RHAZI v Minister for Immigration

[2016] FCCA 1200

FEDERAL CIRCUIT COURT OF AUSTRALIA

RHAZI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1200

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner Migrant (Class BC) visa – whether the applicant suffered relevant family violence – whether the independent expert opinion sought by the Tribunal was authorised by the legislation – whether the Tribunal erroneously focused on physical violence – whether the applicant was denied procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), regs.1.22, 1.23(10)(c)(ii)

Applicant: RAFIK RHAZI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 230 of 2016

Judgment of: Judge Street

Hearing date: 18 May 2016

Date of Last Submission: 18 May 2016

Delivered at: Sydney

Delivered on: 18 May 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 230 of 2016

RAFIK RHAZI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 to a decision of the Tribunal made on 18 January 2016 affirming a decision of the delegate not to grant the applicant a Partner (Migrant) (Class BC) visa. The applicant is a citizen of Morocco. On 7 March 2012 the applicant applied for a partner visa in relation to his former spouse. On 13 May 2013 the applicant informed the department that his former sponsor and spouse had left the family home in February 2013 and had not returned.

2. On 21 June 2013 the applicant’s adviser informed the department that the applicant alleged he had suffered family violence from his sponsor.  The claim was supported by material provided to the department on 23 September 2013.  The material included a statutory declaration from a psychologist and a medical certificate that the applicant was suffering depression.  A delegate referred the case to an independent expert and on 2 June 2014 the independent expert assessed the applicant and provided an opinion that the applicant had not suffered from relevant family violence.  The delegate, consistent with reg.1.23(10)(c)(ii) accepted the independent expert’s findings as correct and, as a consequence, refused the applicant’s visa application.

3. The applicant applied for a review on 4 September 2014. The applicant provided a further psychologist’s report and the applicant attended the hearing before the Tribunal. The Tribunal was not satisfied that the applicant had suffered relevant family violence and, in accordance with the regulations, referred the matter to a second independent expert for assessment. That independent expert interviewed the applicant on 25 November 2015 and, from the report prepared dated 27 November 2015, it is apparent that the applicant was given the opportunity to explain why he was scared of his partner.  The independent expert correctly identified the subject matter of the opinion upon which he was required to focus which, relevantly, included that the relevant family violence that causes the alleged victim to reasonably fear for or to be reasonably apprehensive about his own personal wellbeing or safety was the focus of the opinion. 

4. In the commencement of the reasons of the expert, there is an express reference to the expert explaining “why you are satisfied or not satisfied that the conduct caused the alleged victim to reasonably fear for or to be reasonably apprehensive about his or her own personal wellbeing or safety”.  The expert referred to the matters raised by the applicant and noted that the relationship was one where the former spouse did not make threats to the applicant, nor was she deliberately abusive, as opposed to being excitable and volatile.  The expert said that the applicant’s complaints do not suggest reasonable fear for his safety or apprehension for his safety or wellbeing as a result of family violence.  It was in those circumstances that the expert concluded:

   For these reasons, I do not believe that the applicant meets criteria as laid out in the Migration Regulations 1994 that he is a victim of family violence.

5. The Tribunal in its reasons noted that it was not satisfied for the purpose of reg.1.23 that the applicant had suffered relevant family violence and, in accordance with the regulation, sought the expert opinion earlier referred to.  The Tribunal properly considered whether or not that was an opinion authorised by the regulations and the Tribunal concluded that it was not satisfied that the issues raised by the applicant about the expert report indicate that the expert report is flawed in any way or that the independent expert failed to take into account any relevant claim of the applicant or failed to properly apply the relevant definition of relevant family violence in respect of the claims by the applicant.

6. The Tribunal noted that the independent expert had concluded the applicant did not suffer relevant family violence and, accordingly, the Tribunal found as it was required that the applicant is taken not to have suffered family violence committed by the sponsor for the purpose of reg.1.22. It was in those circumstances the Tribunal affirmed the decision of the delegate.

7. The grounds of the application are as follows; 

   Ground 1

   The Tribunal fell into error in that it failed to ask the correct question or apply the correct test that domestic violence occurred pursuant to Regs 1.21 and 1.23 of the Regulations.

   Particulars

   (i) The Tribunal should have found that the applicant suffered apprehended violence from the range of circumstances and activities of the spouse at the relevant times and limited the questions to limited physical acts.

   (ii) The Tribunal should have found that the expert I competent person (Dr Lennings) erroneously confined the finds to the spouse/former spouse.

   (iii) The Tribunal when its accepted that the conduct of the other family members be excluded.

   (iv) The competent person did not address the issue of apprehension.

   (v) The Tribunal failed to ask itself whether the Applicant would be apprehensive in all the circumstances subject to harm were the Applicants - were the Applicants to go out/the Applicants did not experience by confining themselves to the house and whether the Applicants would be subject to harm.

   Ground 2

   The Tribunal should have found that the ''competent person" appointed to determine whether non-judicially determined domestic violence occurred denied the Applicant natural justice and/or procedural fairness.

   Particulars

   (i) The “competent person” denied the applicant opportunity to present all the relevant facts;

   (ii) The “competent person” confined the questioning of the Applicant;

   (iii) The Applicant was denied procedural fairness;

   (iv) The Tribunal should have found that the applicant was denied procedural fairness by the competent person and given the Applicant opportunity to fully present facts before the competent person.

   (v) The factual finding process is infected by jurisdictional error.

8. I note there was a third ground that Mr Kumar counsel for the applicant expressly abandoned.  In relation to ground 1, Mr Kumar sought to argue that the expert had erroneously focused just on physical violence.  That proposition is inconsistent with the opening focus by the expert at the commencement of his opinion in relation to reasons for opinion upon a broader meaning of family violence and is inconsistent with the reasoning of the expert, which expressly refers to an apprehension for the applicant’s safety or wellbeing.  Ground 1 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 1 fails to make out any jurisdictional error.

9. In relation to ground 2, it was suggested that the Tribunal should have found that the expert denied the applicant procedural fairness in the expert determination.  It is clear from the structure and content of the expert report that the applicant was given an opportunity to explain why he was scared of his partner.  I do not accept that the expert confined the interview to physical violence. On the material before the Court, the applicant had a genuine interview before the expert.  I am not satisfied there was any denial of procedural fairness by the expert to the applicant.  Ground 2 is, in substance, again, an impermissible challenge to the adverse findings of fact made by the Tribunal that were open on the material before the Tribunal.  Ground 2 fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 May 2016