O'Brien v Administrative Appeals Tribunal
[2021] FCCA 952
•7 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
O’Brien v Administrative Appeals Tribunal [2021] FCCA 952
File number(s): MLG 1720 of 2020 Judgment of: JUDGE EGAN Date of judgment: 7 May 2021 Catchwords: MIGRATION – Application for injunction to restrain Tribunal from purportedly engaging another expert psychologist pursuant to r. 1.23(10) of the Migration Regulations 1994 (Cth) in circumstances where a report had already been obtained – assertion of invalidity of initial opinion – no merit to such assertion – initial opinion held to be valid – parties to make submissions as to form of orders to be made by the Court. Legislation: Migration Regulations 1994 (Cth), rr 1.21, 1.23, Schedule 2, cl 820.221. Cases cited: Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 Number of paragraphs: 24 Date of last submission/s: 4 May 2021 Date of hearing: 4 May 2021 Place: Brisbane Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Clothier Anderson Counsel for the Second Respondent: Mr Wood Solicitor for the Second Respondent: Australian Government Solicitors First Respondent: Submitting appearance save as to costs ORDERS
MLG 1720 of 2020 BETWEEN: BRETT O'BRIEN
Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
7 MAY 2021
IT IS ORDERED THAT:
1.The parties are to confer for the purpose of forwarding to Chambers agreed draft orders consonant with the reasons for judgment handed down today.
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of India who was granted a Partner (Sub Class 820) Visa on 22 October 2009. The applicant had been sponsored by his spouse, namely one Charmaine Tully.
The applicant lived with his sponsor until 10 December 2010, at which time he left the matrimonial home following what he alleged was ongoing and repeated family violence perpetrated against him by his sponsor. The violence allegedly took the form of verbal, physical and psychological abuse.
By r. 1.21 of the Migration Regulations 1994 (Cth) (‘the Regulations’), the term “relevant family violence” was defined as follows:
“1.21 Interpretation
In this Division:
relevant family violence means 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.”
Clause 801.221 of Schedule 2 to the Regulations relevantly set out the criteria for the grant of a visa where there was a claim of family violence, and provided as follows:
“801.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2)…
…
(6)An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
…”
When the question of whether or not the applicant had, or had not, suffered family violence was considered by the Administrative Appeals Tribunal (‘the Tribunal’), the Tribunal was not so satisfied. In such circumstances, r. 1.23(10) of the Regulations provided that an independent expert’s opinion on the question was required to be obtained. The regulation also provided that the opinion of such expert, when obtained, was taken to be correct and determinative on the issue.
Regulation 1.23 of the Regulations relevantly provided as follows:
“1.23 When is a person taken to have suffered or committed family violence?
(1)For these Regulations, this regulation explains when:
(a) a person (the alleged victim) is taken to have suffered family violence; and
(b) another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
Note:Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.
(2)…
(3)…
…
Circumstances in which family violence is suffered and committed—non‑judicially determined claim of family violence
(8)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 and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.
(9)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) the alleged victim is:
(i) a spouse or de facto partner of the alleged perpetrator; or
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse or de facto partner of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse or de facto partner; or
(iii) a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
(10)If an application for a visa includes a non‑judicially determined claim of family violence:
(a) the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b) if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c) if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i) the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and
(ii) the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
…”
A report dated 30 September 2019 prepared by Mr Janover – in his capacity as a qualified psychologist was provided to the Tribunal. On 2 October 2019, the Tribunal wrote to the lawyer for the applicant. [1] The letter expressed concern that the report of Mr Janover (which was attached to the letter) did not appropriately answer why the alleged conduct said to constitute family violence caused the applicant to reasonably fear for, or to be reasonably apprehensive about, his own well-being or safety. The letter was as follows:
[1] Court Book (CB) p. 654 – 655.
“2 October 2019
Dear Ms Farrell
On 30 September 2019 this Tribunal received a completed report from an Independent Expert, Dean Janover. The Expert's report is attached for the applicant's information and consideration.
This Tribunal is concerned that the report does not appropriately answer why (in the 'opinion' of the Expert) the conduct (verbal abuse, physical abuse, and the threat to end the relationship and jeopardise the applicant's visa) caused the applicant to reasonably fear for, or to be reasonably apprehensive about, his own wellbeing or safety.
This Tribunal may find the Expert has in the first two 'types' of incidents, provided only a reiteration of Mr O'Brien’s reported responses, rather than actually providing a meaningful explanation of "why" the alleged conduct caused the applicant to reasonably fear for, or to be reasonably apprehensive about his own wellbeing or safety.
Further, in the report, where the Expert considered the third incident: "Threats to end the relationship and jeopardise his visa"; the Expert provided contradictory answers by 'ticking' 'Yes' in the box corresponding to the question “In the IE’s opinion, did the conduct in the incident cause the alleged victim to reasonable fear for, or to be reasonable apprehensive about, his or her own wellbeing or safety?”, while then stating by means of explanation; "Mr O'Brien did not report experiencing any fear or apprehension for his safety or wellbeing as a result of the threats." These two responses appear, to this Tribunal, to be contradictory.
Collectively these concerns may cause this Tribunal to conclude the Expert's opinion has not been properly made because the Expert may have failed to properly answer the question, and thereby provide a proper opinion (in-part) that then informs the penultimate decision by the Expert about whether the applicant suffered relevant family violence or not.
This Tribunal invites you to make any submission in regards to the matters discussed above. Alternatively, this Tribunal is also prepared to schedule a further hearing if the applicant would prefer to discuss these aspects in person.
Should this Tribunal find the Expert's 'opinion' has been properly made, it will remit the decision to the Minister for further consideration.
Alternately, should this Tribunal find the Expert's 'opinion' has not been properly made, it will seek another Independent Expert's opinion. Should this be required, any finding that is not in the applicant's favour would give rise to a further hearing opportunity for the applicant to attend in person and provide any evidence or argument for this Tribunal's consideration prior to a decision being made.”
The question for determination by the Court was whether or not the opinion of Mr Janover, obtained as it was pursuant to r. 1.23(10) of the Regulations, and as expressed in a report dated 30 September 2019, was “valid” or not. It was submitted on behalf of the Tribunal that such report did not evidence any requisite active intellectual engagement on the part of Mr Janover concerning the question at hand, thereby rendering his opinion invalid. As a consequence, the Tribunal considered that it was free to engage another psychologist who could be called upon to prepare another report, and express an opinion, on the question as to whether the applicant had or had not relevantly been the subject of family violence.
The applicant asserted that the Tribunal was wrong in characterising the opinion of Mr Janover as being invalid, submitting that the Tribunal was bound by his opinion that the applicant had been the subject of family violence.
By an Amended Application for Review filed on 31 July 2020, the applicant sought declaratory relief in support of his claims, and an injunction restraining the Tribunal from seeking to obtain an additional opinion from another psychologist. The relief sought was as follows:
“1. A declaration that the Tribunal is bound to accept the opinion of Dr Jean Janover dated 30 September 2019 as correct on the question of whether relevant family violence was suffered by the applicant.
2. A declaration that the Tribunal is bound to find that the applicant satisfies the visa criterion of having suffered family violence on the basis of Dr Janover’s expert opinion.
3. An injunction preventing the Tribunal from seeking or obtaining an opinion from an additional independent expert.
4. The second respondent pay the applicant’s costs.”
Counsel for the second respondent referred the Court to the judgment of the Full Court in Perez v Minister for Immigration and Border Protection [2017] FCAFC 180 where, at [9] – [17] inclusive, it was said, per Besanko, McKerracher and Jagot JJ, as follows:
“[9] We are satisfied that the independent expert formed her opinion based on the incorrect belief that the only relevant family violence was that which occurred during the relationship. As a result the independent expert excluded from her consideration the claims of threats and verbal abuse communicated to the appellant after the relationship ceased and, in our view, the physical violence claimed to have occurred on 5 July 2012, despite the uncertainty about the date on which the relationship ended. Accordingly, the opinion of the independent expert was based on a misunderstanding of the statutory question. The correct question was whether the appellant had suffered family violence the whole or part or of which occurred during the relationship. The independent expert, however, asked only whether the appellant had suffered family violence during the relationship. A misunderstanding of the statutory task of this kind involves jurisdictional error. As explained in Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 at [66]-[69], an opinion which a law requires to be formed, is an opinion formed in accordance with law. Where the opinion is not such an opinion, a decision founded upon the opinion is itself not a decision in law.
[10] There are a number of reasons why the inference of error must be drawn.
[11] Under the heading “Physical Abuse Allegations” the independent expert identified three claims of physical abuse ending with an incident in April 2012. As noted, the appellant claimed four incidents of physical violence, the last being on 5 July 2012.
[12]Under the heading “Financial Abuse Allegations” the independent expert referred to the husband’s visit to the family home on 5 July 2012 but in so doing did not mention the allegation of physical violence on that occasion which led to the appellant reporting her husband to the police.
[13] In a summary table describing the incidents the independent expert said that the appellant “made reference to three examples of alleged physical abuse that occurred in September 2011, October 2011 and April 2012”. Again, as noted, the appellant claimed four incidents of physical violence, the last being on 5 July 2012.
[14] In discussing another psychological assessment of the appellant which was conducted in September 2013 the independent expert noted that the appellant had answered yes to the question “In the last year, has your partner hit, kicked, punched or otherwise hurt you?” The independent expert said that as the relationship had ended in June 2012 “it would be impossible to have experienced the above in the last one year from the date of testing”. This observation is incorrect if it is possible, as it is, for family violence within the meaning of the Regulations, to occur after the relationship has ceased.
[15] In discussing the same psychological assessment the independent expert referred to the appellant feeling afraid of her husband after the relationship ended (which might be in reference to the threats and abuse said to have been communicated to the appellant on 14 July 2012) but then said “…although these examples fall outside the scope of ‘family violence’ within the migration regulations as such examples need to have occurred whilst in the relationship”. While the Minister did his best to explain away this statement it is incapable of bearing any meaning other than that the independent expert proceeded on the incorrect basis that only incidents which occurred during the relationship were capable of constituting relevant family violence.
[16] The Minister otherwise submitted that even if the independent expert misunderstood the law, she nevertheless considered all of the appellant’s claims, referring to various statements such as the giving of “little weight” to the other psychological assessment, the appellant’s “overall” account, and the appellant not experiencing a reasonable level of fear or apprehension throughout the relationship or as a result of the examples she provided”. The problem is that these references are insufficient to counter the clear statement that the claims of incidents after the relationship ended “fall outside the scope of ‘family violence’ within the migration regulations as such examples need to have occurred whilst in the relationship”, the fact that there is no mention in the independent expert’s reasons of the alleged physical violence on 5 July 2012, and the dismissal of the appellant’s fear resulting from events after the relationship ended as irrelevant.
[17] For these reasons grounds 3 and 4 of the appeal, concerning the independent expert’s misconstruction of the Regulations and failure to consider the incidents that occurred after the relationship ended, must be allowed.”
It was submitted on behalf of the second respondent that the report of Mr Janover lacked the requisite degree of analysis required for its acceptance as a valid one. There is no merit to such submission.
First, both Counsel agreed that whereas the applicant had been interviewed by Mr Janover, the sponsor had not been interviewed by Mr Janover for the purpose of the preparation of his report. As a consequence of the sponsor not being so interviewed, the report necessarily focused upon what was said to Mr Janover by the applicant.
Second, there was no suggestion that Mr Janover lacked the expertise and experience required of a competent psychologist carrying on his profession as a psychologist.
Third, though Counsel for the second respondent vacillated late in his submissions as to his precise characterisation of the content of the report of Mr Janover, he had earlier conceded that “there was no positive indication of glaring error” in the report, such as there was in Perez.
Fourth, Counsel for the second respondent acknowledged that he could not submit that Mr Janover misunderstood the relevant definition of family violence.
Fifth, on the question of whether or not Mr Janover had actively intellectually engaged on the question as to whether or not the applicant had suffered relevant family violence, there is evidence that he did. It is apparent from a reading of the report that Mr Janover identified matters which were supportive of the proposition that family violence had occurred. [2] The nature of the violence was identified as being physical, verbal and “threats to end the relationship and jeopardise his visa”. [3] Mr Janover identified a large volume of written material relevant to the claim of family violence which the Court infers was accessed and read by him prior to the preparation of his report. [4] There was no suggestion to the contrary.
[2] CB p. 634 – 636.
[3] CB p. 637 – 638.
[4] CB p. 639 – 644.
Further, by way of a summary of Mr Janover’s impressions of the applicant, Mr Janover found that the applicant was consistent in his relation of events, and appeared to be frank and sincere in his reporting. Mr Janover opined that the applicant’s account seemed genuine, and he recorded how the applicant had become very emotional when describing how his wife’s actions had impacted upon him. Mr Janover was appropriately incisive in a manner to be expected of a competent psychologist when called upon to give a professional opinion. Moreover, such summary was given in circumstances where presumably supportive evidence from “competent persons” was discounted. The relevant summary was as follows: [5]
“Overall the material reflects a consistent narrative provided by Mr O’Brien. The accounts of what occurred match across the range of documents provided and are indicative of someone who despite the abuse, did his best to accommodate his wife’s behaviour in order to make the relationship work, thus exposing himself to more violence. His consistency was also evident in the current assessment where he appeared to be frank and sincere in his reporting. Overall, his account seemed to be credible given his ability to recall events in the same way they were described in his documents. Despite the passage of time he also became very emotional when describing events and was therefore able to convey how his wife’s actions impacted on him. The competent persons reports do not establish enough of a link between the alleged family violence and any fear or apprehension Mr O’Brien may have experienced for his safety or wellbeing.”
[5] CB p. 644 – 645.
After the summary referred to above, Mr Janover set out his reasons for finding the occurrence of family violence, under the heading Reasons for my decision. [6] Mr Janover said as follows:
“On the basis of the material reviewed and Mr O’Brien’s account of the events, Mr O’Brien is a victim of family violence as defined in Regulation 1.21 of the Migration Regulations (1994).”
[6] CB p. 646 – 647.
In circumstances where a psychologist is called upon to provide an opinion which is largely based upon a one sided relation of events, it is appropriate for a Court called upon to examine such opinion to not be overly critical of it, particularly in circumstances where the relevant expertise of Mr Janover as a qualified practicing psychologist would have been used to assess not only the applicant’s demeanour during interview, but also matters which went to the sequencing and logicality of the applicant’s relation of historical events. Those are matters which were singularly only able to be assessed by Mr Janover. Also of significance was the fact that there was no third party assertion that Mr Janover was incapable of performing those tasks other than in a professional and competent manner.
The Court finds that there is no force to the argument that Mr Janover did not actively intellectually engage in the task required to be undertaken by him – namely his forming a professional opinion as to whether or not the applicant had been the subject of family violence or not. That his opinion might have been at odds with what another reasonable expert psychologist might have found was of no moment, being merely an example of how reasonable minds might legitimately differ in relation to the same factual scenario.
The Tribunal, through its Counsel, had informally undertaken not to take any action pending the handing down of the Court’s reasons. The Court sees no reason why, in the light of the handing down of this judgment, the Tribunal would act otherwise than in accordance with the reasons of the Court.
The Court will hear the parties as to the form of any orders which might be made, or undertaking which might be given, consequent upon the publication of this judgment.
The Court will further hear the parties as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 7 May 2021
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