Singh v Minister for Immigration

[2016] FCCA 1354

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1354

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal erred in accepting the independent expert report – whether the Tribunal failed to take relevant considerations into account – whether the applicant suffered relevant family violence – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 476

Migration Regulations 1994, regs.1.23, 1.24, Sch.2, cls.820.211, 820.221

Applicant: AMANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 466 of 2015

Judgment of: Judge Street

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Adelaide

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms Stokes
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 466 of 2015

AMANDEEP SINGH

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 of a decision of the Tribunal made on 26 November 2015 affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant applied for the visa on 21 March 2012 on the basis of his relationship with the sponsor. At that time the Class UK contained subclass 820.

2. The primary criteria must be satisfied by at least one applicant.  Other family members of a unit, if any, who are applicants for the visa need to satisfy only the second criteria.  Relevantly to this matter, the primary criteria, including cls.820.211 and 820.221, which require that at the time of application and decision the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist.  The Tribunal identified that these include that the applicant or a member of the family unit has suffered family violence committed by the sponsor in accordance with cls.820.211(8) or (9) or 820.221(3)(a) and (3)(b)(i). 

3. The applicant in the present case claimed that there had been family violence by the sponsor.  The delegate refused to grant a visa on the basis that the applicant did not meet cl.820.221 because the applicant was no longer sponsored and had not provided the statutory required information to validly make a claim of family violence. 

4. The parties were married on 13 August 2011.  The applicant undertook a medical exam on 12 January 2012.  The application was then made on 21 March 2012 and that on 18 October 2012 the relationship was alleged to have broken down.  On 10 December 2013, the Department wrote to the applicant, inviting him to comment on the report of the relationship breakdown and provide further evidence as to his entitlement to a permanent partner visa.  That information was due by 10 January 2014. 

5. On 27 March 2014, the applicant claimed family violence had occurred but provided no supporting evidence of his claim.  On 14 April 2014, the Department wrote to the applicant, seeking within 28 days supporting evidence of the claim of family violence.  On 12 May 2014, the applicant provided a statutory declaration made by him that he had suffered relevant family violence but did not provide any of the third party evidence required for a non-judicially determined claim of family violence.  On 13 June 2014, the Department advised the applicant that the third party evidence was required within seven days.  No such evidence was received.  It was then in those circumstances on 5 November 2014 that the delegate refused the application.

6. On 13 October 2012, the sponsor wrote to the Department identifying that she was withdrawing from sponsoring the applicant.  The sponsor identified that she had withdrawn from the marriage on Monday, 9 October 2012 on the grounds of lack of trust, change of his behaviour, mannerism and attitude and affection towards the applicant.  The sponsor said that she was convinced that the applicant had married her for permanent residency to remain in Australia.  The sponsor said “family and friends had been concerned about the marriage and had been discussing the issues with me”.  It was in those circumstances that the sponsor alleged that she had kicked the applicant out of the house. 

7. The applicant made an application for review on 2 December 2014.  The Tribunal invited the applicant to attend a hearing on 24 July 2014 to give evidence and present arguments.  At the hearing, the applicant provided a report from a social worker dated 23 July 2014 that in her opinion the applicant had been the subject of family violence.  The Tribunal noted that the documents provided by the applicant did not meet the requirements set out and that the Tribunal member provided the applicant until 21 August 2015 to provide remaining evidence required. The applicant requested and was granted a further adjournment to enable the provision of this second report. 

8. On 2 September 2015, a report from a registered psychologist, Ann Nolan, opined that the applicant was the subject of family violence and said the applicant was suffering from anxiety and depression and PTSD. The Tribunal found that the evidence presented met the requirements of reg.1.24 of the Migration Regulations 1994 and that accordingly a non-judicial claim of family violence had been raised within reg.1.23.  The Tribunal, having considered all the evidence before it, was not satisfied for the purpose of reg.1.23 that the applicant had suffered relevant family violence.  In accordance with the regulation, the Tribunal then sought the opinion of an independent expert. 

9. On 28 October 2015, an independent expert provided an opinion that the applicant had not suffered relevant family violence.  The expert report identified the material taken into account by the expert as well as identifying that the applicant was the subject of an interview that took place on 23 October 2015. The expert identified what occurred at that interview and correctly identified the relevant test in relation to the relevant family violence. The expert expressed the opinion that the behaviour of the applicant’s sponsor did not cause him to be reasonably fearful for his safety and wellbeing and in those circumstances expressed the opinion that relevant family violence had not occurred.

10. The Tribunal noted that the interview had been conducted with the benefit of an interpreter and that the expert had identified the applicant’s claims of family violence and had referred to the report of the social worker and the report of the psychologist.  The Tribunal noted in relation to the applicant’s claim of a subjective fear that the independent expert noted the applicant’s evidence that he sometimes insisted on using a condom and sometimes refused to have sex with the sponsor, which indicated to the independent expert that he was not fearful.

11. On 30 October 2015, the Tribunal sent a copy of the independent expert’s report together with a s.359A letter to the applicant seeking the applicant’s comments. The applicant’s comments were due by 25 November 2015. On 25 November 2015, the applicant responded, asserting that he was unhappy with the independent expert report and that he had been seen by two different psychologists who provided a report and both reports say he suffered from domestic violence. That appears to be a reference to the psychologist and the social worker’s reports. Neither of those reports were independent expert determinations binding upon the Tribunal. The applicant identified that he had booked an appointment to see another psychiatrist and a further psychiatrist and requested an extension of time to provide the psychiatrists’ reports. The independent expert’s report was binding on the Tribunal. The Tribunal made reference to the request for an extension of time to provide further reports but noted that between when the relationship broke down and the time that the matter was referred to the independent expert the applicant had almost three years to obtain material to support his allegation of family violence.

12. The Tribunal noted that while the applicant might disagree with the opinion of the independent expert, the Tribunal was satisfied that the opinion was authorised by the regulations and was provided by an independent expert who was suitably qualified to make the assessment and was an employee of an organisation specified for the purpose and was satisfied that the opinion was properly made.  The Tribunal correctly identified that in those circumstances under rule 1.23 the Tribunal is required to take as correct the independent expert’s opinion being properly made.  I note that if the applicant had adduced evidence that had persuaded the Tribunal that there had been family violence, the Tribunal would not have had to refer the matter to the independent expert. 

13. It was clearly open in these circumstances to the Tribunal to proceed to determine the matter without providing any further time to the applicant.  The decision of the Tribunal to proceed to make the determination was reasonable and cannot be said to lack an evident and intelligible justification.  The decision of the Tribunal to proceed with the determination does not give rise to any denial of procedural fairness in respect of the applicant.  It was in those circumstances the Tribunal found the applicant was taken not to have suffered family violence committed by the sponsor for the purpose of reg.1.22 and affirmed the decision of the delegate. 

14. The applicant’s grounds are as follows:

    I have seen two different registered psychologist and both confirmed in their report that I have suffered from Domestic violence. I produced report of psychologist to the tribunal member and I was asked to get a report from one more psychologist. I went to another psychologist and even she concluded that I have suffered from domestic violence. Firstly, There was no reason for Tribunal member to refer to a third psychologist (Independent Expert). It seems that tribunal had been not happy reports of two psychologist and then chose to refer to Independent expert.

    In Paragraph 18 and 29, Its clearly written in psychologist report that I suffered from Domestic violence. In paragraph 18 Member of tribunal states that she understand that I suffered from domestic violence from the report of psychologist “A second report was provided on 2 September 2015. It was a report from Ann Nolan, a registered psychologist dated 25 August 2015. The Tribunal infers from the report that Ms Nolan was of the opinion that Mr Singh was subjected to family violence by the sponsoring spouse. I note however, that what she said in the report is: “As Robyn Lingard has outline, Mr Singh was subjected to domestic violence by his ex-wife, in the form of ....”  Ms Nolan then diagnosed the applicant, based on testing with anxiety, depression and PTSD.”

    In paragraph 29, Independent expert states that she is not sure what psychologist meant in report that I am suffering domestic violence from. “It is unclear whether the [applicant's] psychological distress [noted by psychologist Ann Nolan] is the result of emotional abuse by the [sponsor] or as a result of the breakdown of the marriage, the diagnosis of an STD and subsequent pain and surgery, and/or the visa cancellation. It is unknown whether the STD was transmitted from the [sponsor] to Mr Singh or vice versa. It is therefore difficult to make a causal link between the STD, under what circumstances it was transmitted, and Mr Singh's psychological distress.”

    There is clear confusion even in interpreting the report of psychologist and that played a part in making wrong decision in my case by independent expert. A flawed report of Independent expert leads to a wrong decision by tribunal. There is jurdictional error.

    In paragraph 26 Member states that “The Tribunal accepted the diagnoses of the experts that the applicant has evidence of depression, anxiety and stress, but considers that it is likely due to having contracted an STD and then experiencing significant pain and discomfort. The Tribunal was not satisfied that the STD was contracted through coerced sexual relations with MsZammit. Nor was the Tribunal satisfied that the other threats and coercions mentioned took place.”

    It seems that Tribunal member actually has more qualification in psychology than registered psychologist and had stated that she considers that my depression, anxiety and stress is due to STD and is satisfied that threats never took place. Tribunal member went against the finding of a register psychologist and formed it own views. There is clear jurdictional error in tribunals decision. Also member failed to give me time to a psychiatrist who is more qualified and experienced that independent expert.

    (errors in original)

15. On 29 January 2016 a Registrar of the Court gave the applicant an opportunity to file amended application, affidavit evidence and submissions.  No such documents were filed. 

16. At the commencement of the hearing the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that the substance of this was for the court to determine whether the decision of the Tribunal was lawful and whether the decision of the Tribunal was fair.  The Court indicated to the applicant that if satisfied that the Tribunal’s decision was affected by relevant legal error the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the decision was affected by relevant legal error the application would be dismissed.  The Court explained that it would identify the evidence and then hear submissions from the applicant then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

17. The grounds identified in the application are in substance an impermissible challenge to the adverse findings of fact made by the Tribunal.  The psychologist’s report and the social worker’s report obtained by the applicant were not an expert determination, and the Tribunal was bound to apply the expert determination if made in accordance with the regulations.  Nothing in the application identifies any jurisdictional error by the Tribunal. 

18. From the bar table the applicant contended that the independent expert was wrong in suggesting that most of the time he said “no” to the having of sex with the applicant.  The independent expert records that the applicant said:

    “Sometimes I said ‘yes’, sometimes ‘no’, refusing most of the time”. 

19. The applicant suggests that he did not say “refusing most of the time”.  In the same passage the expert continues that the applicant stated that for one and a half months he refused, saying “no, no, no”.  There is nothing before the Court to suggest that the independent expert made any error in summarising the information provided by the applicant at the interview.  Moreover, it is clear from the whole of the report that on some occasions the applicant was exercising his power to say “no”. 

20. There is nothing in the information provided by the applicant to the independent expert to suggest that the applicant was in fear of his own safety or wellbeing in agreeing on the occasions he did to have sex with his partner.  The adverse finding by the Tribunal that the applicant was not the subject of domestic violence and that an independent expert report needed to be obtained was clearly open.  The finding of the independent expert that the applicant was not the subject of domestic relevant family violence was clearly open. 

21. The applicant made reference to his request for more time.  For the reasons given by the Tribunal, it was reasonable for the Tribunal to proceed with the determination of the matter.  The applicant also maintained that there were two reports that were favourable to him and that the Tribunal should have preferred that information.  Under the regulations the Tribunal had no discretion but to accept and apply the decision of the independent expert.  The mere fact that the applicant obtained a report from a social worker or from a psychologist that said he had been the subject of family violence did not in fact establish that fact. 

22. There was no history in the present case of the applicant going to the police because he had been affected by any physical violence by the sponsor.  The claim raised in relation to family violence was raised well after the relationship had broken down.  The assertion that a robust and large fit male is being forced to have sex with his female partner and therefore the subject of family violence is a matter in itself that strains credulity.  The proposition that this robust male applicant was forced to have sex with his female partner because of fear for his safety or well-being was without any merit or substance. The adverse findings by the Tribunal were clearly open. 

23. Nothing said by the applicant from the bar table identifies any jurisdictional error. The application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 June 2016