Rhazi v Minister for Immigration and Border Protection

Federal Court of Australia|2018-08-22|Before: Mr J, Yates J

The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 18 May 2016, which dismissed the appellant's application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal's decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Partner (Migrant) (Class BC) visa. 2 The notice of appeal was filed on 3 June 2016. However, the appeal was adjourned on a number of occasions pending the decision of the Full Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305, and the determination of the application for special leave to appeal to (and any appeal in) the High Court in that matter.

The Tribunal 7 On 4 September 2014, the appellant applied to the Tribunal (then the Migration Review Tribunal) to review the delegate's decision. The appellant appeared before the Tribunal on 8 October 2015 to give evidence and present arguments. He was represented by an agent, who attended the hearing. The appellant provided evidence to the Tribunal which included a report from a psychologist opining that the appellant had suffered relevant family violence. However, the Tribunal was not satisfied that the appellant had suffered relevant family violence and referred the matter to an independent expert for assessment. By a report dated 27 November 2015, the independent expert concluded that the appellant had not suffered relevant family violence. The Tribunal provided the appellant with a copy of the report pursuant to s 359A of the Migration Act 1958 (Cth) (the Act), and invited comment. The appellant responded by stating that he did not agree with the opinion of the independent expert and raised certain matters for the Tribunal's consideration. However, the Tribunal concluded that no new issues had been raised which had not been addressed by the independent expert. 8 The appellant appeared again before the Tribunal on 18 January 2016 to give evidence and present arguments. The appellant's agent also attended. The appellant repeated the claims he had made and stated that he felt he had suffered family violence. However, once again, the Tribunal concluded that no new claims were raised by the appellant. 9 In the event, the Tribunal concluded that the decision under review should be affirmed, stating in its Decision Record: 33. The tribunal has taken into account the issues raised by the applicant in response to the report from the independent expert in their written response to the report and at the further hearing conducted by the tribunal. The tribunal is not satisfied that the issues raised by the applicant indicate that the report of the independent expert is flawed in any way or that the independent expert has failed to take into account any relevant claim of the applicant or failed to properly apply the relevant definition of relevant family violence in respect of the claims made by the applicant. The independent expert has concluded that the applicant did not suffer relevant family violence. 34. Accordingly, the tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22. 35. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl. 100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an in essential criterion for the visa, the tribunal must affirm the decision under review.

The Federal Circuit Court 10 On 4 February 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The application raised three grounds, namely that the Tribunal fell into error by failing to ask the correct question or apply the correct test that "domestic violence" occurred pursuant to regs 1.21 and 1.23 of the Regulations; that the Tribunal should have found that the "competent person" appointed to determine whether "non-judicially determined domestic violence" occurred, and denied the appellant natural justice and/or procedural fairness; and that, in finding that the appellant had not suffered "domestic violence", the Tribunal erred and thereby fell into jurisdictional error. 11 At the hearing of the application for judicial review, the appellant abandoned the third ground of review. The primary judge was not satisfied that the first two grounds were made out. 12 As to the first ground, the appellant argued that the independent expert had erroneously focused just on physical violence. The primary judge concluded that this submission was inconsistent with the independent expert's focus on a broader meaning of "family violence" and was inconsistent with the expert's reasoning, which expressly referred to an apprehension for the appellant's safety or wellbeing. The primary judge reasoned that the first ground of review was, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal, and failed to disclose jurisdictional error. 13 As to the second ground, the primary judge held that it was clear from the structure and content of the independent expert's report that the appellant was given an opportunity to explain "why he was scared of his partner". The primary judge did not accept that, in this regard, the independent expert had confined his consideration to physical violence. Further, the primary judge was not satisfied that there was any denial of procedural fairness by the expert to the appellant. His Honour reasoned, once again, that the second ground of review was, in substance, an impermissible challenge to the adverse findings of fact that were made, and failed to disclose jurisdictional error. 14 For these reasons, his Honour dismissed the application, with costs.

The Grounds of Appeal 15 The notice of appeal contains two grounds, expressed as follows: Ground 1 His Honour should have found that the Tribunal fell into error in that it failed to ask the correct question or apply the correct test that domestic violence occurred pursuant to Regs 1.21 and 1.23 of the Regulations. Particulars (i) His Honour erred in not finding that the Tribunal should have found that the applicant suffered apprehended violence from the range of circumstances and activities of the spouse at the relevant times and limited the questions to limited physical acts (such as re-introducing the Appellant in environment where he would feel threatened / household where the Appellant had been previously threatened). (ii) His Honour erred in finding that the Tribunal that the expert / competent person (Dr Lennings) did not erroneously confine the finding to the spouse / former spouse. (iii) His Honour should have found that the Tribunal erred when its accepted that the conduct of the other family members be excluded. (iv) His Honour should have found that the competent person did not address the issue of apprehension or addressed it to narrowly. (v) His Honour should have found that the Tribunal erred when it failed to ask itself whether the Applicant would be apprehensive in all the circumstances subject to harm were the Applicants - were the Applicants to go out / the Applicants did not experience by confining themselves to the house and whether the Applicants would be subject to harm. Ground 2 His Honour erred in failing to give reasons or sufficient reasons for his decisions and / or failed to engage with the Appellant's submissions. Particulars (i) The Court failed to give reasons or sufficient reasons for its decision 16 I note that Ground 1 repeats, in substance, the particulars of the appellant's first ground of review before the Federal Circuit Court.

Legislative Framework 17 Clause 100.22 of the Regulations provides the criteria that were required to be satisfied by the appellant in order to be granted the visa the subject of this appeal. In circumstances where the relationship between the appellant and the sponsor had ceased, the appellant had to establish that he had suffered family violence committed by the sponsor: cl 100.221(4)(c)(i)(B). 18 Division 1.5 of Pt 1 of the Regulations contains special provisions relating to family violence. Regulation 1.22(1) 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. Regulation 1.23 explains the circumstances when this is so, including when certain injunctions have been granted under the Family Law Act 1975 (Cth); when certain court orders have been made; and when certain convictions have been recorded. The circumstances also include "non-judicially determined" claims of family violence. Relevant to the present case is when the alleged victim is a spouse of the alleged perpetrator of the family violence and the alleged victim has presented evidence in accordance with reg 1.24 that he or she has suffered "relevant family violence": reg 1.23(9). In the present case, the appellant was the alleged victim and the sponsor was the alleged perpetrator. The appellant presented evidence in the form required by reg 1.24 to enliven consideration of reg 1.23(9). 19 Regulation 1.21 defines "relevant family violence" as follows: "relevant family violence" means conduct, whether actual or threatened, towards: (a) the alleged victim; or (b) a member of the family unit of the alleged victim; or (c) a member of the family unit of the alleged perpetrator; or (d) the property of the alleged victim; or (e) the property of a member of the family unit of the alleged victim; or (f) the property of a member of the family unit of the alleged perpetrator; that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety. 20 This definition makes clear that the conduct constituting the relevant family violence can be actual or threatened, and is not conduct that is confined to physical violence but extends to the alleged victim's fear for, or an apprehension about, his or her own wellbeing or safety. However, the fear or apprehension must be reasonably held. 21 If an application for a visa includes a non-judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence: reg 1.23(10)(a). If the Minister is not satisfied that the alleged victim has suffered the relevant family violence (which is the view to which the Tribunal initially came in the present case), the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence: reg 1.23(10)(c)(i). The Minister must take an independent expert's opinion on that matter to be correct: reg 1.23(10)(c)(ii). 22 I note that, in the present case, the Tribunal was satisfied that the independent expert report it sought was authorised by the Regulations, and was provided by an independent expert who was a person suitably qualified to make the required assessment. The appellant does not challenge these findings. The Tribunal correctly concluded that it was required to take as correct an independent expert's opinion, properly made: see Decision Record at [32].

Consideration 23 The focus of the appellant's submissions in relation to Ground 1 is that, when considering whether the appellant was the victim of relevant family violence, the independent expert erroneously confined his attention to the existence or otherwise of physical acts of violence and, in effect, ignored a broad range of other conduct that constituted relevant family violence in the present case. This submission seems to have been the focus of the appellant's submissions before the Federal Circuit Court in relation to the first ground of review that was argued. 24 In this appeal, the appellant directed my attention to a particular section of the independent expert's report to illustrate the proposition that the appellant's claimed fear for or apprehension about his personal wellbeing or safety was broadly-based. In this section of his reasons, the independent expert recorded that there were three limbs to the appellant's concerns, namely that the sponsor was volatile (especially when alcohol affected) and swore at him; that the sponsor's family was dysfunctional and threatening; and that the appellant was scared of catching a sexually transmissible disease with which the sponsor was infected. The independent expert elaborated on each of these matters. 25 By way of overview, the independent expert's opinion is recorded in Part B of a Family Violence Referral Form (M52). Part B of the form was used to record, firstly, the independent expert's account of the relevant family violence claims made by the appellant and, secondly, the independent expert's opinion whether the appellant suffered relevant family violence committed by the sponsor. This part of the form commences with an explicit statement of the meaning of "relevant family violence" as defined in reg 1.21 of the Regulations. I mention this matter in particular because reg 1.23(9) is directed to (in the appellant's case) relevant family violence where the alleged perpetrator is the spouse of the alleged victim (the appellant). Regulation 1.23(9) is not concerned with acts that are committed by persons other than those identified in para (a) of reg 1.23(9) who stand in a particular relationship to the alleged victim. This becomes important given the particulars in paras (ii) and (iii) of Ground 1 - a matter to which I shall return. 26 After recording certain formal details with respect to the appellant's current status, this part of the form provides what seems to be a very comprehensive account of the appellant's claims. The appellant does not dispute the accuracy or completeness of the information recorded. Without descending to matters of specific detail, it is sufficient for me to note that the independent expert recorded aspects of the appellant's life with the sponsor and her family in Cairns. This family included one of the sponsor's ex-husband's and comprised about 20 people. The independent expert described the family situation as "chaotic, marked with over crowding, friction and chaos". I draw particular attention to the conduct of the sponsor's children who, according to the account given, could be violent towards the sponsor (in the sense of throwing objects such as keys at her). One of the sponsor's children - a son - was singled out by the appellant as engaging in particularly aberrant behaviour. The appellant informed the independent expert that he (the appellant) would argue with the children, and that the son "would take a knife and threatened to kill himself", causing the appellant to experience some fear. The independent expert noted, however, that: … whilst these are uncomfortable events they do not constitute relevant family violence as he [the appellant] describes no threat from the sponsor towards him, or any specific acts of family violence as opposed to some verbal conflict about the difficulties associated with the over crowded household. … 27 The independent expert also said: … it seems this family culture of aberrant behaviour was something that caused a general sense of apprehension for [the appellant], although such an apprehension was not as a function of any direct behaviours of the sponsor and there is no intimation that the sponsor was deliberately orchestrating the background behaviours he was concerned about. 28 In this part of the form, the independent expert also included a record of the appellant's account of why he was "scared" of the sponsor. Once again, without descending to details, this involved the sponsor's drinking; her verbal abuse of the appellant; her displays of bad temper (door slamming and the like); and the general disarray of family life in the house in Cairns. The independent expert noted: … However, this does not appear to reflect specific threats of harm to himself from the sponsor, but rather a fear based on the chaotic environment he [h]ad walked into. In any case it seems the sponsor attempted to resolve this by suggesting they leave Cairns and go to Samoa, and [the appellant] was keen to continue the relationship that time. 29 The independent expert also recorded that the appellant had expressed concerns about the sponsor's demands for money from him after she had left him. 30 It seems, however, that the appellant's greatest fear was in relation to "family members" - once again, referring to the time when the appellant lived with the sponsor and her family in Cairns. The independent expert recorded: … at no time did he indicate that the sponsor orchestrated or sought to threaten him with the inappropriate conduct of these family members, in fact she assisted in his escape from this environment by going to Samoa shortly after arriving in Cairns. Although he reported some fear of the possibility that the sponsor might involve unpleasant characters of the extended family to [h]urt him, such fears appear solely based on his imagination and occurred after the separation of the couple. 31 Later, with specific reference to the sponsor's son, who had been "troublesome to his mother", the independent expert recorded: … there is no suggestion that [the sponsor] organised her son's behaviour to intimidate [the appellant]. Rather she seems to have been sensitive to that issue, despite also being angry that [the appellant] interfered in the family dynamics. 32 Part B of the form also records the details and substance of psychologist's reports, statutory declarations made by the appellant and other information provided by him to support his claims of relevant family violence. The form proceeds to express the independent expert's opinion and his statement of reasons for that opinion. 33 Particulars (i), (iv) and (v) of Ground 1 are directed to the submission that the independent expert adopted an inappropriately narrow view of what constituted "relevant family violence" by considering the existence or otherwise of physical acts of violence and ignoring the other aspects of conduct reported by the appellant. Particulars (ii) and (iii) of Ground 1 are directed to the separate submission that the independent expert erroneously confined his attention to the sponsor's conduct and ignored the conduct of the other family members. In support of Ground 1, the appellant submits that the primary judge did not deal in any meaningful way with the first ground of review that was before him and erred in dismissing it. 34 The Minister accepts that if the independent expert, on whose report the Tribunal relied, misconstrued the applicable test or otherwise made an applicable legal error, then this may, where the Tribunal accepts the expert's reasons as correct, infect the reasons of the Tribunal and lead to the Tribunal committing a jurisdictional error: Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115. The Minister submits, however, that the two bases on which Ground 1 proceeds are not well-founded and that no appealable error has been shown with respect to the primary judge's corresponding conclusion. 35 I accept the Minister's submissions and reject the appellant's submissions. 36 I accept that a careful reading of the independent expert's report demonstrates that the expert took into account the totality of the appellant's claims and analysed them against the correct statutory question. It is clear that the independent expert did not disregard or discount the relevance of the conduct which the appellant placed before him as the conduct which, the appellant said, caused him to fear for, or to be apprehensive about, his wellbeing or safety. Having taken all these matters into account, the independent expert's professional assessment and opinion was that the appellant's circumstances, as he described them, did not constitute relevant family violence in the sense of actual or threatened conduct towards him that caused him to reasonably fear for, or to be reasonably apprehensive about, his wellbeing or safety. It is convenient to record the following passage from the independent expert's statement of reasons: The three limbs of [the appellant's] complaints are that his wife was volatile (especially when alcohol affected) and swore at him, that her family were dysfunctional and threatening, and that he was scared of catching a transmissible sexual disease. However [the appellant's] complaints do not suggest reasonable fear for his safety or apprehension for his safety or well-being as a result of family violence. His wife's conflict with him appears to have been a function of irreconcilable differences, in particular his concern about her sexual health. [The appellant] does not describe being coerced to perform sexually with his wife, rather she seems to have been angry at his decision [not to have sexual relations with her], but he was steadfast in it. His dislike of her family appears to have been identified by the sponsor who made a strong attempt to remove both herself and [the appellant] from that problem; and finally his fear of her sexual health appears to have developed late in the relationship, and is not related to his wife's exercising coercive behaviours or seeking to deliberately cause harm to him. His tolerance of her condition until Sydney suggests that his fear grew out of increasing frustration with the relationship. For these reasons I do not believe that [the appellant] meets criteria as laid out in the Migration Regulations 1994 that he is a victim of Family Violence. 37 I also accept that the independent expert did not disregard or discount the relevance of the sponsor's son's conduct to which the appellant drew particular attention. As I have noted, reg 1.23(9) is directed to the conduct of certain alleged perpetrators of violence who stand in a particular relationship to the alleged victim. Here, the sponsor's son did not fall within one of the relationships identified in reg 1.23(9)(b). Nonetheless, the independent expert directed his mind to whether the son's behaviour could be seen as conduct under the sponsor's control (and hence conduct of the sponsor herself). The independent expert concluded that the son's behaviour was not under the sponsor's control. That finding was one that was open to the independent expert to make. 38 As to the primary judge's treatment of the first ground of review before him, I am not persuaded that his Honour's reasons indicate that he did not deal with the ground in any meaningful way. I note, in this regard, that the primary judge directed his attention to the independent expert's report, noting that the independent expert correctly identified the subject matter of the opinion upon which he was required to focus. The primary judge noted that the independent expert referred to the matters raised by the appellant. The primary judge encapsulated the independent expert's assessment of the relationship between the appellant and the sponsor (which was the relevant relationship) as one in which the sponsor did not make threats to the appellant or was deliberately abusive towards him, as opposed to the sponsor being excitable and volatile. This is a fair summary, albeit at a high level, of the thrust of the independent expert's opinion in respect of that relationship. At [8] of his reasons, the primary judge specifically addressed the proposition that the independent expert erroneously focused on physical violence. The primary judge concluded that the appellant's proposition was inconsistent with the opening focus by the expert at the commencement of his opinion on the broader meaning of family violence. The primary judge also concluded that the proposition was inconsistent with the reasoning of the expert. There is no error in those findings, which are the essential reasons why the first ground of review before his Honour could not be made out. 39 For these reasons, Ground 1 of the notice of appeal fails. 40 As to Ground 2 of the notice of appeal, this similarly fails, substantially for the reasons I have expressed immediately above. 41 There is no "inflexible rule of universal application" that reasons should be given for judicial decisions: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656 (Osmond) at 667 per Gibbs CJ, quoting with approval the observation of Woodhouse P in R v Awatere [1982] 1 NZLR 644 at 649. Nonetheless, the requirement to give reasons is a normal incident of the judicial process: Housing Commission (NSW) v Tatmar Pastoral Co. [1983] 3 NSWLR 378 at 386; Osmond at 667. The giving of reasons is one of the defining characteristics which marks a court apart from other decision-making bodies: Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [67], per French CJ. 42 The purposes to be achieved by giving reasons for judicial decisions include: enabling an appeal court to determine whether the judgment appealed from is affected by appealable error, thereby promoting efficiency in the appeal process, including the efficient allocation of judicial resources and time; enabling a superior court to determine whether, in making a decision, there has been a constructive failure by an inferior court to exercise jurisdiction or to accord procedural fairness; enabling the losing party to understand why that party failed, thereby avoiding a sense of injustice or grievance; maintaining public acceptance of judicial decisions and the judicial system, including maintaining respect for and faith in that system; educating judicial decision-makers, including by exposing them to review and criticism and by facilitating consistency in their judicial decision-making; educating the public by influencing the way in which society acts or should act; subjecting judicial decision-makers to the rigours of sound analysis, thereby providing a safeguard against the making of decisions that are too hastily arrived at when more deliberation and reflection are required to arrive at the just and correct decision. 43 These purposes are distilled from a number of cases, including Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441-442; SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; (2008) 102 ALD 115 at [19]-[20], [41]-[43]; BKL15 v Minister for Immigration and Citizenship [2016] FCA 802; (2016) 241 FCR 450 (BKL) at [8]-[16]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [47]-[48]; and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [33]-[36]. 44 In BKL, Flick J observed (at [14]) that the content of an adequate statement of reasons for a decision in an application for judicial review will necessarily depend upon the statutory context in which the decision is required to be made, the particular statutory power being exercised, and the ground of review under consideration. His Honour further observed (at [16]) that whilst the standard for assessing the adequacy of reasons is not one of perfection, the objective of making just decisions should not be sacrificed for expedition alone. 45 In the present case, the appellant submits that the brevity of the primary judge's reasons, comprising nine paragraphs, indicates that the primary judge did not sufficiently engage with the independent expert's reasons for arriving at the conclusions and opinions the expert expressed. 46 The Minister accepts as a matter of principle that, in appropriate circumstances, a judge's reasons may, by reason of their brevity and content, amount to a constructive failure to exercise jurisdiction. The Minister submits, however, that whether this is so requires a proper understanding of the nature of the reasons in question, bearing in mind an appreciation for the proper balance between brevity and adequacy. Brief reasons may nevertheless be adequate. 47 The Minister submits that, in the present case, the primary judge's reasons must be read in context and in their entirety, not just by reference to the dispositive considerations articulated by his Honour at [8] and [9] of his reasons. 48 I accept the Minister's submissions and reject the appellant's submissions. Whilst it would have been desirable for the primary judge to have expressed his reasons more fully, including by a more fulsome discussion of the structure and content of the independent expert's report, I am not persuaded that, simply because of the brevity of his reasons, the primary judge did not fully engage with that report in reaching the findings he made, particularly in relation to the first ground of review, which is the real object of the appellant's criticisms. When regard is had to the primary judge's reasons as a whole, it is tolerably clear that his Honour did consider the structure and content of the independent expert's report in arriving at his (the primary judge's) findings and conclusions. As I have said, in his reasons for judgment, the primary judge expressed the essential reasons for rejecting the contention that the independent expert adopted an erroneously confined view of the relevant statutory question. Those reasons were that the independent expert explicitly directed his attention to the breadth of the definition of "relevant family violence" in reg 1.21 and that the independent expert's reasoning was inconsistent with the proposition that he confined his attention to the existence or otherwise of physical acts of violence alone.

An additional ground 49 The appellant raises an additional ground concerning a certificate issued by the Minister under s 375A of the Act in the course of considering the appellant's visa application. This is not articulated as a ground of appeal in the appellant's notice of appeal. Nevertheless, the parties treated it as such. The certificate was issued in respect of a Family Violence Referral Form from the Department to an independent expert to assess whether the appellant suffered family violence: see [6] above. The appellant was not informed of the existence of this certificate when the matter was before the Tribunal. The existence of the certificate was subsequently disclosed to the appellant. The referral form covered by the certificate has since been disclosed to the appellant by means of an affidavit filed in the appeal on 19 July 2017. The appellant argues that the failure to disclose the existence of the certificate when the matter was before the Tribunal constitutes a denial of procedural fairness by the Tribunal. 50 I am unable to see how these facts constitute a denial of procedural fairness or give rise, in any event, to any practical injustice to the appellant. First, the fact that the Department had referred the matter to an independent expert was known by the appellant. The independent expert's report resulting from the referral - which concluded that the appellant had not suffered relevant family violence - was provided to the appellant for comment when the matter was before the Minister's delegate. No comments on that report were provided by the appellant or his agent. Secondly, the Tribunal itself referred the question of whether the appellant had suffered relevant family violence to another independent expert. The (second) independent expert was not provided with a copy of the referral to the (first) independent expert. Therefore, the original referral was not something that was before the (second) independent expert, whose opinion the Tribunal was obliged by reg 1.23(10)(c)(ii) to treat as correct. As the Minister submitted, the delegate's reasons for referral (in effect, the reasons for not being satisfied that the appellant had suffered relevant family violence) had no bearing on the Tribunal's consideration and were not the subject of review or the subject of appeal to this Court. Therefore, this "ground" also fails.

Disposition 51 The appeal will be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

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