Naidu v Minister for Immigration - [2020] FCCA 2715

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAIDU v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2715

Catchwords:
MIGRATION – Partner (Migrant) (Class BC) visa – where there are allegations of family violence perpetrated by a sponsor – incorrect application of the meaning of relevant family violence by independent expert – failure to consider relevant information – failure to consider family violence intervention orders – failure to afford procedural fairness – failure to provide applicant with opportunity to respond to adverse information – impermissible merits review – application dismissed.

Legislation:

Family Law Act 1975 (Cth).

Family Violence Protection Act 2008 (Vic).

Migration Act 1958 (Cth) ss.357A, 359A, 379A, 379C, 379G.

Migration Regulations 1994 (Cth) rr.1.21, 1.23; cl. 100.21.

Cases cited:

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

Karsten v Minister for Immigration and Anor (No. 3) [2019] FCCA 1560

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Zreika v Minister for Home Affairs [2020] FCA 995

Applicant:

KOMAL PARTIKA NAIDU

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2593 of 2018

Judgment of:

Judge Mercuri

Hearing date:

18 August 2020

Date of Last Submission:

18 August 2020

Delivered at:

Melbourne

Delivered on:

5 October 2020

REPRESENTATION

Counsel for the applicant:

Mr Oldham

Solicitors for the applicant:

Ravi James Lawyers

Counsel for the respondents:

Mr McDermott

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The applicant’s amended application filed on 27 July 2020 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2593 of 2018

KOMAL PARTIKA NAIDU

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTRAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the second respondent (“the tribunal”) affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Partner (Migrant) (Class BC) visa (“the visa”).
The applicant raises three grounds of review.[1] For the reasons which follow, I find that none of the grounds of review are made out and therefore order that:
a)the application be dismissed; and
b)the applicant pay the first respondent’s costs as agreed, or otherwise in a sum to be fixed.
[1] Applicant’s amended application filed 27 July 2020.

Factual background

The applicant and her husband (“the sponsor”) were married in Fiji on 14 September 2013.[2] The applicant applied for the visa on or about 15 September 2013, which was supported by the sponsor.[3] On 5 May 2014, the applicant was granted a Partner (Provisional) (class UF) Partner (Provisional) (subclass 309) visa.[4]
[2] Court book page 48.
[3] Court book pages 10 to 39.
[4] Court book pages 78 to 82.
The applicant arrived in Australia in about June 2014 and commenced living with the sponsor at his parent’s home.[5]
[5] Applicant’s outline of submissions filed 27 July 2020 at paragraph 1.
On or about 27 August 2015, the sponsor advised the Department of Immigration and Border Protection (“the Department”) that he wished to withdraw his sponsorship of the applicant as the relationship had broken down.[6]
[6] Court book page 155.
The applicant’s representative advised the Department on or about 29 September 2015 that the relationship between the applicant and the sponsor had broken down and that she had been subjected to family violence perpetrated by the sponsor and his family.[7] The applicant provided various documents in support of her claims regarding family violence, including a report from psychologist Dr Vella.[8]
[7] Court book pages 83 to 95.
[8] Court book pages 96 to 101.
A delegate of the first respondent referred the applicant’s claims to an independent expert to provide a written opinion as to whether the applicant met the criteria in the Migration Regulations 1994 (Cth) (“the Regulations”) for having experienced family violence (“the First Independent Expert”).[9] The First Independent Expert formed the opinion that the applicant had not experienced family violence and set out the reasons for that opinion in a report to the Department.[10]
[9] Court book pages 118 and 119.
[10] Court book pages 120 to 133.
On 5 April 2016, the applicant was invited by the Department to comment on the First Independent Expert’s opinion.[11] The applicant responded to the request for comment and also provided an application and summons for an intervention order dated 2 May 2016, listing the sponsor as the respondent to that application and the applicant as the affected family member.[12]. The applicant also provided a final intervention order dated 31 May 2016.[13]
[11] Court book pages 134 to 137.
[12] Court book pages 138 to 140.
[13] Court book pages 157, 205 and 206.
On 21 June 2016, the delegate refused to grant the applicant the visa.[14] In summary, having regard to the opinion of the First Independent Expert that the family violence exception was not made out, the delegate concluded the visa could not be granted.[15]
[14] Court book pages 155 to 157.
[15] Court book page 157.
On 4 July 2016, the applicant applied to the tribunal for review of the delegate’s decision.[16] Relevantly, in the application form, the applicant nominated her representative and set out his email address.
[16] Court book pages 159 to 160.
The applicant’s representative provided written submissions to the tribunal by letter dated 26 December 2017. That letter confirmed, among other things, that the applicant and her former husband were divorced on 8 April 2017, and attached a copy of the divorce orders made pursuant to the Family Law Act 1975 (Cth).[17] The applicant filed a further statutory declaration with the tribunal on 27 December 2017.[18]
[17] Court book pages 186 to 193.
[18] Court book pages 194 to 200.
The applicant was invited to a hearing before the tribunal on 2 January 2018 to give evidence and present arguments. The applicant attended together with her representative and a friend.[19]
[19] Court book pages 201 to 203.
On 5 January 2018, the tribunal member referred the matter to a second independent expert (“the Second Independent Expert”) for further assessment following additional information submitted. The referral attached the tribunal’s file, the Department’s file and an audio file of the tribunal hearing on 2 January 2018.[20]
[20] Court book pages 210 to 226.
The applicant was interviewed by the Second Independent Expert on 12 February 2018. The Second Independent Expert provided her assessment under cover of an email dated 5 March 2018.[21] The Second Independent Expert also formed the opinion that the applicant had not been subjected to family violence as defined in regulation 1.21 of the Regulations.
[21] Court book pages 242 to 264.
The tribunal wrote to the applicant by letter addressed to her representative dated 23 March 2018:[22]
a)Enclosing a copy of the Second Independent Expert’s report;
b)inviting the applicant to comment on the report
c)stating that any response the applicant wished to give should be given by 6 April 2018; and
d)advising that if no response was received, a decision might be made ‘without taking any further action to obtain your views on the information.’
[22] Court book pages 266 to 269.
It is common ground that the letter appears to have been sent to the email address provided by the applicant’s representative. It appears from subsequent correspondence from the applicant’s representative that the applicant did not receive this letter.
On 19 July 2018, the applicant’s representative wrote to the tribunal which relevantly provided:[23]
[23] Court book pages 270 and 271.
We refer to the above review on which hearing (sic) was conducted on 2 January 2018.
Following the hearing the review applicant was requested to attend an assessment with [the Second Independent Expert] which she did on 22 January 2018.
Please indicate an update on the progress of the matter.
A holding response was provided to this letter on 20 July 2018 in which the Tribunal officer said ‘Your letter has been provided to the Member and the Tribunal will be in contact with you should he issue further instructions.’[24]
[24] Court book page 272.
On 9 August 2018, the tribunal affirmed the delegate’s decision.[25] The tribunal’s reasons are set out on pages 276 to 279 of the court book.
[25] Court book page 275.

The tribunal’s statutory task

Before turning to consider the grounds of review and the respective arguments put forward by each of the parties, it is appropriate to consider the tribunal’s statutory task.
It is common ground that in order be granted the visa at the time of the tribunal’s decision, the applicant had to satisfy the requirements of clause 100.221(4) of schedule 2 to the Regulations. It is also common ground that clauses 100.221(2), (2A), (3) or (4A) were not engaged on the facts in this case.[26]
[26] Respondent’s outline of submissions filed 6 August 2020 at paragraph 21.
Relevantly, the issue in this case was whether the applicant met the criterion in clause 100.221(4)(c) of schedule 2 to the Regulations, namely that the tribunal was satisfied that after the visa applicant first entered Australia as a holder of the visa in clause 100.221(4)(a), either:
a)the visa applicant; or
b)a member of the family unit of the sponsoring partner or of the visa applicant or both of them;
has suffered family violence committed by the sponsoring partner.
The note to clause 100.221(4) provides that ‘For special provisions relating to family violence, see Division 1.5’ of the Regulations.
Regulation 1.21 which appears in Division 1.5, defines various relevant terms, including ‘relevant family violence’ 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.      member of the family unit of the alleged perpetrator; or
d.      …
e.      …
f.        …
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
Regulation 1.21 also defines ‘violence’ to include ‘a threat of violence’.
Regulation 1.23 sets out several statutory circumstances in which family violence is taken to have been suffered or committed. For present purposes, the only relevant such circumstances arise under regulations 1.23(4) and (5) (“court order circumstances”) or regulations 1.23(10) to (14) (“non-judicially determined circumstances”).
As noted in the written submissions for the first respondent,[27] regulation 1.23(4) provides that the alleged victim is considered to have suffered family violence and the alleged perpetrator is considered to have committed family violence, if:
a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim; and
b)the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
[27] Respondent’s outline of submissions filed 6 August 2020 at paragraph 28.
However, regulation 1.23(5) further limits regulation 1.23(4) in so far as it requires the violence, or part of the violence, that led to the granting of the court order to have occurred while the married relationship existed between the alleged perpetrator and the spouse of the alleged perpetrator.
Regulations 1.23(10)(a) and (b) require the first respondent:
a)to consider whether the alleged victim suffered relevant family violence; and
b)if it is found that the alleged victim did suffer relevant family violence, consider the visa application on that basis.
The first respondent must also be satisfied that the relevant family violence occurred during the parties’ relationship.[28]
[28] Migration Regulations 1994 (Cth) sch 2 reg 1.23(12).
However, if the first respondent is not satisfied the applicant has suffered relevant family violence, the first respondent must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence.[29]
[29] Migration Regulations 1994 (Cth) sch 2 reg 1.23(10)(c)(i).
Relevantly for present purposes, once that opinion is received, regulation 1.23(10)(c)(ii) relevantly provides:
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.

Ground one

The first ground of the applicant’s amended application is set out as follows:
The Tribunal fell into error because it incorrectly found that it was obliged by regulation 1.23 of the Migration Regulations 1994 (Cth) (the “Regulations”) to take as correct an opinion of Dr Suzanne Vidler (the “Second IE”) that the Applicant had not been subject to “relevant family violence” in circumstances where the opinion of the expert was vitiated by an incorrect application of the meaning of “relevant family violence” as set out in the Regulations.
Particulars
i.The Tribunal held that in the absence of new materials reg.1.23 of the Regulations obliged it to take the opinion of the Second IE as correct.
ii.The Tribunal was only obliged to take the opinion of the Second IE as correct if it was formulated according to law.
iii.The Second IE’s opinion was not formulated according to law because the definition of relevant family violence set out at Division 1.5 of the Regulations (Special provisions relation to Family Violence) was not correctly applied by the Second IE.
iv.The Second IE’s opinion was not an opinion within the meaning of the Regulations and therefore it was an error for the Tribunal to rely on this opinion.[30]
[30] Applicant’s amended application filed 27 July 2020 pages 4 and 5.
At the heart of this ground is the applicant’s submission that the Second Independent Expert did not correctly apply the definition of relevant family violence, and therefore, the tribunal was not compelled to accept this assessment as being correct.
In the applicant’s written submissions, the applicant states that she had suffered family violence at the hands of her sponsor and his father, with whom the couple lived whilst married.[31] The applicant refers to her claims of emotional and/or psychological abuse, controlling behaviour and economic abuse. The applicant also made allegations of physical violence and sexual abuse.
[31] Applicant’s outline of submissions filed 27 July 2020 at paragraph 10.
In support of her claims, the applicant provided a report from Dr Vella, who supported the applicant’s claims of having suffered family violence as alleged.[32] The applicant also provided a copy of a final intervention order.[33]
[32] Court book pages 96 to 101.
[33] Court book pages 157, 205 and 206.
The applicant submits that whilst the Second Independent Expert refers to Dr Vella’s report and to observations made by Dr Vella at paragraph 5 of her report, the Second Independent Expert does not refer to the overall finding made by Dr Vella, namely that psychological and financial abuse occurred as described by the applicant. Moreover, it was submitted that the Second Independent Expert did not explain why she discounted or did not accept Dr Vella’s conclusions about the family violence.[34]
[34] Applicant’s outline of submissions filed 27 July 2020 at paragraph 13.
The applicant also takes issue with the fact that although the Second Independent Expert had access to the audio recording of the applicant’s interview before the tribunal, no reference is made to the submissions made to the tribunal by the applicant’s representative as to the applicant’s ‘feelings and state of mind, as well as the observations of the agent, in the wake of the family violence that she claims to have suffered.’ [35]
[35] Applicant’s outline of submissions filed 27 July 2020 at paragraph 13.
Further, the applicant takes issue with the reference in the Second Independent Expert’s report to the applicant’s responses to the tribunal during the hearing and her preparedness to draw and inference that the applicant was not cooperative with the tribunal.[36]
[36] Applicant’s outline of submissions filed 27 July 2020 at paragraph 13.
The applicant relies upon the decision of Manousaridis J in Karsten v Minister for Immigration and Anor (No. 3) [2019] FCCA 1560 (“Karsten”). In particular, the applicant refers to his Honour’s comments at paragraph [50].[37]
[37] Applicant’s outline of submissions filed 27 July 2020 at paragraph 15.
It is further submitted for the applicant that:
a)the report of Dr Vella;
b)the fact that a final intervention order was made; and
c)the submissions made by the applicant’s agent to the tribunal;
were all indicative of the applicant having been subjected to relevant family violence, as defined.[38]
[38] Applicant’s outline of submissions filed 27 July 2020 at paragraph 16.
Moreover, in the face of that material, in concluding that there had not been family violence, it was submitted that the Second Independent Expert did not apply the correct definition of relevant family violence.[39] As such, it is submitted that the opinion arrived at by the Second Independent Expert was not one arrived at according to law and therefore, not one which the tribunal was bound to accept as correct.[40]
[39] Applicant’s outline of submissions filed 27 July 2020 at paragraph 17.
[40] Applicant’s outline of submissions filed 27 July 2020 at paragraph 18.
In support of this argument, counsel for the Applicant referred to paragraph 59 of the decision in Karsten where Manousaridis J said:
I have found that the Expert proceeded on an incorrect understanding of the expression “relevant domestic violence”. There are two consequences. The first is that the Expert’s opinion was not one arrived at according to law and, therefore, is not an “opinion” authorised by reg.1.23(1C). The second consequence is that, being an opinion that was not authorised by reg.1.23(1C), it was not an opinion on which it was open for the Minister and, on review, the Tribunal, to take as correct.[41]
[41] Karsten v Minister for Immigration and Anor (No. 3) [2019] FCCA 1560 at [59].
The facts in Karsten which led to the conclusion are distinguishable from the facts in this case. In Karsten, the expert concluded that one of the alleged forms of family violence, namely the threat to be deported from Australia, was ‘not sufficient evidence of domestic violence in their own right’.[42]
[42] Karsten v Minister for Immigration and Anor (No. 3) [2019] FCCA 1560 at [32].
In Karsten, Mamousaridis J concluded that this view was incorrect. He said:
… the effect of the authorities is that “violence”, as that word appears in reg.1.23(2)(b) of the Regulations, is not restricted to acts or threatened acts of physical violence; it includes belittling, intimidating, frightening, or similar conduct directed to the person claiming to be the victim of domestic violence. If, contrary to the opinion I have expressed, in Sok Branson J did make a finding about the meaning of “domestic violence” as a term of art, her Honour held that “domestic violence” means “an abuse of power within a domestic relationship such that the less powerful partner in the relationship experiences fear of psychological or physical harm.[43]
[43] Karsten v Minister for Immigration and Anor (No. 3) [2019] FCCA 1560 at [50].

Ultimately, because of the express finding made by the expert in Karsten, it was held that the expert in that case had proceeded on an incorrect understanding of the meaning of that term. This in turn was the basis of finding that the tribunal could not accept the conclusions reached by the expert as correct in that case.
There has been no similar error in this case by the Second Independent Expert. Nor can it be inferred from the manner in which the Second Independent Expert treated the findings by Dr Vella or the submissions made on behalf of the applicant that the Second Independent Expert misunderstood the meaning of the term ‘relevant family violence’ for the purposes of the Regulations. Rather, the Second Independent Expert came to a different conclusion on this question to that which was agitated for on behalf of the applicant. This discloses no jurisdictional error.
In response to ground one, counsel for the first respondent submitted that this ground largely seeks impermissible merits review.
The first respondent concedes that had the independent expert’s opinion on whether a person suffered relevant family violence not have been lawfully formed, the tribunal’s decision to accept that opinion as correct, would have been affected by jurisdictional error.[44]
[44] Respondents’ outline of submissions filed 6 August 2020 at paragraph 35; Zreika v Minister for Home Affairs [2020] FCA 995 at [106].
However, when considering the circumstances in this case where the Second Independent Expert came to a view contrary to that agitated for by the applicant, does not render the Second Independent Expert’s view ‘not lawfully formed’.[45]
[45] Respondents’ outline of submissions filed 6 August 2020 at paragraph 35.
There is merit to the first respondent’s submission in this regard. It is clear from the background set out above that:
a)the report from Dr Vella was provided together with the applicant initial advice to the Department in September 2015;
b)the applicant’s marriage had broken down;
c)the applicant had been subjected to family violence; and
d)in seeking the First Independent Expert opinion, the delegate had formed the preliminary view that the applicant had not suffered relevant family violence.
Similarly, in referring the matter to the Second Independent Expert for a further opinion, the tribunal had formed the preliminary view that the applicant had not suffered relevant family violence.
The Second Independent Expert rejected the applicant’s claims to have suffered family violence during her relationship with the sponsor. The Second Independent Expert concluded:
Mrs Naidu’s self reports differ substantially and escalate across time … The inconsistencies and escalation of violence within Mrs Naidu’s account indicate significant unreliability in her account motivated by her belief that she would be shamed if returned to Fiji. The doubts raised by Mrs Naidu’s inconsistencies resulted in the writer discounting Mrs Naidu’s alleged abuse, resulting in the writer not placing any weight to her account. … Mrs Naidu was assessed as being an unreliable historian who presented as lacking credibility (emphasis added).[46]
[46] Court book page 258.
A fair reading of the Second Independent Expert’s opinion discloses that the Second Independent Expert did have regard to the report prepared by Dr Vella.[47] Relevantly, the Second Independent Expert notes:
Dr Vella concluded within her report that Mrs Naidu had been subject to psychological and financial abuse based on Mrs Naidu’s self reports, however indicated that her symptoms were a result of “cumulative distress, grief of the loss of a relationship that she speaks of as ‘the one’, and fear and uncertaintly (sic) about her future in Australia.[48]
[47] Court book page 253.
[48] Court book page 253.
Similarly, the first respondent submits it is unclear which aspects of the intervention order documents and the submissions made on behalf of the applicant at the tribunal hearing the applicant says were not considered by the Second Independent Expert.[49] The Second Independent Expert makes reference to these materials in her report.[50]
[49] Respondents’ outline of submissions filed 6 August 2020 at paragraph 37.
[50] Respondents’ outline of submissions filed 6 August 2020 at paragraph 37; Court book pages 247 and 250 to 256.
The applicant has failed to demonstrate any jurisdictional error in ground one. By this ground, the applicant is seeking impermissible merits review.
The fact that the applicant had produced evidence which supported her case was not determinative. The very fact that the delegate in the first instance and then the tribunal in the second instance referred the issue to an independent expert was indicative of the fact that that evidence was not determinative.
In those circumstances, the independent expert was not required to accept that evidence. Nor was there any obligation on the independent expert to formally put the applicant on notice that she was not going to accept that evidence.
In oral submissions, it appears that counsel for the applicant went beyond the terms of ground one and submitted that, in failing to firstly tell the applicant that Dr Vella’s report was going to be discounted or ignored and secondly offer her an opportunity to comment, the Second Independent Expert misunderstood her role and misunderstood the definition of relevant family violence in regulation 1.23.
A similar argument was put in relation to the Second Independent Expert’s failure to put the applicant on notice that she was going to draw an adverse inference from the manner in which she participated in the tribunal hearing. Submissions were made by the applicant’s representative which went to the applicant’s demeanour. It was suggested that by failing to put this to the applicant, the Second Independent Expert failed to provide the applicant with procedural fairness.
In response to these further oral submissions, the first respondent conceded that the principles of procedural fairness did apply to the Second Independent Expert, however, Dr Vella’s opinion was not accepted by the delegate. In those circumstances, it was submitted that the applicant was on notice that Dr Vella’s opinion was not sufficient to make out her claim of alleged relevant family violence.
Moreover, it was submitted that the applicant has not identified with any precision which aspects of Dr Vella’s report have not been put to the applicant by the Second Independent Expert. I agree with these submissions.
Counsel for the applicant was invited to consider whether he wanted to seek leave to amend ground one, but he indicated that he did not wish to do so.
For each of these reasons, ground one is not made out.

Ground two

The second ground raised by the applicant is as follows, noting an apparent error in the numbering of the Particulars therein:
The Tribunal fell into error by failing to take into account a relevant consideration that it was bound to take into account
Particulars
v.The Applicant’s migration agent at the hearing made submissions regarding the effect of the family violence suffered by the Applicant and the effect such family violence may have on her state of mind.
vi.These submissions were relevant to the assessment of whether or not the Applicant had suffered relevant family violence as defined in the Regulations, both the Tribunal and the Second IE.
vii.The Tribunal not convey these submissions to the Second IE to assist with the preparation of her report.
viii.The Tribunal had notice of the Applicant’s attempts to obtain intervention orders against her former partner and her former father in law and a final intervention order made by the Magistrates’ Court of Victoria.
ix.The Tribunal did not consider how these artefacts were relevant to the Applicant’s claim of having suffered relevant family violence when it was obliged by the Regulations to do so.[51]
[51] Applicant’s amended application filed 27 July 2020 at page 5.
In essence, this ground relies upon the submission that the tribunal, in considering whether there was relevant family violence of a non-judicially determined claim of family violence and therefore whether it ought to have referred the matter to an independent expert for the purposes of regulation 1.23(10)(c), did not give any or sufficient weight to:
a)the final intervention order obtained by the applicant against the sponsor; or
b)the submissions made by the applicant’s representative at the tribunal hearing.
The applicant claims that the failure to have regard to these matters can be inferred from the tribunal’s failure to expressly deal with them in its reasons, accepting that such an inference ought not lightly be drawn where reasons are otherwise comprehensive and the issue has been at least identified at some point.[52]
[52] Applicant’s outline of submissions filed 27 July 2020 at paragraph 27; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47].
In oral submissions, counsel for the applicant conceded that ground two is made more difficult on the basis that the tribunal made its decision on the basis of the Second Independent Expert’s opinion alone. The applicant appeared to concede, although did not do so expressly, that this ground was not a strong one, in circumstances where the tribunal relied upon the Second Independent Expert’s assessment, as it was entitled to under the Regulations.
I accept the submissions made on behalf of the First Respondent in relation to this ground and find that it is not made out.
As is clear from paragraphs 20 to 32 above, the tribunal had the task of determining whether the applicant had suffered relevant family violence as defined in the Regulations. Moreover, as noted above, and I did not understand the applicant to take issue with this submission by the first respondent, the only potential statutory circumstances which were relevant in this case were court order circumstances or non-judicially determined circumstances.
It is evident from the tribunal’s reasons that the tribunal was aware of and considered the application and summons for an intervention order dated 2 May 2016 and the final intervention order dated 31 May 2016.[53] The tribunal:
a)noted that both of these documents were issued after the relationship between the applicant and the sponsor broke down;
b)referred to the applicant’s evidence that she had sought an intervention order at the time of separation, but that this had not been granted; and
c)concluded that it was ‘unable to rely upon a judicially determined claim of the applicant having suffered family violence under the law’.[54]
[53] Court book page 278 at paragraph 13.
[54] Court book page 278 at paragraph 13.
This finding was clearly open to the tribunal, and does not disclose any failure to take into account any relevant consideration it was bound to have regard to.
Moreover, the tribunal refers to the evidence before it and the Department.[55] Specifically, the tribunal refers to the fact that ‘…the applicant has made a claim of having suffered family violence perpetrated by her sponsor…’ [56]The tribunal was therefore clearly aware of the applicant’s claims of having suffered relevant family violence.
[55] Court book page 277 at paragraphs 6 to 10.
[56] Court book page 277 at paragraph 10.
The tribunal noted that:
On the basis of the non-judicial evidence provided to the Department previously, the applicant was determined to have not suffered relevant family violence. The Tribunal considered this.
The tribunal then referred to the fact that the applicant had already been referred to an independent expert who had concluded that the applicant had not suffered relevant family violence as defined.[58] Notwithstanding this, the tribunal recorded that it then sought the opinion of a second independent expert.[59]
[58] Court book page 277 at paragraph 12.
[59] Court book page 278 at paragraph 14.
When regard is had to the totality of the evidence, it is clear that in referring the applicant to the Second Independent Expert, the tribunal was indicating that it was not satisfied on the basis of the evidence before it that the applicant satisfied the applicant had suffered relevant family violence during her relationship with the sponsor.
In relation to the applicant’s written submissions as to the potential operation of the Family Violence Protection Act 2008 (Vic),[60] such matters were not the subject of submissions before the tribunal. As submitted by the first respondent, they are merely speculative and effectively seek impermissible merits review.[61]
[60] Applicant’s outline of submissions at paragraphs 22 and 23.
[61] Respondent’s outline of submission at paragraph 41.
Having regard to the totality of the evidence, I find that the tribunal did consider the relevant evidence before it and its conclusions were open on that evidence. This ground is therefore not made out.
Again, by this ground, the applicant seeks little more than impermissible merits review.

Ground three

The third ground raised by the applicant is as follows, noting the continuation of the numbering error of the Particulars therein:
The Tribunal failed to ensure that the Applicant had been afforded procedural fairness.
Particulars
x.The Second IE had an obligation to put adverse information to the Applicant. The Second IE’s report does not record adverse information being clearly put to the Applicant nor does it record the Applicant’s actual responses to the puttage of such adverse information.
xi.The Tribunal has an obligation pursuant to s.359A Migration Act 1958 (Cth) (the “Act”) to ensure that the Applicant has the opportunity to respond to any adverse information before it.
xii.The Tribunal attempted to communicate with the Applicant’s agent but received no response.
xiii.Before making its decision, the Applicant’s agent wrote to the Tribunal seeking an update on the matter. It was clear from the agent’s communication that he had not seen the Tribunal’s correspondence requesting further comment.
xiv.Without further reference to the Applicant, the Tribunal determined the matter and erroneously adopted the report of the Second IE.[62]
[62] Applicant’s amended application filed 27 July 2020 page 6.
The substance of this ground is that the independent expert has a legal duty to provide procedural fairness to the applicant and that she failed to do so.
Firstly, it is submitted by the applicant that although the Second Independent Expert’s report refers to inconsistencies in the applicant’s accounts:
it is not clear in her report what adverse matters were specifically put to the Applicant and what the Applicant’s responses were to the specific adverse issues that were raised by the Second IE.[63]
[63] Applicant’s outline of submissions filed 27 July 2020 at paragraph 33.
In addition, the applicant submits that there was a failure to afford the applicant procedural fairness, in that the letter sent to the applicant on or about 23 March 2018 inviting comment on the findings of the Second Independent Expert was not received.[64] Counsel for the applicant concedes that the letter appears to have been sent to the applicant’s representative’s email. I note that counsel for the first respondent does not positively assert that the letter of 23 March 2018 was in fact received by the applicant’s representative.[65]
[64] Applicant’s outline of submissions filed 27 July 2020 at paragraph 36.
[65] Respondents’ outline of submissions filed 6 August 2020 at paragraph 43.
Further, the applicant submits that it ought to have been apparent from the correspondence from the applicant’s representative on 19 July 2018 that the applicant had not received a copy of the 23 March 2018 letter.[66] It was submitted that in proceeding without further reference to the applicant before making its decision, this too amounted to a breach of procedural fairness by the tribunal.[67]
[66] Applicant’s outline of submissions filed 27 July 2020 at paragraph 37.
[67] Applicant’s outline of submissions filed 27 July 2020 at paragraphs 37 and 39.
In oral submissions, the applicant did not dispute that the letter of 23 March 2018 was not sent and that the process under section 359A of the Migration Act 1958 (Cth) (“the Act”) was not followed. Counsel for the applicant said this ground is essentially based on the fact that the applicant’s representative wrote to the tribunal on 19 July 2018 and it was ‘clear from the Applicant’s agent’s correspondence that the agent had not seen the Tribunal’s original procedural fairness letter.’[68]
[68] Applicant’s outline of submissions filed 27 July 2020 at paragraph 39.
Counsel for the applicant conceded that there was no statutory obligation on the tribunal to do anything other than send the letter issued pursuant to section 359A of the Act.[69] However, it was submitted that in this case:
a)the nature of the letter of 19 July 2018 indicated that nothing had been received by the applicant’s representative;
b)the tribunal could receive information at any time prior to the decision being made; and
c)it was open to the tribunal to give the applicant to respond to the letter before proceeding to make a decision.
[69] Applicant’s outline of submissions filed 27 July 2020 at paragraph 38; Migration Act 1958 (Cth) s 359C(2).
When pressed to explain this submission, it was suggested by counsel that the letter of 19 July 2018 constituted new information, namely information that the letter had not in fact been received.[70] It was suggested that this then triggered an obligation on the tribunal under section 360 of the Act to invite the applicant to appear before the tribunal and give evidence before a decision was made.[71]
[70] Applicant’s outline of submissions filed 27 July 2020 at paragraph 39.
[71] Applicant’s outline of submissions filed 27 July 2020 at paragraph 39.
I will address each of these claims in turn.
Other than state that it is not clear what adverse matters were put to the applicant and what her responses were, the applicant does not identify any specific adverse matters which were required to be put to the applicant but were not. In any event, when one considers the Second Independent Expert’s report in its entirety, this submission is not made out.
The Second Independent Expert’s report is comprehensive. It is also clear that the Second Independent Expert put a number of her concerns to the applicant. For example, the Second Independent Expert identified the following inconsistencies which were put to the applicant for comment:
a)an inconsistency in the applicant’s evidence about the number of times she claims the sponsor slapped her;[72]
b)inconsistencies in the applicant’s evidence about the alleged sexual violence by the sponsor;[73]
c)an inconsistency between the applicant’s statement about the circumstances in which she resigned her employment;[74] and
d)an inconsistency in the applicant’s evidence about contact with her husband after the incident in August 2015.[75]
[72] Court book pages 243 and 244.
[73] Court book page 244.
[74] Court book page 246.
[75] Court book page 247.
In the absence of the applicant specifically identifying any other adverse information which the Second Independent Expert failed to put to her, this aspect of ground three is not made out.
I will now turn to the applicant’s claim that, notwithstanding the tribunal’s attempt to provide the applicant with a copy of the Second Independent Expert’s report for her consideration and comment, it was not received.
The evidence indicates that the tribunal sent the letter dated 23 March 2018 to the email address provided by the applicant for her representative.[76] The applicant does not take issue with that.[77]
[76] Court book pages 160 and 266.
[77] Applicant’s outline of submissions filed 27 July 2020 at paragraph 36.

As is evident from the correspondence sent by the applicant’s representative on 10 August 2018,[78] it is apparent that the applicant’s representative has at all times maintained that they did not receive the letter from the tribunal dated 23 March 2018.
[78] Court book page 282.
However, as submitted for the first respondent, that letter was deemed to have been received by the applicant’s representative (and, therefore, the applicant) at the end of that day by virtue of section 379A(5)(b), section 379C(1) and (5) and section 379G(1) and (2) of the Act.[79]
[79] Respondents’ outline of submissions filed 6 August 2020 at paragraph 43.
In those circumstances, and having regard to section 357A of the Act, even if the court were to accept that the applicant’s representative did not receive the letter sent on 23 March 2018, it would not amount to a breach of procedural fairness, as alleged.
This conclusion is not affected by the applicant’s representative’s letter of 19 July 2019. The receipt of that letter did not, and indeed in light of the legislative provisions referred to above, arguably could not, alter the procedural fairness obligations which the tribunal was bound to follow.
The applicant seeks to characterise the letter of 19 July 2019 as ‘new information’ which created an obligation to permit the applicant to have further time to respond to the Second Independent Expert’s report.[80]
[80] Applicant’s written submissions filed 27 July 2020 at paragraph 39.
In response, the court was invited to reject this submission. First, it was submitted that the letter from the applicant’s representative dated 19 July 2018, was not ‘information’ for the purposes of Division 5 of Part 5 of the Act. I agree with this submission. The letter conveys no document or information of an evidentiary basis that is referrable to the case the applicant is putting.[81]
[81] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [28].
Second, even if the letter of 19 July 2018 could be said to fall within the notion of ‘information’, section 359A(4)(b) of the Act relevantly carves out any information which has been provided by the applicant.
Third, section 357A makes it clear that Division 5 of Part 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with. The procedural fairness requirements under Division 5 of Part 5 of the Act required the tribunal to provide the letter issued pursuant to section 359A of the Act to the applicant via the applicant’s representative. Once that is done, procedural fairness is deemed to have been afforded to the applicant.
Finally, once the time frame following the provision of the letter issued pursuant to section 359A of the Act has passed, the tribunal is under no obligation to afford the applicant a further hearing.[82]
[82] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [25] to [40].
For each of these reasons, ground three is not made out.

Conclusion

As none of the grounds of review have been made out, I order that:
a)the applicant’s application as amended be dismissed; and
b)the applicant pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 5 October 2020

[57] Court book page 277 at paragraph 11.