Sothy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3435
•18 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sothy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3435
File number(s): SYG 2220 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 December 2020 Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a Partner (Residence) (Class BS) visa on the ground the independent expert provided an opinion that the applicant was not a victim of relevant family violence – whether Tribunal failed to consider claim – whether the applicant made a new claim of relevant family violence which the Tribunal ought to have but did not refer to the independent expert – whether the applicant was denied procedural fairness by the independent expert refusing a request made by the applicant’s legal representative to attend by telephone the independent expert’s interview of the applicant – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth), Part 3, Schedule 1
Migration Act 1958 (Cth), ss 359A, 476
Migration Regulations 1994 (Cth), regs 1.21, 1.22(1), 1.23, 1.24, 1.25, Schedule 2, cls.801.221(6)(b), 801.221(6)(c)(i)
Cases cited: Al-Momani v Minister for Immigration & Anor [2011] FMCA 453
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Number of paragraphs: 79 Date of last submission/s: 14 May 2020 Date of hearing: 13 May 2020 Place: Sydney Counsel for the Applicant: Mr D Hughes, by video Solicitor for the Applicant: D’Ambra Murphy Lawyers Counsel for the First Respondent: Mr M Smith, by video Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 2220 of 2017 BETWEEN: CHANDA SOTHY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,206.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a citizen of Cambodia, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Residence) (Class BS) visa (Partner visa). The Tribunal affirmed the delegate’s decision on the ground that, although the Tribunal was satisfied the applicant had been in a spousal relationship with the sponsor (Sponsor), it was not satisfied the applicant suffered family violence committed by the Sponsor.
BACKGROUND
On 16 January 2012 the applicant, when in Australia, applied for a combined UK Partner (Temporary) visa (820 visa) and Partner visa.[1] That application was based on the applicant’s marriage to the Sponsor. The applicant was granted an 820 visa on 30 July 2012.[2]
[1] CB109
[2] CB162
Applicant claims she suffered family violence
On 18 February 2014, before the delegate had determined whether to grant the applicant a Partner visa, the applicant’s representative sent a letter to the Department of Immigration and Border Protection (Department) stating the applicant “suffered family violence in the form of psychological, emotional and verbal abuse during her marriage with” the Sponsor.[3] That information was relevant to the applicant’s application for a Partner visa because, under cl.801.221(6)(b) and (c)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as it applied at the time the Tribunal made its decision (15 June 2017), an applicant for a Partner visa who held an 820 visa could still qualify for a Partner visa if the applicant’s relationship with the Sponsor had ceased, provided, among other things, the applicant had “suffered family violence committed by the sponsoring partner”. This expression contains terms that are defined in the Regulations, and it will be necessary to identify the relevant provisions.
[3] CB165
Relevant provisions
I begin with reg.1.22(1) of the Regulations which provides that a reference in the Regulations to “a person having suffered family violence” is a reference to a person being taken, under reg.1.23, to have suffered family violence. Subregulation 1.23(1) of the Regulations provides that, for “these Regulations”, reg.1.23 explains when a person (“the alleged victim”) is taken to have suffered family violence and when another person (“the alleged perpetrator”) is taken to have committed family violence in relation to the alleged victim. Regulation 1.23 then identifies a number of circumstances where an alleged victim is taken to have suffered family violence. Subregulation 1.23(13) provides:
The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) an application for a visa includes a non-judicially determined claim of family violence; and
(b) the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
Subregulation 1.23(13) contains two elements. The first is there must be an application for a visa that “includes a non-judicially determined claim of family violence”. Under reg.1.23(9) of the Regulations an application for a visa is taken to include a “non-judicially determined claim of family violence” if, relevantly:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim is:
(i) a spouse . . . of the alleged perpetrator;
. . . ; and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
The expression “relevant family violence” is defined in reg.1.21 of the Regulations to mean “conduct, whether actual or threatened, towards . . . the alleged victim . . . that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety”. Under reg.1.24 of the Regulations, the evidence mentioned in reg.1.23(9)(c) is a statutory declaration under reg.1.25 and any other types of evidence the Minister may specify by instrument made under reg.1.24(b).
The second element of reg.1.23(13) is that the Minister is required under reg.1.23(10)(c)(ii) of the Regulations to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence. In particular, reg.1.23(10)(c)(ii) of the Regulations requires that:
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.
“Independent expert” is defined in reg.1.21 of the Regulations to mean 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.
The circumstances in which the Minister is to do that prescribed by reg.1.23(10)(c)(ii) are set out in reg.1.23(10)(a), (b), and (c)(i) of the Regulations:
If an application for a visa includes a non-judicially determined claim of family violence:
(a)the Minister must consider whether the alleged victim has suffered relevant family violence; and
(b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and
(c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:
(i)the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence . . .
The effect of these provisions is that if a person who applies for a visa makes a non-judicially determined claim of family violence, and the existence of family violence is a prescribed criterion for the grant of the visa, the Minister is required to consider the application for a visa on that basis if satisfied the alleged victim has suffered relevant family violence but, if not so satisfied, the Minister must seek the opinion of an “independent expert” about whether the alleged victim has suffered relevant family violence, and must take to be correct the opinion given by the independent expert.
Evidence in support of applicant’s claim of family violence and delegate’s decision
In support of her claim that she suffered family violence, the applicant submitted a statutory declaration made on 14 February 2014 in which she claimed as follows:[4]
[4] CB168-173
(a)When the applicant arrived in Australia the Sponsor told her he does not have a house and that the applicant and Sponsor had to live with the Sponsor’s parents, brother, and sister.
(b)The applicant and the Sponsor did not have a room of their own. The applicant slept on the lounge near the television, and the Sponsor had to sleep in his car.
(c)The Sponsor’s behaviour in Australia was completely different from his behaviour when he lived in Cambodia with the applicant. The Sponsor told the applicant his behaviour had changed because he was upset about his financial situation; he felt bored because he had lost his driver’s licence and he could not get a job or drive anywhere; and he needed to pay a lot of money to get his driver’s licence back.
(d)The applicant decided to earn money to help the Sponsor get his driver’s licence back. The Sponsor’s parents asked the applicant to work on their farm. The Sponsor’s brother, sister-in-law, and sister also lived with the Sponsor and the applicant in the Sponsor’s parent’s house.
(e)The Sponsor and his parents forced the applicant to work on their farm. The applicant worked from 6 am to 7-8 pm in summer, and until 5-5.30 pm in winter.
(f)After work the applicant cooked dinner for everyone. The applicant would eat separately, usually in the kitchen. The applicant also cleaned up after the family ate, and she had to wait until the family finished watching television before she could sleep on the lounge. The Sponsor’s brother’s wife abused the applicant.
(g)The applicant asked the Sponsor many times why he slept in his car and why she and the Sponsor could not find a house of their own, but the Sponsor yelled and abused her saying that if she wanted a house she needed to work harder. When the applicant told the Sponsor she was really depressed, loved him, and she would do anything to make the marriage work, the Sponsor would say the applicant should commit suicide if she is depressed.
(h)Several weeks after she arrived in Australia the family dog had bitten the applicant resulting in her hand bleeding. The Sponsor’s family refused to allow the applicant to receive medical attention until one week later, after the applicant’s hand had swollen.
(i)The applicant moved out of her parent-in-law’s house “on 3 August 2011” where she was living with the Sponsor and his family; and the applicant left because she was “subjected to psychological, verbal, emotional and financial abuse”.
The applicant also submitted a psychologist’s report dated 18 February 2014.[5] In that report the psychologist set out the applicant’s description of what had occurred. In broad terms this reflected what the applicant stated in her statutory declaration. Relevant to the grounds on which the applicant relies is the following passage (errors in original): [6]
[The applicant] reported abusive treatment by her family in law. She stated that she was harassed and was taken advantage of by the In Laws all. She mentioned that in occasions her brother in law, who was a married man, tried to take advantage of her sexually when she refused and told him to stop. She added that in another occasion her sister in law tried to hit her with a metal pole and told her, face to face, that she likes to see her blood flowing from her head. [The applicant] stated that most of the time her husband was watching these incidents and abusive behaviours toward her and did absolutely nothing.
[5] CB174-178
[6] CB175-176
The psychologist concluded as follows:[7]
It is my clinical opinion that [the applicant] has been the victim of severe family violence during her marriage to [the Sponsor]. The violence has been in the forms of psychological, verbal, emotional, financial and severe passive physical violence (depriving her from seeking medical attention on different occasions). As a result of the passive physical violence, she became severely unwell. Obviously the violence has had a severe impact on her mental health status. Clinical assessment indicates that she suffers a severe depressive condition and has symptoms indicative of traumatisation, which are causally related to her experience of abuse during her marriage by all members of the family even [the] brother in law’s wife who is much younger than her.
[7] CB177
By letter dated 27 March 2014 the Department informed the applicant that in her statutory declaration the applicant stated she had left the marital home on 3 August 2011, which occurred before the applicant lodged her application for an 820 visa.[8] The Department invited the applicant to provide a response to this unfavourable information.
[8] CB183
The applicant did so by letter dated 29 April 2014 from her representative. That letter attached a statutory declaration in which the applicant said that 3 August 2012 was the accurate date on which she left her parent-in-law’s house.[9] The applicant’s representative’s letter also attached a letter dated 17 February 2014 from a general practitioner addressed to the applicant’s representative.[10] The doctor said the applicant consulted him on 15 November 2012, and recounted what the applicant had said about her relationship with the Sponsor. The doctor recorded the applicant alleged, among other things, that the Sponsor demanded money from her and threatened to send her back to Cambodia if she did not provide any money. The doctor responded to three questions, the first response being that the applicant “mentioned she was subjected to what amounts to mental abuse but no physical abuse”.
[9] CB199
[10] CB207
On 7 May 2014 the delegate refused to grant the applicant a Partner visa because the delegate was not satisfied the applicant was the spouse or de facto partner of the Sponsor before the applicant ended her relationship with the Sponsor.[11]
[11] CB223 at CB226
Course of proceeding before Tribunal
On 27 May 2014 the applicant applied to the Tribunal for review of the delegate’s decision.[12] The applicant appeared before the Tribunal on 19 February 2015 to give evidence and present arguments. After the hearing the applicant, through her representative, provided additional material to the Tribunal. This included a statutory declaration made on 4 March 2015.[13] The applicant said that her relationship with the Sponsor broke down in August 2012; the applicant is a victim of domestic violence “which was perpetrated by my husband and his family”; on one occasion the applicant’s sister-in-law attempted to hit the applicant with a metal pole, stating that she would like to see blood flowing from the applicant’s head; the Sponsor observed this incident, but did not defend the applicant; the Sponsor used to yell at the applicant in front of his family, and supported his mother when she yelled at the applicant and forced her to do work in the house; and when the applicant was upset about the way the Sponsor’s family treated her, the Sponsor would attempt to calm her down by telling her that she should cope because he and the applicant did not have the financial means to have a house by themselves; but when the applicant was abused by the Sponsor’s family in front of him, the Sponsor would not do anything about it, and sometimes he joined in telling the applicant she is not a good Cambodian wife, and saying in front of his family that if the applicant is not happy, and she cannot cope, she should kill herself.
[12] CB235. The applicant in fact applied to the Migration Review Tribunal. The Tribunal subsequently was assigned power to consider the application for review.
[13] CB279-284
First referral to independent expert
On 2 April 2015 the Tribunal informed the applicant that it “has referred the claim of domestic/family violence and any relevant information” on the Tribunal and Department files “to LSC Psychology (independent expert) for an opinion”.[14] On 14 April 2015 the Tribunal sent an email to “IEreports” attaching, among other things, a “Family Violence Referral Form M52”.[15] On 22 June 2015 Dr Edmands prepared a report (first expert report).[16] In Part B of the form Dr Edmands recorded information under a number of headings, one of which is “Account of claimed family violence”. In that section Dr Edmands recorded the following:[17]
Instead [the applicant] stated that she had been afraid of the sponsor’s brother’s wife due to alleged jealousy on the part of this woman towards her. She described that fear of this woman was a result of her allegedly trying to, on one occasion, hit [the applicant] with a broom; and also a claim made by [the applicant] that she had allegedly also made an abusive telephone [call] to [the applicant]. She indicated that she had also (reportedly) “ … one time want to take a pot to my head [sic]”. She stated that the sponsor had observed such behaviour (once) but had done nothing to stop it. Despite the former partner’s passive observation of these incidents, they were not orchestrated at his behest.
[14] CB297
[15] CB298-299
[16] CB390-398
[17] CB392
Dr Edmands concluded that the relevant family violence that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, her own wellbeing or safety has not occurred.[18] The opinion was based on the applicant having said that the Sponsor had never acted in a physically or sexually aggressive manner towards her; that she had never been afraid of the Sponsor or been apprehensive of her wellbeing; the applicant had instead been afraid of the Sponsor’s brother’s wife due to her jealousy of the applicant; and, although the applicant had indicated the Sponsor’s brother’s wife had stated she wanted to take a pot to the applicant’s head, and the Sponsor had observed that incident, the incident did not occur at the behest of the Sponsor.[19]
[18] CB396
[19] CB397.
On 30 July 2015 the Tribunal affirmed the delegate’s decision. It found the applicant and Sponsor were in a spousal relationship that broke down in August 2012, but found the opinion contained in the first expert report met the requirements of the Regulations and, for that reason, it was bound to take that opinion to be correct. This Court, however, set the Tribunal’s decision aside on 27 November 2015 because the Tribunal did not give the applicant an opportunity to comment on the first expert report.
The Tribunal invited the applicant to appear before it, which she did, on 12 April 2016. Before that hearing, the applicant’s representative provided a report dated 23 March 2016 from Professor Dennerstein, a psychiatrist.[20] The report set out in some detail the applicant’s account of her marriage which included the following:[21]
[The applicant] said that her sister-in-law didn’t like her husband (the younger brother-in-law) helping her and used bad language to [the applicant]. The sister-in-law’s body language was threatening to her. Her sister-in-law held a broom up as if to hit her. This sister-in-law went to hit her with a metal rod and the broom but was stopped by the sister-in-law’s husband. One day the sister-in-law asked her to wash a pot. When [the applicant] didn’t do it straight away as she was already busy, the sister-in-law threatened to put the pot on [the applicant’s] head and used very bad language that [the applicant] said you wouldn’t use to animals.
[20] CB456-466
[21] CB461
Professor Dennerstein concluded that the applicant’s description of her having been verbally abused, financially controlled, and socially isolated by the Sponsor after coming to Australia; her being verbally-abused by her mother-in-law and sister-in-law and physically threatened by the sister-in-law; and the applicant’s having been socially isolated by the Sponsor’s family, and controlled and expected to work long hours both around the farm and domestically, met the definition for “relevant family violence” as defined by the Regulations. Professor Dennerstein also said that in response to the verbal abuse, financial control, and feelings of being threatened and trapped, the applicant developed a significant psychiatric disorder of chronic adjustment disorder with mixed anxiety and depressed mood. Professor Dennerstein offered an opinion on whether the first expert report contains any error; she said she could “only conclude that the independent expert had not obtained the full account of” the applicant’s “experience of family violence and how it had affected her”.[22]
[22] CB466
Second referral to independent expert
On 22 April 2016 the Tribunal sent an email to “IEreports” attaching the first expert report with a request that “the same IE” assess the applicant.[23] On 20 June 2016, after Dr Edmands had made an appointment to see the applicant, the Tribunal informed LSC Psychology the assessment “will need to go to a different IE.”[24] Dr Birgden was assigned to provide an independent expert report.
[23] CB610
[24] CB606
On 4 July 2016 Dr Birgden sent an email to the applicant’s representative, Mr Moyes. Dr Birgden said she was an independent expert contracted by LSC Psychology to assess the applicant’s claim regarding family violence, and asked whether the applicant would be available for an interview on 11 July 2016.[25] Mr Moyes responded on the same day confirming the applicant was available to attend the interview. After confirming the applicant required a female Khmer interpreter, Mr Moyes said he would “also like to attend the interview by telephone”, and requested Dr Birgden confirm he could attend the interview by telephone. Dr Birgden responded that “the Migration Agent is not allowed to attend interviews, but [the applicant] can bring a support person”.[26]
[25] CB693-694
[26] CB692-693
On 6 July 2016 Dr Birgden sent an email to Mr Moyes. Dr Birgden said that, “[i]n relation to your query regarding the presence of a solicitor at the assessment interview¸ I have cc. Liz Mackdacy from LSC Psychology to explain it in more detail”.[27] On 7 July 2016 Ms Mackdacy sent the following email to Mr Moyes.[28]
I am the Project Manager of this contract for LSC Psychology.
Our policy is to not to have Authorised Persons sit in the interview with the applicant. However a support person can attend – such as a family member, friend, case worker, refuge worker and similar. Your client may choose to record the interview and if that occurs we request that a copy of the sound file is given to the Independent Expert at the conclusion of the interview.
[27] CB689
[28] CB689
Dr Birgden interviewed the applicant on 11 July 2016 and, on 27 July 2016, Dr Birgden issued her report (second expert report).[29] Dr Birgden concluded the applicant was not the victim of relevant family violence. The second expert report may be summarised as follows:
[29] CB637-650
(a)Dr Birgden understood the applicant claimed verbal, emotional, and financial abuse perpetrated by the Sponsor and his family members.[30]
[30] CB647.8
(b)The applicant described three occasions in which her sister-in-law physically threatened her; the Sponsor had been present on one, and possibly on two of those occasions, but he did not intervene to protect the applicant. Dr Birgden, however, did not accept the Sponsor actively engaged family members to perpetrate family violence against the applicant.[31]
(c)As for financial abuse, Dr Birgden identified what she found were inconsistencies in the accounts the applicant had given. First, when Dr Birgden asked the applicant whether she was forced to pay the fine the Sponsor had incurred in relation to his driving by being forced to work on the farm, the applicant responded that her mother-in-law said that the Sponsor owed her money, and the applicant had to work to pay it off. When Dr Birgden asked the applicant a second time whether she was forced to work on the farm, the applicant said she did not really want to work there, but she was told she could not get work anywhere else because she is not a permanent resident. Further, in her first statutory declaration the applicant indicated she had decided to help the Sponsor pay his driving fine by working on the family farm, but later, in the same statutory declaration, the applicant said the Sponsor and his family forced her to work on the farm. Second, at the first hearing before the Tribunal, when the applicant was asked what would happen if the Sponsor had asked for money and the applicant did not provide it, the applicant said the Sponsor would not say anything to her. In the second hearing before the Tribunal, however, the applicant said the Sponsor would become upset if she refused, and he became verbally abusive. Dr Birgden said it was unclear whether the applicant had offered to work to pay the Sponsor’s driving fine, or she did not believe she had other employment options, or she was forced to work on the family farm. Dr Birgden further noted that “despite prompting” the applicant “did not state how the financial situation made her fear for her safety and well-being”.[32]
(d)As for verbal abuse Dr Birgden referred to the applicant’s having previously stated that the Sponsor would become verbally abusive if she did not provide him with money to pay his driving fine, or for his alcohol and cigarettes; and at the current interview the applicant stated if she did not give the Sponsor money he would not be happy and swear at her and say she brought bad luck to the family; but the applicant did not indicate that the Sponsor’s verbal abuse made her fear for her safety and well-being.[33]
(e)As for emotional abuse, Dr Birgden referred to the applicant’s being particularly upset about an event that occurred in 2011 when the Sponsor told the applicant that if she was so sad about their remaining in the Sponsor’s family home she should go kill herself. The applicant, however, said that she and the Sponsor really did not argue about it.[34]
(f)Dr Birgden then referred to the first psychologist recording that the applicant reported she had been socially isolated. Dr Birgden, however, referred to evidence given before the Tribunal by two family friends that they met the applicant formally when a family function occurred to introduce the applicant; and the friends gave evidence that many people met many times at the house. Further, in response to Dr Birgden’s question whether the Sponsor’s family had threatened to report her to the Department the applicant replied “no”, but said that if the applicant would not do what the family had requested, they would not assist the applicant with her paper work and she would need to return to Cambodia.[35]
(g)At the end of her interview Dr Birgden asked the applicant to summarise how she feared for her safety or wellbeing.[36]
[The applicant] indicated that she was fearful of the [Sponsor’s] swearing at her and “using words I never heard before”. This made her feel inhuman, as if she was not his wife but his slave. She reiterated that he had also pushed her to kill herself, he would laugh when someone swore at her, she would have to do additional work when she came home from work, the family would take her money, and she slept in the living room with no privacy. While it appears that [the applicant] was exploited by the family, and [the Sponsor] did not proactively protect his wife from these untenable circumstances and he may have benefiited [sic] from this exploitation, [the applicant] did not leave the relationship because she feared for her safety and well-being at the hands of the [Sponsor] as she wanted to remain with him.
(h)The applicant said that when the Sponsor’s mother asked the applicant to leave the family home, the applicant said she wanted to leave with the Sponsor, and he instead chose to remain at home. At the first hearing before the Tribunal the applicant said that while she was living with the Sponsor she was not ever afraid of him. At the second hearing before the Tribunal the applicant said she did not fear the Sponsor would engage in physical violence, but she feared the Sponsor took his mother’s side, and a divorce would bring pain, hurt, and embarrassment.[37]
[31] CB647.9
[32] CB648.6
[33] CB648.26
[34] CB648.34
[35] CB648.39
[36] CB648-649
[37] CB649
On 1 August 2016 the Tribunal invited the applicant to comment on the second expert report.[38] The applicant did so on 15 August 2016 by her representative providing a written submission.[39] The representative submitted Dr Birgden denied the applicant procedural fairness because the applicant’s representative was not permitted to attend Dr Birgden’s interview of the applicant. The applicant’s representative also submitted that Dr Birgden asked the wrong questions, and applied the wrong test. The Tribunal accepted that Dr Birgden had misstated the correct test for relevant family violence.[40]
[38] CB655
[39] CB684
[40] CB1085, [10]
Third referral to independent expert
On 23 September 2016 the Tribunal again referred the matter to an independent expert, Ms Hollows.[41] On 21 October 2016 Ms Hollows sent an email to Mr Moyes stating that she had been contacted to complete an independent assessment of the applicant’s claim of family violence. Ms Hollows said she was available to interview the applicant on 3 November 2016.[42] Mr Moyes responded by email on the same day.[43] Mr Moyes confirmed the suggested appointment time was suitable to the applicant. Mr Moyes requested, however, that he attend the appointment by telephone. By email sent on 21 October 2016 Ms Hollows informed Mr Moyes that it is LSC Psychology policy that “legal representation is not permitted to be present during psychological assessment”, but the applicant was welcome to bring a support person.[44]
[41] CB846
[42] CB850-851
[43] CB850
[44] CB850
By email sent on 25 October 2016 Mr Moyes requested Ms Hollows send him a copy of the relevant policy regarding legal representation.[45] Ms Hollows responded with the following email:[46]
Our policy is simple: we do not allow authorised representatives (the terminology DIBP has provided for lawyers and migration agents) to attend interviews. This has been a long term position we have adopted. The policy is based on our experience and on advice that there is no requirement under law for an AP to attend the interview. We do not provide copies of the legal advice we have commissioned. There are no exceptions to that policy.
I hope that answers your questions. However we do understand that AP’s are disquieted by that policy. We endeavour to create the best environment possible to undertake the most effective interview possible with an applicant. All applicants are treated with respect. We do allow support person’s [sic] to attend interviews provided they are not migration agents or lawyers (and are genuine supports).
My mobile is . . . . I do have time on Wednesday afternoon . . . to discuss this further with you, but our position is resolute.
[45] CB848-849
[46] CB848
Ms Hollows interviewed the applicant on 3 November 2016 and, on 13 November 2016, she issued her report (third expert report).[47] It will be necessary to set out in some detail the contents of the third expert report; and it would be convenient to begin with what is recorded under the heading “Account of claimed family violence”:[48]
(a)The Sponsor initiated contact with the applicant in 2007 when the Sponsor was in Australia and the applicant lived in Cambodia.
(b)The applicant and Sponsor talked over the phone every weekend and developed romantic feelings for each other.
(c)In early 2009 the applicant and Sponsor decided to commit to each other. In June 2009 the Sponsor travelled to Cambodia where he asked the applicant to marry him. Three days after the applicant accepted the Sponsor’s proposal, she and the Sponsor were married in a Buddhist ceremony.
(d)The applicant arrived in Australia on 24 February 2011 and moved in with the Sponsor and his family, which included his mother, father, brother, sister-in-law, and their children. The applicant was required to sleep in the living room, and the Sponsor in his car.
(e)The applicant was very disappointed with the Sponsor because before the applicant came to Australia the Sponsor had told her he had employment and a house of his own, but when she arrived in Australia she found out this was not true. The applicant attempted to speak with the Sponsor about his empty promises, but the Sponsor avoided the applicant by going fishing.
(f)The Sponsor’s family’s home was situated on the Sponsor’s family’s cucumber farm. The applicant was required to work for the family on the farm by tending to and harvesting the crops. It was within this context that the applicant claimed she experienced family violence.
(g)In early 2012 a company outside of the family employed the applicant. The applicant’s colleagues noticed she was sad so they introduced her to an Anglicare staff member. The applicant’s colleagues also helped her understand her rights in Australia.
(h)The health of the applicant’s father-in-law deteriorated. That led to the applicant’s mother-in-law asking the applicant to leave the family home because she believed the applicant had brought bad luck to the family since she arrived in Australia. The Sponsor agreed with his mother; and, with the assistance of her work colleagues and the staff member from Anglicare, the applicant obtained shared accommodation.
[47] CB882-900
[48] CB888
Next, Ms Hollows identified each of the matters on which the applicant relied for claiming she was the victim of relevant family violence; and she considered whether the claims answered the definition of relevant family violence. First, Ms Hollows identified what she understood was the applicant’s claims of verbal abuse:[49]
(a)the Sponsor regularly used offensive language with her, by swearing and calling her names; he did this while pointing his finger in the applicant’s face;[50]
(b)the Sponsor, who drank beer and red wine daily, got angry with the applicant after he had consumed alcohol excessively;[51]
(c)the Sponsor accused the applicant of not contributing around the home;[52]
(d)the Sponsor accused the applicant of bringing bad luck to the family, and called her what the applicant claimed was a highly derogatory name the interpreter was unable to translate;[53] and
(e)the verbal abuse caused her to feel extremely sad, although the applicant did not fear the Sponsor would hurt her physically, and she denied feeling fear due to the verbal abuse.[54]
[49] CB890
[50] CB890.2
[51] CB890.5
[52] CB890.8
[53] CB890.10
[54] CB890.16
Ms Hollows found the applicant’s claims of verbal abuse did not meet the criteria of relevant family violence because:
(f)the alleged verbal abuse reflected disagreement between the applicant and the Sponsor based on differing expectations about the relationship, and more specifically about the applicant’s contribution to the household;[55]
(g)the applicant was unable to provide detailed examples of verbal abuse;[56] and
(h)the applicant’s reports of verbal abuse had changed over time increasing in severity, thus raising “substantial concern about the validity of her claim”.[57]
[55] CB890.28
[56] CB890.31
[57] CB890.35
Ms Hollows also found that the applicant’s claims that the alleged verbal abuse caused her to be apprehensive about her wellbeing did not meet the criteria for relevant family violence because the applicant’s report of her reaction to the Sponsor did not constitute apprehension for her wellbeing but instead “reflect a general dissatisfaction with the quality of her relationship and treatment by” the Sponsor.[58]
[58] CB890.45
Second, Ms Hollows identified the applicant’s claims based on emotional abuse:
(a)The Sponsor denied the applicant necessities such as food and privacy, and was unsupportive and unaffectionate.[59]
(b)The Sponsor encouraged the applicant to end her life.[60]
(c)The applicant completed the cooking and cleaning for all family members, and she felt she was forced to do this because she felt it was her duty to do this, and she felt it was her duty to do this because no one else from the family contributed to such work.[61]
(d)The only example the applicant gave of being pressured by the Sponsor’s mother-in-law to contribute to the household was when the mother-in-law complained about the cleanliness of the bathroom.[62]
(e)When the applicant was asked how the Sponsor and his family forced the applicant to work like a slave the applicant said she did not want to do hard labour, and the Sponsor advised the applicant she was ineligible to teach in Australia until she held permanent residency. [63] (The applicant said she was a qualified teacher in Cambodia.)
(f)When asked to give additional details about her claim of being denied food the applicant said she did have food, but she had to cook for the others.[64]
(g)The applicant claimed she was forced to pay for the groceries of the household, but when asked about the use of force in that example the applicant said she was responsible for completing the grocery shopping; and when the applicant was asked about who forced her to buy the groceries, the applicant denied the Sponsor and his family asked the applicant to purchase groceries.[65]
(h)The applicant claimed the Sponsor forced her to provide him with her earnings. When asked for additional details the applicant said she used her earnings to contribute to the household bills and provided to the Sponsor the remainder of her earnings so that he could pay his bills, repay his debt, and purchase alcohol; and when asked how the Sponsor forced her to do these things the applicant said because she was the Sponsor’s wife. The applicant also said the Sponsor did not force her to give him money; she chose to share her earnings to prevent the Sponsor from becoming upset. When asked for additional details, the applicant said the Sponsor swore at her if she did not provide him with money and threatened to cancel her visa.[66]
[59] CB891.2
[60] CB891.4
[61] CB891.6
[62] CB891.15
[63] CB892.5
[64] CB892.7
[65] CB892.9
[66] CB892.15
Relevant to ground 1A of the amended application is the following passage from the third expert report:[67]
Further, [the applicant] reported that [the Sponsor] told her to end her life. When asked to provide an example, [the applicant] stated that she was crying after [the Sponsor] claimed that she brought bad luck to the family. She noted that [the Sponsor] responded to her being upset by saying that if she was so unhappy she should end her life (“why don’t you kill yourself”). [The applicant] described [the Sponsor] as generally unsupportive and unaffectionate. She reported that her sister-in-law threatened to assault her one evening in [the Sponsor’s] presence but that he did nothing to help her.
[The applicant] reported that the claimed emotional (and financial) abuse caused her to worry about her well-being. When asked to describe her worry, [the applicant] stated that she worried that [the Sponsor] would not be able to protect her in the future as he did not intervene when her sister and mother-in-laws [sic] were allegedly verbally abusive and physically threatening. She also reported worrying about being “a slave” for the rest of her life and not being able to get appropriate rest due to the lack of privacy afforded to her from having to sleep in the living room of the home.
[67] CB892.28
Ms Hollows concluded that the applicant’s claims of emotional and financial abuse did not meet the criteria for “relevant family violence” as defined in the Regulations. Ms Hollows relied on the following matters:
(a)Throughout the assessment the applicant provided brief, global statements of the alleged emotional and financial abuse, but when tested “her claims were found to be inconsistent and exaggerated”.[68]
(b)In most instances, the applicant’s claims of abuse “were contradictory to her initial claim of being abused”.[69]
(c)The applicant’s claim of being apprehensive about her wellbeing “was found to be inconsistent and contradictory”. Ms Hollows gave as an example the applicant’s worry about being forced to work as a slave though, when this was explored further, the applicant said she was able to secure work outside of the family, initiating her completion of household chores, and sharing the expenses with others in the family.[70]
(d)Ms Hollows found that the applicant’s self-reported experiences of worry related “to her disappointment in sharing a home with several other family members and with [the Sponsor’s] alleged lack of effort to comfort and support her in their new marriage”.[71]
[68] CB892.46
[69] CB892.48
[70] CB892.49-893.8
[71] CB893.4
Ms Hollows concluded that the applicant’s claims of emotional and financial abuse and apprehension for her wellbeing “were assessed as reflecting a general dissatisfaction with her relationship and not family violence as defined in” the Regulations.[72]
[72] CB893.7
Third, Ms Hollows identified the applicant’s claim the Sponsor forced sexual intercourse with her. The applicant gave details of one incident, and said she was abused two or three times over the course of her marriage with the Sponsor. The applicant also claimed she sustained injuries from the alleged sexual abuse, including bruised wrists, and vaginal pain. The applicant said she had not previously reported these incidents because she had not been asked, and because she felt shame. Ms Hollows did not accept this claim.
(a)The applicant’s claims of sexual abuse developed with questioning from Ms Hollows.[73]
(b)The applicant was unable to describe the sexual abuse in response to open questions by Ms Hollows.[74]
(c)When Ms Hollows tested the applicant’s alleged experience, the applicant added detail that was contradictory. For example, the applicant claimed she was forced to have sex, but then said she felt obliged to have sex.[75]
(d)The applicant had on previous occasions directly been asked whether she had been sexually abused, and the applicant said she had not.[76]
[73] CB894.12
[74] CB894.13
[75] CB894.15
[76] CB894.16
On 25 November 2016 the applicant’s representative provided a letter to the Tribunal in which he submitted that Ms Hollows failed to take into account a claim of relevant family violence, that claim being that the applicant was bitten by the family dog but was only allowed to obtain medical assistance after her hand began to swell.[77] The applicant’s representative also submitted Ms Hollows should have permitted the applicant’s “migration agent/solicitor” to participate in her interview of the applicant.
[77] CB907-909
Fourth referral to independent expert
On 1 and 3 February 2017 the Tribunal requested Ms Hollows consider the additional issues the applicant’s representative raised in his letter of 25 November 2016.[78] By email sent on 9 March 2017 to the applicant’s representative Ms Hollows said she wanted to arrange a follow up assessment of the applicant.[79] By email sent on 21 March 2017 to Ms Hollows the applicant’s representative said the applicant would like to request a new independent expert, but if that could not be arranged, the applicant would be available to be interviewed on 29 March 2017.[80] Ms Hollows interviewed the applicant on 29 March 2017.
[78] CB935, CB973
[79] CB1017
[80] CB1015
On 11 April 2017 Ms Hollows issued a further report (fourth expert report).[81] Ms Hollows identified two claims. The first related to the applicant’s claim to have been bitten by the Sponsor’s family dog. According to the fourth expert report, Ms Hollows asked the applicant details of the dog biting incident, whether anyone had sought to prevent her from obtaining medical attention for the dog bite or for anything else. The report recorded the applicant gave the following responses:
(a)The applicant was unable to recall on which hand she had been bitten but, after staring at both of her hands the applicant said she had been bitten on her right hand and then amended that answer to say she had been bitten on her left hand.
(b)The applicant’s hand started to bleed approximately five seconds after it was bitten; and after several days the applicant observed the injured area to change colour, noting that her skin appeared red and black.
(c)The applicant said she did not request medical assistance at the time she was bitten because she did not want to be seen to be weak in the eyes of the Sponsor’s family.
(d)After a friend of the applicant noticed the skin on the applicant’s hand had changed colour and encouraged the applicant to seek medical assistance, the applicant borrowed money from her mother-in-law to visit a doctor. The applicant saw the doctor and was given an injection. The injury healed in one to two days.
(e)The treating doctor advised the applicant to return for a pap smear test. The doctor was concerned about the applicant’s being underweight.
(f)In response to being asked whether the applicant wished to report any additional incidents where medical treatment had been withheld from her, the applicant said that insecticide used at the farm caused her to develop flu like symptoms. The applicant, however, did not request medical assistance.
[81] CB1038-1040
Ms Hollows noted that she explored with the applicant discrepancies in the applicant’s claims of abuse. Ms Hollows enquired about the differences between the account the applicant had provided to a previous independent expert, at her most recent Tribunal hearing, and before Ms Hollows. Ms Hollows noted that at “re-assessment, the details of [the applicant’s] claims were observed to change over the course of the assessment and included shifts in her descriptions of the incident itself, as well as in her response to the claimed abuse”.
Relevant to one of the grounds is the course the interview took, as described in the following passage from the fourth expert report:[82]
[The applicant] was also observed to become increasingly more defensive and disruptive with the progression of the assessment. This included her attempts to ignore the author’s questions for further detail by claiming that she did not understand the author’s questions and by her attempts to persuade the interpreter to withhold information from the author. When the author enquired about discrepancies in her claims relating to the frequency of having had medical treatment withheld from her, [the applicant] did not answer and instead engaged in a conversation with the interpreter claiming that she had experienced vaginal bleeding due to the alleged family violence. The interpreter immediately advised the author that [the applicant] was making new claims and had requested that the information not be shared with the author. The interpreter asked [the applicant] whether she could share what was told to her, which [the applicant] agreed to. The author then enquired as to whether [the applicant] was making new claims of alleged family violence and whether she wished for this to be formally added to her claim of family violence. [The applicant] refused to discuss the issue further.
The author followed up the issue by asking [the applicant] an additional two times whether she wanted to add her discussion with the interpreter to her claim. [The applicant] declined the author’s offer both times. In her final response, after the author advised that the assessment would be coming to an end, [the applicant] reported that she would raise the issue another time. The author confirmed with [the applicant] that her opinion would be based on the information presented during re-assessment and she was again offered an opportunity to add to her claim, which she declined. [The applicant] then also declined her right to sign the End of Interview form however verbally acknowledged that she was satisfied with the interpreting services provided to her at re-interview. Following the assessment as the author was showing [the applicant] to the exit, she enquired in English as to whether she would have another opportunity to share her claim. The author advised [the applicant] to consult with her legal representation.
[82] CB1039-1040
Ms Hollows concluded the applicant’s claims based on her having been denied medical attention did not meet the criteria for relevant family violence because the applicant did not request she be provided with medical assistance.
Under cover of a letter dated 13 April 2017 the Tribunal provided the fourth expert report to the applicant’s representative noting that, subject to any submission the applicant might wish to make, the information contained in that report would be the reason or part of the reason for affirming the delegate’s decision.[83] The applicant’s representative provided submissions in a letter dated 27 April 2017.[84] The applicant’s representative submitted that the applicant’s not being permitted to have a lawyer present during the interviews constituted a denial of procedural fairness. In addition, the applicant’s representative made the following submissions:
(a)There were times the applicant did not understand the questions being asked by the independent expert, and that the applicant believes there were times the interpreter did not understand the independent expert as clarification seemed to be needed.
(b)The applicant instructed the representative she felt embarrassed by what happened to her to cause the vaginal bleeding, and she did not feel comfortable discussing it further. The applicant had disclosed to the representative “today” that something happened to her one day after work when the Sponsor wanted intercourse, and the applicant did not; and the applicant “does not want to go into any further details with me though”.
[83] CB1044
[84] CB1051
Hearing on 7 June 2017
The applicant appeared before the Tribunal on 7 June 2017 to give evidence and present arguments. The applicant was asked why she wanted her representative to attend the hearing. The applicant said so her representative could hear what was said and check if that was correct when the report was issued by the independent expert. The Tribunal also asked the applicant why at each interview the applicant requested a female interpreter. The applicant said she wanted to have a female interpreter if she had to describe problems “down below”.
TRIBUNAL’S REASONS
The Tribunal:
(a)found that the refusal by the independent expert not to allow the applicant’s legal representative to attend the interviews was not a denial of procedural fairness;[85]
(b)was not satisfied the interpreting services resulted in the opinions of the independent expert not having been properly made;[86]
(c)was not satisfied the matter ought not to have been referred to Ms Hollows after the issue of the third expert report;[87]
(d)was satisfied the applicant and the Sponsor were in a spousal relationship until August 2012;[88]
(e)was of the opinion that the applicant was required to show she was the alleged victim of the Sponsor which, in turn, meant that the Sponsor had to be shown to be the alleged perpetrator;[89]
(f)was satisfied that the opinion “dated 27 July 2016 and 11 April 2017 is authorised by the Regulations, in that it is provided by an independent expert” and is one the Tribunal must take as correct;[90] and
(g)for that reason the applicant has not suffered family violence.
[85] CB1086, [22]
[86] CB1086, [26]
[87] CB1087, [30]
[88] CB1088, [32]
[89] CB1088, [36]
[90] CB1088, [41]. The reference to the report dated 27 July 2016 is incorrect. Ms Hollows’ first report (the third expert report) is dated 13 November 2016.
The Tribunal, therefore, affirmed the delegate’s decision.
GROUND 1A:
The applicant relies on three grounds contained in the amended application. Ground 1A is as follows:
The Tribunal erred in holding that the opinion of the expert dated 11 April 2017 was prepared in accordance with reg 1.23(c) of the Migration Regulations such that the Tribunal was obliged to take the expert’s opinion is [sic] correct.
Particulars
(a)The applicant had made a claim, either expressly or as one which arose squarely on the materials before the expert, that
(i)the applicant was forced to sleep in the living room of the family home, while the Sponsor slept in his car;
(ii)the applicant worked on the family farm;
(iii)the applicant was verbally and physically abused by her mother-in-law and sister-in-law; and
(iv)the Sponsor knew about all this, made it clear that he expected her to live with it, and did nothing to stop it; and
(v)the applicant was apprehensive that the Sponsor would not protect her in the future from his mother and sister.
(b)The Expert did not consider the claim.
In her written submissions the applicant submits Ms Hollows does not appear to have rejected the particularised facts (asserted facts) or identify any inconsistency involving those facts, being facts the applicant submits she had consistently made. On the contrary, the applicant submits Ms Hollows accepted the facts, but characterised them as follows:
[The applicant’s] self-reported experiences of worry were assessed as relating to her disappointment in sharing a home with several other family members and with [the Sponsor’s] lack of effort to comfort and support her in the new marriage.
The applicant submits this shows Ms Hollows proceeded on the view that the conduct of the mother-in-law and sister-in-law could not be “relevant family violence” because, under the Regulations, the “alleged perpetrator” must be the Sponsor. The applicant submits this is an error of law because “relevant family violence” includes any “conduct, whether actual or threatened . . . that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own well-being and safety”; and that the conduct the applicant claims the Sponsor had engaged in included his failure to protect the applicant from his family’s conduct while making it clear to the applicant that she should accept the circumstances. The applicant claimed this conduct caused her to be apprehensive about her safety.[91]
[91] Applicant’s Submissions, [41]-[44]
The Minister, on the other hand, accepts that the applicant claimed the Sponsor’s family conduct constituted “relevant family violence”; but he submits Ms Hollows did not accept that claim because she did not accept the conduct of the Sponsor’s family rose to the necessary standard to be considered “relevant family violence”; and in so concluding Ms Hollows relied on findings that the applicant’s evidence was wanting.[92]
[92] First Respondent’s Outline of Submissions, [5]-[6]
Ground 1A is premised on the applicant having made claims in terms of the asserted facts, the applicant having consistently advanced evidence in support of those claims, and Ms Hollows having accepted each of the asserted facts. It may be accepted that at various times in the course of her application for a Partner visa the applicant made claims in terms of the asserted facts, and gave evidence in relation to those asserted facts. It may also be accepted that Ms Hollows accepted some of the evidence the applicant gave in support of the asserted facts. I do not accept, however, that Ms Hollows accepted all or even most of the evidence the applicant gave in support of the asserted facts over the course of her application for a Partner visa. Nor do I accept that Ms Hollows did not accept evidence the applicant gave in support of the asserted facts because Ms Hollows ignored the applicant’s evidence or the asserted facts, or because Ms Hollows assessed the applicant’s evidence in support of the asserted facts on the basis of an incorrect understanding of the meaning of “relevant family violence”, or because Ms Hollows otherwise misapprehended the tasks she was required to undertake.
As my summary of the third expert report shows, Ms Hollows identified the claims and evidence the applicant made and gave, both during her interview with Ms Hollows, and, admittedly in general terms, on preceding occasions in which the applicant made those claims. More particularly, Ms Hollows: identified the claims the applicant made under the subjects of “verbal abuse”, “emotional (and financial) abuse”, and “sexual abuse” by the Sponsor; in relation to each of these subjects, identified the particular claims and evidence the applicant made and gave; made observations about the claims and some of the evidence; and concluded by making general findings on each of the subjects.
(a)In relation to verbal abuse Ms Hollows found the applicant was unable to provide detailed examples of verbal abuse,[93] and that the applicant’s reports of verbal abuse had changed over time increasing in severity, thus raising “substantial concern about the validity of her claim”.[94] It is on the basis of those findings that Ms Hollows found that the evidence she did accept reflected no more than disagreements between the applicant and the Sponsor based on differing expectations about the relationship, and more specifically about the applicant’s contribution to the household.[95]
(b)In relation to emotional abuse (which Ms Hollows recorded included the claim that the applicant’s sister-in-law threatened to assault her one evening in the presence of the Sponsor but the Sponsor did nothing), Ms Hollows found the applicant provided brief, global statements of the alleged emotional and financial abuse, but when tested “her claims were found to be inconsistent and exaggerated”;[96] and in most instances the applicant’s claims of abuse “were contradictory to her initial claim of being abused”.[97]
[93] CB890.31
[94] CB890.35
[95] CB890.28
[96] CB892.46
[97] CB892.47
As I have also already noted, Ms Hollows made more specific findings, or referred to evidence of the applicant, that were inconsistent with or undermined the asserted facts. Ms Hollows noted that during her interview the applicant was able to give only one example of her mother-in-law putting pressure on her to contribute to the household, and this related to a complaint about the cleanliness of the bathroom; and Ms Hollows referred to the applicant’s evidence that she was able to secure work outside of the family, the applicant herself initiating her completion of household chores, and the applicant’s sharing the expenses with others in the family.
It is true Ms Hollows did not specifically address the applicant’s having reported that her sister-in-law threatened to assault her one evening in the Sponsor’s presence who did nothing to help her. I am not prepared to find, however, that Ms Hollows did not specifically address this evidence because she misunderstood the correct meaning of “relevant family violence”, or because she overlooked the evidence. The more likely explanation is that Ms Hollows accepted the applicant’s evidence and considered whether the applicant was the victim of “relevant family violence” having regard to the findings Ms Hollows made and the applicant’s evidence she had accepted, including the claim that she had been threatened by her sister-in-law in the presence of the Sponsor who did nothing; but concluded there was no “relevant family violence”.
Ground 1A, therefore, fails.
GROUND 1
Ground 1 is as follows:
The Tribunal erred in holding that the opinion of the expert dated 11 April 2017 was prepared in accordance with reg 1.23(c) of the Migration Regulations such that the Tribunal was obliged to take the expert’s opinion as correct.
Particulars
a.By reason of reg 1.23(1)(c), the Tribunal was bound to take the expert’s opinion, properly formed, as correct;
b.Accordingly, the rights and interests of the applicant turned in part upon the expert’s formation of an opinion;
c.Further, by reason of reg 1.23(1)(c), any claims of, or evidence relating to, family violence could only be assessed by the expert and not the Tribunal;
d.The expert informed the applicant that she would provide procedural fairness to the applicant: report dated 13 November 2016 page 18 of 22.
e.The expert informed the applicant that, if relevant new evidence is submitted before the application is finally determined, the opinion can be reconsidered: ibid;
f.The Tribunal was aware that the expert had told the applicant these matters, as they were part of the attachment to the Tribunal’s letter of 16 November 2016;
g.In the premises, the expert was required to afford procedural fairness to the applicant, and the Tribunal was obliged to refer new claims or evidence to the expert for their opinion before being able to come to a view that the expert’s opinion was formed in accordance with the regulations;
h.On 27 April 2017, before the application was finally determined, the applicant made further claims, or gave further evidence, of family violence: letter dated 27 April 2017, page 2, second bullet point.
i.The further claims were not referred to the expert and were not considered by the expert.
j.In the premises, the expert’s opinion was not properly formed, and the Tribunal erred by holding that it was obliged to take the expert’s opinion as correct.
In her written submissions, the applicant submits as follows:[98]
[98] Applicant’s Submissions, [45]-[49]
(a)The applicant made a new factual claim to the Tribunal after the Tribunal received the fourth report. The factual claim consists of the following submissions made in the applicant’s representative’s letter dated 27 April 2017 (27 April Submission):[99]
[T]he applicant instructs that she feels embarrassed by what happened to her to cause the vaginal bleeding and did not feel comfortable discussing it further. The applicant has disclosed to me, today, that something happened to her one day after work when her husband wanted intercourse, but she did not. She does not want to go into any further details with me though.
(b)The Tribunal was aware of “these new allegations”.
(c)The claim had been raised with Ms Hollows, but not considered by her.
(d)It was open to the applicant to make further claims about this issue at this time.
(e)In these circumstances, it was not open to the Tribunal to consider for itself whether to accept the applicant’s new claims or not; it could only do so based on the opinion of an independent expert.
(f)The Tribunal made a jurisdictional error in that it wrongly held the third and fourth expert reports were dispositive of all of the applicant’s claims to have suffered relevant family violence.
[99] CB1051, at CB1052
The Minister, in his written submissions, accepts the Tribunal is obliged to refer a matter back to an independent expert where an applicant casts doubt about the accuracy of the report the independent expert has prepared. The Minister submits, however, there was no need for the Tribunal to refer the matter back to Ms Hollows; and that is because the 27 April Submission raised no new claim, but only confirmed that the applicant was, and continued to be, reluctant to go into detail about her past experiences.[100]
[100] First Respondent’s Outline of Submissions, [11]
The determination of ground 1, at least in the first instance, turns on whether the 27 April Submission is a “claim”. More particularly, it turns on whether the 27 April Submission is a “non-judicially determined claim of family violence” within the meaning of reg.1.23(9) of the Regulations. That requires that the applicant provide evidence in accordance with reg.1.24 of the Regulations, namely, in a statutory declaration under reg.1.25 of the Regulations. That regulation, in turn, requires that the statutory declaration must be made by the spouse or de facto partner of the alleged perpetrator; and the person making the declaration must “set out the allegation” and “name the person alleged to have committed the relevant family violence”. The applicant did not make a statutory declaration in which she includes any allegation of family violence that covered the matters alluded to in the 27 April Submission.
Quite apart from the applicant not having made a statutory declaration in which she makes an allegation of family violence that covers the matters alluded to in the 27 April Submission, that submission cannot reasonably be characterised as an allegation. It is no more than a report that the applicant had disclosed to Mr Moyes matters the applicant was unwilling to disclose to Ms Hollows, and a representation that the applicant did not want to go into any further detail with Mr Moyes. Mr Moyes’ not disclosing the matters the applicant had disclosed to him is a basis for inferring, and I do infer, and it would have been open to the Tribunal itself to have inferred, which I find it did, that the applicant was unwilling to disclose those matters to the Tribunal or to any other person and, for that reason, did not wish to make any allegation about the matters covered by the 27 April Submission.
The inference that the applicant did not wish to make any such allegation is strengthened by two other matters. First, Ms Hollows asked the applicant whether she was making new claims of alleged family violence, and whether she wished for this to be formally added to her claim of family violence. In other words, Ms Hollows indicated to the applicant that if the applicant wanted to make a new claim she would need to formally add that claim to her existing claims. Second, the applicant asked Ms Hollows whether the applicant would have another opportunity to share her claim, in response to which Ms Hollows said the applicant should consult with her legal representation. It is apparent that the applicant did consult with Mr Moyes; but this did not result in Mr Moyes stating that the applicant intended to make an allegation in relation to the matters covered by the 27 April Submission.
There is one final matter to note. Although not raised by the Minister, there would have arisen a question whether the Tribunal’s failure to refer to the expert the 27 April Submission could have made any difference to the opinion Ms Hollows had already given. The applicant has not put on evidence that she would have been willing to disclose to Ms Hollows all details known to her about the matters covered by the 27 April Submission; and there is nothing in the material before me to suggest the applicant would have been willing to give any details to Ms Hollows or to any other person. In those circumstances, even if the 27 April Submission had been referred to Ms Hollows it is difficult to see how Ms Hollows, acting reasonably could have found on the basis of that submission that the applicant was the victim of family violence.
Ground 1, therefore, also fails.
GROUND 2
Ground 2 is as follows:
The Tribunal erred in holding that the opinion of the expert dated 11 April 2017 was prepared in accordance with the reg 1.23(c) of the Migration Regulations such that the Tribunal was obliged to take the expert’s opinion as correct.
Particulars
a.The applicant repeats particulars (a) to (f) of Ground 1.
b.The applicant applied to be represented before the expert.
c.The applicant had a common law right, or alternatively a right implied in the regulations, to be represented before the expert.
d.Alternatively, the expert was obliged to consider in all the circumstances the applicant’s application to be represented.
e.Contrary to law, the expert’s organisation, LSC Psychology, rejected the applicant’s application to be represented on the basis that her organisation had a blanket policy, without exceptions, not to permit an applicant to be represented, and did not consider the arguments put forward by the applicant why representation was appropriate in this case: letter dated 25 October 2016.
In her written submissions, the applicant relies on the principles summarised from the authors of a textbook on administrative law, which includes the following passage (footnotes omitted):[101]
Specific considerations which may tend to support a conclusion that representation should be permitted include: (a) that a person is unlikely to be capable of representing herself [or] himself, or is for some other reason prevented from representing herself or himself; (b) that it will be necessary to address questions of law or particularly complex issues of fact; (c) that the decision has particularly serious consequences for the person seeking to be represented; . . . . and the importance of the decision to the liberty and welfare of the person affected.
[101] Aronson, M. and Groves, M., Judicial Review of Administrative Action Fifth Ed. 2013, Lawbook Company, pages 569-570
The applicant submitted that, as a minimum, Ms Hollows had a discretion whether to permit a representative to be present, which had to be exercised fairly; and the decision not to permit representation was made without regard to the applicant’s particular circumstances. Further, the applicant’s case was one that needed to be considered carefully, because the facts were complex, given Ms Hollows had two previous reports before her, as well as recordings of the various “hearings”; the law was complex; the applicant did not speak English and was communicating with Ms Hollows through a translator on the telephone; much was at stake for the applicant; and “[t]he expert made much of perceived inconsistencies in the applicant’s account, which a representative could have done much to clarify”.[102]
[102] Applicant’s Submissions, [58]
The Minister, on the other hand, submits that the duty of a decision maker to afford procedural fairness to a person whose interests may be adversely affected goes no further than to give that person a reasonable opportunity to present his or her case; the duty does not extend to do all that is required to ensure the person takes the best advantage of that opportunity. The Minister further submits that the applicant has not established that her representative’s absence disabled her from presenting evidence, or responding to adverse information. On the contrary, the Minister submits the evidence shows Mr Moyes did not intend to participate for the purpose of assisting the applicant to present evidence, or to respond to adverse information. The Minister relies on the reason for which the Tribunal noted the applicant said she needed her representative to be present, namely, to “hear what is said and check if this is correct when the report is issued by the independent expert”. Finally, the Minister submits that even if Ms Hollows had permitted Mr Moyes to be present during the interview, the applicant has not established that this could have resulted in Ms Hollows giving a different opinion.
When considering the competing submissions it is necessary to note that the requirements of procedural fairness depends on the circumstances of the particular case. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation Kitto J said:[103]
As Tucker L.J. said in Russell v. Duke of Norfolk [1949] 1 All E.R. 109 . . . there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth” [1949] 1 All E.R., at p. 118. What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.
[103] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at page 504
That, then, leads me to identify the circumstances by reference to which I am to consider whether the applicant was denied procedural fairness when the expert refused Mr Moyes’ request to attend by telephone the applicant’s interviews with Ms Hollows. The first relevant circumstance is the statutory context in which Mr Moyes requested he attend the interview and in which that request was refused. It is in the context of an independent expert carrying out a task that had been referred to it by the Tribunal, namely to provide an opinion about whether the applicant is a victim of relevant family violence (relevant opinion).
The following matters may be noted:
(a)Ms Hollows’ invitation to the applicant to attend an interview, and her interviewing the applicant, are to be viewed as the exercise by Ms Hollows of a power that is reasonably incidental to the express power that was conferred on her to form a relevant opinion in relation to the matter the Tribunal (exercising the powers of the Minister) referred to Ms Hollows under reg.1.23(10)(c)(i) of the Regulations.
(b)The purpose of the power in (a), and the purposes for which Ms Hollows exercised that power, were for Ms Hollows to obtain from the applicant such factual information which in the expert opinion of Ms Hollows was relevant to enable Ms Hollows to form the relevant opinion.
(c)Although the Minister and, on review, the Tribunal are required by reg.1.23(10)(c)(ii) of the Regulations to take as correct an expert opinion when determining whether the alleged victim was the victim of relevant family violence, the Tribunal is bound to take as correct an opinion only where the opinion has been lawfully given; and, at least where the opinion is adverse to an applicant, only after the Tribunal complies with the requirements of s.359A of the Act. In those circumstances, it would be open to an applicant to make submissions to the Tribunal that the opinion has not been properly formed; and the grounds on which an applicant may so submit may range from the expert misunderstanding his or her task to the expert relying on information he or she had not shown an applicant.[104]
[104] See Al-Momani v Minister for Immigration & Anor [2011] FMCA 453, at [50]
These matters manifest an intention by the Act and Regulations that, barring unusual circumstances, an expert who has been engaged to provide a relevant opinion will do so without being required to consider whether a migration lawyer or migration agent is to participate in an interview with an applicant. The occasion on which the Act and Regulations contemplate an applicant could have the assistance of a lawyer or migration agent in relation to a relevant opinion is after the Tribunal gives notice that it intends to take a relevant opinion to be correct.
The second relevant circumstance is the circumstances in which Mr Moyes requested but was refused permission to attend the interview. Although Mr Moyes asked why he was not permitted to attend the interview, he did not make any submission about why he should be permitted to attend. Mr Moyes did not submit, for example, as the applicant now submits, that the facts are complex, or that the law was complex, or that his assistance was required in relation to information Ms Hollows might have had in her possession that suggested to her inconsistencies in the claims and evidence the applicant made and gave in the course of the previous interview. It has not been submitted that Mr Moyes made no submission because, for example, he believed it would be futile to do so. The more natural inference is that he did not make any submission because the purpose for which he asked to participate in the interview is the purpose the applicant identified to the Tribunal, namely, to “hear what is said and check if this is correct when the report is issued by the independent expert”.
The third relevant circumstance is that the applicant has not adequately articulated how Mr Moyes’ attendance in the interview could have enhanced the fairness of the interview.
(a)In her written submissions the applicant refers to her not speaking English and to having to communicate with an expert through an interpreter. The applicant does not suggest, however, that Mr Moyes spoke or understood Khmer. It is not clear, therefore, how Mr Moyes would have been able to communicate meaningfully with the applicant in the course of the interview other than, perhaps, through the interpreter that had been engaged for the purposes of the interview. If that were to occur, however, the communication would have been in the presence of Ms Hollows and, for that reason, presumably would not have involved the seeking or giving of any legal advice.
(b)The applicant submits Mr Moyes could have done much to clarify “perceived inconsistencies”. That submission assumes there were perceived inconsistencies that were capable of being clarified, and that Mr Moyes, not the applicant, would have been in the position to do that. That submission cannot be accepted. The third and fourth expert reports identify inconsistencies and exaggerations. Mr Moyes, in the 27 April Submission, does not attempt to identify or clarify the inconsistencies Ms Hollows identifies. Not having done so in a considered set of submissions, it is not likely Mr Moyes would have done so in the course of the interview.
(c)The applicant submits the law is complex. That by itself does not indicate what it is Mr Moyes could have done or said at the interview. In any event, the applicant had the opportunity to make submissions to the Tribunal about any legal aspect of Ms Hollows’ opinion, and the applicant did so in the 27 April Submission. The applicant has not identified a legal submission Mr Moyes could have made to Ms Hollows in the interview but which the applicant was unable to make to the Tribunal.
(d)The applicant submits the facts were complex. The applicant, however, had the opportunity to make submissions to the Tribunal about any facts. The applicant has not identified submissions about facts Mr Moyes could have made to Ms Hollows in the interview but which the applicant was unable to make to the Tribunal.
For these reasons, I am not satisfied the applicant was denied procedural fairness because Ms Hollows did not grant the applicant’s legal representative’s request that he attend the interview by telephone. Even if, contrary to my conclusion, the applicant had been denied procedural fairness, I am satisfied there is no reasonable possibility that Ms Hollows will have formed a different opinion had Mr Moyes been permitted to attend the interview; and that is because the applicant has not identified, and it is not possible otherwise to infer from the material before me, how Ms Hollows’ granting Mr Moyes’ request that he attend the interview could have enhanced the fairness of the interview, or how his presence could have led to Ms Hollows arriving at a different opinion.
Ground 2, therefore, also fails.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
At the end of the hearing counsel agreed that costs should follow the event. In an email sent to my associate after the hearing, the lawyer for the Minister said the Minister will be seeking an order that his costs be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). I propose, therefore to also order that the Minister’s costs be set in the amount of $7,206, being the amount provided for under those rules at the time the applicant commenced this proceeding.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 December 2020
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