Perez v Minister for Immigration

[2017] FCCA 1692

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEREZ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1692

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Migrant) (Class BC) visa – whether the Tribunal complied with s.360 – whether the Tribunal erred in taking correct the opinion of the independent expert – whether the report of an independent expert was authorised – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 476

Migration Regulations 1994 (Cth), regs.1.22, 1.23, 1.24, sch.2, cl.100.221

Applicant: LONISA PEREZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 20 of 2016

Judgment of: Judge Street

Hearing date: 20 July 2017

Date of Last Submission: 20 July 2017

Delivered at: Sydney

Delivered on: 20 July 2017

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Solicitors for the Applicant: Teresita Alivio solicitor

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Grant leave to the applicant to rely on the further amended application in the form annexed to the applicant’s submissions filed on 7 July 2017.

2. Direct that the further amended application in that form be filed on or before 5pm on 24 July 2017.

3. The further amended application is dismissed.

4. The applicant to pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 20 of 2016

LONISA PEREZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 December 2015 affirming a decision of the delegate not to grant the applicant a Partner (Migrant) (Class BC) visa.

2. The applicant is a citizen of the Philippines and was married to the relevant person on 3 September 2007 and then returned to the Philippines and lodged an application for a UF Partner (Provisional) Subclass 309 and BC Spouse (Migrant) Subclass 100 visa on 7 February 2008. The applicant was eventually granted an offshore visa on 21 May 2010.

The delegate’s decision

1. The applicant provided a number of documents in support of her application for a partner visa. The Department sought further information about the applicant’s spouse relationship in June 2012 and in July 2012 the applicant’s representative indicated that the relationship had broken down and she would be making a claim that she suffered family violence.

2. The applicant provided statutory declarations made by a registered psychologist, two medical practitioners, and herself in August 2012. The delegate referred the matter to an independent expert. The independent expert, on 29 August 2013, gave an opinion that the applicant had not suffered family violence.

3. On 9 October 2013, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy cl.100.221 because the parties were not in a spousal relationship at the time of the decision and the applicant did not meet the alternative criteria of cl.100.221. The delegate found that the applicant did not meet the regulatory requirements for a finding that she suffered family violence.

The Tribunal’s decision

1. The applicant applied for review before the Tribunal and the applicant appeared before the Tribunal on two occasions to give evidence and present arguments. The first hearing was held on 5 February 2015 as a result of which the Tribunal was unsatisfied that the applicant suffered family violence and, in accordance with the requirements of the regulations, referred the matter to an independent expert. The expert opinion was provided on 29 September 2015. Following the provision of the independent expert’s report, a further hearing was held on 9 December 2015.

Consideration of claims and evidence

1. The Tribunal identified the necessary requirements in the present case that the applicant or a member of her family unit had suffered family violence committed by the sponsor within cl.100.221(4)(b), and/or (c)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal identified the applicant’s background and identified the breaking down of the relationship in June 2012.

2. The Tribunal was satisfied that the applicant and the sponsor were in a partner relationship and that that relationship had ceased. The Tribunal identified that the issue arises on the evidence is whether the applicant has suffered family violence committed by the sponsor. The Tribunal identified the requirements of reg.1.23 and noted that the violence or part of the violence must have occurred during the relationship.

3. The Tribunal referred to the material provided and the requirements of the regulations and found that the required statutory declarations had been provided and that evidence of family violence had been presented in accordance with reg.1.24(1)(b) and that, therefore, a non-judicially determined claim of family violence had been made under reg.1.23.

4. The Tribunal identified the applicant’s claims in relation to an incident in September 2011, October 2011 and April 2012 and what occurred after the sponsor left the granny flat in June 2012. The Tribunal was not satisfied for the purpose of reg.1.23 that the applicant suffered family violence under the regulation and, in accordance with the regulation, the Tribunal sought an independent expert opinion.

5. The Tribunal referred to that opinion received on 29 September 2015 to the effect that the applicant had not suffered family violence. The Tribunal invited the applicant to comment on or respond to the report and, on 13 November 2015, received submissions from the applicant’s migration representative in response. The Tribunal summarised those submissions seeking to take issue with whether the independent expert had provided a report within the Regulations and had applied the correct test. Because of the objections to the report the Tribunal invited the applicant to the further hearing as referred to. The applicant attended the further hearing to give evidence and present arguments.

6. The Tribunal referred to the submissions seeking to take issue with the report and found that the independent expert comprehensively assessed and evaluated the applicant’s evidence and claims and considered all the relevant information including the report of a psychologist. The Tribunal found that the expert discussed all relevant issues and applied the correct definition of family violence. The Tribunal found that the substance of the evidence of the applicant and the submissions was a disagreement with the conclusion drawn by the expert.

7. The Tribunal found that there was no basis for holding that the expert was biased or prejudiced and the Tribunal found that the independent expert had properly assessed the claims of the applicant. The Tribunal was satisfied that the opinion was authorised by the Regulations and that it was provided by an independent expert who is a person suitably qualified to make the assessment who is an employee of an organisation specified for this purpose and that the report was properly made.

8. The Tribunal identified that under reg.1.23 the Tribunal is required to take as correct the independent expert’s opinion. The Tribunal found that the applicant was taken not to have suffered family violence committed by the sponsor for the purpose of reg.1.22 and, given that conclusion, the Tribunal found the claim of family violence has not been established and that the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa.

9. The Tribunal found there was no evidence that the applicant meets any of the alternative sub criteria and, accordingly, the applicant did not meet an essential criterion for the visa and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

1. The grounds of the further amended application are as follows:

   1. In finding that it was not satisfied the applicant met the criterion in subregulation 100.221(4) of Schedule 2 to the Migration Regulations 1994 (“Regulations”), the second respondent:

   a. failed to comply with section 360 of the Act; or

   b. erred in holding that it was required under subparagraph 1.23(10)(c)(ii) of the Regulations to take as correct the opinion of an “independent expert” in a report dated 29 September 2015 (“IE Report”) that the applicant had not suffered “relevant family violence” in circumstances where the IE Report was not authorised by the Regulations, because the “independent expert” had not been provided evidence presented by the applicant in support of her claim to have suffered relevant family violence.

   2. Further or in the alternative, the IE Report was not authorised by the Regulations because the “independent expert” misconstrued the Regulations:

   a. as requiring a direct causal connection between individual incidents or conduct by the sponsor and fear or apprehension for the applicant's wellbeing or safety, as opposed to the cumulative effect of abuse causing the applicant to apprehend a loss of wellbeing concomitant with the ending of her relationship with her sponsor; and

   b. further or in the alternative, as requiring the independent expert to disregard conduct and evidence as to the applicant's condition after the relationship ended.

   3. Further or in the alternative to 1 and 2, the IE Report was not authorised by the Regulations because the independent expert failed to ask the applicant about and/or assess instances of relevant family violence claimed to have occurred on or after 5 July 2012.

Consideration of the grounds

Ground 1

1. In relation to Ground 1, it was common ground that counsel for the applicant had identified certain documents on the Department file that were not provided to the independent expert. None of those documents was of any materiality or significance for the purpose of the assessment by the independent expert. One of the documents included a psychologist’s initial report in respect of which there was a subsequent report which included the whole substance of the initial report.

2. The other documents referred to are all documents of no materiality or significance in relation to the assessment to be carried out by the independent expert. There was no failure to comply with s.360 of the Act and there is no substance in the assertion that the expert report was not a report in accordance with the regulation.

3. It is apparent from the transcript that the applicant was informed of the material that would be provided by the Tribunal to the expert and was given an opportunity to identify if any other material should be provided. No such step was taken by the applicant or her migration agent.

4. Accordingly, the Tribunal was correct to act on the independent expert’s report and opinion made in accordance with the Regulations. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, Mr Chia of counsel argued that the expert had misconstrued the Regulations and imposed an additional requirement of a direct causal connection between the incidents or conduct by the sponsor and the fear of apprehension, but had failed to consider the cumulative effect of abuse causing the applicant to apprehend a loss of wellbeing concomitant with the ending of her relationship with the sponsor. In that regard, Mr Chia of counsel took the Court to part of the expert’s report which was clearly in response to screening questions that had been asked by the psychologist who had provided the statement in support of the applicant’s alleged domestic violence.

2. Mr Chia drew attention to the response summarised in relation to the screening questions to which the independent expert decided to go through with the applicant, which relevantly provided as follows:

   Question 5 – ‘would you like help with any of this now’ to which she replied yes. When asked why she did not seek help given she answered yes, Ms Perez stated that “I wasn’t scared of him [her husband] then when we had a relationship because I didn’t want us to separate”. It was after the relationship needed that she described feeling afraid that her husband would use his peers who were Policeman to threaten her, 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.

3. The independent expert continued in relation to that screening and testing, to comment as follows:

   With regards to the Becks Depression Inventory in which Ms. Perez scored in the ‘high risk level’, this is expected given her distress at the relationship breakdown, her attachment to her husband and the grief associated with the loss of the relationship. It is likely that the anxiety post the relationship ending was heightened by her reported insecurities and jealousy, believing he returned to his ex-wife, which was the primary cause of arguments during the relationship.

   In summary, it appears that Ms. Perez’s interpretation of the items on the domestic violence screening inventory were such that she responded assuming the violence occurred within the last one year when in fact she was not in a relationship with her husband during this time. As such, her responses to this measure are invalid for interpretation and little weight can be given to her responses. Nevertheless, when her responses were explored, it was evident that her idea of fear was different to that in which fear is understood. That is, Ms. Perez failed to describe her husband as causing her harm, reasonable levels of anxiety due to his allegedly abusive behaviour and she continued to desire a relationship with him rather than seeking to leave or seek safety.

4. Mr Chia of counsel submitted that the expert had failed to take into account, in relation to the meaning of family violence, the significance of reg.1.23(14) which refers to:

   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.

5. Mr Chia argued that the reference to “or part of the violence” meant that some of the violence could have occurred subsequent to the breakdown of the relationship, and that the conclusion that should be drawn from the reference in the last sentence of question 5 was that the independent expert had failed to properly apply the definition of family violence in the Regulations.

6. It is apparent that the independent expert was responding to the screening questions and summarising what occurred, and was not seeking to summarise the matters taken into account in the opinion that was subsequently set out in the expert’s reasons which were adverse to the applicant.

7. In that regard, relevantly, the independent expert said overall it was clear from the information provided that the applicant continues to feel heartbroken at the failed relationship, desperate at the time to resolve any issues, and disappointed that this did not occur. The independent expert found that the husband’s persistence to leave meant that the applicant felt devastated, rejected, and understandably disadvantaged by having settled her life here in Australia.

8. The independent expert made reference to having taken into account the information provided, including the psychologist’s assessment, and the psychologist’s assessment was not given weight due to the assessment relying upon the applicant’s responses to psychological screening tools that produced elevated scores without providing the context or limitation to those tools. The expert noted that on examination of the scores, it was clear that the applicant experienced a level of distress at the time of the assessment, although the use of particular words were often misinterpreted.

9. The independent expert noted that when explored with the applicant, it was apparent that the applicant used such terms out of context as she did not provide an account that indicated she was reasonably anxious or fearful for her wellbeing or safety as a result of her husband’s behaviour towards her. The expert noted that the applicant described a relationship that was coloured by regular arguments, a lack of reciprocated affection, and failed attempts at working through the relationship problems.

10. The independent expert found that despite the applicant’s efforts to resolve the marital problems, her husband ended the relationship, leaving her feeling rejected and hurt. The independent expert found that the applicant’s account did not suggest that she experienced a reasonable level of apprehension or fear for her wellbeing or safety throughout the relationship or as a result of the examples she provided. It is in those circumstances the expert concluded that the applicant does not meet the specific criteria for family violence as defined in reg.1.21 of the Regulations.

11. There is no basis to find that the expert inappropriately required the alleged direct causal connection as advanced in Ground 2 or that the expert failed to consider the whole of the material provided to the expert in determining the application of whether the criteria were met. Nor is there any basis to conclude that the expert disregarded conduct subsequent to the ending of the relationship in determining whether or not the applicant was subject to the relevant family violence. No jurisdictional error as alleged in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, Mr Chia of counsel submitted that there was material provided to indicate an incident on 10 June 2012 after the relationship had ended, and an incident involving a landlord on 14 July 2012, and submitted that as the applicant did not appear to have been asked any direct questions by the independent expert about that topic, it was not taken into account by the independent expert.

2. On the face of the material before the Court, it is apparent that the independent expert had regard to the whole of the material before the independent expert. There is no basis to conclude that the independent expert failed to take into account the alleged incident subsequent to the ending of the relationship. The significance of those incidents, including the encounter with the landlord, were not of a nature or materiality to require the independent expert to expressly address them. The dispositive findings by the expert subsumed those incidents.

3. No jurisdictional error is made out by Ground 3 of the further amended application.

Conclusion

1. Accordingly, the further amended application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  9 August 2017