decision – whether Tribunal breached s.362A of the Migration Act 1958 – where applicant applied for access to documents under s.362A – where letter adverse to applicant’s claim not provided – whether letter excluded by Privacy Act 1988 – whether s.362A is facultative or mandatory – whether breach of s.362A constitutes a failure to provide procedural fairness. MIGRATION – Review of MRT decision – procedural fairness – non-judicially determined claim of family violence – Migration Regulations 1994 reg.1.23 applied – where Tribunal not satisfied that applicant suffered relevant family violence – referral for opinion of independent expert under reg.1.23(10)(c)(i) – where letter from the former spouse/visa sponsor included in documents sent to expert – Procedures Advice Manual 3 Guidelines – whether failure to comply with Guidelines constitutes jurisdictional error – whether procedural fairness owed by expert – content of procedural fairness – whether expert required to assess whether letter was credible, relevant and significant – inferences – Tribunal’s consideration of expert report – whether Tribunal required to assess whether applicant received procedural fairness from expert – jurisdictional error. ADMINISTRATIVE LAW – Jurisdiction – privative clause decisions – s.476(2) of the Migration Act 1958 – whether review by Federal Magistrates Court is excluded – application of s.476(1) – review of privative clause decisions that are jurisdictionally flawed. |
| Migration Regulations 1994, reg.1.22, 1.23, 1.24 Migration Act 1958 (Cth), ss.474, 476, 357, 359A, 360, 362, 362A Privacy Act 1988, s.14 Wheat Marketing Act 1989 (Cth), s.57 Shorter Oxford English Dictionary European Convention on Human Rights (Art.5(4)) Judicial Review of Administrative Action, Aronson, Dyer and Groves, (4th ed., Thomson Reuters, 2009) |
| Minister for Immigration v SZKTI (2009) 238 CLR 489 SZMCD v Minister for Immigration (2009) 174 FCR 415 R (D) v Secretary of State for the Home Department [2003] 1 W.L.R. 1315 Kioa v West (1985) 159 CLR 550 Victorino v Minister for Immigration& Anor [2007] FMCA 1294 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 Margarula v Minister for Environment (1999) 92 FCR 35 Annetts v McCann (1990) 170 CLR 596 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 R v Panel on Takeovers and Mergers Ex p. Datafin Plc 1987 WL 492523 McClelland v Burning Palms Life Saving Club (2002) 191 ALR 759 Typing Centre of New South Wales v Toose (unreported, SC(NSW) Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 Harrison v Hearn [1972] 1 NSWLR 428 Bird v Campbelltown Schools Council [2007] NSWSC 1419 D'Souza v RANZCP [2005] VSC 161 Owen Pell Ltd v Bindi (London) Ltd 2008 WL 2148219 Australian Communist Party v Commonwealth (1951) 83 CLR 1 SieSok v Minister for Immigration (2008) 238 CLR 251 Minister for Immigration v & Citizenship v SZNAV [2009] FCAFC 109 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 |
| Applicant: | JIMMY MAMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2742 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 May 2011 |
| Date of Last Submission: | 4 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Cohen |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 19 November 2010.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2742 of 2010
| JIMMY MAMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Maman first entered Australia on 26 December 2003 as the holder of a tourist visa. In late August or early September 2004 he met Ms S with whom he commenced a relationship [there appears to be an inconsistency in the documentary evidence which indicates that Mr Maman first came to Australia in December 2003 and the reference to him entering Australia on 15 November 2004 found at [11] [CB 383] in the decision record. This discrepancy is irrelevant for the purposes of this decision]. The documentary evidence contained in the Court Book indicates that the relationship was volatile from the beginning but on 15 March 2005 Mr Maman proposed to Ms S and on 15 May 2005 they were married. Mr Maman applied for a sub-class 820 and 801 visa sponsored by his wife. The marriage appears to have had problems and by December 2005 Mr Maman had moved out of the matrimonial home. However, the parties continued in contact until some time between March and May 2006. On 3 March 2006 Ms S wrote a letter to DIAC advising of the termination of the relationship. In April 2007 the Department was informed that Mr Maman had been subjected to family violence by his partner and that consideration and processing of his Partner (Residence) (Class BS) visa should be considered under Cl.801.221(6)(b)(c) of Schedule 2 of the Migration Regulations 1994 (the “Regulations”). The evidentiary requirements for which are set out in Division 1.5 of the Regulations under reg.1.22 to reg.1.24. The relevant parts of those Regulations for the purposes of these proceedings are:
“reg.1.22(1)References to person having suffered or committed family violence
(1) A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
reg.1.23(1)When is a person taken to have suffered or committed family violence?
(1) For these Regulations, this regulation explains when:
(a) a person (the alleged victim ) is taken to have suffered family violence; and
(b) another person (the alleged perpetrator ) is taken to have committed family violence in relation to the alleged victim.
Note Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
Circumstances in which family violence is suffered and committed -- injunction under Family Law Act 1975
(9) For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse or de facto partner; or
(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c) the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(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.
(11) 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 satisfied under paragraph (10) (b) that the alleged victim has suffered relevant family violence.”
Regulation 1.24(1)(b) is also relevant:
“Evidence
(1) The evidence referred to in paragraph 1.23 (9) (c) is:
(b) a statutory declaration under regulation 1.25 together with 2 statutory declarations under regulation 1.26.”[1]
[1] At the time of decision these regulations were substantially identical but numbered: reg.1.22(1), reg.1.23(1), reg.1.23(1A), reg.1.23(1B), reg.1.23(1C) and reg.1.24(1)(b).
In Mr Maman’s case reg.1.24(1)(b) was complied with and the provisions of reg.1.23(10)(c) were invoked. Mr Maman’s claims were sent off to an independent expert, being a Centrelink senior social worker, by whom he was interviewed. The independent expert issued his opinion [CB 175-176] that Mr Maman had not suffered family violence. On 25 November 2009 the Department wrote to Mr Maman advising him that his application for Partner (Residence) sub-class 801 had been declined. Mr Maman then sought review of that decision from the Migration Review Tribunal. Throughout this process Mr Maman was represented and concerns were expressed to the Tribunal about the initial assessment by the independent expert. Mr Maman appeared before the Tribunal on 19 April 2010 to give evidence and present arguments and following that appearance the Tribunal determined to request a second assessment by an independent expert. On 19 October 2010 the second independent expert formed an opinion that the applicant was not a victim of family violence and a copy of that opinion was sent to Mr Maman pursuant to s.359A of the Migration Act 1958 (the “Act”). Mr Maman’s advisor wrote to the Tribunal concerning the opinion and requesting a new independent expert’s report. In particular that advisor complained that the letter written by Mr Maman’s spouse referred to in the report had not been put to him for comment. That request was not granted. On 19 November 2010 the Tribunal determined to affirm the delegate’s decision that Mr Maman had not been subject to relevant family violence and that his visa should be cancelled.
For the reasons which are given below I have come to the following conclusions concerning the applicant’s claims:
a)The independent expert was required to provide the applicant with procedural fairness in the steps leading to the preparation of her report.
b)Procedural fairness included assessing whether or not the letter from the applicant’s spouse provided to DIAC and dated 3 March 2006 was credible, relevant and significant to the decision to be made.
c)If the independent expert did so consider the letter, she was required to put its essential constituents to the applicant for his comment.
d)There is no evidence that either of these steps were taken and the court is unable to draw an inference that the first step was from the available material.
e)The Tribunal was required, in considering whether the report was “properly made”, to assess whether or not the applicant had received procedural fairness from the independent expert.
f)The Tribunal could have ameliorated the error by referring the complaint made by the applicant to the independent expert for comment or action. The independent expert could have commented that she had not considered the letter credible, relevant or significant if she had thought it so or she could have then taken into account the applicant’s comments upon it contained in his advisor’s submissions.
g)It was not for the Tribunal to make its own assessment of the letter because once it had referred the matter to the expert the Tribunal had no power to make a factual finding as to whether or not the applicant had suffered relevant family (domestic) violence.
h)The failure of the Tribunal to take into consideration the failure of the independent expert to provide procedural fairness meant that its finding that the report was ‘properly made’ was wrong in law. The matter should therefore be remitted.
i)I do not accept the other claims of jurisdictional error made by the applicant.
Discussion
It is important for the purposes of these proceedings to note that on 2 March 2010 Mr Maman had applied for access to documents under s.362A of the Act [CB 224 - 225]. The response to that request by the department was to provide certain information but to exclude other. In the department’s letter of 15 March 2010 [CB 247] the department says:
“Folios 217 and 218 on the DIAC file CLF2007/12345 are partially excluded and folios 145-149 are fully excluded from disclosure under section 14, Information Privacy Principle 11 of the Privacy Act 1988 as they contain information of a personal nature about a third party and the Tribunal is not satisfied that the specific person would be reasonably likely to have been aware that his or her personal information would be disclosed to you and the person has not yet consented to that information being disclosed to you. Edited versions of folios 217 and 218 have been released to you in which the information relating to other persons has been deleted.”
Thus, at the time of his interview with the second independent expert Mr Maman had no knowledge of the existence of the letter from his former spouse to the department dated 3 March 2006. The existence of this letter first came to his notice in a section of the second independent expert’s report that had been provided to him under cover of a s.359A letter sent by the Tribunal on 19 October 2010. The expert’s précis of the key points of the letter is found at [CB 341].
· “In June 2005 she had to go to Israel and a few weeks after her return the relationship had deteriorated rapidly. She explained that they were under a lot of financial pressure as they were living on her income even after Jimmy gained a working permit.
· She advised that Jimmy was bitter about being unemployed and became more and more dependant on her for financial support. They would be arguing every day about income and expenses and it became impossible to connect with him and the arguments became uglier and uglier.
· She advised that in November 2005 the relationship was ruined and when she raised the possibility of breaking up Jimmy agreed but on condition that his visa would not be cancelled.
· She alleged that Mr Maman scared her with violent threats and her fear of him grew.
· She alleged that he threatened her in regard to continuing her sponsorship of him.
· She alleged that she had to move out of her home as Mr Maman refused to move.”
Not surprisingly, Mr Maman’s migration agent responded strenuously to the s.359A letter and in particular upon the fact that his client had not been asked to comment upon the matters raised in the letter. The response, which is found at [CB 364 - 365] states, with formal parts omitted:
“The Independent Expert summarises the evidence provided and makes reference on the third last page to confidential information which apparently was provided to the Independent Expert by the Tribunal. We note that we previously sought access to the Tribunal’s records and that incomplete access was granted by letter dated 15 March 2010. Some folios of the Department and Tribunal file were excluded on the basis that the information was of a personal nature about a third party and that the Tribunal was not satisfied the specific person would be reasonably likely to have been aware that his or her personal information would be disclosed to our client, and has not yet consented to disclosure. The Tribunal nevertheless appears to have provided this information to the Independent Expert who has summarised “key points of a letter dated 3 March 2006 from the applicant’s former wife” which contains clearly prejudicial comments about the applicant. Our client has not had the opportunity of seeing this letter and therefore was not in a position to make comments on the Independent Expert based on that letter. Further, our client is unaware of the full terms of the letter and whether in fact there were any other documents on the file which were provided to the Independent Expert of which he had no knowledge and which could be prejudicial to his case in the mind of the Independent Expert.
Our client is therefore of the view that the Independent Expert’s opinion has been tainted by this process and that the Tribunal can have no confidence that it is a fair assessment free of bias towards him.
Secondly, our client notes that the Independent Expert has exhaustively listed all the information considered.
Our client, however, notes that the opinion expressed by the evidence fails to have regard to significant points claimed by the applicant as evidencing domestic violence, most significantly the issues of sleep deprivation and physical threats made against him and also threats that she made to call the Department of Immigration, which caused our client to develop a fear, depression and distress. Whilst the Independent Expert makes some adverse findings against our client, she fails to consider in making these findings all the evidence that was provided. The findings are cursory and to the extent that they fail to have regard to relevant information which was before her, in our submission further taint the opinion that has been provided.
In summary, it is our submission that the opinion of the Independent Expert should be disregarded by the Tribunal, having regard to the matters of concern summarised above. The Independent Expert has failed to properly discharge her statutory obligation and as a consequence, the expert opinion can not be relied on by the Tribunal.
We are instructed by our client to request the Tribunal therefore to disregard the totality of this opinion and to restart the process by referring the matter to another unbiased Independent Expert for a fresh and full assessment.”
On 1 November 2010 the Tribunal wrote to the migration agent informing him that the member requested that Mr Maman be advised that the Tribunal intended to proceed to a decision on or after 16 November 2010. The agent responded by sending to the Tribunal on that date a detailed statutory declaration of Mr Maman responding to the expert’s report, both factually and by way of submission. On 22 November 2010 the Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
In the Tribunal’s findings and reasons the Tribunal commenced by excluding all definitions of family violence other than that found in reg.1.23(9) and (10) (then reg.1.23(1)A(b)(ii)). The Tribunal found that the applicant’s statutory declaration and those in support by competent persons satisfied the relevant regulations and held that a non judicially determined claim of family violence had been made under the Regulations. It found that it could not be satisfied from the evidence originally supplied, including the original independent expert’s report, that the applicant had suffered relevant family violence and so it sought its own opinion of an independent expert and noted that expert’s conclusion that Mr Maman had not suffered relevant family violence:
“[31]The applicant has expressed a number of concerns with the opinion of the independent expert. He claims that the expert considered information which was not disclosed to him and with respect of which he was not given an opportunity to comment. He also claims that the independent expert failed to have regard to relevant material. The applicant claims that the Tribunal should disregard the opinion and engage in the process afresh. The Tribunal does not accept these submissions. The Tribunal is mindful of the fact that the delegate had previously referred the applicant’s claim to an independent expert who also formed the opinion that the applicant was not a victim of domestic violence. The second independent expert formed the same view following the referral by the Tribunal. The applicant’s aim appears to be that further opinions should be sought until such time as a favourable opinion is obtained.”
The Tribunal continued:
“[32]Regulation 1.23(1C) provides that the Minister (or the Tribunal on review) must take an independent expert’s opinion on whether the alleged victim has suffered relevant domestic violence as 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/family violence. Once the Tribunal has determined that the expert’s opinion was properly made, it is bound to accept it and find in accordance with it (Alameddine v MIAC [2010] FMCA 313 at [25])”
[33]While there has been little judicial consideration of the mechanism by which the independent expert provides an opinion, the Court has applied the authority which is applicable to assessing an expert opinion in matters involving opinions of Medical Officers of the Commonwealth (MOCS) in the context of the health criteria, holding that only an independent expert’s opinion which is ‘authorised by the Regulations’ must be taken as correct (see Silva v MIAC [2007] FMCA 1955 at [31] and Victorino v MIAC [2007] FMCA 1294 at [25]).”
At [34 and 35] [CB 387] the Tribunal indicated that it was satisfied that the advice of the independent expert constituted “an opinion” from a suitably qualified employee of a gazetted agency and that the independent expert had considered whether the applicant:
“was fearful or had any apprehension for his wellbeing or safety in accordance with the requirements of Reg.1.23(2)(b) (now found as Reg.1.21) as meaning:
“conduct, whether actual or threatened, towards:
(a) the alleged victim; or …
that causes the alleged victim to reasonably fear for, or be reasonably apprehensive about, his or her own wellbeing or safety.”
The Tribunal found that the opinion was authorised by the Regulations, that it properly related to “relevant domestic violence” and therefore:
“It was required to take as correct an independent expert’s opinion properly made about whether the alleged victim has suffered relevant domestic violence.” [35] [CB 387].
The applicant comes to this court seeking review of the Tribunal’s decision on the basis of an Amended Application filed with the applicant’s Outline of Submissions dated 23 April 2011. This document was prepared by the applicant’s current counsel. His previous counsel and solicitor (who was also his former migration agent) having ceased to act. Those legal advisors had prepared some submissions for the court which the applicant’s current counsel sought to incorporate with his own submissions. As the first set of legal advisor’s submissions were based on their application, which was superceded by the amended grounds of application, an additional complexity was added to the argument. The Amended Application is in the following form:
“1.The Tribunal’s decision was made in breach of the requirements of natural justice.
Particulars
(a)Neither the “independent expert” appointed pursuant to Migration Regulation 1.23(10(c)(i), nor the Tribunal informed that applicant of the contents of;
(i) A letter form the applicant’s former spouse, or
(ii) Information provided by the tribunal to the “independent expert” which was “kept confidential from the applicant:
both of which were before the “independent expert” prior to her making her report, and which were relied upon by her.
(b)The information in Particular 1(a)(i) and (ii) was credible, relevant and significant to the “independent expert’s” opinion.
(c)The Tribunal relied upon (and was required by Migration Regulation 1.23(10(c)(ii) to take as correct) the opinion of the “independent expert”.
2.The Tribunal erred in that it relied on an opinion of an “independent expert” which was legally flawed.
Particulars
(a)The “independent expert” in forming her opinion as to whether the applicant had suffered “family violence” failed to appreciate and consider the whole of the applicant’s case, that case being that emotionally abusive behaviour by Ms S resulted in psychological harm to the applicant.”
It will be clear from the extracted sections of the Findings and Reasons at [7] of this Judgment that the Tribunal only relied upon the expert opinion that it had commissioned and not upon the first expert’s opinion, although it noted that the second expert opinion came to the same conclusion as the first. So, to the extent that the amended grounds of application and submissions attempt to impugn the first expert’s opinion, I shall disregard them.
The hearing proceeded in a manner that I would describe, non pejoratively, as haphazard. Mr Cohen commenced by submitting that the Tribunal had been in breach of s.362A of the Act and that this constituted a jurisdictional error which infected the entire proceeding and should result in the matter being remitted. Section 362A is in the following form:
“Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).”
The applicant argued that he had applied for a copy of all material given or produced to the Tribunal and that included the letter from his former spouse to DIAC. He argued that the document could not be excluded by virtue of the provisions of the Privacy Act. I cannot accept this view because I believe that disclosure of the letter falls within Principle 11(1)(a) found in s.14 of the Privacy Act 1988:
“Limits on disclosure of personal information
1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;”
I accept the submission made by Ms Clegg on behalf of the respondent that Mr Maman’s spouse was not likely to have been aware that the letter was of a type that was usually passed to the visa applicant. Section 362A(2) is clearly intended to ensure that the provisions of the Privacy Act override the provisions of Principle 11(1)(d):
“The disclosure is required or authorised by or under law”
And so to my mind there has been no breach of s.362A in this particular case. Having made that finding I am not obliged to consider the applicant’s detailed argument or the respondent’s contention as to whether s.362A is merely facultative and thus its breach cannot be designated as jurisdictional error of a type requiring the remittal of a decision.
However, I would note that whilst the High Court considered in Minister for Immigration v SZKTI (2009) 238 CLR 489 submissions that a particular power was “… a general facultative power in aid of the inquisitorial functions of the RRT” and hence that no consequences flowed from not exercising the power at [499], and found that such submissions were correct at [500], the Full Bench made it clear in SZMCD v Minister for Immigration (2009) 174 FCR 415 at [74], that non-compliance with an obligatory provision would “very often amount to a jurisdictional error.” In this case the section invoked does not use the common mandatory “must” as opposed to the common discretionary “may”. It uses “entitled”.
The Shorter Oxford English Dictionary relevantly defines “entitle” as:
“entitle / ɪn’t ʌɪt (ə)l, ɛn-/ verb trans. Also ϯin-. LME.
4. Orig., give (a person) the title to an estate. Now (chiefly of circumstances, qualities, etc.), confer on (a person or thing) a rightful claim to something or a right to do. LME.”
In the context of the European Convention on Human Rights (Art.5(4)), the word “entitle” has been held to “[connote] an enforceable right”: R (D) v Secretary of State for the Home Department [2003] 1 W.L.R. 1315 at [1327].
Failure to accord the entitlement under s.362A may thus be a breach of the natural justice hearing rule defined in procedural fairness as required by Division 5 of the Act (see s.357A).
The applicant then argued that the Tribunal had itself breached the Privacy Act by giving the letter to the independent expert. It is unclear how this was being said to constitute a jurisdictional error in the conduct of the Tribunal. It would appear that in giving the letter to the expert the Tribunal may have been in breach of its own advisory Procedures Advice Manual 3 (‘PAM3’) Div. 1.5 of which states:
35.2 Only relevant information to be provided
Only information that is relevant to the family violence claim is to be sent to the independent expert, for example:
…
subject to the privacy considerations set out below, other information provided by the former sponsor that is relevant to the claim of family violence, for example:
letters written by the former sponsor to the department about the visa applicant’s/alleged victim’s claim
…
Officers are not to include information provided by, or about, the alleged perpetrator unless they have, in writing, authorised the department to do so.
35.4 Privacy obligations
Information Privacy Principle 11 prohibits disclosure of personal information to third parties subject to certain exceptions which are set out in IPP 11 (1) (a)–(e). The exceptions to the basic rule of non-disclosure include when the individual concerned either is reasonably likely to be aware or has consented to the disclosure (IPP 11(1)(a) or (b) respectively).
Officers are not to provide any information or documentation given by, or about, the alleged perpetrator or other third parties to an independent expert unless:
the person in question has authorised the department in writing to do so or
it is clear that the person in question is already aware of the applicant’s claim of family violence.”
The letter in question was written by the sponsor before Mr Maman made his claim of family violence, so it is not a letter written by the former sponsor “about the applicant’s claim”. It is information provided “by the alleged perpetrator” which the “perpetrator” has not given permission to disclose. The content of the PAM3 was not a matter raised at hearing and so I will content myself with indicating that a failure to comply with a PAM3 does not constitute a jurisdictional error: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 per Gray J (at [45]); Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 per Weingberg J; Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 per Ryan J.
In El Ess Gray J opined,
“In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28] — [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] — [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.”
The argument put most strongly by Mr Cohen was that the action of the Tribunal in sending the letter to the independent expert without allowing it to be shown to the applicant constituted a breach of natural justice on the part of the Tribunal and/or a consideration of the letter by the independent expert constituted a breach of natural justice on her part when she failed to ask the applicant to comment upon the letter. This tainted the decision of the independent expert so that the Tribunal wrongly came to the conclusion that the report was “properly obtained.” The letter brought the applicant’s bona fides into question by indicating an ulterior motive for the relationship, it attacked his credit by providing an account of circumstances within the relationship inconsistent with those provided by the applicant and made an allegation of violent threats by the applicant against the writer. This made the letter credible, relevant and significant to the expert’s opinion, Kioa v West (1985) 159 CLR 550. At [629] of Kioa v West, Brennan J held:
“…in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
The respondent counters these submissions in a number of ways. Firstly, the Minister submits that the independent expert is not party to the proceedings and no relief is sought against her. There is no obligation to provide the applicant with natural justice on the part of the independent expert. The Minister supports that contention by reference to the views of Reithmuller FM in Victorino v Minister for Immigration& Anor [2007] FMCA 1294 at [15 – 21]. My reading of those paragraphs is that they are a discussion of the nature of the independent expert’s report in the context of the hearing rule found in s.360 of the Act. His Honour concluded that an administrative decision maker was entitled within the context of a hearing to take into account an expert’s opinion obtained as part of the process. At [16] his Honour said:
“[16]To the extent that the process moves away from a hearing and fact finding by the Tribunal member in a form similar to that of a court is not, of itself, a matter that demonstrates invalidity of the provision. Judicial process is not fundamentally suited to all functions in an effective government structure…
[17] Similarly the requirements for procedural fairness vary depending upon the context of the case: as Brennan J said in Kioa v West[1985] HCA 81; (1985) 159 CLR 550:
[19] ... “It must therefore be accepted, as one commentator points out (G. Johnson "Natural Justice and Legitimate Expectation in Australia" [1985] FedLawRw 2; (1985) 15 Federal Law Review 39, at p.71), that "the contents of natural justice range from a full-blown trial into nothingness".”
If his Honour was not opining directly upon a procedural fairness requirement in the report of the independent expert he did note at [18]:
“Whether the currently accepted principles of procedural fairness derive from the common law, or are implied in the terms of the statute (see Kioa v West supra per Mason J at [31] and Brennan J at [19] respectively) it appears to be accepted that Parliament can legislate so as to exclude the implied or common law procedural fairness rules.”
This is what has occurred in the Act where a code of procedural fairness is promulgated in Part 5 Division 5 of the Act commencing at s.357A which states:
“Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
The applicant has not argued in these proceedings that the independent expert was bound by this division, he argues that the expert was bound by the common law principles of procedural fairness derived from Kioa v West. Neither the applicant’s current nor former representative indicated in their written submissions what was the provenance of the obligation to provide procedural fairness.
That procedural fairness is owed stems from my view that the independent expert is a decision-maker for the purpose of s.474 of the Act. That section, which falls under the privative clause division of the Act provides as follows:
“Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
[…]
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;”
In my view, the independent expert made (and was required to make) a decision of an administrative character under the Regulations. It was, at least, an inquiry constituting conduct preparatory to the making of a decision.
This court’s jurisdiction in relation to the Act is found at s.476 which states as follows:
Jurisdiction of the Federal Magistrates Court
(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975 .
(4) In this section:
"primary decision" means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period
The independent expert’s decision would ordinarily fall under the exclusion at s.476(2). However, s.476(1) operates to give the Federal Magistrates Court the same original jurisdiction in migration matters as does the High court under paragraph 75(v) of the Constitution. The High Court has held that the privative clause in question does not operate to oust review of privative clause decisions that are jurisdictionally flawed for the reason that they are not made under the Act and are hence not decisions: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. At [506] of that judgment the High Court opined:
“Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression ``decision[s] . . . made under this Act'' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is ``regarded, in law, as no decision at all'' (107). Thus, if there has been jurisdictional error because, for example, of a failure to discharge ``imperative duties'' (108) or to observe ``inviolable limitations or restraints'' (109), the decision in question cannot properly be described in the terms used in s 474(2) as ``a decision . . . made under this Act'' and is, thus, not a ``privative clause decision'' as defined in s 474(2) and (3) of the Act (110).”
In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 the High Court unanimously found that both the inquiries of officers of the Department of Immigration and Citizenship, in making what are referred to as “Refugee Status Assessments”, and the inquiries of an independent body contracted to make so called “Independent Merits Reviews” of the Department’s decisions, were subject to the requirements of procedural fairness. It was held (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [73]) that:
“[…] the inquiries undertaken in making a Refugee Status Assessment, and any subsequent Independent Merits Review, were inquiries made after a decision to consider exercising the relevant powers and for the purposes of informing the Minister of matters that were relevant to the decision whether to exercise one of those powers in favour of a claimant. Those being the circumstances in which the inquiries were conducted, it is not necessary to examine the submissions advanced on behalf of Plaintiff M69 and the Commonwealth and the Minister about whether exercise of non-statutory executive power is or may be limited by a requirement to afford procedural fairness. Rather, the inquiries having the particular statutory foundations that have been identified, the principles that govern what limits there are to the way in which the assessment and any subsequent review are conducted are well established.”
The independent expert’s role in the present case, in making an assessment as to whether or not the applicant had suffered family violence, equally constituted inquiries for the purpose of informing the Minister of matters that were relevant to the decision whether to exercise a power in favour of a claimant. Unlike in M61, however, in the present case the Minister was required by the statute to take the independent expert’s opinion as correct. This only strengthens the need for procedural fairness to be applied during the review. In the case of M61, the court made clear that the actual power to decide to grant or refuse refugee status was vested in the Minister (at [50]) notwithstanding that it had been argued by the applicant that a positive finding by the contracted bodies always led to the granting of the relevant visa by the Minister (at [62]).
In M61 the Commonwealth and the Minister argued that the decision of the independent bodies could not be taken to be a decision under the AD(JR) Act (at [68]). In support of this they relied on the Federal Court’s findings in Margarula v Minister for Environment (1999) 92 FCR 35, which restricted the application of the AD(JR) Act to “conduct of the relevant decision maker”. They argued that the relevant decision maker was the Minister and did not extend to the departmental enquiries carried out by the independent bodies. In Magarula it was found that conduct carried out by a Minster for the purpose of the making of a decision by another Minister was not reviewable under the AD(JR) Act at [31] per Sundberg J.
The High Court found it unnecessary to consider the aptness of the analogy and found that at [69]:
“What is presently important is that what the Department did, in conducting assessments and obtaining reviews, was done in consequence of a ministerial decision that those steps be taken. In requiring those steps to be taken, the Minister did not seek to (and did not) delegate any power.”
The conclusion the Court drew from that finding is seen in the citation from M61 at [73], above at [22].
The Court continued at [74], referring to Annetts v McCann (1990) 170 CLR 596 (at 598 per Mason CJ, Deane and McHugh JJ) to state that:
“[…] it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power”
The Court found that the Minister’s decision in that case affected “the rights and interests of those who were the subject of assessment or review” in that the decision concerned led to prolonged deprivation of liberty at [76]. It concluded at [77] that:
“… once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions.”
The present case is not dissimilar in that an applicant who is found to have not suffered family violence is deprived of their visa and hence of their right to remain in Australia. It follows that procedural fairness should have been accorded to the applicant in the present case.
It should be noted that the above conclusion is, to a degree, a departure from the reasoning in NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277. In the facts of that case, the AWBI, an incorporated private sector company (incorporated under Corporations Law (Vic)), had to give its consent to the Wheat Export Authority (an independent statutory body), in order for that authority to consent to the export of wheat from Australia. This structure was found in the legislation governing the export of wheat, Wheat Marketing Act 1989 (Cth). Relevantly, s.57 of that Act contained the following provisions (where “company B” was AWBI):
“Control of export of wheat
(1) A person shall not export wheat unless:
(a) the [Wheat Export] Authority has given its written consent to the export of the wheat; and
(b) the export of the wheat is in accordance with the terms of that consent.
(3A)Before giving a consent, the Authority must consult nominated company B.
(3B)The Authority must not give a bulk-export consent without the prior approval in writing of nominated company B. For this purpose a consent is a bulk-export consent unless it is limited to export in bags or containers.”
Although these provisions, in terms of their function, seem strikingly similar to those in the present case, the High Court found that AWBI’s opinion was not a decision made under the Wheat Marketing Act but rather its power to make that opinion derived from the Corporations Law.
Importantly for present purposes though, their Honours found (per McHugh, Hayne and Callinan JJ) that at [297]:
“… At its most general this presents the question whether public law remedies may be granted against private bodies. More particularly, do public law remedies lie where AWBI fulfils the role which it plays under the 1989 Act?
We would answer this second, more particular question, ‘‘No’’. That answer depends in important respects upon the particular structure of the legislation in question. It is not to be understood as an answer to the more general question we identified.”
This was so as according to their Honours [at 298]:
“Unlike the Authority, AWBI needed no statutory power to give it capacity to provide an approval in writing. As a company, AWBI had power to create such a document. No doubt the production of such a document was given statutory significance by s 57(3B) but that subsection did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision, and to express it in writing, derived from AWBI's incorporation and the applicable companies legislation. Unlike a statutory corporation, or an office holder such as a Minister, it was neither necessary nor appropriate to read s 57(3B) as impliedly conferring those powers on AWBI.”
As such, their honours concluded, in the majority, that the consent given was not a decision under an enactment for the purposes of the AD(JR) Act [at 298] and they left open the question as to whether public law remedies may be granted against private bodies in other circumstances.
The present case, however, is more akin to that of M61. The power of the independent expert to come to her opinion derives from the Regulations, which require that an opinion be sought and also define who will be considered to be an appropriate independent expert. The final decision being made is that of the Minister, and not of an independent authority as in the case of NEAT Domestic. Consequently, the opinion can be seen to be a decision made under the Act for the purposes of s.474 and reviewable by this court by virtue of s.476.
Although I have come to this conclusion, it is nevertheless worthwhile exploring another avenue by which the duty to accord procedural fairness may be found. That is the proposition that the independent expert was in effect acting as an agent of the Minister. This is a line of inquiry which the High Court declined to consider in M61, stating, as seen above, that it was “not necessary to examine … whether exercise of non-statutory executive power is or may be limited by a requirement to afford procedural fairness” at [73].
The proposition has for its source the findings in R v Panel on Takeovers and Mergers Ex p. Datafin Plc 1987 WL 492523 (henceforth, ‘Datafin’), where Lloyd LJ concluded:
“I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock's speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: see Reg. v National Joint Council for the Craft of Dental Technicians (Disputes Committee), Ex parte Neate [1953] 1 Q.B. 704.
But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr. Lever submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to "public law" in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.”
As Aronson, Dyer and Groves point out in Judicial Review of Administrative Action (4th ed., Thomson Reuters, 2009 ) this can be seen as an extension of judicial review into the private sector exercise of statutory powers, or, in other words, where a private body performs public functions [at 135]. They also note that the High Court has “studiously avoided the issue” [at 146]. However, they do suggest that Datafin has found some footing in Australian Courts, pointing in particular to McClelland v Burning Palms Life Saving Club (2002) 191 ALR 759. In that case, the Supreme Court of New South Wales Campbell J held at [81] that:
“…it is now established that a duty to accord natural justice can be owed by a decision-maker whose authority does not derive from legislation — and hence, the source of the obligation to accord natural justice is, at least in those cases, not to be found by a process of statutory construction which implies into legislation a duty to act in accord with natural justice.”
And, in referring to Datafin, stated that “various private bodies which exercise powers of public significance have been held to be bodies the courts can supervise by issuing prerogative orders” at [81].
The Supreme Court went on to examine various situations in which such judicial review was appropriate, such as an Advertising Standards Council; Typing Centre of New South Wales v Toose unreported, SC(NSW), 15 December 1988; the Tasmanian Racing and Gaming Commission (which was a statutory authority but did not have statutory powers) Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487; and a student wishing to restrain expenditure of money by a students’ council even though he was not a member of the council nor in a contractual relationship with it; Harrison v Hearn [1972] 1 NSWLR 428. It is interesting to note that Kirby J’s dissent in NEAT Domestic Trading Pty Ltd v AWB Ltd also referred positively to Datafin [at 313].
In any case, in McClelland it was made clear that when this avenue for judicial review was open to an applicant could only be decided on a case by case basis. Campbell J held at [113]:
“…It is a fact of life that a decision of a private tribunal can affect people who are not members, or people who are not bound by contract to observe the decision — and the existence of the private body and of the decisions of its tribunal is a reality which affects people other than by force of a contract with the body. If the body has practical power to affect a plaintiff in a sufficiently serious way, it would be for the courts to recognise in which situations the nature of affectation of the interests of the plaintiff is sufficient to confer standing.”
So in the case of Bird v Campbelltown Schools Council [2007] NSWSC 1419 (henceforth, ‘Bird’), although the above doctrine from Datafin was cited positively at [22ii], the court found at [23] per Einstein J that:
“… merely because a non-government school has some public aspects or some funding or is registered under an Education Act does not make it a body carrying out a public function and therefore amenable to judicial review”
This supported the earlier finding by Einstein J at [11iv] that:
“as the Headmaster does not act in a quasi-judicial capacity, and the functions he discharges are not public or governmental in nature, certiori is not available…”
And at [11x] that:
“Where the source of power is contractual, the decision is not subject to judicial review: Whitehead v Griffith University [2003] 1 Qd R 220 at [14]. At [15] Chesterman J said:
“Applying this principle I cannot see that the respondent was in any way exercising any of the powers or functions of government in acting to censure the applicant and to revoke the earlier decision to constitute a Misconduct Panel. It was exercising powers conferred by the contract of employment between the parties …”
The underpinning of the reasoning in Bird was that the relationship between the parties was in contract law as opposed to public law. Similar findings have been made in relation to a psychologist’s college that would not admit an applicant as a psychologist, D'Souza v RANZCP [2005] VSC 161, where reference was made both to Datafin and to Kirby J’s acceptance in NEAT Domestic of “the role of Datafin in the middle ground” at [111]. Likewise, in relation to construction disputes where an independent arbitrator has been contractually appointed by the parties to finally determine their dispute and where procedural fairness is not included in that contract, it has been found that the arbitrator does not owe procedural fairness: Owen Pell Ltd v Bindi (London) Ltd 2008 WL 2148219.
However, the case at hand is distinguishable from those cases, and falls clearly within the Datafin doctrine as to when a private body will be susceptible to judicial review. As seen above, in the case of the independent expert, the source of the power was statutory, being the Regulations and through those the Act. But not only was the source of the power statutory, and not contractual, its nature implies that judicial review should be available for its exercise. Indeed, the independent expert, was performing a function which had public law consequences as a result of reg. 1.23(1)(10)(c) of the Regulations. In response to the finding in Whitehead v Griffith University (cited in Bird), the independent expert was completing a task necessary for the carrying-on of government power, which would otherwise have been a function of government. Finally it had clear public law consequences, being the imputed cancellation of the applicant’s visa.
A final consideration of some interest is the injunction at reg.1.23(10)(c)(i) that if the Minister is not satisfied that the applicant has suffered domestic violence the Minister must refer the matter to an independent reviewer. Furthermore, the opinion of the independent expert must be taken as correct by the Minister, unlike both M61 and Bird but like NEAT Domestic. As such, the independent expert is placed in at least a quasi-judicial position. This situation also raises the possibility that the independent expert is effectively an officer of the Commonwealth – a line of inquiry that the High Court also avoided in M61 where the court held at [50 - 51] that:
“…As noted above, the only function of the reviewer was to make a recommendation about whether protection obligations were owed. Any decision to permit the making of an application for a visa or to grant a visa would be made by the Minister. Any decision to remove a claimant would be made by a departmental officer.
It may be accepted, for the purposes of the present matters, that neither the contractor, nor any of the specified persons engaged by the contractor to perform the services it had agreed to provide, is an officer of the Commonwealth. More particularly, it may be accepted that the reviewers who are named as defendants in these matters are not officers of the Commonwealth. Accepting that to be so does not determine, however, whether relief of the kind sought by either plaintiff can now be granted. Rather, the observation that those who conducted the independent reviews are assumed not to be officers of the Commonwealth could determine only that a claim for mandamus, prohibition or injunction against those persons would not, standing alone, found the original jurisdiction of this Court under s 75(v) of the Constitution. In these particular matters, the jurisdiction of the Court is found in s 75(iii) (as matters in which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party), s 75(v) (as matters in which mandamus and injunction are sought against the Minister and either a departmental officer or the Secretary of the Department - all officers of the Commonwealth) and even, perhaps, s 75(i) (as matters arising under any treaty - the Refugees Convention and the Refugees Protocol). Accordingly, it is appropriate to leave, for another day, the question whether a party identified as "an independent contractor" nevertheless may fall within the expression "an officer of the Commonwealth" in s 75(v) in circumstances where some aspect of the exercise of statutory or executive authority of the Commonwealth has been "contracted out".” (emphasis added)
It seems to me that in the instant case this debate is not necessary. The independent expert was a senior officer of Centrelink and as such an officer of the Commonwealth. But if it is argued that the expert is conducting her enquiry in some truly “independent” guise then I am of the view that she is still covered by the obligation in the same way that the merits reviewers were covered in the opinion of the High Court in M61 at [50 - 51].
If it were to be found, contrary to the view expressed above, that the independent expert did not owe a duty of procedural fairness to the applicant, the court’s constitutional role could be said to have been supplanted by the executive. This situation might render reg.1.23(1)(10)(c) of the Regulations invalid, as in the Australian Communist Party v Commonwealth (1951) 83 CLR 1. However, this line of argument was not led, preventing the court from investigating that interesting question further.
It appears to be accepted by both parties that Division 5 of the Act did not apply to the independent expert but only to the Tribunal. The effect of a failure to provide natural justice on the part of the independent expert is, to my mind, to invalidate the report to the extent that the Tribunal could find that it was not a report “properly made”. But this is not an inevitable conclusion. The first thing the Tribunal should have done was to consider whether the independent expert had made an assessment as to whether the information contained in the letter was indeed credible relevant and significant to the decision. If it was satisfied that this had been done then it should have so opined in its own decision. If it was not so satisfied it should have corrected the error by referring the submission of Mr Bitel and the applicant’s statutory declaration back to the independent expert for consideration.
At hearing, Ms Clegg for the Minister, argued that there is no reference to the letter in the opinion found at [CB 361 – 362]. She argued that the essential element of the decision was the lack of evidence of any fear or apprehension for the applicant’s safety and wellbeing whilst he was in the relationship. That may well be. But a decision as to the credibility etc of the information is not a matter for the Tribunal. It goes directly to the question the expert had to answer. The Tribunal was required to accept her answer provided it was in a report ‘properly made’.
Whilst it might be possible to infer from the way the expert’s report was written she did not consider the spouse’s letter to have been relevant to her decision I do not think it would be an inference that could be properly drawn.
In Gama v Qantas Airways Limited (No.2) [2006] FMCA 1767, I discussed the general law relating to inferences in some depth. I stated at [7] that,
“An inference may only be reasonably drawn upon the basis of facts which have been established by the applicant in evidence such that “it is more probable that it exists than that it does not”: per Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301. Where an applicant claims an inference should be drawn:
There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture …”
I further stated at [9] that,
“An inference will be a ‘matter of conjecture’ where the circumstances give rise to “conflicting inferences of equal probability”: Richards Evans & Co Ltd v Astley [1911] AC 674 as per Lord Robson at [687].”
I also noted that Lord Robson’s comments had been approved in Luxton v Vines (1952) 85 CLR 352, which in turn had been approved in Nominal Defendants v Owens (1978-79) 22 ALR 128 (per Muirhead J); Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; and Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133.
In the instant case, the independent expert possessed the letter in question and at [CB 361] indicated that she “had relied upon all information referred from MRT to Centrelink…outlined in section B16 of this report”. The précis of the letter was included in that section [CB 341]. There is nothing to suggest that the independent expert did not find it relevant to making of her opinion. It is not proper to conclude that it is “more probable than not” that the she did not consider the letter to be relevant to her decision. The opposite inference, that she did find the letter relevant, is of equal probability.
The applicant argues that the belated disclosure by the Tribunal in the context of the s.359A letter of the previously undisclosed information did not repair the damage in itself because the Tribunal was under an obligation to accept the independent expert’s opinion and that opinion would not change unless the response was referred back to her. There is some considerable force in that argument because the jurisdictional fact upon which the whole application depended “was the applicant a victim of family violence” was here not one to be decided by the Tribunal but by the independent expert. What seems to have happened in the instant case is that the Tribunal took the representations into account as if it had made the finding upon the jurisdictional fact and dismissed them on the basis that they were contrary to findings that had already been made.
One matter that was not the subject of argument in this case arises from a reading of a decision of the High Court in SieSok v Minister for Immigration (2008) 238 CLR 251 where the court; Gummow, Hayne, Heyden and Kieifel JJ held that it was an essential part of the Tribunal’s decision making process to decide, following a hearing pursuant to s.360, whether it considered the alleged victim suffered relevant family violence. It is only after hearing the applicant and considering the evidence provided by him that the next step should be taken. If the Tribunal concludes that the applicant did suffer family violence then it will proceed to determine the review and if it concludes that he did not it must refer that question to the independent expert. This is what occurred in the instant case. The question that was not put and the error which was not considered was whether the Tribunal was bound by s.359A at that stage to require the applicant to comment upon the letter from the spouse which was in the Tribunal’s possession. The Tribunal presumably believed that it was not bound by s.359A in respect of this preliminary decision. It may be that the correct position is that the dicta of the High Court in Sie Sok is restricted to the particular facts of that case where no claim of family violence had been made to the delegate and that the obligation upon a Tribunal to consider the matter and make a reference if it is not satisfied is somehow outside the scope of the sections, rather as the Full Bench of the Federal Court found in Minister for Immigration v & Citizenship v SZNAV [2009] FCAFC 109. But if that is correct it would appear to be contrary to the intention to provide a merits review of the delegate’s decision and would:
“Reduce the hearing required by s.360 to an opportunity to comment on whether the opinion obtained met the statutory criteria. It would deny any operation for the section in respect of an in issue arising in relation to the decision under review that will often be an issue of critical importance to the fate of review.” Sie Sok at [40]
As the matter was not argued I do not propose to make findings upon it in this proceeding.
As things stand with this application, I believe that the letter could have been considered credible, relevant and significant. I have seen nothing in the expert’s opinion, which made specific reference to the letter, that indicates she gave consideration to whether this was so. I am not prepared to draw the inference that by not mentioning such consideration she believed it was not of some import. I would find that she failed to provide the applicant with procedural fairness by not drawing the letter to the applicant’s attention and inviting him to comment upon it. I also find that the Tribunal, having been made aware of the expert’s possible failure, was under a duty itself to consider whether the expert had made the assessment and articulate its views. The Tribunal failed to take that step. As a consequence, I believe that it failed to give the appropriate consideration as to whether the report was properly made and thus fell into jurisdictional error.
The second ground of the amended application claims that the Tribunal made a jurisdictional error in:
“Adopting the independent expert opinion in circumstances where both reports:
1. Contained errors of law;
2. Took into account irrelevant considerations;
3. Were manifestly unreasonable;
4. Did not give the applicant’s case proper consideration;
5. Did not take into account relevant evidence of the applicant;
6. Did not provide adequate reasons.”
There seem to be some further particulars of that allegation which are:
“1.Both reports not addressing or dealing with allegations of family violence in the applicant’s statutory declaration dated 24 August 2007 contained inter alia paragraph 18, 19, 20, 21, 22, 23, 24, 35, 36, 45, 46, 47, 48, 50, 51, 60, 61, 63, 97, 100, 104 thereby not taking into account relevant material.
2.Assessing reports of Dr Buchman and Dr Rutherford in way that is unreasonable.
3.Both reports not dealing with the evidence before it in its entirety or considering the overall nature of the case, therefore containing inherent unreasonableness.
4.Coming to conclusions that are unreasonable in all the circumstances.”
The gravamen of the ground as articulated by Mr Cohen at the hearing was that the applicant in his written documentation (and possibly at interview, although we do not have transcripts) provided the independent expert with instances of what he claimed were actual acts of family violence that found support in the opinions of his witnesses. These, he argues must have been ignored by the expert because she made a positive finding that Mr Maman had not been the subject of family violence. The difficulty that I have in dealing with this type of submission 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 [9] [CB 337]. One of the complaints made most stridently by Mr Cohen was that Mr Maman’s spouse subjected him to sleep deprivation torture. This was also considered by the expert. At [CB 338] the expert notes:
“Mr Maman has responded to the previous expert’s decision. Mr Maman’s statement outlines claims that he was a victim of domestic violence and outline instances where Ms S allegedly harmed him physically and psychologically.”
I am quite satisfied from these references that the claims made by Mr Maman and on his behalf by his experts Dr Buckman and Dr Rutherford were properly considered by the independent expert and that 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. Apart from the failure to take up with the applicant the issues raised in the letter from his former spouse there is nothing on the face of the document which indicates that the independent expert acted otherwise than in accordance with the Regulations.
In the circumstances I am of the view that the applicant is entitled to the relief sought in Orders 1 and 2 of the Amended Application. The respondent shall pay the Applicant’s costs which I assess in the sum of $5,000.00.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 8 June 2011
11
26
7