MARTINAJ v Minister for Immigration - [2016] FCCA 217

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTINAJ v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 217

Catchwords:
MIGRATION – Application for judicial review – experts report – alleged bias in the expert – whether tribunal’s decision is unreasonable or illogical – whether tribunal improperly delegated its administrative responsibility – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Chava v Minister for Immigration and Border Protection [2014] FCA 313
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]
Minister forImmigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at 37
Re JRL; ex parte CJL (1986) HCA 39
SVBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 [44]

Applicant:

MARK MARTINAJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1390 of 2014

Judgment of:

Judge McGuire

Hearing date:

27 July 2015

Date of Last Submission:

27 July 2015

Delivered at:

Melbourne

Delivered on:

16 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr Gerkens

Solicitors for the Applicant:

FCG Legal Pty Ltd

Counsel for the Respondent:

Mr Brown

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application for judicial review be dismissed.
That the applicant pay the first respondent’s costs in a quantum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1390 of 2014

MARK MARTINAJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (as it then was) ("the Tribunal") made 6 June 2014 affirming a decision of the Minister's delegate not to grant the applicant a Partner (Temporary) (Class UK) visa ("the visa").

BACKGROUND

The applicant is a citizen of Albania. He met the visa sponsor in Greece in July 2009 whilst she was holidaying. The applicant arrived in Australia on 30 October 2009 as the holder of a student visa. The applicant and his sponsor commenced a de facto relationship upon his arrival in Australia and the applicant applied for the visa on 2 November 2010. On 28 March 2011 the sponsor advised the department that the relationship between her and the applicant had ended. On 19 April 2011 the applicant advised the department by letter that the breakdown of the relationship was due to domestic violence in the form of psychological abuse by the sponsor.
In July 2011 the applicant provided the department with his own statutory declaration in support of his application, together with statutory declarations from a psychologist and a medical practitioner. In September 2011 and in accordance with the legislation, the applicant's claims of domestic violence were referred to an independent expert for assessment. An interview with the applicant took place on 29 November 2011 and a report of the expert was furnished to the department on 8 February 2012. That opinion was contrary to the applicant's claim of domestic violence.
It followed that on 9 May 2012 the Minister's delegate refused the grant of the visa on the grounds that the applicant was not in a spousal relationship with the sponsor and did not meet the exemption criteria in respect of domestic violence. On 6 June 2012 the applicant applied to the Tribunal for a merits review on his application. The chronology then in relation to the proceedings before the Tribunal is both important and somewhat convoluted.
Firstly, the Tribunal noted that the relationship between the applicant and the sponsor had terminated and that a claim of domestic violence had been made. The Tribunal considered this claim at [29] – [34] of its reasons and not being satisfied that the applicant had suffered relevant family violence then sought the opinion of an independent expert psychologist. The applicant was further interviewed by the expert on 5 November 2013. That report was furnished on 18 December 2013 and advised contrary to the applicant's claim that he had suffered relevant family violence. A copy of that report was provided by the Tribunal to the applicant for comment on 20 December 2013.
The applicant's response (the applicant having the assistance of a representative) criticised the report and the process before the expert and, more specifically, that the expert was not independent and was biased. The response requested that the Tribunal refer the application for consideration by a separate expert. The Tribunal then sent the applicant's response to the initial expert, informing the expert that the member's review of the transcript (of the first interview) as provided by the applicant, did not cause the member to consider there to have been any bias or lack of independence. The Tribunal left consideration as to whether a fresh assessment by another expert was required to the psychologist.
Although counsel for the applicant suggests some ambiguity here, I am satisfied that the expert consulted with a senior colleague within the psychologist's practice where it was determined that the original expert could undertake further assessment on the applicant's response. The applicant was then advised that the material in his response had been referred to the independent expert for reconsideration. It is clear at this point that the applicant's representative contacted the psychology practice directly, urging assessment by a different expert.
Some clarification was given on 4 March 2014 when the Tribunal wrote to the applicant advising him that the member's review of the transcript, together with the responsive material, did not indicate that the expert "did not consider the information fairly",[1] but confirming that the Tribunal had provided the responsive information to the expert for consideration as to whether that expert's opinion would be changed. A further report was received from the independent expert on 23 April 2014 which indicated that the opinion was to remain unchanged.
[1] The First Respondent’s Outline of Submissions, filed 13 April 2015, para 26.
On 24 April 2014 the Tribunal referred the expert's latest opinion to the applicant for response. That response was received on 8 May 2014, including an assertion that the expert had been dismissive of the applicant's claims and that the expert's findings were at odds with the applicant's own psychological and medical evidence. A further hearing of the application was convened on 2 June 2014 and apparently in respect of the applicant's continuing claim that an assessment should be carried out by a different expert. Allegedly, it was at that hearing that the applicant disclosed that the moment he stepped into the room at the first interview with the independent expert, before the interpreter arrived, the independent expert said, "How can a man suffer family violence?" .[2]
[2] Ibid, para 31.
The applicant further alleged bias on the part of the expert, and that the expert was "shaking all over and angry"[3] after he had informed her that he did not think she was suitably qualified to make the assessment.
[3] Ibid.
The Tribunal rejected the allegations of bias [51] and the reasons at [52] – [53] state:
The Tribunal has come to the view that the complaints by the applicant and his representative, and Mr Kleynahns, about the opinion of the independent expert are not more than disagreements with the weight given to matters by the independent expert and the conclusion that she reached: that the applicant had not suffered relevant family violence; that he was not a victim of such conduct, whether actual or threatened, by the sponsor which caused him to reasonably fear for, or be apprehensive about, his own wellbeing or safety. The Tribunal does not consider that the information before I (sic) indicates bias, unfairness or any lack of competence on the part of the independent expert.[4]
[4] The First Respondent’s Outline of Submissions, filed 13 April 2015, para 33.
The chronology makes it clear that the applicant recorded (probably surreptitiously) the first interview with the expert, but alleges that the recording was not activated until the interpreter entered the room. The applicant attributes an initial comment or question by the expert in terms of, "Tell me how a man can suffer domestic violence?" to the expert prior to the commencement of the recording. It is clear that the Tribunal did not have the benefit of an audio of the interview but was provided, at the applicant's instigation and choice, with a copy of a transcript of that interview. The Tribunal references its acceptance and consideration of that transcript variously in its reasons.

THE APPLICATION TO THIS COURT

The applicant's amended application sets out the following grounds of complaint:
(i) Failure to afford procedural fairness
Particulars:
(a) When informed by the Applicant that the IE said to him before the first interview, “How can a man suffer family violence?" [CB 642, Para 45, lines 1-4], and that the IE was shaking all over, angry …" [CB 642, Para 47, lines 11 and 12], the Tribunal failed to have regard to the original evidence (ie, the voice record of the recording device) in relation to the first interview of the Applicant by the Independent Expert (“IE”), on 5 November 2013 and, in doing so, disabled itself from a full proper assessment of the IE's attitude to the Applicant in terms of voice timbre and general attitude [CB 644, Para 51, lines 1‑5];
(b) The Applicant clearly raised the issue of apprehended bias with the Tribunal [CB 642, Paragraph 45, lines 1–3] when he claimed that the IE made the observation to him prior to commencing the tape of his first interview with her, that she said to him, “how can a man suffer family violence?" The Applicant, having requested and strongly argued that the Tribunal seek a report from a different IE, the Tribunal first agreed to a report from a different IE and, thereafter, when advised that additional funding of the IE would be necessary, changed its mind and authorised the same IE to provide an additional Report [CB 570/573/574/575/577/578/582583/584].
(ii) Failure to take relevant considerations into account
Particulars:
(a) Given that the Tribunal acknowledges that the Applicant claimed that the IE said, “How can a man suffer family violence?" before the first interview, [CB 642, Para 45, lines 1 to 4], thereby clearly raising the issue of apprehended bias, the Tribunal had a duty to make a finding in relation to this very relevant consideration before re‑appointing the IE. No finding was made.
(iii) Illogicality and irrationality
Particulars:
(a) The Tribunal acknowledges [CB 642, Para 45 lines 1 to 4] that the Applicant claimed that, prior to commencing the first interview and before the Applicant activated the recording device, the IE said, “How can a man suffer family violence?" ; clearly raising the issue of apprehended bias. At CB 644, Para 51, line 1-2, the Tribunal asserts that it "”does not consider that the information before it indicates bias,…." . The information before it clearly “indicated" apprehended bias and needed to be considered and determined.
(iv) Apprehended bias
Particulars:
(a) The Applicant clearly raised the issue of apprehended bias with the Tribunal [CB 642 Para 45 Lines 1‑3] when he claimed that the IE made the observation to him prior to him commencing the tape of his first interview with her that she said to him: “how can a man suffer family violence”. The Tribunal failed to make a finding as to whether or not the alleged remark was made by the IE and, if so, whether it amounted to bias. On the face of it, apprehended bias clearly and reasonably existed in the mind of the Applicant.
The applicant's counsel extends his argument in written submissions provided to this court, noting that the Tribunal observed at the 2 June 2014 hearing that the applicant asserted that, at the first interview with the expert, that expert said, "How can a man suffer family violence?" and that the Tribunal acknowledges this being "a concern for the applicant." Those submissions continue that the Tribunal does not make an actual finding in respect to this particular claim of the applicant, other than stating:
The Tribunal does not consider that information before it indicates bias … on the part of the Independent Expert.
The submission emphasises that the Tribunal did not refer to the alleged remark itself, but rather substitutes the vague or generic words "information" and "indicates". It follows, on this argument, that the Tribunal failed to determine a claim of apprehended bias and/or that the Tribunal rejected the applicant's claim without giving reasons as required by the Migration Act 1958 (Cth) (“The Act”).
Under the heading of a denial of "procedural fairness" counsel for the applicant argues that questions relating to the disposition and attitude of the participants in the first interview with the independent expert were of prime importance in respect of the subsequent issue as to whether a second referral should be made to a different expert. In this sense, it is argued that the Tribunal was obliged to consider the "original" evidence being the audio recording rather than simply the transcript, as the latter does not demonstrate voice timbre, disposition and attitude.
Further, the applicant argues that whereas the decision as to whether a second assessment be conducted by a substitute expert was left to the psychology practice, this constituted an improper delegation of the Tribunal's own responsibility. He says that procedural fairness was therefore denied the applicant in that the Tribunal did not comply with the requirements of the legislation which allow the Tribunal itself to refer matters to an independent expert and that there is no power for the expert himself/herself to assess whether there is need for a substitute assessor.
The applicant argues that the Tribunal has a duty to engage in the claim made by the applicant, specifically whether the alleged comment of the expert being, "How can a man suffer family violence?" amounted to bias or apprehended bias. The Tribunal's reasons should demonstrate such engagement.
Further, counsel for the applicant refers the court to the decision of the High Court (Gummow and Hayne JJ) in Minister forImmigration and Multicultural Affairs v SGLB [2004] 207 ALR 12 at 37, where their Honours observed:
The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact" or criterion upon which the exercise of that authority is conditioned … The satisfaction of the criterion that the applicant is a non‑citizen towards whom Australia has the relevant protection obligations may include satisfaction of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.
Counsel also refers the court, properly in my view, to the well‑known decision of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135], where Crennan and Bell JJ observed:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The applicant here argues that the necessary satisfaction for the Tribunal referenced the jurisdictional fact as to whether the asserted remark, "How can a man suffer family violence?" was made by the expert, and if so, it raised the issue of bias or apprehended bias and required a finding to be made. If the only finding was a general remark that the Tribunal did not consider that: “The information before it indicates bias … on the part of the independent expert” a conclusion should be drawn that such a finding is illogical and/or irrational as the only information before the Tribunal actually did indicate bias or apprehended bias.
Finally, the applicant argues that the Tribunal itself raised the issue of bias/apprehended bias as a claim made by the applicant when it referenced the alleged assertion, "How can a man suffer family violence?" and at [47] the Tribunal's reasons disclosed:
The applicant said that the independent expert's style of questioning was not appropriate, and when the Tribunal said that did not come across from the transcript he provided, he said that it was different when you are face to face with a person. He said that the independent expert was shaking all over, angry, after he told her that he did not think she was qualified to make the assessment.
The applicant says that a claim of bias or apprehended bias was clearly made out, but not adequately dealt with by the Tribunal, such that its decision is invalidated.

RELEVANT LEGISLATION

In the circumstances of this application, it is helpful to set out the relevant statutory criteria for the grant of the visa, as provided in Part 820 of Schedule 2 of the Migration Regulations 1994 (Cth) (the ‘Regulations’). At clause 820.221 is the general criteria that the applicant be the spouse or de facto spouse of the sponsor, unless the relationship has ceased because the applicant suffered from family violence committed by the sponsor. Clause 820.221 (3) provides:
An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them; has suffered family violence committed by the sponsoring partner.
Regulation 1.23(10) provides that:
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.
Regulation 1.21 provides that "relevant family violence" includes:
…conduct, whether actual or threatened, towards the alleged victim that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

CONSIDERATION - Denial of procedural fairness.

The first particular argues that the Tribunal failed to have regard to the audio recording when considering the allegation of bias or apprehended bias. Taking the application at its highest or broadest, I will consider both actual and apprehended bias. In doing so I accept that the applicant carries a heavy onus to prove actual bias and that while such may be inferred from the facts and circumstances, caution must be exercised by a court in the absence of uncontroversial evidence in making such inference.[5] Similarly, a claim of apprehended bias in the sense of an informed lay observer apprehending impartiality, must be "firmly established”.[6]
[5]SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 [44]
[6] Re JRL; ex parte CJL (1986) HCA 39)

Significantly, in my view, the chronology set out above does not disclose that the applicant, in fact, gave the audio recording of the first interview to the Tribunal. I am satisfied that the applicant exercised a choice to furnish only a written transcript. I accept that the Tribunal is under no obligation to demand the audio in any inquisitorial sense and it is proper for the applicant to prosecute his own case and provide evidence in a form at his discretion. Notably, the applicant was represented by an agent who assisted in the adducing of evidence in support of the case. As such, any criticism of the Tribunal's process, actual or implied, is unsubstantiated. In this respect, counsel for the first respondent has alerted the court to a decision of Mortimer J in Chava v Minister for Immigration and Border Protection [2014] FCA 313.
If, as I accept, the court is to assess whether the Tribunal relied on a report infected with bias, I note that the Tribunal was armed with the transcript volunteered by the applicant, together with the two reports from the expert. The Tribunal references the applicant's later statement that the independent expert said, "How can a man suffer family violence?" and that the independent expert was "shaking all over, angry" after he told her that he did not think that she was qualified to make the assessment. It is then, in my view, the task of the Tribunal to weigh the evidence and make findings of fact. This includes the fact and context that the allegations were raised only after the expert had provided her second report and that any previous allegations of bias could be disposed of as being a simple complaint as to disagreement between the independent expert and the applicant's own experts. Such would not ordinarily give rise to a jurisdictional error, but rather argument as to merit.
Secondly, the applicant argues that the Tribunal erred in referring the matter back to the expert herself for determination as to whether a fresh report was required. The applicant argues that this is an improper delegation of the administrative responsibility of the Tribunal. In this respect, I accept the submission of counsel for the first respondent that neither the Act nor the Regulations prevent the Tribunal from seeking a second report. In my opinion, the Tribunal acted properly in affording procedural fairness to the applicant in seeking a second report, given the material raised only in the applicant's own response following the first report. I find no substance to the argument that the Tribunal abandoned its jurisdiction in effectively leaving it to the expert psychology firm to determine the author of the report. Further, the Tribunal noted that it did not find bias apparent on the basis of the transcript, being a point referenced to the independent expert in its referral for further assessment which, of course, is a finding of fact properly the domain of the Tribunal. The member was then armed with the second assessment from the expert, dismissive of any claim of bias. The applicant then argues that the Tribunal failed to take into account relevant considerations (grounds 2 and 4), being that the expert's report and process was infected with bias (either actual or apparent) on the basis of the comment, "How can a man suffer family violence?" and was "shaking all over, angry". The Tribunal was armed with the applicant's claims, albeit made late, together with the two reports and the transcript of the first interview. The chronology set out in detail above discloses the process of the Tribunal, and on the basis of that material, concluded at [51] that the said material did not reveal "a closed mind on the part of the independent expert". In this sense, I prefer that the applicant is taking issue with the determination of the Tribunal in the sense of seeking a merits review and the Tribunal's reasons do not disclose that the Tribunal erred by failing to consider the applicant's evidence.
Finally, the applicant argues that the Tribunal's findings are illogical and/or irrational, as the only information before the Tribunal points to bias or apprehended bias contrary to the Tribunal's findings, and where no other conclusion was open on the evidence. I reject this submission for the reasons set out above. Again, the Tribunal was armed with the two reports and the applicant's contentions of fact. The Tribunal's reasons at [45] and [47] make this abundantly clear. It is the task of the Tribunal to weigh the evidence, and the reasons demonstrate it doing so. The Tribunal was aware of the applicant's contention that the report be invalidated or vitiated for alleged bias. I am satisfied that the finding is one that was open to the Tribunal on consideration of the evidence, and that there is no lack of nexus between evidence and conclusion such as to impart it with illogicality or irrationality.

CONCLUSION

As such, I find no merit in any of the grounds of complaint, and the application will be dismissed with an order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 16 March 2016