Sirimanne v Minister for Immigration
[2021] FCCA 1291
•16 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIRIMANNE v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 1291 |
| Catchwords: MIGRATION – Judicial review of decision of Administrative Appeals Tribunal – Partner (Residence) (Class BS) visa – grounds of review – whether Tribunal failed to administer any or proper, lawful or valid oath to the applicant – whether the Tribunal was required to conduct a fresh hearing in a manner consistent with the provisions of regulation 1.23 of the Migration Regulations 1994 – whether the Tribunal complied with regulation 1.23(10)c of the Migration Regulations 1994 – whether the Tribunal erred in law or proceeded in a manner which was unfair and improper – whether the Tribunal was or appeared to be biased and prejudiced against the applicant – whether the Tribunal should have held the applicant’s evidence of family violence was uncontradicted, reasonable and probable – grounds not made out – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), ss.4, 76 |
| Cases cited: Ebner v Official Trustee (2000) 205 CLR 337 |
| Applicant: | CHEVANTHA HIRAN LLOYD SIRIMANNE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2323 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 16 February 2021 |
| Date of Last Submission: | 16 February 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2021 |
REPRESENTATION
| Counsel for the applicant: | Mr Perkins |
| Solicitors for the applicant: | Fairfields Lawyers |
| Counsel for the respondents: | Mr Solomon-Bridge |
| Solicitors for the respondents | Mills Oakley Lawyers |
ORDERS
The applicant’s application be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2323 of 2016
| CHEVANTHA HIRAN LLOYD SIRIMANNE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the Minister for Immigration & Border Protection (“the Minister”) to refuse to grant the applicant a Partner (Residence) (Class BS) visa.
Background
The applicant is a Sri Lankan National. He met Ms Methananda (“the sponsor”) on 24 December 2010. They were married on 12 March 2012.[1]
[1] Court book pages 67 to 68.
On 22 October 2012, the applicant lodged an application for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa on the basis of his relationship with the sponsor.[2] He was granted a Partner (Temporary) (Class UK) on 23 October 2012.[3]
[2] Court book pages 1 to 95.
[3] Court book pages 96 to 98.
The sponsor withdrew her sponsorship for the applicant stating that the relationship had broken down.[4] On 24 January 2015, the Department of Immigration and Border Protection (“the Department”) wrote to the applicant to provide him with an opportunity to comment on that information. Relevantly, the letter stated:
[4] Court book page 99.
Before a decision is made on your Subclass 801 application, you have the opportunity to comment on the information that your relationship has ended. You may also provide additional information as to why your visa should be considered for grant despite the breakdown of your relationship. You may do either or both of these things.
Opportunity to provide comment.
The department has received information that the sponsor has withdrawn her sponsorship and the relationship has broken down.
Clause 801.221(1) of the Migration Regulations 1994 (the Regulations) requires that for the grant of the Subclass 801 visa you continue to be sponsored by your partner and that you are the spouse or defacto partner of the sponsor, unless you meet one of the exceptions outlined below at Additional information to support consideration for visa grant despite a relationship breakdown. Failure to meet this criterion may result in refusal to grant the Subclass 801 visa and the cessation of your Subclass 820 visa.
…
Additional information to support consideration for visa grant despite a relationship breakdown
There are three (3) circumstances in which you may continue to be considered for the grant of a Subclass 801, even if the relationship between you and your sponsoring partner has ended.
These are where:
1.your sponsoring partner has died; or
2.you, or a member of your or your sponsoring partner’s family unit has suffered family violence committed by the sponsoring partner; or
3.you and your sponsoring partner share custody, access or maintenance obligations in respect of a child.[5]
[5] Court book pages 99 and 100.
On 19 February 2014, the applicant wrote to the Department seeking consideration for a visa grant despite a relationship breakdown on the basis that he suffered family violence committed by the sponsor.[6]
[6] Court book pages 113 to 118.
In response to the applicant’s letter, the Department engaged an expert from LSC Psychology who conducted an interview with the applicant on 22 January 2015 and provided a family violence assessment on 6 February 2015.[7] In that assessment, the report writer, Ms Alison O’Neill, concluded that ‘relevant family violence’ (as defined by regulation 1.21 of the Migration Regulations 1994 (Cth) (“the Regulations”)) had not occurred.[8]
[7] Court book pages 157 to 186 and 192 to 211.
[8] Court book page 207.
Relevantly, regulation 1.21 of the Regulations defines ‘relevant family violence’ as:
… 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.
On 16 April 2015 a delegate of the first respondent (“the Delegate”) refused the applicant’s application for the visa as he had not established that he had suffered ‘relevant family violence’ committed by the sponsor and therefore did not meet clause 801.221 of schedule 2 of the Regulations.[9]
[9] Court book pages 297 to 307.
The application to the Tribunal
The applicant filed an application to review the Delegate’s decision with the Tribunal. On 22 March 2016, the Tribunal wrote to the applicant inviting him to attend a hearing on 2 May 2016 ‘to give evidence and present arguments relating to the issues arising in [his] case’.[10] The applicant attended the hearing.[11]
[10] Court book page 323 and 324.
[11] Court book page 325 to 329.
On 6 May 2016, the Tribunal referred the applicant’s claim that he suffered family violence to LSC Psychology for an expert opinion.[12] The Tribunal requested that the matter be referred to a male independent expert, at the request of the applicant.[13]
[12] Court book page 333.
[13] Court book page 334.
On 15 July 2016, a family violence assessment was submitted by Dr Chris Lennings.[14] Dr Lennings concluded that the applicant had not established that the sponsor had perpetrated ‘relevant family violence’ against the applicant as defined by regulation 1.21 of the Regulations.
[14] Court book pages 417 to 438.
On 18 July 2016, the Tribunal wrote to the applicant to invite him to comment on Dr Lennings’ report, a copy of which was enclosed with that letter.[15]
[15] Court book pages 444 and 445.
The applicant provided a response on 22 August 2020 which was submitted to Dr Lennings for consideration as to whether that response would alter the family violence assessment.[16] Dr Lennings advised that the response did not alter his assessment[17] and the applicant was invited to provide further comments on Dr Lennings’ response.[18] The applicant submitted a response on 27 September 2016.[19]
[16] Court book pages 458 to 462.
[17] Court book pages 522 to 525.
[18] Court book pages 527 to 529.
[19] Court book pages 535 to 538.
The Tribunal’s decision
On 27 September 2016, the Tribunal decided to affirm the decision of the Delegate to cancel the applicant’s visa.[20]
[20] Court book pages 541 to 544.
At [11] to [13] the Tribunal considered whether it was satisfied that the applicant had been the victim of family violence. At [13] the Tribunal concluded that it did ‘not consider the applicant’s evidence concerning the existence of family violence to be credible. The Tribunal was not satisfied that the applicant had suffered family violence.’
At [14] the Tribunal noted that consequently it sought the opinion of an independent expert in accordance with regulation 1.23. The Tribunal records the applicant’s objection to the independent expert but did not accept them and at [15] sets out its consideration of those objections. Relevantly at [16] of the Tribunal’s decision record, the Tribunal states:
The Tribunal is further satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made.
The Tribunal concluded that the applicant therefore did not meet the requirements of clause 801.221(6)(b) and (c), nor that the applicant met any other subclause in clause 801.221 and consequently the Tribunal affirmed the decision under review.
On 26 October 2016, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant later filed a combined document containing a further amended application for judicial review and written submissions on 3 August 2020.
Adjournment application
At the hearing before me, counsel for the applicant sought an adjournment on the basis that his client was located in Sydney and he had been unable to make arrangements to be in Melbourne with his legal representatives for the hearing. The basis of the application arose from consequences of the COVID-19 pandemic which resulted in a ‘snap lockdown’ being announced in Melbourne.
The applicant, by his legal representatives, sent an email to the court, copied to the first respondent in which he said:
The applicant has confirmed instructions to seek another adjournment on this matter.
The last adjournment was sought and granted on the basis that the applicant was unable to travel to Victoria to provide instructions to the Counsel and attend the hearing together with his legal representatives. While we are thankful to the Courts of grating (sic) the previous adjournment and we seek this adjournment to make the last adjournment more meaningful. Until Friday, the applicant intended to travel to Melbourne on the Weekend and meet up with the Counsel Monday (today) in person prior to the hearing tomorrow Tuesday 16th February). However, given the snap lockdown was announced on Friday the applicant had to change the plan unexpected. (sic)
Applicant strongly believes that he needs to provide instructions in person to the new Counsel Mr Perkins whom he had never met, since his previous Counsel Mr Gros who passed away in February 2020.
…[21]
[21] Exhibit A.
The procedural background to this matter is as follows:
a)the applicant filed an application for judicial review on 26 October 2016 seeking a review of the Tribunal’s decision made 27 September 2016;
b)on 26 April 2017, orders were made by a Registrar, for the matter to be listed for a final hearing before Judge Hartnett (as she then was) on 4 October 2018 and procedural orders were also made to prepare the matter for final hearing;
c)On 4 October 2018, the hearing was adjourned to 15 November 2018, the orders made on 26 April 2017 were vacated and further procedural orders were made;
d)On 15 November 2018, the matter was again adjourned to 12 March 2019 with an estimate of two days. The applicant on that occasion was ordered to pay the first respondent’s costs of the hearing of 4 October 2018 fixed in the sum of $4,390.60;
e)The matter then came before me on 13 July 2020 at which time the applicant was represented by Mr Perkins – on that occasion, the matter was once again adjourned to 16 February 2021 with an estimate of one day and further procedural orders were made including orders in the following terms:
4. On the adjourned date, neither party will be permitted to rely on any matter not contained within the documents filed in accordance with orders 2 and 3 herein respectively, without leave of the court.
5. If the matter is listed to take place by videoconference on the adjourned date and any party takes issue with the hearing occurring by that medium, that party file and serve an application in a case not later than 14 days prior to the adjourned date.
f)The applicant raised a constitutional argument and there was a notation to the orders made on 13 July 2020 in the following terms:
A.The first respondent does not concede there is a proper basis for the applicant’s constitutional argument.
g)Pursuant to the orders made on 13 July 2020, the applicant filed written submissions on 3 August 2020 and the first respondent filed written submissions on 24 August 2020.
It was against this background that the matter came on for hearing on 16 February 2021. It was to proceed by video link (Microsoft Teams). No application in a case was filed by the applicant objecting to the matter proceeding in that way as permitted by the orders made on 13 July 2020.
Moreover, the applicant did not file any affidavit material, nor did he seek leave to file any such material addressing the reasons why:
a)he needed to physically be in the same location as his representative to provide instructions prior to and during the hearing; and, importantly:
b)he was unable to travel to Melbourne to attend the hearing and meet with his counsel; or
c)if the restrictions imposed at the time as a result of the COVID-19 restrictions limited his ability to travel (about which there was no evidence) what, if any, efforts he made to obtain an exemption from those restrictions.
It was against this background that the applicant made an application for a further adjournment. I refused the application for an adjournment for the following reasons:
a)the applicant produced no evidence which supported his primary position that he was unable to come to Melbourne due to the lockdown which was declared in Melbourne;
b)there was no evidence that there were restrictions imposed upon the applicant leaving Sydney and coming to Melbourne to consult with his counsel and attend the hearing;
c)in any event, in circumstances where:
i)the hearing was being conducted by teams,
ii)the applicant had not filed any application in a case objecting to the hearing proceeding on that basis;
iii)orders were made over six months previously for the filing of written submissions, which the applicant and the first respondent had complied with such that the parties were well aware of the legal arguments to be pressed in this matter;
iv)the applicant has had the benefit of legal representation throughout this proceeding;
no proper basis was advanced for the granting of a further adjournment in this matter. Moreover, as indicated in the course of submissions, the court in considering an application for an adjournment, must consider the need to balance not only the interests of the parties in the proceeding itself, but the need to ensure the court deals with matters which come before it in an efficient and just manner.
I therefore refused the applicant’s application for an adjournment.
Section 78B notice
Before turning to the grounds of review, I note that the applicant filed a section 78B notice on 8 November 2018 indicating that the proceedings gave rise to issues of interpretation of the Constitution.[22] Relevantly, the applicant asserted ‘the question whether the scheme of Regulation 1.23[10] of the Migration Regulations 1994 is invalid as impairing the reality or appearance of the independence and impartiality of the Administrative Appeals Tribunal, thereby impairing its institutional integrity.’ The applicant claims that regulation 1.23(10)(ii) is therefore unconstitutional and invalid.
[22] Judiciary Act 1903 (Cth), s 78B.
For reasons which follow, the applicant’s claim in this regard is not made out.
Grounds of review
As noted above, the applicant filed a combined further amended application for judicial review and written submissions on 3 August 2020.
Ground 1
Having determined to require the applicant to give evidence on oath, the failure of the Tribunal to administer any or any proper, lawful, or valid oath to the applicant, rendered the entire hearing [including the request for a report] null, void, illegal, and otherwise not in accordance with law.[23]
[23] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 3.
The first ground asserts that the Tribunal member did not properly administer the oath at the commencement of the proceedings in the precise terms set out in the Schedule to the Evidence Act 1995 (Cth). Consequently, it is submitted that the entire proceedings before the Tribunal were rendered null, void, illegal and otherwise not in accordance with law.
The transcript of the Tribunal proceedings is set out at as an annexure to the applicant’s affidavit sworn 17 October 2018. That transcript records the following exchange with the applicant:
Clerk: Do you mind standing please sir and taking the Bible in your right hand …
Witness: Yeah
Clerk: … and facing the member. Do you promise before almighty God that the evidence you give will be true?
Witness: Yes, I do.
Clerk: Thank you, please take a seat.[24]
[24] Applicant’s affidavit sworn and filed 17 October 2018 annexure ‘CS’ (“Tribunal transcript”).
It was submitted that in circumstances where the Tribunal formed a view that this matter required the giving of evidence, that evidence had to be properly obtained and received by the Tribunal. The oath administered at the commencement of the proceeding before the Tribunal was not a proper oath and therefore the evidence given was not properly obtained. It was submitted that the Tribunal therefore was acting outside its jurisdiction and the hearing was a nullity.
As noted by the first respondent, section 363(1) of the Migration Act 1958 (Cth) (“Migration Act”) provides that in conducting a review, the Tribunal may take evidence on oath or affirmation. Section 363(3) goes on to provide that in a review, the Tribunal may ‘administer an oath or affirmation to a person’ summoned to appear to give evidence under section 363(a). The Migration Act however, does not prescribe a form of words for an oath or affirmation.
To the extent that the Evidence Act 1995 (Cth) contains a prescribed form of oath in the Schedule, it only applies to proceedings in a federal court.[25] A federal court is defined to mean:
[25] Evidence Act 1995 (Cth) s 4.
(a) the High Court; or
(b) any other court created by the Parliament (other than the Supreme Court of a Territory);
and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.
Section 353 of the Migration Act relevantly provides that in conducting a review, the Tribunal is not bound by technicalities, legal forms or rules of evidence and is required to act according to the substantial justice and merits of the case.
In those circumstances, the applicant has failed to establish that the Tribunal was required to administer an oath in particular terms. This ground therefore fails on that basis.
But in any event, the ‘evidence’ which was given after the administration of the oath administered by the Tribunal, with which the applicant takes issue, was the applicant’s own evidence. As noted in the first respondent’s submissions, at common law, any form of oath which the witness regards as binding on his or her conscience is sufficient. There is no basis on which to conclude that the oath administered in this instance was not regarded by the applicant as binding on his conscience. There is no evidence, nor indeed has it been suggested by the applicant that had the oath been administered in a different form, he would have given different evidence.
Moreover, irrespective of the terms of the oath that was administered, there is no suggestion in the Tribunal’s reasons or in the transcript that the Tribunal discounted the applicant’s evidence on the basis that he had not been administered with an oath in the form that one might expect it to be administered in a court of law.
It is difficult to see therefore that even if there was an error in the manner in which the oath was administered, which for the reasons set out above, I do not accept, how such an error could have resulted in a different outcome so as to amount to a jurisdictional error.[26]
[26] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Grounds 2 to 9
The applicant groups grounds 2 - 9 together in his written submissions. He further says that these grounds are related to grounds 12 and 19 - 21.
Ground 2
The Tribunal as a matter of law was required to conduct a fresh hearing in a manner consistent with the provisions of regulation 1.23.of the Migration Regulations 1994 and the procedure entailed thereby, and to have no regard to a prior report of a prescribed organization [the O’Neil report] provided to the Delegate of the Minister as a consequence of the Delegate’s decision to request a report under Reg. 1.23[10]c. The tribunal proceeded in a manner which was contrary to law by not holding a hearing fresh hearing and by not conforming to the provisions entailed by regulation 1.23.[27]
[27] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 3.
Ground 3
The Tribunal should have held that the force and effect of the prior report of a prescribed organization [the O’Neil report which as a matter of history had been provided to the Delegate of the Minister] was spent; and the Tribunal should have held that Reg.1.23 made no provision for its use or re-use. The tribunal proceeded in a manner contrary to law by using the O’Neill report.[28]
[28] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
Ground 4
It was not open to the Tribunal to arrive at the state of being “not satisfied” [referred to in Reg. 1.23[10]c]. without informing the unrepresented applicant that he may put submissions on that question, and providing him a proper opportunity to do so: and in continuing without informing the applicant of the triggering effect of such a finding, and of the staged nature of the proceeding, the Tribunal acted unfairly and in breach of the rules of natural justice.[29]
Ground 5
The failure of the Tribunal to provide the unrepresented applicant with any or any proper opportunity to be heard on the triggering provision contained in reg. 1.23[10]c, deprived the applicant of the benefit of an essential step in the proceeding; and the request for and obtaining of the Lennings report was contrary to law, unauthorised, and premature.[30]
Ground 6
The Tribunal erred in law or alternatively proceeded in a manner which was unfair and improper in not separating the proceeding into two parts, specifically the first part which related to the question arising from reg. 1.23[10]b, and the second part which would arise once reg. 1.23[10]c applied.[31]
Ground 7
The Tribunal should have invited the applicant to make submissions concerning the question whether the Tribunal should or should not be satisfied as to whether applicant had suffered family violence; and the Tribunal should specifically have adverted to the views which it expressed about the applicant and his credibility in the course of the hearing, and invited the applicant to make submissions about them.[32]
Ground 8
In the circumstances of the Tribunal’s caustic, overwhelming, unreasonable and arbitrary criticism of the applicant and of what he had done and not done, the Tribunal should of its own motion have recused itself from the further hearing and determination of the case: and further the Tribunal should have invited the applicant to address the question whether by reason of the Tribunal’s treatment of him he wished to object to the Tribunal as then constituted proceeding to hear and determine the application; alternatively, in the light of such criticism the position of the Tribunal [as constituted] was patently and unequivocally unfair and untenable and contrary to law.[33]
[29] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
[30] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
[31] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
[32] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
[33] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
Ground 9
The tribunal was or appeared by its conduct of the proceeding [including, its cross-examination of the applicant] to be biased and prejudiced against the applicant.[34]
[34] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
These grounds largely relate to the operation of regulation 1.23.
The applicant also takes issue with the constitutional validity of regulation 1.23 of the Migration Regulations which deals with the circumstances in which a person is taken to have suffered or committed family violence. Relevantly, regulation 1.23(10) says:
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;
(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;
(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.
O’Neill Report
Grounds 2 and 3 go to the issue of the Tribunal’s reliance upon and consideration of the report from Dr O’Neill (“O’Neill Report”). It is submitted for the applicant that the O’Neill Report which was commissioned by the delegate, was spent and therefore, the Tribunal on review ought not to have had regard to it and, importantly, ought not to have provided it to the second expert. In providing a copy of the O’Neill Report to Dr Lennings, it is submitted that the Tribunal proceeded in a manner contrary to law.
As I understand this part of the applicant’s submission, it is firstly premised on the notion that the Tribunal was required to conduct a fresh hearing. In doing so, it was required not to have regard to the expert report commissioned by the delegate.
The applicant did not point to any particular provision in the Migration Act or the Migration Regulations in support of this proposition. Nor was the court referred to any principles or authority in support of this proposition.
As noted by counsel for the first respondent, the Tribunal is not bound by technicalities, legal forms or rules of evidence.
Regulation 1.23 requires the Tribunal (on review) firstly to form its own view as to whether the applicant was subjected to family violence. In doing so, it was entirely appropriate for the Tribunal to have regard to the O’Neill Report, being one piece of evidence available at that point in time relevant to this issue. Of course unlike a review commissioned by the Tribunal pursuant to regulation 1.23, the Tribunal was not bound by the findings of the O’Neill Report.
Moreover, in circumstances where the decision maker has already formed a preliminary view that there has been no family violence, and in the case of the Tribunal, that may have been informed in part by the O’Neil report which the Tribunal had before it, it is entirely consistent with the scheme established by regulation 1.23 for the second independent expert to have that report as part of the information made available to him or her.
The purpose of obtaining an independent expert report is to provide the applicant with an opportunity to obtain a report from someone with expert skills which might convince the Tribunal that their preliminary view is not correct. As such, it is to the applicant’s benefit for the second expert to have all the information which was before the decision maker so that they may form an understanding of the nature of the information upon which the decision maker has formed their preliminary view. This provides an opportunity for the second expert to address any inconsistencies in that evidence. It is therefore not clear how it is prejudicial to the applicant for the second expert to have the first expert’s report before it.
Moreover, the applicant has not pointed to any provision either in the regulations or in the Act which precludes the Tribunal from having before it, or indeed providing to an expert, the original expert report obtained by the delegate.
As to the applicant’s submissions in relation to the ‘independence’ of Dr Lennings, they largely rely on principles which relate to ‘expert’ witnesses in civil litigation. The notion of an independent expert in regulation 1.23 is different from ‘expert’ evidence in that sense. The regime established by regulation 1.23 is based on the notion that the decision maker forms his or her own view about the existence or otherwise of family violence. If satisfied that there is family violence, the decision maker is required to consider the application on that basis. If not satisfied that there was family violence, the decision maker is required to effectively seek further input from an independent expert, as defined. That independent expert will either confirm the decision maker’s initial view (namely that there was no family violence) or not. If the independent expert forms the view that the decision maker’s view was incorrect and that the applicant was in fact subject to family violence, then the decision maker is bound by that view, and is then required to consider the application on that basis.
When viewed in this context, there is no inherent unfairness or unlawfulness in the Tribunal (on review) having regard to the totality of the available evidence in forming its preliminary view. Nor is there any unfairness or unlawfulness in the tribunal providing the first independent expert’s report to the second independent expert as part of the totality of the evidence before him or her.
For each of these reasons, I do not accept that the Tribunal erred either in itself considering the O’Neill Report or in providing it to Dr Lenning.
Independence of Dr Lenning
The applicant also takes issue with Dr Lenning’s independence in circumstances where both Dr Lenning and Ms O’Neill although as noted by counsel for the first respondent, this submission does not clearly fall within one of the grounds of review.
The term ‘independent expert’ for the purposes of regulation 1.23 is contained in regulation 1.21. Relevantly regulation 1.21 states:
independent expert means 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.
Dr Lennings satisfies each of these limbs and therefore falls within the definition of an ‘independent expert’. The applicant points to no evidence to the contrary.
Moreover, the applicant points to no evidence to suggest that Dr Lennings did anything other than assess the claims of family violence objectively. To the extent that both Dr Lennings and Ms O’Neill are engaged by the same entity, Dr Lennings addresses this issue and categorically denies that his assessment was in any way influenced by Dr O’Neill’s report.[35]
[35] Court book page 524; see also a similar argument advanced and rejected in Gounder v Minister for Immigration and Border Protection [2015] FCA 1476 at [28], [32].
For each of these reasons, grounds 2 and 3 have not been made out.
Grounds 4 -7 appear to go to the proposition that the applicant was not afforded an opportunity to make submissions before the Tribunal concluded that it was not satisfied that he had suffered family violence, thereby triggering a requirement for an independent assessment to be obtained.
It is submitted that in failing to provide the applicant with an opportunity to make submissions on this point deprived him of the benefit of an essential step in the process.
In the alternative, it was submitted that the Tribunal proceeded in a manner which was unfair and improper by not separating the proceedings into two parts. The Tribunal ought to have invited the applicant to make submissions on the question of whether the tribunal was satisfied that the applicant had suffered family violence, particularly in circumstances where the applicant was representing himself.
Apart from asserting that the Tribunal ought to have given the opportunity to comment on whether or not it was appropriate to seek a report from an independent expert, the applicant does not point to any statutory or other basis for this assertion.
As noted by counsel for the first respondent, section 357A sets out an exhaustive statement of the natural justice hearing rule for Part 5 Reviewable decisions. The applicant has not identified any basis on which these provisions may have been breached.
In any event, it is clear from a review of the transcript of the tribunal hearing that the tribunal member advised him of the process and before determining to refer the matter to an independent expert for review, specifically asked the applicant whether there was anything further he wanted to say ‘that would satisfy me that you did suffer family violence?’.[36] And in any event, the applicant had already been through the process before the delegate and the delegate set out the process in her written reasons.[37]
[36] Tribunal transcript page 13.
[37] Court book page 299.
The applicant has not established grounds 4-7.
Grounds 8 and 9 take issue with the manner in which the Tribunal conducted its interview with the applicant. In essence it is submitted that the Tribunal was unduly critical of the applicant and demonstrated bias and or prejudice against the applicant.
In particular, the applicant takes issue with:
a)the Tribunal’s comments made at the commencement of the hearing about the applicant arriving late; and
b)the manner in which the Tribunal questioned the applicant during the hearing, particularly prior to the administration of the oath.
It is submitted that the Tribunal member berated the applicant about his late arrival and questioning him about his reasons for being late. Moreover, it was submitted that the questions asked of the applicant, an unrepresented person, was largely evidence that the Tribunal did not believe what he was saying and was disadvantageous and an embarrassment to the applicant. It was further submitted that the Tribunal’s conduct put undue pressure on the applicant and operated to his disadvantage and that its conduct was unfair.
It was further submitted that the Tribunal’s manner of questioning was not only unfair but also combative and that many of the questions asked of the applicant were not relevant to the determination of the fundamental issue, namely whether the applicant had been a victim of family violence.
It was further submitted that as a result of the attitude shown by the Tribunal member in her questioning of the applicant, she failed to properly consider the applicant’s evidence which would support a finding of family violence and failed to give proper regard to the cultural context in which the alleged conduct occurred.
All of this, according to the applicant gave rise to a perception that the Tribunal was prejudiced or biased in its assessment of the applicant’s case.
It was submitted that the consequence of the Tribunal’s conduct was that the applicant did not get a hearing.
To the extent that the applicant claims apprehended bias in the context of Tribunal proceedings, the applicant must show that a ‘hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias’ might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the judge is required to decide.[38] Moreover, in the context of an inquisitorial proceeding such as the one before the tribunal, and where credibility is at issue, the person conducting the hearing will need to test the evidence.
[38] Ebner v Official Trustee (2000) 205 CLR 337 at [6]; Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [27] – [32]
In Ex parte H, the plurality (Gleeson CJ, Gaudron and Gummow JJ) noted:
[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into questions. Similar questions by a judge in curial proceedings in which the parties are legally represented may readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s views.[39]
[39] (2001) 179 ALR 425.
A fair reading of the transcript of the Tribunal hearing would not, in my view lead a properly informed hypothetical lay observer to conclude that the tribunal member would not bring an impartial mind to the issues before her.
It is the case that the Tribunal member raised concerns about the fact that the applicant was half an hour late to the hearing. The Tribunal was also reasonably entitled to question the explanation given for his delay, namely that he ‘got lost’. Moreover, the Tribunal was also reasonable to question why the applicant had not complied with the earlier request to complete a form indicating that he would be attending the hearing and then to challenge the explanation given for that, namely that he had not received the form.
Similarly, in the course of the substantive hearing itself, the Tribunal was not acting unreasonably in testing the applicant’s evidence about the family violence he claimed occurred. The Tribunal put to the applicant inconsistencies between his claims as to the nature of the family violence in the course of the hearing and the claims he made in his written application and also inconsistencies with his. It was entirely appropriate for the Tribunal to put to the applicant inconsistencies between the claims being made before it, and claims previously made by the applicant in order to give the applicant an opportunity to address the Tribunal’s concerns.
A fair minded informed bystander would not form the view that the Tribunal would bring an impartial mind to the issues before it.[40] As noted in the submissions for the first respondent, the applicant himself stated during the course of the hearing that the tribunal member was ‘easier to talk to’ thank the first independent expert.[41] This further supports the proposition that the applicant did not feel intimidated by the Tribunal’s questions.
[40] SZRUI v Minister for Immigration, Multicultural Affairs and citizenship [2013] FCAFC 80 at [24], quoting with approval NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs 920040 214 ALR 264 at [19]
[41] Tribunal transcript page 7.
For each of these reasons, grounds 8-9 are not made out.
Ground 10
The tribunal should have held that the evidence of the applicant in respect of family violence was uncontradicted, reasonable, and probable; and further, should have held that the application before it should be granted.[42]
[42] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 4.
By ground 10, the applicant essentially takes issue with the Tribunal’s findings on the basis that his evidence was uncontradicted.
A similar argument was rejected by North J in MZWSJ v Minister for Immigration and Multicultural Affairs (2006) 90 ALD 570 at [15]:
The applicant seeks to argue on the appeal that the Tribunal was bound by her written statement to find in her favour. The appellant seems to say that her assertions, being uncontradicted, left the tribunal with no option but to decide in her favour. Such an argument is untenable.
This ground does little more than seek impermissible merits review and is not made out.
Ground 11
In the circumstances it was incumbent on the Tribunal to provide reasons for its decision concerning the question whether, within the terms of reg. 1.23[10] b the applicant had suffered family violence: and the tribunal’s failure to do so was contrary to the proper administration of justice, and unfair.[43]
[43] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 pages 4 and 5.
It was submitted for the first respondent that the applicant did not make any submissions in relation to this ground and therefore it ought to be considered abandoned.
There is much force to this submission. Moreover, even if the ground were pressed, for reasons previously articulated in relation to the way in which regulation 1.23 operates, there is no proper basis for such a submission.
There is no requirement in the Act or the regulations which would support a finding that there is an obligation on the Tribunal to provide reasons for its decision that it is not satisfied that there is family violence before referring the matter to an independent expert.
Ground 12
Each of the respective reports of LSC Psychology, Dr. Alison O’Niel (sic) [O’Neil] and Dr. C.J. Lennings [Lennings] were fundamentally unsatisfactory and or misconceived and unfair in that on their face they -
a. were unnecessary;
b. were created in circumstances where the fundamental [but undischarged] primary obligation of the decision maker was to consider and have proper regard to the facts presented by the applicant;
c. were created as a means of avoiding [by resorting to untestable, invalid, and unscientific opinion] the fundamental primary obligation of deciding the facts which had happened to the applicant [which are within the province, knowledge and understanding of ordinary lay decision makers] and which require no psychological expertise whatsoever;
d. ignored relevant facts:3
e. failed to set out what was actually said by the applicant and others;
f. failed to set out what Questions were asked of the applicant and others;
g. failed to clarify and distinguish matters of interpretation and psychological comment and to explain or articulate any basis for the interpretation and comment;
h. were obtuse, vague and unhelpful to the resolution of the question which arose concerning the applicant;
i. confused and did not properly address the question whether their own gender stereotypes could be used for the purpose of making judgments about the behaviour of the applicant;
j. failed to consider either whether their own gender stereotypes about the behaviour of males with respect to conduct which could be characterised as “sexual” had any factual application to the applicant; or whether or in what circumstances it would be open to impose - by their psychological judgments - stereotypes of male behaviour generally on their judgment of the applicant
k. failed to give any or any proper weight to what was factually related by the applicant, preferring to use their own prescriptive and sexist notions concerning male sexual behaviour;
l. invalidated the applicant’s personal experience of family violence by impermissible gender and or cultural stereotypes of their own making and application
m. by preferring stereotype and presumption to facts did not treat the applicant with respect as a human being;
n. failed to treat the applicant as an individual whose own views feelings and values were entitled to respect;
o. failed to articulate their views to the applicant during interviews so as to provide him an opportunity to address, comment, and disabuse the interviewers concerning those views;
p. failed to appreciate that a male, no less than a female, may not be taken [by a psychologist or anyone else] to have given universal consent to participating in any conduct whatsoever which a third party [or third party psychologist] thinks can be described or labeled as sexual;
q. failed to appreciate that the fundamental question of what behaviour [sexual or otherwisel was or was not consented to by the applicant was a central matter to be considered in deciding whether there had been family violence;
r. treated physical treatment of the applicant [a male] by his partner as something in respect of which his failure to consent was irrelevant and of no consequence.
s. were capricious[44]
[44] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 pages 5 and 6.
It appears from the applicant’s oral submissions that the basis of this ground is that:
a)in part, the referral to the independent experts was not necessary, was undertaken for an improper purpose or was otherwise unlawful; and that regulation 1.23(10) is invalid;
b)in part, the balance of this ground is based on an assertion that the Tribunal acted in a manner which reflected inherent bias in the assumptions about how men, or men from particular cultures might respond to family violence.[45]
[45] Tribunal transcript page 29.
The first aspect of this ground has already been addressed above. I do not propose to repeat that, but for reasons previously discussed, this aspect of this ground is not made out.
To the extent that the applicant submits that regulation 1.23(10) is invalid for the following reasons, that claim too must be rejected. As noted above, regulation 1.23(10) provides a mechanism by which the applicant has one final chance through engagement with an independent expert, to convince the decision maker that he or she has been subjected to family violence. It provides an opportunity to the applicant in circumstances where, absent the independent expert report, the Tribunal would otherwise have found that the applicant had not been subjected to family violence.
Moreover, regulation 1.23(10) is clearly permitted by section 504 and section 505 of the Migration Act. Section 504 relevantly provides:
(1)The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed to this Act ….
This is a very broad regulation making power. Section 505 then goes on to say:
To avoid doubt, regulations for the purpose of prescribing a criterion for visas for a visa of the class satisfies the criterion:
(a)Is to get a specified person or organisation, or a person or organisation in specified class, to:
(i)give an opinion on a specified matter; or
(ii)make an assessment of a specified matter; or
(iii)make a finding about a specified matter; or make a decision about a specified matter; and
(b)is:
(i)to have regard to that opinion, assessment finding or decision in: or
(ii)to take that opinion, assessment, finding or decision to be correct for the purpose of;
deciding whether the applicant satisfied the criterion.
Regulation 1.23(10) clearly falls within the scope of section 505 and is therefore within power.
This ground therefore fails.
The further aspect of this ground relies upon the way in which the independent experts explored with the applicant how he felt when his wife treated him in the manners alleged.
There is no proper basis to this claim. Moreover, it is not clear how a finding that the independent expert made unfair or discriminatory assumptions about the applicant and his claims, even if I were minded to accept that this had occurred, which I do not, gives rise to a jurisdictional error.
Finally and for completeness, the applicant’s written submissions refer to the Evidence Act and the opinion rule at section 76. As noted above, the Tribunal is not bound by the Evidence Act and therefore these submissions do not advance the applicant’s case.
For each of these reasons, ground 12 is not made out.
Ground 13
The hearing before the Tribunal miscarried.[46]
[46] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 6.
Without particulars, this ground is meaningless and cannot be made out.
Ground 14
The explanation of the scheme under which LSC as an organization provides reports is described on , a publicly available website of LSC Psychology, which informs the public as follows -
“LSC Psychology is [also] contracted by the Department of Immigration and Border Protection to carry out independent expert assessments of non-judicial family violence claims. LSC Psychology has a national network of forensic and clinical psychologists who undertake these assessments.
Please note that applicants, solicitors or migration agents should not make independent contact with clinicians involved with this work and all case queries should be communicated to the relevant Delegate or Tribunal. Clinicians involved in the Family Violence assessments are not available for private referral for immigration related matters. Any inquiries regarding this program should be directed to Ms Liz Mackdacy, Project Manager. “
The applicant will contend that such contracting appears likely to be Productive of pro-government bias, is contrary to public policy, and that it is not appropriately open to public scrutiny; it appears that the psychological opinions supplied according to such contracting are elevated into forensically unassailable opinions by a legislative device which translates into the working terms and conditions of those who provide opinions in such a contracting regime. It appears that such contracting supported by regulation is either specifically designed - or has the effect - of impinging on the rule of law in Commonwealth matters. It appears that such contracting is designed to create an illusion of infallibility, and an illusion of independence, whereas it is plain that such contracting removes accountability, and that the organization LSC and its employees are in substance departmental employees and have no claim whatsoever to independence.[47]
[47] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 6.
The applicant’s written submissions do not expressly address this ground. To that extent it is open to the court to consider this ground abandoned.
To the extent that the applicant’s written submission address the inter-relationship between the Department, LSC and Ms O’Neill and Dr Lennings, those submissions do not disclose any jurisdictional error. As stated above, the term ‘independent expert’ is a defined term and the applicant has not demonstrated that Ms O’Neill or Dr Lennings fall outside of that definition.
Moreover, as noted above, the tribunal is only required to refer a matter to an independent expert, if it forms the view that it is not satisfied that the applicant has been the victim of family violence. That is, it provides the applicant with a further opportunity to establish that they have been the subject of family violence.
This ground, if it is not abandoned, is not made out.
Ground 15
The Tribunal should have held that the Lennings opinion was not and was not capable of being seen as relevantly independent from the O’Niel opinion; Dr Lennings and Dr. O’Neil were partners and professional colleagues and or business associates under the name LSC Psychology, co-directors, co-authors of published papers, who appear to have shared work and professional reputation accordingly from the same business premises, and as a consequence it was not open to use the Lennings opinion in the proceeding.[48]
[48] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 pages 6 and 7.
This ground was not addressed in the applicant’s written submissions.
Moreover, to the extent that it asserts a lack of independence, these matters have already been addressed in these reasons.
This ground does not disclose any jurisdictional error.
Ground 16
It was contrary to due process for the Tribunal to provide the O’Niel opinion to Dr Lennings or LSC because the appearance would only be that Dr. Lennings would naturally be expected to have a bias naturally arising from his relationship with Dr. O’Niel.[49]
[49] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 7.
This ground has already been dealt with above.
Moreover, to the extent that this raises a claim of bias or apprehended bias against Dr Lennings, and leaving aside the manner in which such a claim has been raised, as noted by Flick J in Gounder v Minister for Immigration and Border Protection [2015] FCA 1476 at [28]:
Even leaving aside the fact that both psychologists were retained by LSC Psychology, the mere fact that two report are obtained from the same source would not of itself give rise to any reasonable apprehension of bias. Nor is there any reason to questions the independence of the report prepared by Dr Lennings. His report provides an account of the matters he took into account and, albeit briefly, his reasons for his conclusion. There is no reason to suspect that Dr Lennings in preparing his report was improperly or unfairly influenced by the reasons provided by Ms O’Neill. Left unexplained was why a reasonable apprehension of bias should arise by reason of Dr Lennings being provided with the ‘opinion’ adverse to the interests of Mr Gounder any more or less ‘influenced’ by the materials provided to him from Dr Way or Ms Sutton.
A similar observation applies to the facts in this case.
As noted by Smith J in Gounder v Minister for Immigration [2015] FCCA 1658 at [41]:[50]
If it were the case that the principles of procedural fairness prevented the Tribunal from seeking an opinion from a relevantly qualified person engaged by LSC, the function of the Tribunal as required by the Act and Regulations would be frustrated.
[50] And affirmed on appeal in Gounder v Minister for Immigration and Border Protection [2015] FCA 1476 at [23] – [29].
Applying a similar analysis in this case, the Tribunal having come to the view that it was not satisfied that the applicant had suffered family violence, had no other option but to refer the matter for an opinion from a qualified person employed with LSC.
For each of these reasons, this ground is not made out.
Ground 17
The second respondent failed to observe procedural fairness in providing a transcript of the hearing for the use of the independent expert.[51]
[51] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 7.
The applicant did not address this ground either in his written submissions or in his oral submissions to the court. In those circumstances, I take the view that this ground has been abandoned.
In any event, without further particularisation this ground is meaningless.
Ground 18
The Tribunal based its decision on a report of an independent expert which did not comply with the minimum requirement in that the report did not deal individually with the alleged acts of violence or at all.[52]
[52] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 7.
Similarly, this ground was not addressed by the applicant either in his written submissions or in oral submissions to the court. In those circumstances I take the view that this ground has been abandoned.
In any event, I accept the submission made for the first respondent, namely that on the face of this ground, and without further particularisation, it is difficult to understand what the applicant means by this ground, particular when one considers Dr Lennings’ detailed report which repeats the applicant’s allegations of family violence and sets out a detailed consideration of those allegations.[53]
Ground 19
The scheme of Regulation 1.23[10] of the Migration Regulations 1994 is invalid as impairing the reality or appearance of the independence and impartiality of the Administrative Appeals Tribunal, thereby impairing its institutional integrity.[54]
Ground 20
Regulation 1.23[10][ii] of the Migration Regulations 1994 creates an unacceptable grafting of non-judicial powers [i.e. the formation of an opinion by a non-independent non-judicial person retained by the executive, and the compulsion placed upon the Administrative Appeals Tribunal to follow it] onto the judicial process in such a way that the outcome is controlled, to a significant and unacceptable extent, by an arm of the Executive Government, thereby destroying the integrity of the Administrative Appeals Tribunal as a repository of federal jurisdiction.[55]
[53] Court book pages 417 to 438.
[54] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 7.
[55] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 7.
Ground 21
If the powers invested by the scheme of Regulation 1.23 [10] of the Migration Regulations 1994 in an “independent” expert to investigate and in a binding and conclusive manner determine facts are not non-judicial, the experts appointed by the application of the scheme are not independent, and their role is inconsistent with the institutional integrity of the Administrative Appeals Tribunal.[56]
[56] Applicant’s combined amended application and outline of submissions filed on 3 August 2020 page 7.
The applicant’s submissions in relation to grounds 19 - 21 inclusive are limited to the submissions made in relation to grounds 2 - 8.
It is difficult to follow the applicant’s submissions in this regard. As I understand the applicant’s submissions in relation to grounds 19 - 21, in essence they take issue with the process set up by Regulation 1.23(10) in that:
a)it is an invalid process because in reality it is not an independent process;
b)it interferes with the separation of powers by compelling a ‘judicial’ body to follow an assessment made by someone appointed by the executive arm of government; and
c)consequently, the ‘institutional integrity’ of the Tribunal is adversely affected.
There are a number of problems with this analysis. Firstly, the Tribunal is not a judicial body, but rather an administrative body whose powers and functions are limited by the legislative scheme pursuant to which it is empowered.
The concept of ‘institutional integrity’ is one which applies to courts exercising judicial powers. As noted by Gummow, Hayne and Crenna JJ in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63]:
Because Ch III requires that there be a body fitting the description ‘the Supreme Court of a State’, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable. The legislation under consideration in Kable was found to be repugnant to, or incompatible with ‘that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system. The legislation in Kabel was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the Court to perform. … the task given to the Supreme Court was identified as a task where the court acted as an instrument of the Executive. … the relevant principle is one which hinges upon maintenance of the defining characteristics of a ‘court’ … It is to those characteristics that the reference to ‘institutional integrity’ alludes. … if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies. (emphasis added)
Those principles do not equally apply to the current circumstances. The Tribunal is not a court. There is no issue about altering its fundamental nature. It is a statutory body and it is a matter for parliament to determine what powers it has and how those powers are to be exercised.
Moreover, to the extent that the Tribunal in a review is required to reach a state of satisfaction as to whether or not the applicant has suffered family violence, the applicant’s analysis elevates the role of the Independent Expert above that established under regulation 1.23(10). As previously stated in these reasons, the Tribunal must itself first determine whether on the basis of the material before it, it is satisfied that the applicant has suffered family violence. If it is so satisfied, no further inquiries are required.
If the Tribunal is not so satisfied, rather than determine the matter there and then, the Tribunal is required to refer the question of whether a person has suffered family violence to an independent expert as defined. If that person is satisfied that the applicant has suffered family violence, the Tribunal must accept that assessment as correct.
As noted above, the applicant has not established that there is any proper basis to challenge the validity of regulation 1.23(10) on the basis alleged or otherwise. These grounds are therefore not made out.
Conclusion
For each of these reasons, as none of the applicants grounds of review are made out, this application is dismissed and the applicant is ordered to pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 16 June 2021
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