FEDERAL COURT OF AUSTRALIA

Gounder v Minister for Immigration and Border Protection [2015] FCA 1476

THE COURT ORDERS THAT:

1.    The name of the Second Respondent is changed to Administrative Appeals Tribunal.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Mr Runeshwaran Gounder is a citizen of Fiji.

2    In July 2009 he applied for a visa on the basis of his relationship with Ms Reenu Raju. The application was for a Partner (Residence) (Class BS) visa.

3    A delegate of the Minister refused that application in June 2011. Mr Gounder applied for review by the former Migration Review Tribunal. As events turned out, the delegate’s decision was:

    initially affirmed by that Tribunal in January 2014. But that decision was set aside by the Federal Circuit Court in May 2014. As recorded in a note to the orders then made, it was conceded before that Court that the decision of the Tribunal was affected by jurisdictional error attributable to the independent expert failing to afford Mr Gounder procedural fairness.

The application for review was then considered by a differently constituted Tribunal which:

    again affirmed the delegate’s decision in January 2015.

4    An application seeking judicial review of the Tribunal’s second decision was shortly thereafter filed with the Federal Circuit Court of Australia. Leave was granted to rely upon an amended application but, as amended, the application was dismissed in June 2015: Gounder v Minister for Immigration & Anor [2015] FCCA 1658.

5    A Notice of Appeal was filed in this Court in July 2015. The Grounds of Appeal were there identified (without alteration) as follows:

1.    His Honour erred by finding that:

a.    Section 368 of the Migration Act 1958 in relation to the obligation to provide reasons did not apply to a determination by the Second Respondent under Regulation 1.23 (10) of the Migration Regulations as to whether the Second Respondent is satisfied that the alleged victim has suffered relevant family violence.

b.    As a consequence of (a) above, a determination by the Second Respondent that it was not satisfied that the alleged victim had suffered family violence did not need to be the subject of reasons nor did it need to be reasonable.

2.    His Honour erred by finding that the fact that IMMI 13/023 specified only one organisation as an independent expert exclusively governed the referral by the Second Respondent to an independent expert and excluded the principles of procedural fairness based upon the principle of necessity.

3.    His Honour erred by failing to find that the report of the independent expert might have been influenced or affected by the impugned report of a previous independent expert from the same organisation.

6    Mr Gounder appeared before this Court unrepresented. He was, however, represented by Counsel before the Federal Circuit Court.

7    The appeal is to be dismissed with costs.

The factual & legal background

8    Once the unnecessary factual material is stripped away, the factual and legal background of relevance to the present appeal is within a narrow compass.

9    It commences with Mr Gounder’s marriage to Ms Raju in Australia in April 2009. Ms Raju sponsored Mr Gounder’s application for a partner visa. But in April 2010 Ms Raju advised the then Department of Immigration and Citizenship that she wished to withdraw her sponsorship. She maintained that the relationship had broken down.

10    One exception to the requirement imposed by cl 801.221(2)(b)(i) of Sch 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”) that there be continuing sponsorship arises if the decision-maker is satisfied that there has been “family violence”. Of the variety of ways in which “family violence” may be made out, Mr Gounder relies upon reg 1.23(9) of the Migration Regulations, namely that his claim that he was the “victim” of “family violence” had not been “judicially determined”.

11    Of immediate relevance to the manner in which that claim was made are regs 1.23(10) and (13) which provide:

(10)    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; and

(ii)    the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

…

(13)    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.

The phrase “independent expert” is defined in reg 1.21 as 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.

12    In support of his claim that he had suffered family violence, and without being exhaustive, Mr Gounder provided to the Department reports from:

    Dr Raymond Way, a Consultant Psychiatrist, one report being provided in July 2010, in which Dr Way concluded that “Mr Gounder has been subject to domestic violence” and that Mr Gounder had been “significantly traumatised by this cruel and undeserved treatment” and a further report provided in June 2011 in which he similarly concluded that he was “convinced that there is good evidence that Mr Gounder experienced relevant family violence”; and

    Ms Mary Sutton, who provided a statutory declaration in July 2010.

A series of procedural irregularities in respect to the reports of Dr Way and Ms Sutton were raised by the Department with Mr Gounder and subsequently addressed. Further statutory declarations were provided.

13    For the purposes of reg 1.23(10), a series of reports were obtained, namely:

    a report prepared by Ms Kathryn Payne, who held the degree of Bachelor of Social Work, the report being provided in May 2011, in which Ms Payne concluded that Mr Gounder “has not suffered relevant family violence”.

This was the report relied upon by the delegate. Thereafter, the first Tribunal obtained the following reports in respect to Mr Gounder, namely:

    a report prepared by Ms Alison O’Neill, a Clinical Psychologist, in October 2013 in which Ms O’Neill concluded that Mr Gounder “has not suffered relevant family violence”; and

    a further report prepared by Ms O’Neill in December 2013 in which Ms O’Neill again concluded that Mr Gounder “has not suffered relevant family violence”.

The further report was prepared after additional material had been provided to Ms O’Neill for her consideration. These two reports were relied upon by the Tribunal in reaching its first decision. Thereafter, and after the orders made by the Federal Circuit Court in May 2014 setting aside the decision of the Tribunal and remitting the matter for reconsideration, the Tribunal as reconstituted obtained the following report in respect to Mr Gounder, namely:

    a report prepared by Dr C J Lennings in September 2014 in which Dr Lennings concluded that Mr Gounder “has not suffered relevant family violence”.

Mr Gounder also obtained a further report, namely:

    a report prepared by Mr Belal Ali, a Psychologist, in November 2014.

Ms O’Neill and Dr Lennings were both psychologists retained by an entity described as LSC Psychology. All of these reports were before the Tribunal as reconstituted and whose decision was the subject of the judicial review application the subject of the present appeal.

Section 368 – the first Ground of Appeal

14    The first Ground of Appeal focusses attention upon s 368(1) of the Migration Act 1958 (Cth) (the “Migration Act”), the reasons provided by the Tribunal and the reasons of the primary Judge.

15    Section 368(1) provides in part as follows:

Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must ... make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

…

(f)    records the day and time the statement is made.

16    The reasons for decision of the Tribunal provide in relevant part as follows:

Has the applicant suffered family violence?

37.    Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevantly family violence. In accordance with the regulation, the Tribunal sought the opinion of an independent expert. On 23 September 2014 the independent expert provided an opinion that the applicant had not suffered relevant family violence.

The Tribunal went on to consider those matters taken into account in the September 2014 report of Dr Lennings and continued:

43.    The applicant further disagreed with the report’s statement that the applicant’s stress was due to his work and studies.

44.    The applicant referred to a website oneinthree.com.au which states that one in three males are victims of family violence.

45.    On 7 November 2014 the migration agent for the applicant submitted a further psychologist’s report from Belal Ali dated 7 November 2014. The report sets out the detail of the alleged family violence. The psychologist considers the applicant suffered relevant family violence.

46.    The migration agent for the applicant submitted comments on the independent expert’s report. The submission alleged bias on the part of the independent expert because he was from the same organisation as the previous expert. The migration agent considered there were cultural reasons to be taken into account in assessing whether there was family violence. He argues that the absence of any change in his expectation about his life such as pursuit of soccer and a Masters of Planning at university and the lack of social, personal and occupational goals is not indicative of the serious want to reconcile, in fact the applicant was blocked from contacting his wife.

47.    The Tribunal is satisfied the independent expert considered the applicant’s cultural circumstances in assessing whether there was a family violence.

17    The same argument as is now advanced on appeal to this Court was considered – and rejected – by the Federal Circuit Court Judge. That Judge concluded:

[30]    This ground is addressed to the implicit requirement in sub-reg.1.23(10)(c) for the Tribunal to consider for itself whether the applicant had suffered relevant family violence. The applicant argued that the Tribunal gave no reasons for its conclusion that it was not satisfied that the applicant had suffered relevant family violence. That much may be accepted. The totality of the Tribunal’s consideration of this matter was set out at [37] of its reasons which is set out at [15] above. The issue is, however, whether anything follows from that.

Reference was then made to the terms of s 368 of the Migration Act and the primary Judge continued:

[32]    The immediate difficulty with the applicant’s submission is that s.368 only operates in respect of the Tribunal’s “decision on a review”. That decision is the decision on the exercise of the Tribunal’s power under s.349 of the Act rather than any anterior procedural matter made in the course of the conduct of the review. For that reason, in my view, s.368 has no application to the determination by the Tribunal under sub-reg.1.23(10)(c) …

[33]    In any event, I am bound by authority to find that the Tribunal is not obliged expressly to state its lack of satisfaction (or, necessarily, the reasons for it) prior to the referral of the matter to an independent expert assessment or indeed at all: Hadchity v Minister for Immigration & Citizenship (2010) 266 ALR 579 at 583 [20]; Kocakaya v Minister for Immigration & Citizenship [2013] FCA 55 at [29].

Concurrence is expressed with the conclusion reached by the primary Judge.

18    In Hadchity v Minister for Immigration and Citizenship [2010] FCA 144, (2010) 266 ALR 579 there were again two Tribunal decisions. In the first decision the Tribunal had not expressed its lack of satisfaction that the appellant in that proceeding had suffered domestic violence. The second Tribunal in its reasons for decision (at para [78]) recorded that “the Tribunal was not satisfied that the alleged victim had suffered relevant domestic violence…”. It was contended that the independent expert’s report in that case which had been obtained by the first Tribunal had been “invalidly obtained”. The argument was rejected. In doing so, Edmonds J concluded:

[20]    … The inference is well and truly open from the fact that the tribunal referred the matter to Centrelink on 21 or 25 February 2008, that the tribunal was not satisfied that the appellant had suffered domestic violence. The fact that it did not express that lack of satisfaction in its reasons is not to the point; it was under no obligation to record its lack of satisfaction either in its reasons or elsewhere. Moreover, since by the time the tribunal came to deliver its first decision and reasons, the tribunal understood, on the basis of the Full Court’s decision in Sok, that the domestic violence claim was not able to be considered, there was no reason to expect the tribunal’s lack of satisfaction to be recorded in those reasons. I would conclude, and so find, that what occurred is precisely as set out in [78] of the tribunal’s second decision. In the face of that conclusion, the contention that the opinion of the independent expert obtained prior to the quashing of the first decision was invalidly obtained, cannot be sustained.

This conclusion has since been applied in Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55 at [29] per Dodds-Streeton J.

19    It is not understood that any submission was advanced before the primary Judge that either decision of Hadchity or Kocakaya was incorrect and should not be followed or that either decision was distinguishable from the facts of relevance to Mr Gounder. As he appeared before this Court unrepresented, it is perhaps unsurprising that Mr Gounder advanced no such submission to this Court.

20    Notwithstanding these decisions, concern is nevertheless expressed as to the fact that reg 1.23(10)(c)(ii) provides that such a report “must” be taken “to be correct”. That provision would seem, initially at least, to provide limited scope for a person to question the decision-making process – once a decision has been made that the decision-maker is “not satisfied that the alleged victim has suffered the relevant family violence”, the alleged victim confronts the prospect of an independent expert forming an adverse “opinion”, and an adverse “opinion” which furthermore must be taken “to be correct”. That limited scope for review may not adequately be addressed either by the prospect of:

    seeking judicial review of the delegate’s decision (or the Tribunal’s decision) that it is “not satisfied that the alleged victim has suffered the relevant family violence” – such an application being made prior to any independent expert’s opinion being obtained. If reliable and credible information is provided to (for example) the delegate such that no “reasonable” decision could thereafter be reached other than that the alleged victim has in fact been the victim of family violence, a decision seeking the view of an independent expert may be open to judicial scrutiny; or

    seeking to persuade the delegate (or the Tribunal, as happened in the present case) that the independent expert should consider further materials and should be invited to express a reconsidered opinion upon which reg 1.23(10)(c)(ii) would then operate.

Such concern as is expressed is only given added impetus if the conclusion of Edmonds J and Dodds-Streeton J be correct, namely that reasons need not be provided for reaching the state of “satisfaction” that an opinion from an independent expert should be obtained. Further reason for concern may perhaps arise if:

    there is reason to question the information and materials provided to the independent expert – although reliance can be placed upon both the independence and the expertise of the professional person consulted, the potential cannot be discounted for the expert to be influenced by (for example) prejudicial and misleading information that has been provided, presumably with the intent that the expert’s opinion could thereby be better “informed”.

The greater the potential for unfairness in the decision-making process, the greater may be the reason to query whether the phrase employed in s 368(1) – namely a “decision on review” – may need further consideration. The more narrowly may be confined the statutory requirement to provide reasons, the greater may be the difficulties in exposing legal error in the manner in which the delegate (or the Tribunal) reached its state of “satisfaction” that an independent expert’s report should be obtained. Even in the absence of a statutory requirement to provide reasons it must nevertheless be recognised that upon a “full consideration” of the materials before a decision-maker, a conclusion may be reached that the decision is “capable of explanation only on the ground of some … misconception”: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360 per Dixon J.

21    For present purposes, however, such reservations may be placed to one side. No question as to the correctness of the decisions of Edmonds J or Dodds-Streeton J was apparently advanced before the primary Judge. It is too late for such misgivings as have now been expressed to be resolved, especially in circumstances where the Respondent Minister had no reason to question the correctness of those two earlier decisions prior to the present hearing. Nor can any view now be reached that those decisions are clearly incorrect such that they should not now be followed and applied.

22    Ground 1(a) is thus rejected. To the extent that Ground 1(b) may seek to go beyond any argument as to the application of s 368(1) and seek to contend that the conclusion was not “reasonable”, that separate contention is also rejected. Given the conclusions expressed by Ms O’Neill and Dr Lennings and the terms of reg 1.23(10)(c)(ii), the argument cannot prevail.

The specification of one organisation – Ground 2

23    The second Ground of Appeal focusses attention upon the Legislative Instrument made by the Minister for the purposes of regs 1.21 and 1.23(13)(b), and the retention of Ms O’Neill and Dr Lennings as “independent experts”.

24    The Legislative Instrument in question, described as IMMI 13/023, was made by the then Minister on 19 March 2013 and provided as follows:

I, BRENDAN O’CONNOR, Minister for Immigration and Citizenship …

REVOKE Instrument number IMMI 05/064, signed on 22 June 2005, specifying Centrelink as an organisation for the purposes of the definition of independent expert in regulation 1.21 of the Regulation; AND

SPECIFY the Department of Human Services as an organisation for the purposes of the definition of independent expert in regulation 1.21 of the Regulations in relation to claims of family violence referred to the independent expert prior to the commencement of this Instrument; AND

SPECIFY LSC Psychology as an organisation for the purposes of the definition of independent expert in regulation 1.21 of the Regulations in relation to claims of family violence referred to the independent expert on or after commencement of this Instrument.

This Instrument, IMMI 13/023, commences on the day after registration on the Federal Register of Legislative Instruments.

IMMI 13/023 was registered on 2 April 2013.

25    The second Ground of Appeal permits of some ambiguity.

26    There can be no doubt that the Legislative Instrument only “specifies” one organisation – namely, LSC Psychology. Such was the conclusion of the Federal Circuit Court Judge: [2015] FCCA 1658 at [39].

27    The content or application of “the principles of procedural fairness” as referred to in the second Ground of Appeal remained obscure. Informed by reference to the manner in which the argument was advanced before the Federal Circuit Court, it is understood that Mr Gounder wishes to contend that it was procedurally unfair for a further independent expert report (i.e., the report of Dr Lennings) to be obtained from the same organisation of which Ms O’Neill was a member (i.e., LSC Psychology).

28    The two answers previously provided by the Federal Circuit Court Judge are correct, namely:

    in the absence of any organisation being specified in a Legislative Instrument other than LSC Psychology, a further report necessarily had to be obtained from that same organisation; and

    there was in any event no foundation for a reasonable apprehension of bias that Dr Lennings would provide anything other than an “independent” and “expert” opinion.

Even leaving aside the fact that both psychologists were retained by LSC Psychology, the mere fact that two reports are obtained from the same source would not of itself give rise to any reasonable apprehension of bias. Nor is there any reason to question the independence of the report prepared by Dr Lennings. His report provides an account of the matters he took into account and, albeit briefly, his reasons for his conclusion. There is no reason to suspect that Dr Lennings in preparing his report was improperly or unfairly influenced by the reasons provided by Ms O’Neill. Left unexplained was why a reasonable apprehension of bias should arise by reason of Dr Lennings being provided with the “opinion” adverse to the interests of Mr Gounder any more or less “influenced” by the materials provided to him from Dr Way or Ms Sutton.

29    Ground 2 is rejected.

The prospect of influence – Ground 3

30    The final Ground of Appeal overlaps with the second Ground.

31    It, too, should be rejected.

32    Again informed by reference to the manner in which the case was argued before the Federal Circuit Court Judge, it is understood that Mr Gounder seeks to contend that the opinion of Dr Lennings may have been “influenced or affected” by:

    being provided with the earlier opinions of Ms O’Neill; and/or

    not being informed of the reasons why the decision of the Tribunal in January 2014 was set aside and the reasons why it was necessary for a Tribunal to look at the matter afresh.

The former argument has been rejected.

33    There is no factual substance in the latter argument. The materials provided to Dr Lennings included a copy of the orders made by the Federal Circuit Court in May 2014 and the note in those orders as to the concession made on behalf of the Respondent Minister regarding jurisdictional error by reason of a failure to afford procedural fairness with respect to the report of Ms O’Neill.

CONCLUSIONS

34    The fact that Mr Gounder appeared before this Court unrepresented posed some difficulty. He was not able to provide any real assistance beyond emphasising the potential unfairness occasioned by the fact that Ms O’Neill and Dr Lennings were both members of LSC Psychology.

35    But it is not considered that this difficulty occasioned him any prejudice.

36    The reasons for decision of the primary Judge outline in sufficient detail the manner in which Counsel then appearing for Mr Gounder advanced his arguments before the Federal Circuit Court. And Mr Gounder informed this Court that the Notice of Appeal had been drafted by his former legal representatives.

37    Taking into account both the terms in which the Notice of Appeal was drafted, the reasons for decision of the primary Judge and the submissions advanced on behalf of the Respondent Minister, it is considered that Mr Grounder’s arguments have each been addressed.

38    None of the Grounds of Appeal prevail.

39    The appeal should be dismissed. There is no reason why costs should not follow the event.

40    The name of the Second Respondent, presently named as the Migration Review Tribunal, should be amended to the Administrative Appeals Tribunal following the amalgamation of tribunals effected on 1 July 2015.

THE ORDERS OF THE COURT ARE:

1.    The name of the Second Respondent is changed to Administrative Appeals Tribunal.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    24 December 2015