Victorino v Minister for Immigration & Anor
[2007] FMCA 1294
•21 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VICTORINO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1294 |
| MIGRATION – Spouse Visa – Domestic Violence – Independent expert – Operation of independent expert provisions – Whether hearing required before obtaining expert opinion MIGRATION – Spouse Visa – Domestic Violence – Independent expert – Operation of independent expert provisions – Whether second or subsequent opinion authorized by regulations – Effect of subsequent opinions – Circumstances where subsequent opinions may be obtained MIGRATION – Spouse Visa – Domestic Violence – Independent expert – Expert employed by Centrelink – whether expert ‘independent’ within meaning of regulations MIGRATION – Section 359A notice – When required – whether whole of independent experts report must be provided – whether information gathered by expert within the ambit of s.359A |
| Acts Interpretation Act 1901, s.15AB Commonwealth Services Delivery Agency Act 1997, ss.3, 7 Legislative Instruments Act 2003 Migration Act 1958, ss.360, 359A, 505, 65, 349, 353, 357A, 368 Migration Regulations 1997, rr.1.21, 1.23, 1.24, 1.25, 1.26, cl.801.226 |
| Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319 Sofronoff, W, ‘Constitutional Writs’ (2007) 14 A J Admin L 145 | ||
| Applicant: | OLUMBO VICTORINO | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1634 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 25 June, 17 July 2007 |
| Date of Last Submission: | 23 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Erskine Rodan & Assoc |
| Counsel for the Respondents: | Mr Mosley and Ms Burchell |
| Solicitors for the Respondents: | Clayton Utz |
AMENDED ORDERS
That the application be dismissed.
The applicant pay the first respondents costs as agreed and failing agreement to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1634 of 2006
| OLUMBO VICTORINO |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
AMENDED REASONS FOR JUDGMENT
Background
The applicant is a national of Kenya. He applied for a spouse visa on 28 February 2002. On 20 September 2002 the applicant was granted a provisional spouse visa. The applicant separated from his spouse, and relied upon the domestic violence provisions of the spouse visa conditions. On 11 December 2003 the Minister’s delegate refused to grant the applicant a permanent visa, rejecting his claim that he was the victim of domestic violence.
The delegate’s decisions were initially affirmed by the Migration Review Tribunal (MRT) on 10 November 2004. This decision was set aside by the court in a consent order of 13 May 2005. On 23 August 2005 the MRT again affirmed the delegate’s decision, and the MRT’s decision was set again aside by the court in a consent order on 30 January 2006.
On 27 November 2006 the MRT affirmed the delegate’s decision for a third time. The applicant has again applied for judicial review of the MRT’s decision. On this occasion, however, the Minister opposes the application for judicial review.
There is no dispute that the claim of domestic violence by the applicant has not been ‘judicially determined’ within the meaning of the visa condition cl.801.226. It was for the MRT to determine whether the applicant has been the victim of domestic violence arising out of the relationship upon which the spouse visa was granted.
The application sets out 14 separate particulars, however they can be conveniently grouped into 6 grounds:
a)Whether the Tribunal was required to hold a hearing prior to seeking the opinion of the independent expert (particulars (a) to (e), (j), (k) and (n)(iii) of the application);
b)Whether there was a reasonable apprehension of bias with respect to the decision to obtain the opinion of the independent expert (particular (n) of the application);
c)Whether the Tribunal failed to comply with s.359A as it provided only an extract of the expert’s opinion from the expert’s report in the notice sent under that section (particulars (f) and (g) of the application);
d)Whether the independent expert was an ‘independent expert’ under the regulations (particulars (h) and (l) of the application);
e)Whether the expert’s opinion could be relied upon as a result of claims the expert was not provided with all of the relevant material (particular (m) of the application);
f)Whether the expert’s opinion could be relied upon as it did not address the definition of ‘domestic violence’ (particular (i) of the application)
Statutory Framework
The statutory framework for making decisions with respect to visa claims is set out in Part V of the Migration Act 1958. In this application the applicant referred to ss.65, 349, 353, 357A, 360, and 368. In particular the applicant relied upon s. 360:
360 [Tribunal must invite applicant to appear] (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Claims about domestic violence are provided for in r.1.23. This regulation is made in reliance upon the power provided in s.505 which provides:
505 [Regulations about visa criteria] To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:
(i) give an opinion on a specified matter; or
(ii) make an assessment of a specified matter; or
(iii) make a finding about a specified matter; or
(iv) make a decision about a specified matter; and
(b) is:
(i) to have regard to that opinion, assessment, finding or decision in; or
(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant satisfies the criterion.
The parts of r.1.23 relevant to this case are currently in the following terms:
1.23 [When is a person taken to have suffered or committed domestic violence?] (1) For the purposes of these Regulations:
(a) a person ( the alleged victim ) is taken to have suffered domestic violence; …
if:
…
(f) the Minister is satisfied, for paragraph (1B)(a), that the alleged victim has suffered relevant domestic violence; or
(g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence.
(1A) For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of domestic violence if:
…
(b) either of the following circumstances exists:
…
(ii) … - the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:
(A) the alleged victim has suffered relevant domestic violence; and
(B) the alleged perpetrator has committed that relevant domestic violence.
(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.
(1C) The Minister must take an independent expert's opinion on the matter mentioned in paragraph (1B)(b) 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 domestic violence.
…
The statutory declarations referred to in r.1.24 are a statutory declaration by the applicant under r.1.25 setting out details of the violence suffered, and statutory declarations by two ‘competent persons’ (as defined in r.1.21) under r.1.26 stating that in their opinion the applicant has suffered domestic violence. There is no dispute that such declarations were provided.
In this case the delegate did not obtain the opinion of an ‘independent expert’ under r.1.24 as the version of the regulations in force at that time did not make provision for such opinions.
The definition of ‘independent expert’ is set out in r.1.21 as follows:
1.21 [Interpretation] (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.
Findings of the Tribunal
The relevant findings by the Tribunal with respect to the domestic violence issue are:
43. Having considered all of the evidence before it, including the evidence of a non-judicially determined claim of domestic violence provided by the applicant, and in the light of the meaning of relevant domestic violence as interpreted by the Full Federal Court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56, the Tribunal was not satisfied that the alleged victim has suffered relevant domestic violence and therefore, in accordance with r.1.23(1B)(b), on 1 May 2006 the Tribunal sought the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence. On 1 June 2006 the independent expert provided an opinion that the alleged victim had not suffered relevant domestic violence.
44. The Tribunal contacted Centrelink to enquire about the qualifications and experience of the independent expert. The Tribunal subsequently received advice from the Business Manager Social Work that the independent expert was employed by Centrelink as a senior social worker and that she had the appropriate social work qualifications that confer eligibility for membership of the Australian Association of Social Workers (AASW). On this evidence, the Tribunal is satisfied that the person who gave the opinion is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence and at the time of assessment she was employed by Centrelink, which is currently the only organisation specified for Gazette Notice for this purpose.
45. The Tribunal also considered whether the opinion given is a valid opinion in that it properly relates to “relevant domestic violence”. There appears to be no direct legislation or judicial guidance on this point, but the Tribunal notes that the meaning of a valid opinion has been considered in the context of an opinion given by the Medical Officer (or Review Medical Officer) of the Commonwealth in respect of the review of medical evidence. The issue appears to be analogous to that before the Tribunal in regard to the opinion of the ‘independent expert’. On the matter of a valid opinion on the medical context, the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Seligman [1999] 85 FCR 115, at 66, said:
… The delegate is only entitled and obliged to take that [medical officer’s] opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application…
[45A] In Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014, Carr J commented further on the approach in Seligman, stating that:
At paragraphs 48 and 49 in Seligman the Court observed that Regulation 2.25A(3) requires the Minister to take the relevant opinion to be “correct” for the purposes of deciding whether a person meets a requirement or satisfies a criterion where:
(1) What is provided is an opinion.
(2) The opinion is that of the Medical Officer of the Commonwealth who provides it.
(3) The opinion is the opinion of the Medical Officer “on a matter referred to in sub-reg (1) or (2)” i.e. relevantly in this matter whether Michael Courey meets the requirements of paragraph 4005(c).
(4) The opinion addresses satisfaction of the requirements at the time of the Minister’s decision.
[45B] Following the approach taken in Blair the Tribunal finds that the document provided by the ‘independent expert’ is ‘an opinion’. The Tribunal finds that the opinion is provided by the ‘independent expert’, who is qualified to provide it. The Tribunal finds that the opinion is expressed about a matter referred to in the relevant legislation, specifically about whether the visa applicant has or has not suffered ‘relevant domestic violence’ within the meaning given by paragraph 1.23(2)(b). The Tribunal has been given no reason to believe that the material circumstances have changed substantially between the time of the ‘independent expert’s’ opinion and the time of the Tribunal’s decision. Accordingly the Tribunal finds that the opinion addresses satisfaction of the requirements at the time of the Tribunal’s decision.
46. On 9 June 2006 the Tribunal sent the visa applicant a letter under s359A of the Act inviting him to comment on information provided by the independent expert. The Tribunal informed the visa applicant that the independent expert was not satisfied that relevant domestic violence had taken place, and noted that the Tribunal must take the independent expert’s opinion on this matter as correct.
Ground 1
The applicant points to the words of s.360 that refer to an invitation to ‘appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review’. From the text of s.360 two arguments are developed, depending upon the breadth of the interpretation given to s.360:
a)That the regulations relating to expert opinion are invalid as they render the applicant’s right to a hearing (as described in s.360) ineffectual; alternatively
b)The Tribunal is required by s.360 of the Act to hold a hearing prior to deciding whether or not to obtain an independent expert’s opinion under r.1.24(1B).
It is plain that s.505 contemplates regulations that carry out the purpose of the regulations in issue here. To the extent that this is arguably a limit upon the hearing rule provided in s.360, it is clearly a limit that must have been contemplated by Parliament when enacting s.505. The two sections can be read so that they operate together: the expert is assessing the material to provide an opinion, and the applicant is then heard on whether the report addresses the correct question or is otherwise within the terms of the Act.
It is not an unusual process in administrative law, or indeed even in other areas of law, for there to be a deeming provision. It must also be borne in mind that administrative processes are designed by Government to meet the needs of the particular function they perform. Many decisions of the executive are based upon expert opinions or reports, particularly where fact finding in the judicial style is simply impractical due to the subject matter or other exigencies of the issue. There is no necessary inconsistency in providing for a hearing and providing for independent expert evidence on a particular factual issue that is binding on a usually non-expert decision maker. The use of independent experts is a process is well established in administrative decision making.
To the extent that the process moves away from a hearing and fact finding by the Tribunal member in a form similar to that of a court is not, of itself, a matter that demonstrates invalidity of the provision. Judicial process is not fundamentally suited to all functions in an effective government structure. Rather it is one of the underlying reasons that some powers are fundamentally suited to the executive, some to the legislature, others to the judiciary, and that some remain ‘innominate’ to be assigned as the elected government of the day believes are in the community’s best interests.
Similarly the requirements for procedural fairness vary depending upon the context of the case: as Brennan J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550:
[19] … It must therefore be accepted, as one commentator points out (G. Johnson "Natural Justice and Legitimate Expectation in Australia" (1985) 15 Federal Law Review 39, at p.71), that "the contents of natural justice range from a full-blown trial into nothingness".
Whether the currently accepted principles of procedural fairness derive from the common law, or are implied in the terms of the statute (see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at [31] and Brennan J at [19] respectively) it appears to be accepted that Parliament can legislate so as to exclude the implied or common law procedural fairness rules. Whilst some authors have contemplated whether there may be a requirement of procedural fairness entrenched in the Constitution, at least in some circumstances (see, for example, Sofronoff, W ‘Constitutional Writs’ (2007) 14 A J Admin L 145; with respect to the arbitration power see Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319 at 384-385 and The Queen v Moore; ex parte Victoria [1977] HCA 58; (1977) 140 CLR 92 at [15]), no constitutional point was taken by the applicant in this case.
In Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1819 Bennett J found that regulations providing for certificates from education providers (which were conclusive evidence with respect to student visas) were valid. I find that the regulations are valid.
The second limb of the argument was that s.360 requires a hearing before determining whether to engage an expert under r.1.23. To determine this question it is useful to look at the nature of the process before the Tribunal.
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Hayne J considered the nature of the Refugee Review Tribunal’s task, which is analogous to that of the Tribunal here, saying:
[202] ... First and foremost, it must be borne steadily in mind that the Tribunal does not exercise judicial power. It forms part of the Executive, exercising the power given by the Act to the Executive, to grant or refuse to grant "a non-citizen permission, to be known as a visa", in this case, to remain in Australia. … The Act makes elaborate provision for how applications for visas (including applications for protection visas) are to be dealt with … The process for review of … visa decisions … is no more than a further step in the exercise of Executive power.
[201] Secondly, given the nature of the power to be exercised by the Tribunal, there is no reason to read the Act as defining the order in which the Tribunal should set about undertaking its task of reviewing a decision. It may be necessary to read it in that way if the appearance were the point at which issues joined between contesting parties were to be resolved. But there is no joinder of issue between contesting parties. And it is not necessary to read the provisions as providing for an invariable order of events if, as I consider to be the better view of the provisions, the appearance before the Tribunal is no more than one of several different steps to be taken in the course of the review.
As Mr Mosley pointed out, the hearing process before the Tribunal is primarily an inquisitorial process based upon documentary evidence, and therefore not necessarily linear in the sense that a judicial trial is run. Mr Mosley relied upon comments of Hayne J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24:
Review - a predominantly documentary process
[192] … it is not right to see the applicant's appearance before the Tribunal, to give evidence and present arguments, as the focus or culmination of the review process. It is no more than one step in what otherwise is a predominantly documentary process.
…
[196] There is a further set of considerations which points against adopting a sequential understanding of the provisions. If the Tribunal decides to take evidence from a person named by the applicant, the Act is silent about when that evidence is to be taken. In at least some cases it would be convenient to take the evidence before the applicant appears before the Tribunal; in others, that may be neither necessary nor practicable. In deciding whether evidence or information can be obtained by the Tribunal after the applicant is invited to or does appear, much may be thought to turn on whether, at the time of the appearance, the applicant is in a position to "present arguments relating to the issues arising in relation to the decision under review"[144]. In particular, it might be suggested that, if the applicant could not present arguments relating to the issues arising in relation to the review until all evidence and information had been obtained, the appearance must, in every case, occur after the Tribunal has gathered whatever information or evidence is to be used in the review.
The first of the two limbs of r.1.23(1B) can easily be seen to operate in the same fashion as s.360(2): that is, if on the Tribunal’s preliminary review of the material there is no issue that relevant domestic violence occurred, then it need not trouble with the expense and difficulty of obtaining a report as it is not an issue. The regulation provides a mechanism for the Tribunal to obtain important evidence if the occurrence of domestic violence is an issue, bearing in mind that it is for the Tribunal (as an inquisitorial body) to determine what the issues are on the material and what evidence it gathers beyond that put by the applicant.
If the Tribunal determines that there is an ‘issue’ about whether relevant ‘domestic violence’ has occurred, then r.1.23(1B)(b) is engaged, requiring particular evidence to be gathered. As it is an inquisitorial process, the occurrence of domestic violence will only be an ‘issue’ if the Tribunal is not satisfied on their review of the material. At this preliminary stage r.1.23(1B)(b) is engaged and provides the method by which the evidence to determine this ‘issue’ is obtained. The Tribunal, at this stage has not yet formed a view or reached any conclusion, merely identified what the real issues are on the material, and what evidence it wishes to gather. Care is needed in determining what is actually an ‘issue’ in the proceedings rather than an element of the visa conditions or a procedural question. In the context of this case the issues must be determined by the Tribunal: it is not an action tried on pleadings where the parties define the issues. Even essential elements to a cause of action may not be an issue before a court, key elements of the visa categories may not be considered by the Tribunal to be an ‘issue’ in many cases as it is obvious that they are satisfied.
It was argued that on such an interpretation any hearing after the expert’s opinion was provided would be an ‘empty gesture’ or ‘hollow shell’ (see generally Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126). However, the hearing after the expert’s opinion on domestic violence is no more an empty gesture than a student visa hearing that turns upon the education provider’s certificate, or visa hearings turning on medical opinions. The hearing still allows an opportunity to address whether the opinion is an opinion properly addressing the relevant matters: see for example the issues discussed in Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117 at [66]: see also Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 at [56]; Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1735; and Vinh Quang Han v Minister for Immigration [2006] FMCA 591.
Whilst the regulations here formally make the particular evidence conclusive, in many cases a piece of evidence gathered by the Tribunal will be so overwhelming that it is, on a practical level conclusive: for example the results of DNA parentage testing. Questions about evidence gathering can not be considered an ‘issue’ within the terms of s.360. That the evidence is practically or legally ‘conclusive’ does not make a hearing an ‘empty gesture’ as the person still has the opportunity to show that the evidence is not within the meaning of the regulations. What the applicant seeks is an opportunity to convince the Tribunal not to seek the best available evidence.
When one considers the language of r.1.23 as a whole, it appears clear that this is a procedural provision. Specifically, the use of the phrase “if satisfied” in a provision that allows for evidence gathering cannot be addressed to the ultimate issues, but only procedural matters.
I am aware that on this issue I differ from the views of Riley FM in Sok v Minister for Immigration [2007] FMCA 1525. However, for the reasons stated I am not persuaded that the decision is correct on this point. This is a question that will ultimately require resolution by the Full Court.
The applicant also says that on the material before the Tribunal ‘it was not open to the Tribunal [to] decide that the applicant was not the victim of ‘relevant domestic violence’.’ I fail to understand how it can be said that a Tribunal member must accept the written evidence of the applicant on a point that depends almost entirely on his veracity as a witness. It is really an argument that in some circumstances a Tribunal member must accept the applicant’s evidence. I reject such an argument – to accept it would be to conclude that the Tribunal has no role to play in assessing the veracity of the applicant’s version of events. In the rare case where the Tribunal member has rejected a proposition contrary to apparently overwhelming evidence to the contrary there may be remedies, however this could never be argued to be a case in such a category.
As a result I find that the applicant has not established this ground.
Ground 2
The applicant says that there is a reasonable apprehension of bias as a result of the way that the Tribunal member approached the task of deciding whether or not to obtain an expert opinion. In support of this argument the applicant refers to clause 32.8 of the Procedures Advice Manual (PAM3) which provides:
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.
This document is a document of the Minister that is available generally to Tribunal members. However, there is nothing in the decision in this case to indicate that the Member had regard to the clause, or was even aware of the clause. To overcome this difficulty the applicant argues that in ‘the absence of the Tribunal’s explicit rejection of [the] … policy, there is a reasonable apprehension that the Tribunal followed it.’ I do not accept that on the facts of this case. The Tribunal member was not bound by this document. Tribunal members are in the position of decision makers and required to form their own views. In the absence of a reference to the document in the decision, the file, or comment by the Tribunal member there is no evidence that the Member had regard to the document. That it is part of the PAM3 is not, in my view, sufficient circumstantial evidence from which to draw an inference that the member applied this policy without independently exercising their discretion under the regulation.
In the circumstances I am not satisfied that the applicant has made out an evidentiary basis for this ground.
Ground 3
The applicant says that the Tribunal failed to comply with s.359A of the Act in that only part of the document received from the independent expert was provided to the applicant.
The process for obtaining the expert’s opinion utilises a form that is designed for that purpose: the ‘Domestic Violence Referral Form’. Part A of the form contains the case information, and lists the documents being sent by the Migration Review Tribunal with the referral to the expert. Part B of the form is for the expert to complete: it too contains details of the case, and provides spaces to collect information about the interviews the expert conducts, the history of violence claimed, the fears of the victim any third parties the expert spoke to and any additional information used. There follows a large box for the ‘Independent Expert’s Opinion’. It was only the contents of this box that was provided to the applicant. The opinion in this case was as follows:
As an independent expert as defined in sub regulation 1.21(1) of the Migration Regulations 1994, following assessment of the claims of relevant domestic violence described above, the alleged victim has not suffered relevant domestic violence (as defined in Regulation 1.23(2)(b) of the Migration Regulations 1994), committed by the alleged perpetrator (identified above).
Reasons, referring to evidence this assessment is based upon:
The applicant has failed to produce any forensic treating doctor or police reports to substantiate his case. The applicant states that he contacted police and made a statement to them about the sexual assaults, however is unable to produce anything from the police to support his case. In particular, the lack of medical evidence from a treating doctor weakens the applicant’s case.It is the writer’s opinion that inconsistencies in his presentation further weaken his case. These inconsistencies include:
· The applicant claims Ms O’Rourke provided him with mobile phone and assisted him to obtain employment outside the home three times. This is inconsistent with his statement that she would not let him go anywhere without her and that she ordered him to stay in the house.
· Mr Victorino was able to hold down a job and successfully progress through a selection process to a new job at a call centre at the height of the alleged domestic violence. These occupational achievements are inconsistent with behaviours associated with the experience of intense fear and hyper anxiety.
· Similarly, the applicant spoke of an increased social network, particularly towards the end of the marital relationship. He described how as his social contacts increased, the domestic violence lessened; as his wife knew he was in contact with people who were informing him of his rights arid therefore became less abusive. Mr Victorino states that when his wife told him to leave the marital home he packed his bags and left within hours. This behaviour and ability to leave immediately and move in with friends of friends, once again shows good social functioning inconsistent with someone who is highly anxious and intensely fearful.
This evidence of positive social and occupational behaviour and functioning combine to further weaken the applicant’s claims. ‘Clinically significant distress or impairment in social, occupational or other important areas of functioning (Criterion F) is one of the essential criteria for a diagnosis of post-traumatic stress disorder.
Additionally, the writer has ascertained from the treating psychologist that Mr. Victorino had traumatic experiences prior during his childhood, well prior to the alleged domestic violence. Therefore it cannot be ruled out by the author that Mr Victorino’s presentation of post-traumatic stress disorder to both the social worker and the psychologist was not pre-existing.
This opinion is based upon the evidence available at the time of assessment. If relevant new evidence is submitted before the application is finally determined, this opinion can be reconsidered (Use Part C of this forth).
I understand that this opinion will be made available to the visa applicant, and may form the reason or part of the reason for granting or refusing the visa application.
Whilst all of the documents are available to the applicant on request, pursuant to s.362A, no such request was made. The applicant argues that all of the section of the document completed by the expert (at least) had to be provided to him as a result of s.359A of the Act. That section provides:
359A [Information and invitation given in writing by Tribunal] (1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
…
The section is in the same terms as s.424A, and should be interpreted in the same way. In considering the application of the section it must be noted that it does not require the information to be provided, only ‘clear particulars of any information’. Thus, there is no prima facie requirement for the experts report or opinion to be provided to the applicant, if clear particulars of the information are provided.
The section does not have an expansive ambit. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:
[15] This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review".
…
[17] Secondly, the appellants assumed, but did not demonstrate, that [their earlier inconsistent] statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
The provision of the opinion section of the report is sufficient particulars – it is the information that the Tribunal considered to be a reason for refusing the application.
Whilst the forensic relevance of the balance of the document would be important in formulating any attack upon the document, it does not appear to me that s.359A can be relied upon as showing that the Tribunal was required to provide a copy to the applicant. The section requires that the information, not evidence be provided: see NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112.
In the circumstances I am not satisfied that the Tribunal failed to comply with s.359A
Ground 4
The applicant argued that the independent expert’s opinion could not be relied upon by the Tribunal as the independent expert was not a person ‘suitably qualified’ nor ‘independent’ within the meaning of the regulations.
It is agreed that the expert is an employee of Centrelink. Centrelink was specified as an organisation under r.1.21 by the Minister on 22 June 2005, and the notice published in the Government Gazette on 1 July 2005. The explanatory statement to the regulations is of no assistance in determining their meaning in the context of this case.
The applicant also sought to rely upon an ‘Explanatory Statement’ that was published to explain the legislative instrument appointing Centrelink under r.1.21. The relevant regulations were tabled in the House of Representatives on 22 June 2005. The Legislative Instrument appointing Centrelink was signed on 22 June 2005 and published in the government Gazette on 1 July 2005. It is agreed that the ‘Explanatory Statement’ to the Gazette notice was placed before the House on 9 August 2005. The notice in the Gazette appears to be a legislative instrument within the meaning of the Legislative Instruments Act 2003. I note that s.15AB of the Acts Interpretation Act, 1901 only operates in the circumstances set out in s.15AB(1). Ultimately, however, it is of little moment as I have not found the statement of any real assistance in determining the meaning of the term ‘independent expert’.
The applicant argues that the expert cannot be considered an ‘independent expert’ within the meaning of the regulation as she is employed by Centrelink, another government department, thus she is not independent of the executive government.
Centrelink is an agency established by the Commonwealth Services Delivery Agency Act 1997. Section 7 of the Act provides for the service arrangements that the Agency may enter into with government departments:
7 [Service arrangements] (1) The Chief Executive Officer may, with the written approval of the Minister, enter into arrangements with the principal officer of a Commonwealth authority for the provision of the Commonwealth services specified in the arrangements, subject to the conditions specified in the arrangements.
(2) Arrangements for the provision of Commonwealth services may include arrangements for doing anything incidental, conducive or related to the provision of the services.
(3) Without limiting subsection (1) or (2), arrangements for the provision of Commonwealth services may include arrangements for:
(a) making the Chief Executive Officer or specified employees, or employees in specified classes of employees, available to exercise powers or perform functions in connection with the provision of the services (including powers and functions delegated to the Chief Executive Officer or employees under other laws); or
(b) determining a person’s eligibility for, or entitlement to receive or have access to, the services; or
(c) maintaining records related to the provision of the services; or
(d) providing Commonwealth authorities and other persons with information related to the provision of the services; or
(e) undertaking education, compliance, investigation and enforcement activities related to the provision of the services; or
(f) recovering overpayments and other amounts due to the Commonwealth in connection with the provision of the services; or
(g) conducting litigation or proceedings related to the provision of the services.
(4) Arrangements for the provision of Commonwealth services may also include agreements covered by section 8A.
(5) An approval given by the Minister under this section is not a legislative instrument.
It appears from the Commonwealth Services Delivery Agency Act 1997 that a ‘commonwealth service’ means ‘a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise’: see s.3.
It appears clear that the expert was provided by Centrelink as a ‘commonwealth service’ pursuant to the Commonwealth Servcies Delivery Agency Act. Any report obtained for the purpose of the visa application under the section would have to be commissioned by, and paid for by the Commonwealth. The only relevant question is whether the particular expert’s connection with the Commonwealth was so close as to take her outside of the meaning of ‘independent expert’ as used in the regulations.
The term ‘independent expert’ must be construed in the context of the regulations. It is clearly impractical to expect that the expert would be jointly commissioned by the department and the applicant, nor realistic to think that the department and applicant would meet the costs equally. The terms must refer to the more fundamental question of whether the expert is in a position where she may have had an interest in the outcome of the assessment she was required to make. None has been alleged, or even the subject of speculation. It is simply alleged that there is the possibility that she would be influenced by being an employee of the executive government in an Agency set up to provide services to various government departments, of which the Tribunal is one. Whether the expert is an employee or contractor, the level of influence speculated would be possible: here, however, there is not any evidence to suggest that the expert carried out her task otherwise than with independence.
Having regard to the nature of the tasks required, in the context of the regulations and statutory provisions I am not persuaded that the relationship between the expert and the executive government in this case was such as to take her outside of the meaning of ‘independent expert’ as it appears in r.1.21.
Ground 5
The applicant points out that material provided to the Tribunal in October of 2004 was not provided to the independent expert. That material consisted of three statutory declarations: one by the applicant, and one by each of his two experts both of whom had formed the opinion that he was a victim of domestic violence. Statements by the applicant and each of his experts made in April of 2003 were provided to the ‘independent expert’ by the Tribunal.
There is no dispute that the substance of the claims of domestic violence by the applicant were conveyed to the expert in the material that was provided. There is also no dispute that the expert interviewed the applicant and one of his experts before writing her report.
The parties have performed a comprehensive analysis of the differences in the applicant’s documents as supplied to the expert and those not forwarded to the expert. Whilst the later documents add detail, the substance of the documents remains the same.
It is in this context that the applicant argues that the failure to provide the documents of October 2004 to the expert are a basis for showing jurisdictional error. The role of the expert is not identical to that of the Tribunal member, nor is the expert undertaking a delegated decision making role.
It is not argued that the Tribunal failed to have regard to the documents of October 2004: the decision makes specific reference to the documents. Nor can it be argued that the Tribunal member failed to hear the applicant in the way contemplated by the regulations and statute. The applicant relies upon a claim that the member failed to brief the expert with all of the relevant material. It appears to me that this can only form a basis for jurisdictional error in cases where the Tribunal member’s request of the expert was so deficient that it could be said that it was an effective failure to properly request an opinion. Such an interpretation would explain the cases where it appears that second opinions have been obtained, or second experts commissioned about the matters in issue
If a second report were commissioned in a case where the first report was supportive of the applicant and the subsequent report adverse, detailed argument as this issue may arise. However, the invariable practice is that the Tribunal only seeks subsequent reports if the first is adverse to the applicant and there appears to be further material that the expert must, in the opinion of the Tribunal, consider in order to ensure that an opinion is properly sought.
The power to seek an opinion in circumstances such as this must contain implied terms requiring the request to:
a)identify the matter upon which the opinion is sought,
b)provide details of the claim, and
c)provide reasonable details of the evidence that is in the hands of the Tribunal that appears to the Tribunal member to be relevant to the issue.
Just as it is clear that not every piece of evidence before a Tribunal member must be referred to in the reasons for decision, nor would it be necessary to burden the expert with every item of evidence before the Tribunal.
Whilst it may be argued that the use of experts in circumstances such as arise in this claim undermines the right to an effective hearing (see, for example, the events that occurred in The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228), such a claim would hinge upon a constitutionally protected right to procedural fairness incapable of alteration in the manner enacted in these provisions. As set out in paragraph [18] above, such a claim was not pursued in this case.
In this case, the October material is sufficiently similar to the April material that it could not be said that the Tribunal failed to properly exercise the power to seek the opinion in this case. That the expert undertook her own enquiries by interviewing the applicant and one of his experts further confirms my findings in this regard.
Ground 6
The applicant also claims that the opinion of the independent expert could not be relied upon as it did not address the definition of ‘domestic violence’. In particular the applicant referred to the meaning of the phrase as discussed in Sok v Minister for Immigration andMulticultural and Indigenous Affairs [2005] FCAFC 56 and relied upon the decision in Minister for Immigration and MulticulturalAffairs v Seligman [1999] 85 FCR 115 at [66].
There is nothing in the opinion of the expert that the applicant could point to that demonstrated any misconception by the expert of the meaning of the term ’domestic violence’. The opinion focuses upon:
a)the lack of corroborating evidence;
b)inconsistencies in the applicant’s descriptions of how his spouse isolated or controlled him;
c)the inconsistency of his occupational achievements with the experience of fear and hyper-anxiety that are associated with domestic violence; and
d)the extent of his social contacts.
The terms of the opinion do not indicate a restrictive view of the meaning of domestic violence. It is not for me to assess what weight I would attach to the opinion as the regulations required the Tribunal member to accept the opinion. I am not satisfied that the expert misconceived the definition of ’domestic violence’.
In the circumstances the application is dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 21 September 2007
Amendments
Orders – ‘first’ inserted before respondent.
Paragraph 35 – incorrect quote inserted.
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