Mijalkov v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 999
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mijalkov v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 999
File number: PEG 45 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 3 November 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant partner visa – whether Tribunal failed to sufficiently consider applicant’s non-judicially determined claim of family violence before referring matter to independent expert – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 368, 376, 476
Migration Regulations 1994 (Cth) regs 1.21, 1.23, 1.24,
Sch 2 cl 100.221
Cases cited: ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52
Hadchity v Minister for Immigration & Citizenship (2010) 114 ALD 99; [2010] FCA 144
Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98
Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 17 October 2023 Place: Perth Counsel for the Applicant: Mr HW Glenister Solicitor for the Applicant: Morris, Alexander & Nelson Barristers and Solicitors Counsel for the First Respondent: Mr C Beetham Second Respondent: Submitting appearance save as to costs. Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 45 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIN MIJALKOV
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a partner visa applicant whose relationship ended before the Minister made any decision as to whether to grant him a Partner (Migrant) (Class BC) (subclass 100) visa (partner visa). A delegate of the Minister decided not to grant him a partner visa and he then sought review by the Administrative Appeals Tribunal. Before the Tribunal, the applicant raised a non-judicially determined claim of family violence. The Tribunal affirmed the delegate’s decision and the applicant now seeks judicial review of the Tribunal decision. The application is made under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises one ground of application alleging that the Tribunal made a jurisdictional error by failing to consider his non-judicially determined claim of family violence.
For the reasons explained below, I have found that the Tribunal decision is not affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND DECISIONS
The relevant factual background to this matter is comprehensively and accurately set out in the applicant’s submissions and largely agreed by the Minister. I respectfully adopt that background, with minor modifications.
The applicant was born in present day Macedonia.
On 5 January 2017 the applicant married Zaklina Mijalkova (the sponsor), who is an Australian citizen. On 29 June 2017 the applicant applied for a partner visa sponsored by the sponsor.
On 19 February 2018 the applicant was granted a Partner (Provisional) (Class UF) (subclass 309) visa. On 1 March 2018 the applicant arrived in Australia.
On 18 August 2019 the applicant’s relationship with the sponsor ended and on 21 August 2019 the sponsor withdrew her sponsorship of the applicant’s partner visa application by email to the Minister’s Department. On 26 August 2019 the applicant separately informed the Minister’s Department that his relationship with the sponsor had ended.
On 9 September 2019 the Minister’s Department sent to the applicant an invitation to comment on adverse information, namely, that his relationship with the sponsor had ceased.
On 3 October 2019 the Department received an email from Emerson Munro, a family dispute resolution practitioner, who claimed that the applicant had sought her assistance and had been subject to ‘debilitating psychological and emotional abuse’ from the sponsor.
On 7 October 2019 the applicant provided to the Department a response to the invitation to comment, in which he claimed he had been the victim of psychological and emotional abuse by the sponsor.
On 13 December 2019 the Department requested more information from the applicant and gave him 28 days to comply with the request.
On 22 January 2020 Ms Munro emailed the Department requesting an extension of time to provide documents in support of the applicant’s visa application. Ms Munro stated that the sponsor refused to provide the applicant with access to the original ‘Immi account’. Her email attached a letter from the applicant in support of his request for an extension of time. In this letter, amongst other things, the applicant indicated that the sponsor had made a General Procedure Claim against him in relation to the cost of his visa application.
On 24 January 2020 a delegate of the Minister refused to grant the applicant a partner visa. On 3 February 2020 the applicant applied to the Tribunal for review of the delegate’s decision.
On 4 October 2021 the applicant sent several documents to the Tribunal, including a translated text message from the sponsor containing a death threat, another translated text message from the sponsor threatening to report to the Department anyone who communicated with the applicant, and a translated text message from the sponsor containing a threat to have the applicant deported.
On 9 November 2021 the applicant sent further documents to the Tribunal, including a letter from Dr Khalil dated 6 May 2021 stating that the applicant suffered from symptoms of stress, anxiety and depression and a letter from Dr Khalil dated 23 January 2020 stating that the applicant was started on antidepressants and that he had suicidal thoughts.
On 20 December 2021 social worker and counsellor, Michèle Cohen, sent a letter to the Tribunal on behalf of the applicant, detailing the applicant’s history of engagement with the Metropolitan Migrant Resource Centre and his claims to have suffered family violence. On 18 May 2022 Ms Cohen sent to the Tribunal a statutory declaration which repeated most of the detail of the letter.
On 27 May 2022 further documents were sent to the Tribunal on behalf of the applicant, including a further letter from Dr Khalil dated 25 May 2022 confirming the applicant was still on antidepressants and a statutory declaration from the applicant.
On 31 May 2022 the Tribunal wrote to the applicant’s representative and invited the applicant to comment on the validity of a certificate issued under s 376 of the Migration Act.
On 23 August 2022 to the applicant attended the Tribunal for a hearing.
On 13 October 2022 the applicant attended a resumed hearing before the Tribunal. On 14 October 2022 the applicant was referred to an independent expert for an opinion on his family violence claims. On 9 November 2022 the applicant attended an interview by video conference with an independent expert. The independent expert formed the opinion that the applicant had not suffered relevant family violence.
On 1 December 2022 the Tribunal invited the applicant to comment on the independent expert’s report. On 8 February 2023 the applicant attended a resumed hearing before the Tribunal. On 21 February 2023 the Tribunal affirmed the delegate’s decision.
On 24 March 2023 the applicant applied to this Court for judicial review of the Tribunal’s decision.
SUMMARY OF TRIBUNAL DECISION
It is unnecessary to summarise the whole of the Tribunal decision in detail and instead, this summary focuses on those parts of the Tribunal decision that are most relevant to the judicial review application.
In a section headed ‘Has a claim of family violence been made under the regulations?’, the Tribunal considered whether the applicant had provided the relevant evidence required by reg 1.24 of the Migration Regulations 1994 (Cth) (Regulations) and referred to the applicant’s statutory declaration, the letter from Dr Khalil dated 25 May 2022 and the statutory declaration of Ms Cohen made on 18 May 2022.
The Tribunal then said at [29]-[31], under the heading ‘Has the applicant suffered family violence?’:
29.The applicant claims he came to Australia to live with his wife on 1 March 2018 with €700 in his bank account. His wife took him to the casino the day after he arrived. She became enraged at him after he refused to give her his winnings and started throwing his belongings onto the street. The applicant claims his wife would transfer money to his bank account and withdraw funds so that her bank statements would not show ATM withdrawals at the casino. The applicant claims his wife was put on a blacklist so she could not draw from her account at the casino. The applicant was unable to substantiate his claim his wife had a gambling addiction. The applicant did not provide copies of his bank account statements to support his contention his wife forced him to use his account to withdraw money at the casino.
30.The Tribunal was unconvinced by the applicant’s oral evidence which closely reflected the claims in his statutory declaration. The applicant was unable to elaborate on his claims when asked for detail or clarification.
31.Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of reg 1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert.
The Tribunal then proceeded to consider the report of the independent expert and concluded that the applicant had not suffered relevant family violence.
JUDICIAL REVIEW APPLICATION
The applicant relies on the following sole ground:
The Second Respondent made a jurisdictional error by failing to consider the Applicant’s claims to have suffered family violence.
Particulars
a.The Tribunal dealt with the Applicant’s claims to have suffered family violence at [30]-[31] of its reasons.
b.The Tribunal disposed of the Applicant’s claims to have suffered family violence without making any findings on or express consideration of the independent evidence submitted in support of his claims.
The only evidence before the Court is the court book.
RELEVANT STATUTORY FRAMEWORK
One criterion for the grant of a partner visa is that contained in cl 100.221 in Schedule 2 to the Regulations, which requires the applicant to continue to be in a spouse or de facto relationship with the sponsor. An applicant can, however, still meet the criteria for a partner visa if the relationship has ceased and certain circumstances exist. One such circumstance is if the applicant has suffered relevant family violence committed by the sponsor: cl 100.221(4).
‘Relevant family violence’ is defined in reg 1.21 of the Regulations to mean:
… conduct, whether actual or threatened, towards:
(a)the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c)a member of the family unit of the alleged perpetrator; or
(d)the property of the alleged victim; or
(e)the property of a member of the family unit of the alleged victim; or
(f)the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
The applicant raised a ‘non-judicially determined claim of family violence’ within the meaning of reg 1.23(9) of the Regulations. That paragraph provides:
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.
Sub-regulations 1.23(10)-(14) explain how the Minister (and the Tribunal on review) is to address a non-judicially determined claim of family violence. Those paragraphs provide:
(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.
(12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
(13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)an application for a visa includes a non-judicially determined claim of family violence; and
(b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
It can be seen from reg 1.23 of the Regulations that where a non-judicially determined claim of family violence was made by the applicant, the Tribunal was required to first consider for itself whether the applicant had suffered relevant family violence, and then, if not so satisfied, refer the matter to an independent expert for assessment. The Tribunal would then be required to accept the expert’s opinion.
DID THE TRIBUNAL FAIL TO CONSIDER THE APPLICANT’S CLAIMS TO HAVE SUFFERED FAMILY VIOLENCE?
The alleged error
The alleged error in the present case is said to arise in the Tribunal not being satisfied, based on the information provided by or on behalf of the applicant to the Tribunal, that the applicant had been the victim of relevant family violence and therefore referring the matter to an independent expert. The applicant submitted that the Tribunal’s power to seek the opinion of an independent expert about whether the applicant had suffered relevant family violence only arose if it had first concluded, after considering the applicant’s claims, that it was not satisfied he had suffered family violence.
The essence of the applicant’s submission is that the Tribunal at [29]-[31] of its reasons, when read in the context of the reasons as a whole, has not sufficiently considered the applicant’s claim to have been the victim of family violence to have discharged its duty according to law. The applicant submitted that the Tribunal did not engage in an active intellectual process with the applicant’s claims and did not identify or understand the claims being made.
Consideration required by Tribunal
There is no dispute between the parties that the Tribunal was required to consider the applicant’s non-judicially determined claim of family violence.
In determining whether the Tribunal has ‘considered’ that claim, it is appropriate to have regard to the observations of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17 (Plaintiff M1), and the Full Federal Court cases that have followed Plaintiff M1, including ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52 (ECE21) and Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98 (Jabari).
In Plaintiff M1, Kiefel CJ, Keane, Gordon and Steward JJ said at [24]-[26] (footnotes omitted):
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26.Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24],“[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
The impact of the High Court’s decision in Plaintiff M1 was considered by the Full Court (Mortimer, Colvin and O’Sullivan JJ) in ECE21 at [7]-[9], and their Honours observations were adopted in Jabari, where the Full Court (Katzmann, Jackson and McEvoy JJ) said at [51]-[52]:
51.In ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9], a Full Court comprised of Mortimer, Colvin and O’Sullivan JJ emphasised two aspects of the statutory task, having regard to Plaintiff M1/2021. The first is a distinction between considering representations in the sense of averting to and understanding them, and considering them in the sense of evaluating their significance in the course of making the decision. In their Honours’ view, a consequence of Plaintiff M1/2021 is that (ECE21 at [7]):
it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister’s reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.
52.In other words, provided the decision-maker has averted to and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness. Their Honours held that, accordingly (ECE21 at [8]):
approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: [Plaintiff M1/2021] at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like [Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589], that the High Court disagreed with.
It is, however, also relevant to bear in mind that the Tribunal reasons at [29]-[31] were given in a context where the Tribunal was explaining that it was not satisfied, on the materials before it at the relevant time, that the applicant was the victim of a non-judicially determined claim of family violence by the sponsor and therefore the matter was referred to an independent expert. The Minister referred in his submissions to two Federal Court cases in which the Court held that the Tribunal is not required to give reasons for its decision to refer a matter to an independent expert.
The first such case is Hadchity v Minister for Immigration and Citizenship (2010) 114 ALD 99; [2010] FCA 144 (Hadchity), which arose in a context where the Tribunal obtained a report from an independent expert, its decision was subsequently quashed because it was affected by jurisdictional error, and the Tribunal relied on the same report from an expert upon reconsideration. In that case, Edmonds J considered a submission that there was nothing in the relevant paragraph of the first purported Tribunal decision to indicate that the Tribunal was not satisfied that the appellant had suffered domestic violence so as to provide a lawful basis for the appellant to be referred to an independent expert, and the Tribunal’s relevant reasoning in its second decision was ex post facto rationalisation and pure reconstruction: Hadchity at [18] and [19]. His Honour did not accept the submission and considered that the fact of the referral to an independent expert gave rise to an inference that the Tribunal was not satisfied that the appellant had suffered domestic violence. His Honour held that the Tribunal ‘was under no obligation to record its lack of satisfaction either in its reasons or elsewhere’: Hadchity at [20].
The second relevant case is Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55 (Kocakaya). In that case, Dodds-Streeton J considered a ground alleging that the Tribunal had failed to comply with its obligations in s 368 of the Migration Act, which requires the Tribunal to prepare a written statement setting out its decision and the reasons for the decision, setting out the findings on material questions of fact and referring to the evidence of other material on which the findings of fact were based. The appellant in that case advanced a submission that the Tribunal, in recording that ‘[a]fter considering all of the evidence before it… the Tribunal was not satisfied that the alleged victim has suffered relevant family violence’, failed to specify ‘all of the evidence before it’ and thereby committed a jurisdictional error: Kocakaya at [26]. Her Honour considered that the appellant’s allegation was unfounded. Her Honour held, referring to Hadchity, that the ‘Tribunal is not obliged expressly to state its lack of satisfaction (or, necessarily, the reasons for it) prior to the referral of the matter to an independent expert for assessment’: Kocakaya at [29].
While I acknowledge the applicant’s submissions that Hadchity and Kocakaya were not directly dealing with a ground that the Tribunal failed to engage with an applicant’s claims to have suffered family violence in an active intellectual way, as is asserted in the present case, the issues considered in those cases are sufficiently similar to the issues raised by this case that I consider Hadchity and Kocakaya to be binding on me. I take into account, in assessing whether the Tribunal reasons show that it did not actively and intellectually engage with the applicant’s claim, that the Tribunal was not required to give reasons for not being satisfied that the applicant was not the victim of relevant family violence prior to referring the matter to an independent expert.
Consideration by the Tribunal in the present case
It can readily be accepted from reviewing the Tribunal reasons that:
(a)the Tribunal clearly identified at [10] and [19] of its reasons that the applicant claimed to be the victim of family violence and that one of the issues for its consideration was whether the applicant had suffered family violence committed by the sponsor;
(b)at [29]-[31], under the heading ‘Has the applicant suffered family violence?’, the only evidence that the Tribunal expressly referred to was the applicant’s statutory declaration and his oral evidence;
(c)the Tribunal only referred to alleged claims of family violence on the basis of financial abuse;
(d)the Tribunal indicated that it had regard to ‘all of the evidence before it’ in not being satisfied that the applicant had been the victim of relevant family violence; and
(e)the Tribunal had earlier in its reasons referred to some of the evidence the applicant relied on in raising his non-judicially determined claim of family violence.
In advancing his submissions, the applicant relies on evidence that was before the Tribunal, but which was not referred to at [29]-[31] of the Tribunal’s reasons. This evidence includes letters from the applicant’s doctor, social worker and family dispute resolution practitioner, and various threatening text messages from the sponsor which, if accepted, could show family violence. The applicant further submitted that the evidence identified in the preceding paragraphs of the Tribunal decision is not all the relevant evidence before it.
I address the various items of evidence referred to by the parties:
(a)Letters from Dr Khalil (the applicant’s general practitioner): The Tribunal did not refer to any of the letters from Dr Khalil in its reasons under the heading ‘Has the applicant suffered family violence?’. The Tribunal did, earlier in its reasons, refer to a letter of Dr Khalil dated 25 May 2022. The Tribunal described Dr Khalil’s letter as describing ‘the applicant’s symptoms of trauma from the abuse of his previous wife’ and noting the applicant was given antidepressant tablets and referred to a psychologist. I have reviewed Dr Khalil’s letter and I am satisfied that the Tribunal’s description is sufficiently accurate. The Tribunal did not refer to two earlier letters of Dr Khalil, dated 23 January 2020 and 6 May 2021 respectively. Some of the information in the earlier letters is consistent with the information in the letter of 25 May 2022, but Counsel for the Minister emphasised in his oral submissions that the letter of 23 January 2020 records that the applicant experienced anxiety and stress in relation to his ex-wife separating from him and the letter of 6 May 2021 recorded that ‘all symptoms started after separation from his previous wife’.
(b)Evidence of Ms Cohen (the applicant’s social worker): The Tribunal did not refer to the evidence of Ms Cohen in its reasons under the heading ‘Has the applicant suffered family violence?’. The Tribunal did, earlier in its reasons, refer to a statutory declaration of Ms Cohen made on 18 May 2022. The Tribunal described that Ms Cohen first saw the applicant in February 2020 and that she conducted the Depression, Anxiety and Stress Scales and the PCL-5 PTSD checklist for DSM-5. The Tribunal further recorded that Ms Cohen identified the applicant as a classic victim of family and domestic violence perpetrated by his partner. The Tribunal did not refer to an earlier letter of Ms Cohen dated 20 December 2021. I have reviewed the letter and the statutory declaration and I accept that they are substantially similar in content.
(c)Evidence of Ms Munro (family dispute resolution practitioner): Ms Munro provided correspondence to the Department, which the Tribunal did not refer to in its reasons. The most relevant information in this correspondence for present purposes is that the applicant separated from his wife in August 2019 ‘after being subjected to debilitating psychological and emotional abuse including isolation from friends and the wider community’.
(d)Evidence of the applicant: The applicant provided to the Tribunal a statutory declaration dated 27 May 2022. The Tribunal identified the statutory declaration at [25] of its reasons and referred to some of the content of the statutory declaration at [29] of its reasons. The applicant provided earlier communications to the Department, which also referred to his claims to have been the victim of relevant family violence, including on 6 October 2019 and 20 January 2020. The Tribunal did not refer to these communications. The relevant information in these communications was repeated in the applicant’s statutory declaration.
(e)Text messages: The applicant provided a number of text messages which he claimed showed the threats made against him by the sponsor. The Tribunal did not refer to these text messages in its reasons. All bar one of these communications were made after the relationship had ended. The applicant accepted that threats made after the relationship had ended do not fall within the definition of family violence, but submitted that one of the messages contained a death threat and was probative of whether the applicant had suffered relevant family violence within the relationship.
The applicant further submitted that he made a clearly articulated claim that he suffered psychological and emotional abuse from the sponsor during their relationship. The applicant submitted that the Tribunal did not address all his claims and instead referred to only one incident that occurred at the start of his relationship with the sponsor.
The Tribunal at [29] of its reasons expressly referred to:
(a)an incident the day after the applicant’s arrival in Australia in which the sponsor took the applicant to a casino and became upset when he did not give her his winnings so that she could continue gambling, and subsequently threw his belongings onto the street; and
(b)the applicant’s claim (which he referred to in his statutory declaration as happening often during the time he lived with the sponsor) that the sponsor would transfer money to his bank account and withdraw funds so that her bank statements would not show ATM withdrawals at the casino.
The applicant raised in his statutory declaration further claims of family violence, which were not identified in the Tribunal’s reasons, including that:
(a)the sponsor threw glasses and pots at him, and would scream and throw things at him if she lost money at the casino;
(b)the sponsor threatened that if the applicant told her parents or her brother she was gambling, she would cancel his visa and have him sent back to Macedonia;
(c)the sponsor controlled every aspect of the applicant’s life and tried to prevent him from meeting new people;
(d)the sponsor set up an iPhone for the applicant in a way that allowed her access to his text messages and emails and where she could view records of his phone calls; and
(e)the sponsor repeatedly threatened to have the applicant killed and his body sent back to Macedonia and she threatened his family in Macedonia.
Was the Tribunal’s consideration sufficient?
I am satisfied that the Tribunal sufficiently considered the applicant’s claims to have been the victim of family violence prior to referring the matter to the independent expert in this matter.
The Tribunal clearly identified that the applicant had claimed to be the victim of relevant family violence committed by the sponsor and that this was an issue for its consideration.
In circumstances where the Tribunal was not obliged to give reasons for not being satisfied that the applicant was a victim of relevant family violence before referring the applicant for assessment by an independent expert, no jurisdictional error can arise solely from the brevity or lack of detail at [29]-[31] of the Tribunal’s reasons.
I draw no adverse inference against the Tribunal based on the documents expressly referred to, and not expressly referred to, in its reasons. The Tribunal reasons at [29] and [30] focus on the written and oral evidence given by the applicant. This is not surprising in circumstances where, for the most part, the only direct evidence of what happened during the relationship is the evidence of the applicant. In the consideration of the applicant’s evidence, it is also relevant to note the Tribunal’s concern expressed at [30] of its reasons that the applicant was unable to elaborate on his claims when asked for detail or clarification.
I place weight on the Tribunal’s statement that it considered all of the evidence before it, and I have no reason not to accept this statement at face value.
The evidence expressly identified in the Tribunal’s reasons (under the heading ‘Has the applicant suffered family violence?’ and earlier in its reasons) is the most probative evidence of family violence within the relationship. I accept the Minister’s submissions that:
(a)the two earlier letters of Dr Khalil are not probative of a claim of relevant family violence, in circumstances where they appear to attribute the applicant’s symptoms to the breakdown of the relationship, rather than family violence within the relationship;
(b)there is no error in any failure to expressly refer the letter of Ms Cohen, in circumstances where it was similar in substance to her statutory declaration; and
(c)there is no error shown by the failure to expressly refer to the applicant’s comments to the Department, or those made on his behalf by Ms Munro, in circumstances where they are largely repeated in his statutory declaration.
In relation to the text messages, I accept the Minister’s submission that these largely post-date the relationship and some of the most critical text messages were referred to in the applicant’s statutory declaration. I do not draw any adverse inference against the Tribunal based on its failure to expressly refer to the text messages. Text messages sent after the end of a relationship do not, of themselves, show that the applicant suffered relevant family violence during the relationship. While I accept the applicant’s submission that evidence of threats made after the relationship ended might have some probative value in determining whether it was more likely that he received threats during the relationship, different decision-makers could reasonably form different views about the weight that they would attach to such evidence. Even if the Tribunal placed no weight on the text messages (and I do not make any finding about this), that would be within the area of decisional freedom of the Tribunal. A failure to refer expressly to the text messages does not demonstrate that the Tribunal did not actively and intellectually engage with the applicant’s claim to have been the victim of relevant family violence.
I then turn to consider the Tribunal expressly referring to some aspects of the applicant’s claim to have suffered relevant family violence, without referring to others. The question this gives rise to is whether the Tribunal understood and identified the representations made by the applicant: see Plaintiff M1 at [24].
As discussed above, the Tribunal clearly identified that the applicant claimed to be the victim of relevant family violence committed by the sponsor. It identified at [8] that the type of family violence he claimed, at least when he first raised his claims before the Department, was ‘psychological and emotional abuse at the hands of the sponsor’. It did not individually itemise each of the specific alleged instances of family violence that I have referred to at [50] above. In a context where the Tribunal was not required to give reasons for its lack of satisfaction that the applicant had been the victim of family violence prior to its referral of the matter to an independent expert, and where it has identified at a higher level of generality that the applicant claimed to be the victim of relevant family violence and that his claim was of psychological and emotional abuse, I accept that the Tribunal has identified and understood the claims raised by the applicant. It did not need to descend into the level of specificity identified at [50] above.
In this regard, I accept the submission advanced by Counsel for the Minister that the incident the Tribunal expressly referred to is the one that featured most prominently in the applicant’s statutory declaration, but it is clear from the reasons as a whole that the Tribunal read the applicant’s statutory declaration and that it was nonetheless conscious of the broader claim being made and the facets to that claim in the statutory declaration.
The Tribunal reasons therefore do not disclose the jurisdictional error alleged by the applicant.
CONCLUSION
I have found above that the applicant has not established jurisdictional error in the Tribunal decision. The judicial review application is therefore dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 November 2023
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