Rogers v Minister for Home Affairs
[2019] FCCA 473
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROGERS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 473 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – breakdown of the relationship – claim of family violence – report of independent expert refuted the claim – whether the report affected by any legal error considered – Tribunal decision relied on the report which was free from error. |
| Legislation: Migration Regulations 1994 (Cth) |
| Cases cited: AVQ15 v Minister for Immigration[2018] FCAFC 133 Minister for Immigration v Maman [2012] FCAFC 13 |
| Applicant: | MAY SUSAN ROGERS |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 4054 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application as amended in court on 28 February 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 4054 of 2017
| MAY SUSAN ROGERS |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Rogers, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 December 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Rogers a partner visa.
The following statement of background facts is derived from the submissions of the parties.
Ms Rogers, a citizen of the Philippines, met her sponsor Mark Andrew Rogers in April 2013 in the Philippines. They were married in Australia in December 2014.[1] On 13 February 2015 Ms Rogers made an application for the partner visa on the basis of her relationship with her sponsor. Shortly after the marriage, marital difficulties emerged when Ms Rogers discovered that Mr Rogers was involved with other women online, resulting in their separation.
[1] Court Book (CB) 2; 5
On 7 September 2015 Ms Rogers’ migration agent formally advised the Minister’s Department that Mr Rogers wished to withdraw his sponsorship of Ms Rogers’ visa application as the relationship had broken down.[2]
[2] CB 196
On 30 October 2015 the delegate refused to grant Ms Rogers a visa.[3] Ms Rogers applied to the Tribunal for review of the delegate’s decision.
[3] CB 220
Ms Rogers did not raise any claim of family violence prior to the delegate’s decision. On review to the Tribunal she raised the issue of family violence.[4] The Tribunal invited Ms Rogers to appear at a hearing on 18 October 2016 and she did appear.[5]
[4] CB 273
[5] CB 311, 318
The Tribunal, apparently not satisfied of the family violence claim, referred the question to an independent expert.[6] The independent expert reported to the Tribunal that Ms Rogers had not suffered relevant family violence perpetrated by Mr Rogers. The Tribunal invited Ms Rogers’ comment on the expert’s opinion.[7] Ms Rogers, through her representative, made a written submission to the Tribunal challenging the conclusions of the independent expert.[8]
[6] CB 339
[7] CB 367
[8] CB 369
On 3 January 2017 the first Tribunal affirmed the decision under review.[9] That decision was set aside by this Court and the matter was remitted to the Tribunal for determination.[10] The Minister conceded error because the independent expert, Dr Lennings, had failed to take into account a cogent piece of evidence and therefore the Tribunal erred in relying upon the expert’s report.
[9] CB 380
[10] CB 392
On 29 May 2017 the Tribunal wrote to Ms Rogers advising her of the remittal of her matter, and it advised the matter would be re-allocated to a member.[11] In fact, on remittal the matter was allocated to the same member. On 29 September 2017 the Tribunal, as reconstituted, on the basis that it was not satisfied Ms Rogers had suffered family violence referred the matter to an independent expert.[12] The Tribunal sought the referral to be conducted by the independent expert who prepared the first report (Dr Lennings).
[11] CB 395
[12] CB 408
On 30 September 2017 LSC Psychology Pty Ltd (LSC Psychology) emailed the Tribunal to confirm the matter would be referred to the original independent expert, and sought clarification as to whether the referral was for a “Part B” fresh assessment or a “Part D” report only to consider new information.[13] The Tribunal responded that the referral was for a “Part D” report.[14] A revised report appears to have been prepared by Dr Lennings, but subsequently Ms Rogers was informed that she would be invited to an interview with an expert before the report was prepared.[15]
[13] CB 423
[14] CB 425
[15] CB 460, 461
On 30 November 2017 the Tribunal sent Ms Rogers a new report prepared by a different independent expert, Dr Collins.[16] Dr Collins interviewed Ms Rogers for 95 minutes on 24 November 2017.[17] On 1 December 2017 the Tribunal invited Ms Rogers to comment on Dr Collins’ report.[18] Ms Rogers responded, disputing Dr Collins’ findings and asserting that she (Ms Rogers) was misunderstood by the expert.[19]
[16] CB 463
[17] CB 464
[18] CB 482
[19] CB 484
On 19 December 2017 the Tribunal made a decision affirming the delegate’s decision.[20] The Tribunal was satisfied that the opinion of Dr Collins was authorised by the Migration Regulations 1994 (Cth) (Regulations) and that it was required to take Dr Collins’ opinion to be correct.[21] The Tribunal affirmed the decision under review.
[20] CB 488
[21] CB 492 at [31]
The present proceedings
These proceedings began with a show cause application filed on 29 December 2017. Ms Rogers now relies upon an amended application which was attached to her counsel’s written submissions filed on 25 February 2019 and handed up in court. I gave leave for Ms Rogers to file and rely upon that amended application. There is one particularised ground in it:
1. The Tribunal’s decision was based upon an independent expert’s report that was not legally valid for the purposes of Regulation 1.23 of the Migration Regulations
Particulars
The report from an Independent Expert was not legally valid as: (a) the assessment that no family violence had occurred was based in part on the unwarranted assumption that the applicant was expected to describe the sex acts performed on prior occasions; (b) the opinion of the independent expert has the appearance of partiality; and (c) the independent expert failed to provide an opinion on all of the family violence which the applicant complained of.
In addition to the court book filed on 1 June 2018, I have before me as evidence the affidavit of Toufic Laba-Sarkis made on 30 July 2018, to which is annexed the transcript of the Tribunal hearing conducted on 18 October 2016.
Both Ms Rogers and the Minister filed pre-hearing written submissions, although those of the Minister were overtaken by the amended application. Counsel for the Minister dealt with the ground in that application in oral submissions.
Consideration
The legislative scheme
Regulation 1.23(10) and (13) of the Regulations are relevant. They provided:
(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.
...
(13) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
The phrase “independent expert” is defined in regulation 1.21 as a person who:
(a) is suitably qualified 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 a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.
Applicant’s contentions
An independent expert’s opinion is only clothed with the conclusiveness of regulation 1.23 if it was formed in accordance with the law.[22] As these proceedings have already demonstrated, the failure of the independent expert to take into account important evidence can mean that the opinion is not formed according to law. Equally, if the opinion is based upon a false premise or is irrational then it would not be in accordance with the law. If there was an appearance of partiality then the opinion also would not be formed in accordance with the law.
[22] Minister for Immigration v Maman [2012] FCAFC 13 at [64]
The Full Federal Court in AVQ15 v Minister for Immigration[23] stated at [48]:
We are satisfied that the Tribunal’s decision is affected by jurisdictional error and the primary judge erred in not upholding ground 1 of the amended application for judicial review. The Tribunal’s apparent overlooking of material in the form of the transcript of the appellant’s interview with the Departmental officer could also be characterised as a constructive failure to exercise jurisdiction (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [80] ff per Gaudron J; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [68]- [77] per Hill, Sundberg and Stone JJ and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [38]- [46] per Griffiths J). That is because, in assessing whether or not there were inconsistencies between the appellant’s written and oral claims, it was incumbent upon the Tribunal to consider relevant parts of that transcript, which it failed to do. The appellant had, after all, made clear in his original statutory declaration that he would expand upon his claims in that interview. Further, in any situation where an applicant is given an opportunity to attend an interview or engage in a review process, it is reasonable for that applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given prior to that point. This expectation and the other matters to which we previously referred (see [24]-[26] above) must be properly considered by a decision-maker in making any assessment of the applicant’s claims and evidence.
[23] [2018] FCAFC 133
Ms Rogers submits that her claim that Mr Rogers forced her to have sex has remained consistent. The only extra detail that was provided to Dr Collins was the specifics of the sex acts performed. There has not otherwise been an escalation of the account that she was forced to have sex.
Family violence occurs when a person is physically forced to have sex. The relevant specifics are the occasion and circumstances. The particular sex acts involved are not a critical detail as the fact that the person is physically forced to have sex is of itself the critical matter. The point is that the victim did not want to have sex of any sort.
This was not a police rape investigation. Nobody was asking what particular acts Mr Rogers performed. In these circumstances, there is nothing unexpected in Ms Rogers choosing to not reveal the actual sex acts performed. There was no need for such detail. Ms Rogers’ response to Dr Collins that “she did not know she had to go into detail about the allegations”[24] was the correct position. However, Dr Collins’ reasoning is based upon an unwarranted assumption that the details of the acts performed should have been revealed. Surprisingly, Dr Collins lists the formal occasions in the Tribunal hearing and the Federal Court as where these details could have emerged. They were not germane in those venues.
[24] CB 467
That Ms Rogers felt comfortable enough with Dr Collins to reveal to her the details of the sexual acts is said not to be a logical reason to completely dismiss an account of being forced to have sex that has been consistently made.
As Ms Rogers says, she is shy and embarrassed. She is also from a different culture. As she also says a victim may be unable to reveal the whole truth immediately. As the Full Federal Court in AVQ15 stated, “it is reasonable for [an] applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given”.[25]
[25] at [48], reproduced at [19] above
Ms Rogers submits that the approach of Dr Collins might be defensible if, on some earlier occasion, she had indicated that some different sex act had occurred. But in circumstances where it is sufficient that there be non consensual sex, and the applicant has chosen not to otherwise reveal the sex acts performed, it is illogical to completely dismiss an account of being forced to have sex because Ms Rogers did not previously choose to reveal the details of the sex performed. In this respect, the view of Dr Collins as to the extent of escalation that has occurred in Ms Rogers’ account is said to be based upon a false premise.
Further, Ms Rogers notes that Dr Collins concludes that it is implausible that she was required to engage in the particular sex acts reported by her. She submits that this only disposes of that particular occasion. Ms Rogers complained of being forced to have sex on two occasions. However, Dr Collins fails to make any finding as to whether Ms Rogers was forced by Mr Rogers to have sex with him on another occasion as she had previously claimed. The independent expert is said thus to have failed to provide an opinion on all of the family violence of which Ms Rogers complained.
Dr Collins is a co director and business partner of Dr Lennings in LSC Psychology. The remittal by the Court was attributable to the failure of Dr Lennings to engage with all the material he was briefed with. This is said to imply criticism of the professional thoroughness of Dr Lennings which would reflect badly on the business. Ms Rogers submits that the further referral by the Tribunal to LSC Psychology for an independent expert opinion, and the resulting opinion, in these circumstances does not have the appearance of dispassionate objectivity.
Resolution
Was the report based on an unwarranted assumption?
In her Form 1401, statutory declaration for family violence claim,[26] made on 1 February 2016, Ms Rogers stated:[27]
In occasion I go to his place at Spring farm to pick up my personal things left behind at that point Mark grabbed me and sexually assaulted me leaving and feeling dirty, abused, worthless and unwanted.
[26] CB 273-286
[27] CB 279
In her statutory declaration, Ms Rogers referred to the report of Dr Metry, her psychologist dated 22 December 2015 in which he stated:[28]
She also reported that she was sexually abused by Mark, she reported that on one occasion when she had left Mark and moved out she had to go back to the house to pick her stuff; Mark had grabbed her and forced her to have sex with him. On another occasion she had to go to the house May refused to go inside as she was scared of Mark forcing her in having sex with him. She further stated that she had to go to the house a third time when Mark had forced and pressured her to have sex with him telling her that he would not cancel her visa.
[28] CB 304-305
Ms Rogers also attached the report of Jacqueline Youssef, a social worker, dated 6 January 2016.[29] The social worker recorded the fact that Ms Rogers had said that Mr Rogers had subjected her to sexual abuse, and that he grabbed her and sexually assaulted her.
[29] CB 294-295
The first independent expert report of Dr Lennings made the following assertion:[30]
Ms Rogers also talked about the time in August or September 2015 she had gone over to the house to get material which she kept there, which she wanted back. On those occasions Mr Rogers had convinced her to have sex with her although it does not appear that any coercion was used in that context other than emotional appeals to her. Ms Rogers refers to it as her being manipulated. It seems that he was offering vague opportunities for her that the relationship might still work out.
[30] CB 352
Dr Lennings also records that Ms Rogers told him that she had contacted the police when Mr Rogers texted her asking for sex in December 2015.[31]
[31] CB 352
On 16 November 2016 the Tribunal invited Ms Rogers to comment on that report.[32] Her response of 28 November 2016 included the following in response to a passage from Dr Lennings' report in a paragraph reproduced at CB 349:[33]
I disagree with this. Yes I was forced to have sex with him. He sexually assaulted me leaving me feeling dirty, abused, worthless and unwanted. He made me feel obligated because he made me feel that he brought me to Australia and I own him a favour. He grab me inside his home. I refused to do so, but he keep going even though I don’t want to do it even though I still Love my husband. I feel so pressured. He threatened me if I dont have sex with him. He will cancel my visa and send me home. He used this as a weapon for me to get what He want because He knows I have children to support. He is a monster. I am so afraid of what might have happened if I say no at the time. I was on his place. He will never take no for an Answer. I was scared of Him if I refused his well.
(errors in original)
[32] CB 366
[33] CB 372
As noted above, a decision to affirm the decision not to grant Ms Rogers a visa was made by the Tribunal after receiving Dr Lennings’ report. However, this Court remitted the matter to the Tribunal on the basis that Dr Lennings had not considered an important matter, being the report of the social worker. When the case was remitted the Tribunal sought a second independent expert report. This was provided by Dr Emma Collins, a business partner of Dr Lennings.
In her report, Dr Collins then opined there has been no sexual abuse for the following reasons:[34]
Ms Rogers made allegations during the current interview that the sponsor forced her to have oral sex, "swallow my sperm" and engage in anal sex. These very serious allegations have never been previously documented and were first disclosed during the current interview.
I have concerns that this allegation has been embellished over time. Ms Rogers has spoken about these sexual allegations to two professional support people, including one female, although no detail was apparently ever discussed. it is evident that she was asked about these allegations in detail in the original IE report of November 2016 and she described the sponsor convincing her into sex and she felt used as a result. She clarified some concerns about the IE report regarding alleged sexual abuse (response dated 28 November 2015), yet she provides no further detail as to the events. I find it implausible that Ms. Rogers did not discuss such allegations in the detail as she reported to me, at these various, critical junctures.
[34] CB 471
I reject the contention that the report of the independent expert was based on an assumption that Ms Rogers was expected to describe the sex acts performed on her on prior occasions. The relevant part of the report appears at CB 466 and 467:
Ms. Rogers was asked about other incidents of alleged abuse. She recounted two incidents of alleged sexual abuse. I referred Ms. Rogers to her statutory declaration of 1 February 2016 where she mentioned that she felt the sponsor used her for sex. At interview, Ms. Rogers said that the sponsor had in fact “forced” sex. She alleged that the sponsor held her aggressively “so I can’t do anything”. She reported that the sponsor told her that if she wanted them to get back together, “you need to suck my dick and swallow my sperm”. Ms. Rogers alleged that she complied with this demand and then the sponsor forced her into anal sex. At this stage, I indicated to Ms. Rogers that she has never mentioned any such detail in terms of sexual abuse to any sources (including professional supports accessed, the previous IE, her contact with the Tribunal and Federal circuit or in her own declarations). In response, Ms. Rogers informed me that she was waiting to speak to a female psychologist so that she could disclose this information. I advised Ms. Rogers that she had previously seen a female social worker yet had not disclosed this information. When informed that she had multiple opportunities to discuss these allegations, including in the formal setting of the Tribunal and Federal Court, Ms. Rogers responded by saying that she did not know she had to go into detail about the allegations.
I indicated to Ms. Rogers that in light of the new information that she had disclosed, the general escalation in her account over time and her inability to recall some pertinent elements of the alleged incidents, I had significant concerns about the credibility of her current claims. She told me that she is shy and embarrassed and she previously did not want “to tell everything that happened to me”.
The allegations of financial abuse were also canvassed with Ms. Rogers. Although she initially said she did not have access to money, she then disclosed that she had access to a joint bank account shared with the sponsor. Ms. Rogers advised that she was not allowed to work by the sponsor but she then discussed the dates of her unemployment as covering November 2014 to May 2015. However, I referred Ms. Rogers to the letter she provided in response to the IE report, dated 28 November 2015. In this document, she mentioned that the sponsor “wanted me to take ironing and cleaning” and it was confirmed, as per what she said during the 2016 Tribunal hearing, that Ms. Rogers completed cash in hand jobs for reportedly a two-month period. As such, I informed Ms. Rogers that her allegation that she was not allowed to work was inaccurate. It was also mentioned that the sponsor provided financial support for her family and also provided her with some financial support after the end of the relationship, which she confirmed.
Ms. Rogers was given an opportunity to provide any further information or commentary on the aforementioned issues. She said that she wanted me to know that the sponsor was “harassing” her for sex after she left the relationship and she went to Police on 16 December 2015 for assistance. She gave me the Police Event number E11543001. Ms. Rogers stated that the sponsor ceased contacting her after that point, and she assumes that this was due to Police intervention.
In providing any additional information, Ms. Rogers also added a comment that the sponsor made her provide receipts for any payments she made. She stated that she was unsure whether this constituted financial abuse. She reported that she had to borrow money from a Japanese friend, which the sponsor requested she do. She advised that she borrowed 30,000 Yen (approx. $350), which the sponsor never repaid. Ms. Rogers advised that her friend told her to consider the money a birthday gift after the debt was not repaid.
In my view, the expert made no assumption that Ms Rogers needed to have disclosed the detail of the sex acts performed on her on prior occasions. Rather, the expert made an adverse assessment of credibility after enquiring why the details were only being provided to her. The adverse credibility conclusions reached by the expert were open to her on the material before her.
Was the expert’s opinion vitiated by an appearance of partiality?
When this matter was remitted to the Tribunal by this Court, the Tribunal was reconstituted by the same Tribunal member, who initially referred the matter back to the same independent expert. As appears at CB 460, however, the Tribunal, after giving the matter further consideration, decided that a different expert should prepare the second report. It is clear enough that that was done in order to avoid an appearance of partiality. The mere fact that the second expert worked in the same practice as the first would not, without more, support an apprehension by a fair minded observer that the second expert might not bring an unprejudiced mind to bear upon the assessment. In my view, there is nothing else in the report or the circumstances surrounding it which could support the allegation of partiality or bias.
Did the expert fail to provide an opinion on all the family violence complained of?
This assertion arises from the terminology used by the expert reproduced in the third paragraph from the report quoted above at [36].[35] The issue is clarified in the opinion of the expert relevantly reproduced at CB 475 as follows:
In reference to alleged physical abuse, Ms. Rogers now details an additional two incidents that have not been documented previously. Ms. Rogers could not recall any information about these two incidents beyond being pushed on the sofa by the sponsor. Further, her recollection of the 13 July 2015 incident is limited and she was convinced that she submitted photographs of hand bruising as opposed to knee pictures. I accept that Ms. Rogers’ memory for such specifics may have deteriorated over time. Nonetheless, all of the more contemporaneous documentation indicates that the argument on 13 July related to the sponsor wanting to travel to see another female and Ms. Rogers not wanting to leave the home. I do not accept her claim that she left because she could not take the situation anymore.
[35] CB 466
It is clear that the expert was aware that she was dealing with two alleged incidents. Both of those incidents were considered in the report.
Conclusion
I conclude that Ms Rogers has been unable to establish that the opinion of the expert is not legally valid. It follows that the decision of the Tribunal is not affected by any jurisdictional error and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 April 2019
2
4
2