Sok v Minister for Immigration
[2007] FMCA 1525
•7 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1525 |
| MIGRATION – Migration Review Tribunal – partner visa – validity of reg.1.23 – whether Tribunal must invite applicant to hearing before opinion obtained from independent expert – whether Centrelink employee capable of being an independent expert – apprehended bias – relevant considerations. |
| Migration Act 1958, ss.360, 368, 467, 505 Migration Regulations 1994, reg.1.21, 1.23, Sch 2 cl.100.221 |
| Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 Algama v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 638 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 199 Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170 Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819 |
| Applicant: | SIE SOK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1603 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 18 June 2007 |
| Date of last submission: | 18 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Anthony Krohn |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the First Respondent: | Warren S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
DECLARATION
The decision of the second respondent made in matter V05/02007 is unlawful, void and of no force and effect.
ORDERS
There be an order in the nature of certiorari bringing in to court quashing the decision of the second respondent in matter V05/02007 handed down on 20 November 2006.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 22 March 2005.
The first respondent pay the applicant’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1603 of 2006
| SIE SOK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a 29 year old male citizen of Cambodia. On 18 August 2002, the applicant married Ms Morm, the sponsor, in Cambodia. The applicant was granted a temporary partner visa and he arrived in Australia on 25 November 2002. Based largely on a home visit, the delegate concluded that the applicant and the sponsor were living separately and refused the applicant’s permanent partner visa application.
The applicant sought review by the Migration Review Tribunal. Notwithstanding that his relationship with the sponsor had ended, the applicant claimed that he was eligible for a partner visa because the sponsor had been violent towards him. The Tribunal referred the question of whether the applicant had suffered relevant domestic violence to a Centrelink social worker. The social worker gave an opinion that the applicant was not the victim of relevant domestic violence. That opinion was binding on the Tribunal. Consequently, the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.
Issues
The applicant says that the Tribunal’s decision is invalid because:
a)the Tribunal applied reg.1.23 of the Migration Regulations 1994 (“the Regulations”) which is invalid because it rendered ineffectual the applicant’s right to a hearing under s.360 of the Migration Act 1958 (“the Act”);
b)the Tribunal failed to correctly apply the law by:
i)relying on an opinion about whether the applicant had suffered domestic violence which was not provided by an independent person;
ii)not conducting a hearing in accordance with s.360 of the Act;
c)the Tribunal took into account irrelevant considerations, namely:
i)the opinion of a person who was not independent; and
ii)the opinion of a person who wrongly understood that relevant domestic violence needed to have occurred during the currency of the relationship;
d)it could be reasonably apprehended that the Tribunal was biased because:
i)it gave no reasons for referring the matter to an independent expert; in circumstances where:
ii)the PAM3 guidelines disclosed a bias against male applicants; and where
iii)the Tribunal did not give the applicant a hearing before deciding to refer the matter to an independent expert;
e)the Tribunal failed to have regard to relevant considerations, namely:
i)whether there was a proper basis for referring the matter to an independent expert;
ii)the physical assault on the applicant which occurred after the cessation of his relationship with the sponsor; and
iii)the emotional and psychological violence inflicted by the sponsor on the applicant.
Ground 1: validity of regulation 1.23
Ground 1(a) in the application is as follows:
The decision was affected by jurisdictional error in that the Tribunal applied or relied on a Regulation that was invalid.
PARTICULARS
(a) Regulation 1.23 of the Migration Regulations 1994 was invalid in so far as it rendered ineffectual the right of the applicant to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” pursuant to section 360 of the Migration Act 1958;
(Ground 1(b) was not pressed and I take it no further.) The applicant noted that s.360 of the Act requires the Tribunal to invite the applicant “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. On the other hand, reg.1.23(1B) required the Tribunal to:
(a)if satisfied that the alleged victim has suffered relevant domestic violence -- consider the application on that basis; or
(b)if not satisfied that the alleged victim has suffered relevant domestic violence -- seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
If an independent expert’s opinion was obtained, reg.1.23(1C) required the Tribunal to take the opinion as correct. The applicant conceded that s.505 of the Act specifically authorises the making of a regulation providing for reference to an independent expert for a binding opinion on the question of whether an applicant satisfies a criterion for a visa, such as whether an applicant has suffered relevant domestic violence. However, the applicant argued that the Parliament could not have intended that a regulation could provide for a binding opinion to be obtained before any hearing before the Tribunal took place. Such a regulation, in the applicant’s submission, would render ineffectual the right to a hearing under s.360 of the Act.
Alternatively, the applicant argued that reg.1.23 is invalid to the extent that it authorises the Tribunal to determine conclusively whether the alleged victim has suffered relevant domestic violence, and therefore whether to seek the opinion of an independent expert, without first inviting the applicant to a hearing.
The applicant argued that the only construction which harmonises s.360 of the Act and reg.1.23(1B) is that the Tribunal must invite the applicant to a hearing pursuant to s.360 of the Act before deciding whether it is satisfied that the applicant has suffered relevant domestic violence.
Consideration of ground 1(a)
In my view, reg.1.23 is not invalid. Section 505 of the Act expressly authorises the making of regulations under which the Minister may obtain a binding opinion from another person about whether an applicant satisfies a particular visa criterion. Regulation 1.23 is such a regulation. There is no necessary inconsistency between reg.1.23 and s.360 of the Act. Regulation 1.23 does not prevent the Tribunal from inviting the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. For the reasons given in relation to ground 2(b), in my view, reg.1.23 does not render ineffectual the applicant's rights under s.360 of the Act or authorise the Tribunal to determine that it is not satisfied that an applicant has suffered relevant domestic violence without affording the applicant a hearing under s.360 of the Act.
Ground 2(a): expert not independent
Ground 2(a) is as follows:
The decision was affected by jurisdictional error in that the Tribunal failed correctly to interpret or to apply the law.
PARTICULARS
(a) The Tribunal acted upon the assessment of a person or persons not being “an independent expert” within the meaning of Regulation 1.21, 1.23(1B) and l.23(1C) of the Migration Regulations 1994 in that the persons to whom the Tribunal remitted the matter for assessment were not independent, but employees of Centrelink, an agency of the Commonwealth government;
Regulation 1.21(1) relevantly provided:
(1) In this Division:…
independent expert means a person who:
(a)is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of domestic violence.
It was common ground that the only organisation that has been specified for the relevant purposes is Centrelink. The regulations also provide for a “competent person” to make a statutory declaration on behalf of an applicant to the effect that he or she has been the victim of relevant domestic violence. The definition of competent person in reg.1.21 includes a social worker. The opinion provided to the Tribunal in this case was provided by a Centrelink social worker.
The applicant argued that an employee of Centrelink, an agency of the executive government of the Commonwealth, could not be independent. The applicant argued that the Tribunal itself was independent and not subject to the direction of the Minister (except in limited circumstances). By contrast, an employee in a government department is subject to Ministerial direction. The applicant argued that the independent expert must be independent of:
a)the Minister whose decision is being reviewed;
b)the executive government;
c)the Tribunal; and
d)any other source of influence or dictation.
Consideration of ground 2(a)
The term “independent expert” is defined in reg.1.21 in such a way that the expert does not need to be independent, in any absolute sense, from the government or anyone else. The definition requires firstly that the relevant person is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence. A suitably qualified person would be, for example, a person who fell within the definition of a “competent person”, such as a social worker. The definition requires secondly that the relevant person is employed by, or contracted to provide services to, an organisation that is specified in the Gazette Notice for the purposes of making independent assessments of non-judicially determined claims of domestic violence. Centrelink was specified in a Gazette Notice on 1 July 2005 for that purpose.
The author of the second opinion provided by Centrelink held a Bachelor of Social Work and was employed by Centrelink as a social worker. The Tribunal found that the second opinion was provided by an independent expert who was suitably qualified to make the assessment and who was an employee of Centrelink. Accordingly, the author of the second opinion met the definition of independent expert in reg.1.21. This ground is not made out.
Ground 2(b): failure to conduct a hearing
Ground 2(b) is as follows:
The decision was affected by jurisdictional error in that the Tribunal failed correctly to interpret or to apply the law.
PARTICULARS
…
(b) The Tribunal did not conduct a hearing of the matter before determining pursuant to Regulation 1.23(1B)(a) of the Migration Regulations 1994 whether it was satisfied that the applicant had suffered relevant domestic violence and whether to seek the opinion of an independent expert, and thus effectively frustrated the intention and purpose of the hearing pursuant to section 361 of the Migration Act 1958;
The applicant submitted that the Tribunal’s failure to conduct a hearing before referring the matter to an independent expert frustrated the intention and purpose of the invitation to a hearing pursuant to s.360 of the Act. The applicant argued that if, before the Tribunal determined whether it was satisfied that the applicant had suffered relevant domestic violence, he had been able to give the evidence he adduced at the hearing, the Tribunal may well have decided the case differently.
The first respondent argued that there was clear legislative authority in s.505 of the Act for the making of regulations permitting the Minister to obtain a binding opinion from a person of a specified class. The first respondent referred to Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819 at [38] and [39] where Bennett J said:
[38] Section 505, which refers specifically to such matters for visa applicants, does not delegate the whole of power to decide whether an applicant for a visa satisfies the relevant criterion. The section provides for the making of regulations under which the Minister, when required to decide whether an applicant for a visa satisfies a specified criterion, may obtain the opinion, assessment, finding or decision of a specified person or organisation and have regard to it and to take it to be correct.
[39] The sub-delegation in s 505 is not of a legislative but of an administrative character. It is not the delegation of a wide field of operation but, rather, a narrow question of fact.
The first respondent said that whether the applicant had suffered relevant domestic violence was not an issue arising in the review. There was nothing in the Act, in the first respondent’s submission, that required the Tribunal to invite the applicant to a hearing before forming the view that is was satisfied that the applicant had suffered relevant domestic violence. The first respondent argued that the determination of that question was a matter for the independent expert.
Consideration of ground 2(b)
In my view, the Tribunal was obliged by s.360 of the Act to invite the applicant to a hearing before seeking the opinion of an independent expert. Section 360 of the Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. One of the issues arising in relation to the decision under review is specified in reg.1.23(1B). Under that provision, the Minister, and, on review, the Tribunal, must consider whether the alleged victim has suffered relevant domestic violence. Regulation 1.23(1B) states that:
(1B)If an application for a visa includes a non‑judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and:
(a)if satisfied that the alleged victim has suffered relevant domestic violence -- consider the application on that basis; or
(b)if not satisfied that the alleged victim has suffered relevant domestic violence -- seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
Accordingly, whether the alleged victim has suffered relevant domestic violence is an issue arising in relation to the decision under review. As a result, s.360 required the Tribunal to invite the applicant to a hearing on that issue. The invitation to a hearing cannot be an “empty gesture” or “hollow shell”: Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 at [31] per Goldberg and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]. Accordingly, when the invitation to give evidence and present arguments is given, the issue of whether the alleged victim suffered relevant domestic violence cannot have already been foreclosed by the binding opinion of an independent expert. If it were otherwise, the hearing by the Tribunal under s.360 would be a pointless charade.
I do not accept the first respondent's argument that the arbiter of the issue of whether an alleged victim has suffered relevant domestic violence is not the Tribunal but the independent expert. Regulation 1.23(1B) requires the Tribunal at the outset to consider whether the alleged victim has suffered relevant domestic violence. The Tribunal may itself be satisfied that the alleged victim has suffered relevant domestic violence and, if so, that satisfaction will be determinative of the issue. That is, in such a circumstance, it is the Tribunal which is the arbiter of whether an alleged victim has suffered relevant domestic violence. That question only goes to an independent expert if the Tribunal reaches a state of non-satisfaction on the question of whether the alleged victim has suffered relevant domestic violence.
Regulation 1.23(1B)(b) only comes into play after the Tribunal has considered for itself the issue of whether the alleged victim has suffered relevant domestic violence. If the Tribunal after considering the issue is not satisfied that the alleged victim has suffered relevant domestic violence, the Tribunal is authorised to seek a binding opinion from an independent expert. That authority is in accordance with the regulation making power given by s.505 of the Act.
However, there is nothing in reg.1.23 or s.505 of the Act which authorises the Tribunal to reach a state of non-satisfaction on the issue of whether the alleged victim has suffered relevant domestic violence without inviting the applicant to a hearing in relation to that issue. The obligation under s.360 to invite the applicant to a hearing before the Tribunal on that issue is not displaced or discharged by the obligation, which arises after the Tribunal has reached a state of non-satisfaction on the issue, to obtain an opinion from an independent expert.
In relation to Wen Bi Dai, I note that the decision of the Federal Court in that matter was not made in the court’s appellate jurisdiction. For that reason at least, the decision is not binding on this court, though it would certainly be highly persuasive if it were not distinguishable. However, in my view, Wen Bi Dai is distinguishable. It concerns the regulations relating to student visas and in particular condition 8202 which allows a certificate by an education provider to be determinative of whether a student has achieved satisfactory academic performance. The structure of condition 8202 is very different to the structure of reg.1.23(1B) which requires the Minister, and, on review, the Tribunal, to form a view about whether a person has suffered relevant domestic violence and to only refer the matter to an independent expert if the Minister or Tribunal is not able to reach the requisite state of satisfaction.
In the case of condition 8202, the starting point is whether the education provider has certified that a student has satisfied the academic requirements of that education provider. The only issue for the Tribunal, in this context, is whether the education provider has given such a certificate. It is not for the Tribunal to decide whether the student’s academic performance was satisfactory, or sufficiently satisfactory: see Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 199. Accordingly, there is no obligation on the Tribunal to give a hearing on that issue. In the case of reg.1.23(1B), the Tribunal itself is required to decide whether the alleged victim has suffered relevant domestic violence, and only refer the matter to an independent expert if not so satisfied.
For these reasons, in my view, the Tribunal failed to comply with s.360 of the Act. This is a jurisdictional error which may have affected the outcome of the proceeding.
Ground 3(a): irrelevant consideration: not independent
Ground 3(a) is as follows:
The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.
PARTICULARS
(a) The Tribunal took into account the opinion of a person or persons not being “an independent expert” within the meaning of Regulation 1.21, 1.23(1B) and 1.23(1C) of the Migration Regulations 1994 in that the persons to whom the Tribunal remitted the matter for assessment were not independent, but employees of Centrelink, an agency of the commonwealth government.
Consideration of ground 3(a)
For the reasons given above in relation to ground 2(a), I consider that this ground is not made out. That is, the opinion of the independent expert was provided by a person within the definition of independent expert. Accordingly, taking that opinion into account did not involve taking into account an irrelevant matter.
Ground 3(b): irrelevant considerations: misunderstanding
Ground 3(b) is as follows:
The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.
PARTICULARS
…
(b) The Tribunal took into account the opinion of a person or persons as putative being “an independent expert” within the meaning of Regulation 1.21, 1.23(1B) and 1.23(1C) of the Migration Regulations 1994, but the assessments made by those persons followed a structure and addressed points broader than those required or made relevant by the definition of relevant domestic violence under Regulation. 1.23(2)(b) of the Migration Regulations 1994.
The applicant argued that the Tribunal was wrong to take into account the opinion of an independent expert which was based on a misunderstanding of the law, namely, that the relevant domestic violence needed to have occurred during the currency of the spousal relationship rather than after it had ended. The applicant noted that the regulation just requires that the relevant domestic violence occurred after the applicant first entered Australia. The applicant argued that the Regulations did not require any particular chronological or causal relationship between the violence and the cessation of the relationship.
The first respondent argued that the opinion of the independent expert was binding, regardless of any flaws in it. The first respondent argued further that, on the applicant’s construction, a person could leave a relationship because they preferred to be with someone else, but rely on later domestic violence to satisfy the visa criteria. The first respondent argued that, logically, the relevant domestic violence must have occurred during the course of the relationship.
The first respondent referred to numerous authorities that he said demonstrate that the courts approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act or regulation, and will not apply the ordinary or grammatical meaning of language used in a statute if to do so would not give the statute an operation which was intended: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5, 320-1; Mills v Meeking (1990) 169 CLR 214 at 223, 234-5, 242-3; Thompson v His Honour Judge Byrne (1999) 73 ALJR 642 at 647-8, 653.
The first respondent noted that in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321, Mason and Wilson JJ said:
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
and in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 McHugh, Gummow, Kirby and Hayne JJ said at [69] and [78]:
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
…
[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with. (footnotes omitted)
The first respondent argued further that the applicant was not the ‘spouse’ of the sponsor at the time of the assault. The relationship had ended two or three months before the assault. The first respondent noted that this issue was specifically addressed by Sundberg J in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 where his Honour said:
[14] There is a further reason why the spouse visa criteria could not be met by the applicant. As Ryan J said in Meroka v Minister for Immigration and Multicultural Affairs above at par 38, the evident purpose of sub-clauses 801.221(5) and (6) is to deal with persons who are the holders of Subclass 820 visas and whose relationship has come to an end through the death of the sponsoring spouse or as a result of domestic violence for which the sponsoring spouse was responsible. Here the parties’ relationship came to an end before the alleged violence occurred. See the definition of “spouse” in reg 1.15A(1A). The Tribunal found, in accordance with information provided by the sponsor, that the relationship came to an end on 1 September 2000. The alleged violence did not occur until 16 September 2000.
The applicant argued in oral submissions that the relevant statement in Alin was obiter or alternatively was part of a double barrelled set of reasons. In addition, the applicant argued that Alin and Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251 were decided under the Hickman principles and also concerned an earlier version of the Regulations in which there was no requirement to refer the matter to an independent expert. Finally, the applicant argued that the separation of the applicant and the sponsor in Alin was clear and unequivocal whereas in the present case, efforts were being made to effect a reconciliation. For these reasons, the applicant argued that Alin and Meroka were distinguishable.
Consideration of ground 3(b)
The express words of clause 100.221(4)(c) of Schedule 2 of the Regulations simply require, relevantly, that after the applicant first entered Australia, he suffered domestic violence committed by his sponsor. The provision does not state that the domestic violence needed to have occurred during the currency of the spousal relationship or that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship.
However, there is an obvious policy behind the provisions which permit a person in circumstances of domestic violence to obtain a permanent partner visa notwithstanding that the relationship with the partner has come to an end. That policy is to enable such a person to leave an abusive relationship without compromising his or her immigration status.
In the circumstances, I accept the submissions of the first respondent on this point. I consider that it is appropriate to read clause 100.221(4)(c) as requiring the domestic violence to have occurred during the currency of the relationship. Accordingly, I consider that the author of the second opinion did not misunderstand the relevant provisions and her opinion was therefore not an irrelevant consideration.
In relation to the applicant's argument that he was attempting a reconciliation at the time of the violence in November 2005, I consider that the reality of the situation was that the applicant had been living separately and apart from his sponsor for some time when the violence occurred. In those circumstances, whatever the applicant’s hopes may have been, the necessary relationship between the applicant and the sponsor was not on foot at the relevant time. The fact that the applicant and the sponsor remained legally married was neither here nor there.
Ground 4: apprehension of bias
Ground 4 is as follows:
Further or in the alternative the decision was affected by jurisdictional error in that the Tribunal failed to accord procedural fairness or natural justice to the applicant by reason of circumstances giving rise to a reasonable apprehension of bias.
PARTICULARS
(a) The Tribunal was obliged where it considered it appropriate to have regard to policy of the first respondent, including matters set out as policy for decision makers in the Procedures Advice Manual (PAM3) of the first respondent’s Department in section 32.8 of PAM3:
32.8 Male claimants
Under policy, it is reasonable to refer to an independent expert non-judicially determined claims of domestic violence made by men unless strong evidence exists that the claim is genuine.
This is because, although it is certainly possible for men to be victims of domestic violence, historically, claims of domestic violence made by men under these provisions are disproportionate to the incidence of domestic violence against men in the general community. (Emphasis added.)
From this policy and from the Tribunal’s lack of reasons for its decision to refer the applicant’s matter to independent experts there arises a reasonable apprehension that the Tribunal did not have an open mind in considering a claim of domestic violence to have been suffered by the applicant, a man.
(b) The Tribunal gave no reasons for its decision to refer the applicant’s matter to independent experts, despite its obligation under section 368 of the Migration Act 1958 to do so if it had reasons.
(c) The Tribunal did not conduct a hearing of the matter before determining pursuant to Regulation 1.23(1B)(a) of the Migration Regulations 1994 whether it was satisfied that the applicant had suffered relevant domestic violence and whether to seek the opinion of an independent expert, and thus effectively frustrated the intention and purpose of the hearing pursuant to section 360 of the Migration Act 1958;
The applicant submitted that the Tribunal was bound to have regard to the PAM3 guidelines. The Tribunal noted the applicant’s submission that the guidelines were biased against men but did not address it. As the guideline was not explicitly rejected, the applicant argued that there was a reasonable apprehension that the Tribunal followed it. Additionally, the applicant argued that the absence of reasons for the Tribunal’s referral of the matter to an independent expert compounded that apprehension, as did the failure to give a hearing before referring the matter to an independent expert.
The first respondent argued that the Tribunal is not bound by policy. The first respondent noted that the Tribunal only referred to PAM3 in the context of recording the applicant’s submissions about it. The first respondent then argued that:
[53] Secondly, PAM3, as stated, in any event only reflects the concerns articulated as to the historically disproportionate number of male claimants of domestic violence compared with the incidence of such violence in the general community. In that light PAM3 is not indicative of any bias against male applicants, but only reflects the stated statistical concerns.
[54] Thirdly, the Tribunal did no more than seek the opinion of an independent expert about whether the applicant had suffered relevant domestic violence. It did not determine that issue itself, but was bound to take the opinion provided to it as correct. It can hardly be maintained that the Tribunal’s reasons indicate an apprehension of bias, when it was not the Tribunal that determined that the applicant had not suffered relevant domestic violence, but the independent expert, and the Tribunal was required to take that opinion as correct. As PAM3 states (Supp CB 26):
In deciding whether to refer a case to an independent expert, officers are not making any judgment that a person is not a victim of domestic violence or that another person is not a perpetrator of domestic violence. They are deciding whether, after taking into consideration all relevant information, they are satisfied (or not) that the alleged victim has suffered relevant domestic violence committed by the alleged perpetrator.’ (emphasis added by first respondent)
As to the absence of reasons for referring the matter to an independent expert, the first respondent argued that the Tribunal was not required to give a reason beyond recording its lack of satisfaction. The first respondent argued that a lack of satisfaction is not a finding: Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 1096 at [6]. The first respondent submitted that the Tribunal was required to give reasons for its decision on the review, not reasons on the subsidiary question of why it referred the matter to an independent expert. The first respondent noted the decision of North J in Algama v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 638 at [107] and [111] which state as follows:
[107] The narrower issue is whether s 430 required the tribunal member to explain her reasons for refusing to disqualify herself.
...
[111] The language of the section relates to a single decision on the merits of an application. The word ``decision'’ is used in the singular. It does not refer to any number of subsidiary or procedural determinations on the way to a final decision. The same usage is followed in s 430(1)(a) and (b). Further, the reference is to the decision ``on a review'’. That expression refers to the determinative conclusion of the proceeding rather than to any rulings in the process leading to the final result.
In relation to the absence of a hearing prior to the referral to an independent expert, the first respondent argued that no such hearing was required, so not giving a hearing at that stage could not lead to a reasonable apprehension of bias.
The applicant argued in oral submissions that paragraph 32.8 of PAM3 was not concerned merely with statistics and it skewed the whole process. The applicant argued that the existence of the impugned statements in PAM3 raised a reasonable apprehension of bias in circumstances where the expert opinion trumped all other views. Relying on Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, the applicant argued that the absence of reasons may show that a particular matter was not taken into account. The applicant sought to distinguish Algama on the basis that it was decided before Yusuf, and, in any event, the decision to refer the matter to an independent expert was part and parcel of the ultimate decision.
Consideration of ground 4
The test for apprehended bias was set out by the Full Court of the Federal Court in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264, [14] and [20]:
[14] The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision ...
...
[20] At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question ...
(a) PAM3
In my view, paragraph 32.8 of PAM3 is not in accordance with the Regulations. The Regulations require the decision maker to decide whether he or she is satisfied that an alleged victim has suffered relevant domestic violence. A male applicant does not need to produce stronger evidence that he has suffered relevant domestic violence than a female applicant. Every case needs to be determined on its own facts, irrespective of whether one of those facts, being the applicant's male gender, is also a fact in many other cases that have been found to be unmeritorious.
As a broad generalisation, it may be true that men are physically stronger than women and it may be true that very few men would fear for their safety or well-being if assaulted by a woman, or, at least, a woman who was not using a weapon. However, domestic violence within the meaning of the Regulations goes well beyond physical assaults. It includes emotional and psychological abuse. Men generally have no particular advantage in those areas.
Paragraph 32.8 of PAM3 does not simply refer to statistical realities. It says that it is appropriate to refer the claims of a male applicant to an independent expert unless the evidence in support of the claim is strong. That is not in accordance with the Regulations. All else being equal, a decision maker should be as open to reaching a state of satisfaction in relation to the claims of a male applicant as the decision maker would be in relation to the claims of a female applicant.
For these reasons, the guidelines contain a bias against male applicants. However, that does not mean that the Tribunal was biased against male applicants in general or the particular male applicant in this case. The Tribunal did not say that it was applying paragraph 32.8 of PAM3 and did not say anywhere in its decision that paragraph 32.8 had any bearing on the matter. The Tribunal said at [45] of its reasons that it had considered all the evidence in the light of the interpretation of domestic violence given by the Full Federal Court in Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 170 and was not satisfied that the alleged victim had suffered relevant domestic violence. The Tribunal apparently considered relevant authority and formed its own view about whether there had been relevant domestic violence, rather than applying the departmental view. I see no reason to infer that the Tribunal acted on the basis of the guidelines when there is nothing to suggest it did. In the circumstances, the fact that the Tribunal did not explicitly reject paragraph 32.8 in PAM3 cannot of itself be taken as indicative of bias on the Tribunal's part.
(b) lack of reasons for reference to independent expert
Subsection 368(1) of the Act states that:
(1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), prepare a written statement that:
(a) sets out the decision of the Tribunal on the review;
(b) sets out the reasons for the decision;
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
The Full Federal Court in Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 1096 held that a conclusion that the Tribunal was not satisfied of a particular matter was not a finding for the purposes of the now repealed paragraph 467(1)(g) of the Act. Accordingly, there was no statutory obligation on the Tribunal to set out its reasons for not being satisfied that the applicant had suffered relevant domestic violence. Additionally, on the authority of Algama, there was no requirement on the Tribunal to give reasons for its decisions along the way to reaching its final decision. In any event, at least in some circumstances, a failure to give reasons even where there is a statutory obligation to do so is not a jurisdictional error: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212.
All in all, in not giving reasons for not being satisfied that the applicant had suffered relevant domestic violence, the Tribunal acted in accordance with authority. Accordingly, the lack of reasons for not being satisfied that the applicant had suffered relevant domestic violence does not give rise to a reasonable apprehension of bias.
(c) no hearing before referral to independent expert
As noted above, in my view, there was a jurisdictional error in not affording the applicant a hearing under s.360 of the Act before referring the matter to an independent expert. However, I do not consider that this circumstance gives rise to a reasonable apprehension of bias. Rather, it simply suggests that the Tribunal did not consider that it was under any obligation to afford the applicant a hearing before having the matter thoroughly ventilated before an independent expert.
(d) the three matters combined
I do not consider that the three matters identified by the applicant alone or in combination lead to a reasonable apprehension of bias on the part of the Tribunal. In not giving reasons for referring the matter to an independent expert, the Tribunal acted in accordance with authority. In not giving a hearing before referring the matter to an independent expert, the Tribunal apparently considered that it had no obligation to do so. In not explicitly rejecting the PAM3, the Tribunal appears to have simply acted on its own view of the law rather than the department’s.
Ground 5: relevant considerations
Ground 5 is as follows:
The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.
PARTICULARS
(a)The Tribunal failed in its statement under section 368 of the Migration Act 1958 to give any reasons or findings to explain its decision to refer the matter for the opinion of an independent expert or experts. It is thus to be inferred that the Tribunal failed to consider and to determine relevant matters required to be considered in determining pursuant to Regulation 1.23(1B) of the Migration Regulations 1994 whether the applicant had suffered relevant domestic violence in satisfaction of clause 100.221(4) of Schedule 2 to the Migration Regulations 1994. Relevant matters included all the substance of the evidence submitted to the Tribunal by the applicant, the statutory declarations of competent persons, the sufficiency of that evidence, whether it was conflicting, its specificity and especially the corroborating evidence of the applicant’s mother-in-law, the mother of the alleged perpetrator of the relevant domestic violence. (Cf. matters set out as policy for decision makers in the Procedures Advice Manual (PAM3) of the first respondent’s Department, sections 32.3, 32.4, 32.5. 32.7, 32.12; 33.1. 33.2, 33.3.)
(b) The Tribunal based its decision in whole or in part on the assessment provided to the Tribunal on 26 July 2006 by a social worker employed by Centrelink, but those assessment explicitly excluded from consideration an incident of violence by the alleged perpetrator against the applicant in November 2005 although it was relevant pursuant to clause 100.221(4)(c)(i)(A) of Schedule 2 to the Migration Regulations 1994.
(c) The Tribunal based its decision in whole or in part on the assessment provided to the Tribunal on 26 July 2006 by social workers employed by Centrelink, but those assessments failed properly or at all to consider emotional or psychological violence against the applicant.
The applicant argued, based on Yusuf, that the Tribunal’s failure to give reasons for referring the matter to an independent expert allows the inference that there were no reasons, or relevant matters were not considered. Those relevant matters were said to include:
a)the corroborating evidence of the applicant’s mother-in-law, the mother of the alleged perpetrator of the relevant domestic violence;
b)the physical violence post-separation; and
c)emotional, psychological or financial violence.
Consideration of ground 5
(a) whether the Tribunal considered all of the material
It is well established that the Tribunal's failure to refer to a particular matter may lead to an inference that the matter was not considered. However, the Tribunal in this case at paragraph 16 of its reasons set out a summary of the evidence before it as at March 2006 and then said, after considering all the evidence before it, it was not satisfied that the visa applicant had suffered relevant domestic violence and accordingly referred the matter to an independent expert. In these circumstances, in my view, there is no scope for an inference that the Tribunal did not consider all of the material before it prior to referring the matter to the independent expert.
Perhaps unusually, after the Tribunal had reached a state of non-satisfaction on the existing material, after the matter had been referred to an independent expert, and after an opinion was provided by an independent expert, additional statutory declarations were submitted by the applicant. The applicant's agent asked that the additional statutory declarations be forwarded to the independent expert. The Tribunal did so.
The effect of this sequence of events is that the Tribunal had reached a state of non-satisfaction and referred the matter to an independent expert before the statutory declarations by the sponsor's mother and uncle were provided. Once that point had been reached, the Tribunal had in a sense ceased to be seized of the matter and was bound by the opinion of the independent expert. Accordingly, in my view, it was not for the Tribunal to consider the statutory declarations made by the sponsor's mother and uncle.
(b) physical violence
For the reasons given above, I consider that the incident of physical violence in November 2005 was properly excluded from consideration.
(c) emotional or psychological violence
The Tribunal relied on the second opinion provided by an independent expert. That opinion set out the definition of relevant domestic violence contained in the Regulations. It also referred to the alleged financial abuse and power imbalance in the relationship and described a number of incidents which the applicant claimed had occurred. However, ultimately, the independent expert was not persuaded that the applicant had in fact suffered relevant domestic violence as defined. I do not consider that the independent expert proceeded under the misapprehension that emotional or psychological violence was not domestic violence within the meaning of the Regulations. Accordingly, I am not persuaded that this ground is made out.
Conclusion
In accordance with my conclusions in relation to ground 2(b), and as there are no discretionary considerations to the contrary, the application must be allowed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 7 September 2007
5
16
2