FEDERAL COURT OF AUSTRALIA

Perez v Minister for Immigration and Border Protection [2017] FCAFC 180

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 3 and 4 made by the Federal Circuit Court of Australia on 20 July 2017 be set aside.

3.    The decision of the Administrative Appeals Tribunal affirming the decision under review dated 11 December 2015 be set aside.

4.    The application for review received by the Administrative Appeals Tribunal on 31 October 2013 be remitted to the Tribunal to be determined in accordance with law.

5.    The first respondent pay the appellant’s costs of the appeal and of the application to the Federal Circuit Court of Australia, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Summary of conclusions

1    This appeal should be allowed. The independent expert misconceived the statutory requirements which applied to the question she had to answer which was whether the appellant has suffered family violence. As a result the independent expert wrongly excluded from her consideration the appellant’s claims relating to the period after the appellant’s relationship with her husband had ended. This constitutes jurisdictional error vitiating the decision of the Administrative Appeals Tribunal to affirm the decision under review refusing the appellant a partner visa. The Federal Circuit Court erred in concluding to the contrary and in dismissing the appellant’s application for an order that the Tribunal’s decision be quashed.

The statutory scheme

2    For a person to obtain a partner visa the person must satisfy certain criteria which includes being the spouse of a person who is a “sponsoring spouse” (cl 100.221 of Sch 2 to the Migration Regulations 1994 (Cth). This criterion need not be satisfied, however, if the relationship between the person and the sponsoring spouse has ceased and, relevantly, the person “has suffered family violence committed by the sponsoring spouse” (cl 100,221(4)(b) and (c) of Sch 2 to the Regulations).

3    Division 1.5 of the Regulations contains the scheme for determining whether a person has suffered family violence committed by the sponsoring spouse. Clause 1.21 defines relevant concepts including “independent expert” (a person suitably qualified to make independent assessments of “non-judicially determined claims of family violence”), “non-judicially determined claims of family violence”, “relevant family violence”, and “violence”. “Relevant family violence” depends on actual or threatened violence “that causes the alleged victim to reasonably fear, or to be reasonably apprehensive about, his or her own wellbeing or safety”.

4    By cl 1.23(10) of the Regulations if the Minister is not satisfied that the alleged victim claiming non-judicially determined family violence has suffered family violence the Minister must seek the opinion of an independent expert “about whether the alleged victim has suffered the relevant family violence”. The Minister must take the independent expert’s opinion to be correct in deciding whether the alleged victim satisfies the criteria for a visa.

5    By cl 1.23(13) of the Regulations the alleged victim is taken to have suffered family violence if the visa application includes a non-judicially determined family violence claim and the Minister is required to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

6    By cl 1.23(14) “the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed”. This requirement was introduced by the Migration Amendment Regulations 2009 (Cth). Before this, as established in Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24; (2010) 183 FCR 170 at [34], it did not matter if the violence occurred during the relationship or after it ceased.

The independent expert’s opinion

7    The Tribunal referred the appellant’s claim of non-judicially determined family violence to an independent expert. The appellant claimed family violence including four incidents of physical violence between September 2011 and 5 July 2012, and threats and verbal abuse by her husband communicated to her via the landlord on 14 July 2012 after the relationship ceased.

8    The independent expert completed her assessment using a standardised form. It is apparent that the independent expert considered that the appellant was unclear about the date on which the appellant’s relationship ended, referring to the dates of both June 2012 and 5 July 2012.

9    We are satisfied that the independent expert formed her opinion based on the incorrect belief that the only relevant family violence was that which occurred during the relationship. As a result the independent expert excluded from her consideration the claims of threats and verbal abuse communicated to the appellant after the relationship ceased and, in our view, the physical violence claimed to have occurred on 5 July 2012, despite the uncertainty about the date on which the relationship ended. Accordingly, the opinion of the independent expert was based on a misunderstanding of the statutory question. The correct question was whether the appellant had suffered family violence the whole or part or of which occurred during the relationship. The independent expert, however, asked only whether the appellant had suffered family violence during the relationship. A misunderstanding of the statutory task of this kind involves jurisdictional error. As explained in Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 at [66]-[69], an opinion which a law requires to be formed, is an opinion formed in accordance with law. Where the opinion is not such an opinion, a decision founded upon the opinion is itself not a decision in law.

10    There are a number of reasons why the inference of error must be drawn.

11    Under the heading “Physical Abuse Allegations” the independent expert identified three claims of physical abuse ending with an incident in April 2012. As noted, the appellant claimed four incidents of physical violence, the last being on 5 July 2012.

12    Under the heading “Financial Abuse Allegations” the independent expert referred to the husband’s visit to the family home on 5 July 2012 but in so doing did not mention the allegation of physical violence on that occasion which led to the appellant reporting her husband to the police.

13    In a summary table describing the incidents the independent expert said that the appellant “made reference to three examples of alleged physical abuse that occurred in September 2011, October 2011 and April 2012”. Again, as noted, the appellant claimed four incidents of physical violence, the last being on 5 July 2012.

14    In discussing another psychological assessment of the appellant which was conducted in September 2013 the independent expert noted that the appellant had answered yes to the question “In the last year, has your partner hit, kicked, punched or otherwise hurt you?” The independent expert said that as the relationship had ended in June 2012 “it would be impossible to have experienced the above in the last one year from the date of testing”. This observation is incorrect if it is possible, as it is, for family violence within the meaning of the Regulations, to occur after the relationship has ceased.

15    In discussing the same psychological assessment the independent expert referred to the appellant feeling afraid of her husband after the relationship ended (which might be in reference to the threats and abuse said to have been communicated to the appellant on 14 July 2012) but then said “…although these examples fall outside the scope of ‘family violence’ within the migration regulations as such examples need to have occurred whilst in the relationship”. While the Minister did his best to explain away this statement it is incapable of bearing any meaning other than that the independent expert proceeded on the incorrect basis that only incidents which occurred during the relationship were capable of constituting relevant family violence.

16    The Minister otherwise submitted that even if the independent expert misunderstood the law, she nevertheless considered all of the appellant’s claims, referring to various statements such as the giving of “little weight” to the other psychological assessment, the appellant’s “overall” account, and the appellant not experiencing a reasonable level of fear or apprehension throughout the relationship or as a result of the examples she provided”. The problem is that these references are insufficient to counter the clear statement that the claims of incidents after the relationship ended “fall outside the scope of ‘family violence’ within the migration regulations as such examples need to have occurred whilst in the relationship”, the fact that there is no mention in the independent expert’s reasons of the alleged physical violence on 5 July 2012, and the dismissal of the appellant’s fear resulting from events after the relationship ended as irrelevant.

17    For these reasons grounds 3 and 4 of the appeal, concerning the independent expert’s misconstruction of the Regulations and failure to consider the incidents that occurred after the relationship ended, must be allowed.

18    Ground 5 alleges a failure on the part of the independent expert to ask the appellant about the incidents on and after 5 July 2012. This ground is misconceived. The independent expert was not bound to ask the appellant about events.

19    Grounds 1 and 2 also must be rejected. Ground 1 alleges that the independent expert failed to consider the cumulative effect of the whole of the material and instead considered only the appellant’s fear or apprehension about each individual incident. Ground 2 alleges that the independent expert imposed a requirement that an incident directly cause reasonable fear or apprehension and refused to countenance that the incidents might have indirectly caused reasonable fear or apprehension. Neither ground finds traction in the reasons of the independent expert. As the Minister submitted, it is for the independent expert alone to form an opinion whether the alleged victim has suffered family violence. Provided the independent expert’s opinion is an opinion formed in accordance with law, the way in which the opinion is formed and the opinion itself are matters for the expert, not the courts. The fact that independent expert identified each incident (as the standardised from required) does not mean that the expert failed to consider the cumulative effect of the material as a whole. Subject to the fact that, in the present case, the independent expert wrongly confined her opinion to incidents occurring during the relationship, it is apparent from the references on which the Minister relied that the independent expert evaluated the cumulative effect of the material. Further, the independent expert did not impose any particular requirement of causation, whether the label be direct or indirect. The independent expert, referring to the incidents which occurred during the relationship (which is the jurisdictional error in this case), concluded that the appellant’s fear and apprehension were caused by the end of the relationship, and not by the incidents of violence. This opinion cannot stand because the independent expert wrongly formed this opinion without considering the events occurring after the relationship ended, but the independent expert did not err in her approach to causation. The reason that the opinion cannot stand is that it is not possible to conclude that the error was immaterial. It is possible that if the independent expert had considered the events occurring after the relationship ended, the independent expert may have formed a different opinion that the appellant had suffered family violence.

20    It follows that the appeal must be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for determination in accordance with law. The appellant should be granted an order for costs.

Associate:

Dated:    24 November 2017