Nugrohowati v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1941
•23 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Nugrohowati v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1941
File number: ADG 266 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 23 August 2021 Catchwords: PRACTICE AND PROCEDURE – application to summarily dismiss the application for relief against the third respondent and to remove the third respondent as a party to the proceedings – where the third respondent is a statutorily appointed independent expert – where the third respondent provided an expert opinion to the Tribunal as to whether the applicant had suffered family violence – where the applicant seeks writs of certiorari and prohibition against the third respondent – where the writ of certiorari sought by the applicant against the third respondent is more properly sought against the second respondent – Court satisfied there is no reasonable prospect of prohibition issuing against the third respondent – Court satisfied the third respondent’s participation in the proceedings is not necessary to completely and finally determine all matters in dispute – application allowed. Legislation: Constitution s 75(v)
Migration Act 1958 (Cth)
Migration Regulations1994 (Cth) regs 1.21, 1.23; sch 2 cls 820.221, 820.222
Federal Circuit Court Rules (Cth) rr 11.04, 13.10
Cases cited: Minister for Immigration and Citizenship vMaman (2012) 200 FCR 30
Minister for Immigration and Multicultural AffairsvSeligman (1999) 85 FCR 115
Perez v Minister for Immigration and Border Protection [2017] FCAFC 180
Re Wilcox; Ex parte Venture Industries Pty Ltd (2003) 66 FCR 511
Rogers v Minister for Home Affairs [2019] FCCA 473
Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 222
Number of paragraphs: 20 Date of hearing: 9 August 2021 Place: Darwin Counsel for the Applicant: Mr Mancini Solicitor for the Applicant: Diaspora Legal Counsel for the First and Third Respondents: Mr Lloyd SC with Mr Sherman Solicitor for the First and Third Respondents: Australian Government Solicitor ORDERS
ADG 266 of 2020 BETWEEN: WENNY NUGROHOWATI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
LAUREN DURKIN
Third Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
23 AUGUST 2021
THE COURT ORDERS THAT:
1.The applicant’s claim for relief against the third respondent is summarily dismissed and the third respondent is removed as a party.
2.The costs of the application are reserved.
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is an application by the first respondent to remove the third respondent as a party to the proceeding as a party who is not necessary to completely and finally determine all matters in dispute pursuant to Division 11.1 of the Federal Circuit Court Rules (Cth) (the Rules). I note that rule 11.04 of the Rules permits a party to apply to be removed rather than to apply to remove another party, however, as the first and third respondents have the same interest and are both represented by the Australian Government Solicitor nothing turns on this.
The first respondent, in the alternative, seeks summary dismissal of the applicant’s claim against the third respondent pursuant to rule 13.10 of the Rules because there is no reasonable prospect of her obtaining relief.
The third respondent is an independent expert who was commissioned to provide an opinion about whether the applicant had suffered family violence from her former partner. That opinion was, in turn, determinative of the decision of the Administrative Appeals Tribunal (the Tribunal) to refuse the applicant a Partner (Temporary) (Class UK) visa.
The relevant statutory scheme is set out in the Migration Regulations1994 (Cth) (the Regulations) and Volume 3, Schedule 2 of the Regulations. Ordinarily, an applicant for a partner visa must be the spouse or de facto partner of the sponsor at the time of the decision: sch 2 cl 820.222 of the Regulations. However, an exception to this requirement is where the relationship between the applicant and the sponsoring partner has ceased and the applicant suffered family violence committed by the sponsoring partner: sch 2 cl 820.221(3) of the Regulations.
Under regulation 1.23, where there is not an injunction, court order or relevant conviction, family violence may be taken to have been suffered by a person if there is a "non-judicially determined claim of family violence". If a person makes a claim of family violence of this kind, the Minister must consider whether the alleged victim has suffered relevant family violence and, if satisfied that the alleged victim has suffered the relevant family violence, must consider the application on that basis: reg 1.23(10)(b).
If the Minister is not satisfied that the alleged victim has suffered relevant family violence, the Minister must seek the opinion of an independent expert about whether the alleged victim suffered relevant family violence. The Minister must take the independent expert’s opinion 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 that the criterion, to have suffered family violence: reg 1.23(10)(c).
In this case the Minister was not satisfied that the applicant had suffered relevant family violence and sought the opinion of an independent expert in accordance with the regulations.
Regulation 1.21 defines "independent expert" as a person who:
(a) is a suitably qualified person to make independent assessments of non-judicially determined claims of family violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in the legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.
The Minister retained such an organisation which in turn employed or contracted the third respondent, Ms Durkin, to provide the independent assessment.
The Minister seeks summary dismissal of the claim against Ms Durkin or her removal as a respondent to the application, or both.
The applicant seeks certiorari and mandamus against the second respondent, the Tribunal, and certiorari and prohibition against Ms Durkin. The applicant seeks certiorari against Ms Durkin in respect of her report, dated 31 March 2020, which expresses her opinion about whether the applicant suffered relevant family violence. In addition, the applicant seeks that:
A writ of prohibition issue directed to the third respondent prohibiting her from further making any migration decisions in respect of the applicant.
Senior counsel for the Minister submitted that it is "well-established that the defective formation of an opinion by an independent expert provides a basis for setting aside a decision of the Tribunal based upon that opinion" referring to Minister for Immigration and Multicultural AffairsvSeligman (1999) 85 FCR 115, [66]. That case concerned a statutorily binding opinion of the Commonwealth Chief Medical Officer in relation to a Minister's decision. That case has been applied in relation to non-judicially determined claims of family violence in Minister for Immigration and Citizenship vMaman (2012) 200 FCR 30, [63]-[65], where the expert did not accord procedural fairness, Perez v Minister for Immigration and Border Protection [2017] FCAFC 180, [9] where the expert misapplied the law, and Rogers v Minister for Home Affairs [2019] FCCA 473, [18].
The applicant did not dispute the correctness of this line of authority and only faintly argued against the Minister’s submission that the third respondent was therefore not a necessary party in proceedings seeking certiorari in respect of the Tribunal’s decision. I accept the Minister’s submission.
However, the applicant submitted that those cases should be distinguished because here the applicant also seeks a writ of prohibition against Ms Durkin on the ground of reasonable apprehension of bias. It was said that, notwithstanding that Ms Durkin had already formed her opinion and communicated that to the decision-maker and the decision-maker had already made the impugned decision required by that opinion, a writ of prohibition in the circumstances was available directed to Ms Durkin to prevent her giving an opinion in future concerning the applicant.
It was not asserted by the applicant that there was any imminent threat or proposal to retain the third respondent for that purpose. On the contrary, as the Minister submits, the decision has already been made and there is no evidence of any threat or proposal to obtain any further opinion from Ms Durkin. The Minister said that the applicant's concern was speculative and premature. As became apparent in submissions, the applicant appeared to be attempting a pre-emptive strike against Ms Durkin, invoking something akin to an appellate court’s power to order that a matter be remitted to a court differently constituted.
In Re Wilcox; Ex parte Venture Industries Pty Ltd (2003) 66 FCR 511 at 533 the Court said:
Prohibition will not issue if the order the subject of prohibition is exhausted in the sense that all possible operation of it is at an end: see R v Hibble; Ex parte Broken Hill Pty Co Ltd (1920) 28 CLR 456 at [463] per Knox CJ and Gavan and Duffy J.
In Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 222, Merkel J explained the function of prohibition in relation to an invalid decision of the Refugee Review Tribunal:
In the event that the decision of the Tribunal is found by the court to be invalid, absent any discretionary reason for not doing so, a writ of prohibition could be expected to issue under s 75 (v) to prohibit the Minister, and his officers, from acting upon or giving effect to the invalid decision. Prohibition would be an appropriate remedy because it would prohibit the Minister and his officers from relying on the Tribunal’s decision…as a basis for the removal of the applicants from Australia…
The Tribunal stands in a different position because it has no further role or function in relation to a decision once it has been handed down so there may be nothing left to prohibit it or its members from doing… Thus there will usually be no basis for a writ of prohibition to issue against the Tribunal or its members once a decision has been handed down (references omitted).
In my view, his Honour’s observations are equally applicable to this matter. I am satisfied the Tribunal and Ms Durkin have no further role in relation to the Tribunal’s decision. Their role is exhausted and prohibition will not issue against them. I am satisfied that there is no reasonable prospect of prohibition issuing against the third respondent and, accordingly, there is a proper basis for summary termination of the proceeding against her.
The Minister also submitted that a separate basis for summary dismissal of the proceeding against the third respondent is that it is not reasonably arguable that she was an “officer of the Commonwealth” for the purposes of obtaining prohibition pursuant to s 75(v) of the Constitution. I am not satisfied that issue can be properly addressed in this interim application. In any event, having regard to my other conclusions it in unnecessary to resolve it.
The question of the applicant’s costs of the application will be reserved to the final hearing.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 23 August 2021
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