FEDERAL COURT OF AUSTRALIA

Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55

THE COURT ORDERS THAT:

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

REASONS FOR JUDGMENT

Introduction

1    By a notice of appeal dated 10 September 2012, the appellant appeals from a decision of a Federal Magistrate who, on 21 August 2012, dismissed his application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).

2    The appellant is a Turkish citizen who arrived in Australia on 30 June 2008. He was sponsored by his former spouse on a spouse (provisional) visa (subclass 309). On 30 September 2009, the Department of Immigration and Citizenship (“the Department”) wrote to the appellant requesting evidence in support of his permanent spouse (subclass 100) visa application, and the appellant made submissions in response. On 18 November 2010, the appellant applied for a permanent spouse visa under the family violence provisions of the Migration Regulations 1994 (Cth) (“the Regulations”). On 2 February 2011, a delegate of the first respondent refused his application for the visa, finding that the appellant’s relationship with his sponsor had ceased and family violence by the nominating spouse was not established.

3    On 14 February 2011, the appellant applied to the Tribunal for a review of the delegate’s decision. On 10 November 2011, the Tribunal affirmed the delegate’s decision.

Relevant REGULATIONS

4    The “family violence” provisions of the Regulations relevant to the present case were summarised by the Tribunal as follows at [6]-[13] of its reasons for decision:

6.    At the time the visa application was lodged, the Partner (Migrant) (Class BC) visa class contained the following subclasses: 100 (Spouse) and 110 (Interdependency). The only subclass in respect of which any claims have been advanced is Subclass 100. There is no evidence to suggest that the applicant meets key criteria for the other subclass.

7.    To be granted a Subclass 100 visa, the applicant must meet, at the time of decision, one of the alternate requirements of either cl.100.221(2), (2A), (3), (4) or (4A) of Schedule 2 to the Regulations: cl.100.221(1). If the relationship with the sponsoring spouse / partner (the sponsor) has ceased, an applicant may still satisfy a criterion for the grant of this class of visa if, since arriving in Australia, the applicant, or a member of the family unit of the sponsor or of the applicant or both of them has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i).

8.    Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r. 1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r. 1.23 to have suffered or committed family violence. Under r.1.23 a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non judicially determined claim and either the Minister is satisfied that the alleged victim has suffered family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. In cases where family violence is alleged, the Tribunal may exercise all of the powers and discretions conferred by Division 1.5 of the Regulations on the Minister to determine whether a person is taken, under r.1.23, to have suffered or committed family violence: Sok v MIAC (2008) 238 CLR 251. Accordingly, a claim of family violence for the purposes of r.1.23(1) can be made either to the Minister or Tribunal on review.

9.    The violence, or part of the violence, that led to the granting of the court tested evidence must have occurred while the spousal or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator: r.1.23(3), (5) and (7).

10.    A visa application is taken to include a non-judicially determined claim of family violence where the applicant seeks to satisfy a prescribed criterion that the applicant or another relevant person has suffered family violence and either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided: r.1.23(8) or (9).

11.    The evidence referred to in r.1.24 is a statutory declaration under r.1.25 together with either a statutory declaration under r.1.26 by a ‘competent person’ and copy of a record of assault; or two statutory declarations under r.1.26 by competent persons who hold different qualifications. For the purposes of Division 1.5, statutory declaration is defined in r.1.21 as a statutory declaration under the Statutory Declarations Act 1959.

12    Pursuant to r.1.25(1) a statutory declaration must be made by the spouse or interdependent partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and, if the conduct was not towards the alleged victim, name the person whom the conduct was towards and identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards as required by r.1.25(2). If the spouse or partner makes a statutory declaration in accordance with r.1.25(3) alleging that family violence has occurred to another person, the statutory declaration must:

•    name the person alleged to be the victim of family violence

•    set out the allegation of family violence

•    identify the relationship of the maker of the statutory declaration to the alleged victim

•    name the person alleged to have committed the relevant family violence; and if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

•    name the person whom the conduct of the alleged perpetrator was towards; and

•    identify the relationship between the alleged victim and the person whom the conduct was towards; and

•    identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and

•    set out the evidence on which the allegation was based.

13    A statutory declaration by a competent person under r.1.26 must: be made by a competent person; set out the basis of the competent person's claim to be a competent person for the purposes of Division 1.5 of the Regulations; state that in the competent person's opinion, relevant family violence has been suffered by a person; name the person who in the opinion of the competent person has suffered that relevant family violence; name the person who in the opinion of the competent person committed that relevant family violence; if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim, name the person whom the conduct of the alleged perpetrator was towards; and identify the relationship between the alleged victim and the person whom the conduct was towards; and set out the evidence on which the competent person's opinion is based.

application to The tribunal

The Tribunal Hearing

5    In a letter to the Department dated 18 November 2010 and in a statutory declaration dated 13 December 2010, the appellant claimed that his wife had abused and tortured him during their marriage. On 20 December 2010, the appellant provided statutory declarations from a medical practitioner and a welfare coordinator. On 30 May 2011, the appellant provided to the Tribunal the statutory declaration of a psychologist.

6    On 21 July 2011, the appellant gave evidence at the Tribunal hearing.

7    Before the Tribunal, the appellant claimed to have suffered family violence at the hands of his spouse who had sponsored him. He claimed that his wife was verbally abusive to him, causing him stress, pain and depression because she blamed him for her failure to lose weight. He claimed that she hit him on two occasions and subsequently threw him out of the house, after which he stayed for a time in her grandparents’ house and then with her uncle. The appellant claimed that on several occasions, his wife had been violent towards him, by throwing a shoe at him, hitting him with a vacuum cleaner handle, and pulling his hair. He claimed that his wife, with a look that made him fear for his safety, threatened to have her friends from New Zealand “belt him up” and to cut him. The appellant claimed that although his wife ejected him from the house in late 2008, their relationship ended only when they stopped seeing each other in April 2010.

8    The appellant claimed that he spoke about his marriage problems with two family friends, Dr Uluca and Mr Yargi (a Public Officer at Australia Light Foundation). Mr Yargi, in a statutory declaration dated 20 December 2010 stated that the appellant had informed him of the threats of violence, verbal abuse, torture, threat of life and well being. Dr Uluca, in a statutory declaration dated 14 December 2010, stated that the appellant had told him of his wife’s verbal abuse and torture between September 2008 and January 2009.

9    The appellant claimed that Dr Uluca had given him friendly advice, although he did not consult him at his surgery. Dr Uluca provided the statutory declaration to the Department after the appellant reminded him of their conversations about the difficulties in the appellant’s marriage.

10    The appellant subsequently provided a statutory declaration dated 19 May 2011 by a psychologist, Mr Kleynhans, who stated that in his opinion, the appellant had suffered family violence at the hands of his spouse.

Independent expert

11    During the hearing, the Tribunal explained that it might refer to an expert for an assessment of the appellant’s family violence claims.

12    On 30 August 2011, the Tribunal sought the opinion of an independent expert about whether the appellant had suffered relevant family violence.

13    On 7 October 2011, an independent expert provided an opinion that the appellant had not experienced relevant family violence.

14    On 12 October 2011, the Tribunal provided the appellant with a copy of the expert report and invited him to comment on it. The appellant provided his comments by a letter dated 21 October 2011.

The Tribunal’s reasons

15    In its reasons, the Tribunal set out the regulations applicable to the case at [6]-[13].

16    The Tribunal discussed the definition of “competent person” and stated at [15]-[16]:

15    Where the requisite evidence is provided and the Tribunal is satisfied that the alleged victim has suffered relevant family violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence for the purposes of the relevant criterion: r.1.23(1). This however is subject to the proviso that the relevant violence has occurred while the spousal or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator: r.1.23(12).

16.    Where the Tribunal is not satisfied that the alleged victim has suffered family violence despite the provision of the requisite evidence and any evidence and arguments put forward by the applicant, the Tribunal must seek the opinion of an independent expert about whether the alleged victim has suffered family violence: r.1.23(10)(c)(i). The Tribunal must take as correct the opinion of the expert as to whether the alleged victim has suffered family violence: r.1.23(10)(c)(ii). If the opinion is that the alleged victim has suffered relevant family violence, the alleged victim is taken to have suffered family violence and the alleged perpetrator is taken to have committed family violence for the purposes of the relevant criterion: r.1.23(1). As with r.1.23(10)(b), however, this is subject to the requirement that the violence, or part of the violence, that led to the independent expert's opinion must have occurred while the spousal or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator: r.1.23(14).

17    The Tribunal stated that it was satisfied that the appellant had been in a spousal relationship with the sponsor, which had ceased. The Tribunal was also satisfied that the statutory declarations of Dr Uluca and Mr Kleynhans complied with reg 1.26(a)-(g) of the Regulations. However, the Tribunal had not been satisfied that the appellant had suffered relevant family violence, finding that he did not meet the requirements of reg 1.23(1)(f). Accordingly, the Tribunal sought advice from an independent expert. It then put to the appellant for further comment or response, the expert’s opinion that the appellant had not suffered relevant family violence. The Tribunal found, under reg 1.23(13), that the appellant was taken not to have suffered family violence, and, as such, he did not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa.

APPLICATION TO federal magistrateS COURT

18    In his application to the Federal Magistrates Court filed on 13 December 2011, the appellant relied upon the following grounds:

(1)    The Tribunal has breached Section 368 of the Migration Act in that by saying that it had considered all of the evidence before it and not referring to the evidence on which our findings of a fact were based.

(2)    The Tribunal has breached Section 368 of the Act by its failure to provide reasons for the decision.

(3)    The Tribunal has incorrectly interpreted Section 359A of the Act by giving notice to the Applicant pursuant to that Section.

(4)    The Tribunal has breach Regulation 1.23(2) by its failure to ask of the Applicant all of the questions that the Tribunal is to ask to reach the state of satisfaction.

(5)    The Tribunal was in error in seeking the opinion of an independent expert before it reached the state of satisfaction thereby abdicating its powers but also giving information to the independent expert which was not correct.

(6)    The Tribunal has failed to set parameters for the expert to reach an opinion.

(7)    The Tribunal has failed to interpret the provisions of Division 1.5 of the Regulations correctly.

19    The Federal Magistrate found there was no relationship between reg 1.26(f) and s 368 of the Migration Act 1958 (Cth) (“the Act”), and was not satisfied that the Tribunal had breached its obligations under s 368. The Federal Magistrate consequently found that grounds 1 and 2 were not made out.

20    Noting that there were no submissions under ground 3, the Federal Magistrate found that it lacked foundation, as the conduct of the Tribunal did not reveal jurisdictional error. Ground 3 was accordingly dismissed. Similarly, his Honour found that grounds 6 and 7 were not supported by submissions and were not made out. His Honour dismissed grounds 4 and 5, finding that the Tribunal hearing was a genuine hearing, that the appellant was given every opportunity to present his claims, and the Tribunal had not predetermined that the matter would be referred to an independent expert, but rather, reached the conclusion only after all of the appellant’s claims and evidence had been considered. Under ground 4, his Honour observed that reg 1.23(2) did not apply, as it related to family violence where a court has granted an injunction under the Family Law Act 1975 (Cth). He observed that accordingly, the Tribunal was not obliged to ask questions under reg 1.23(2), and no jurisdictional error was made out. The Federal Magistrate accepted that although the independent report and the Tribunal’s reasons incorrectly referred to reg 1.23(1B)(b) (which reflected the Regulations prior to the amendment in 2009) that merely misdescribed the number of the regulation and that there was no basis to find that the expert or the Tribunal asked themselves the wrong question. Consequently, the Federal Magistrate found that jurisdictional error was not established.

21    His Honour dismissed the application with costs.

the appeal

22    The appellant’s notice of appeal set out seven grounds of appeal which largely replicated those before the Federal Magistrate, but added particulars to ground 1.

GROUNDS 1 and 2

23    Grounds 1 and 2 are conveniently considered together. They state:

1.    The Tribunal has breached Section 368 of the Migration Act in that by saying that it had considered all of the evidence before it and not referring to the evidence on which our findings of fact were based.

a.    The Regulations may have been misquoted by the learned Magistrate (1.26(f) instead of 1.26(g)). Be that as it may there is no reasons advance as to why the learned Federal Magistrate says in paragraph 28 “In my view, there is no relationship between 1.26(f) and Section 368 of Act”. (paragraph 28 of the Judgment);

b.    The Learned Federal Magistrate was in error when he said that the decisions of Ryan J has no application to this case particularly in what Justice Ryan says in Kozel’s case when he says among other things “ the Tribunal is therefore bound to objectively examine the evidence set out in the statutory declarations and whether the statutory declarations filed comply with Regulation 1.26(f) which states that the competent person’s statutory declaration must set out the evidence on which the competent person’s opinion is based”.

c.    The decision in [Hadchity] does not detract from the first ground of review.

2.    The Tribunal has breached Section 38 (sic) of the Act by its failure to provide reasons for the decision.

24    Section 368 of the Act states:

368    Tribunal to record its decisions etc.

(1)    Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), prepare a written statement that:

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

(b)    sets out the reasons for the decision;

(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.

(2)    A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

(3)    Where the Tribunal has prepared the written statement, the Tribunal shall:

(a)    return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)    give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

25    Regulations 1.26(f) and (g) of the Regulations state:

1.26    Statutory declaration by competent person.

A statutory declaration under this regulation:

(f)    if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

(i)    must name the person whom the conduct of the alleged perpetrator was towards; and

(ii)    must identify the relationship between the alleged victim and the person whom the conduct was towards; and

(g)    must set out the evidence on which the competent person’s opinion is based.

26    The appellant complained that the Tribunal failed to specify “all of the evidence before it” and thereby committed a jurisdictional error when it stated in its reasons at [91]:

After considering all of the evidence before it, including the evidence of a non-judicially determined claim of family violence before the Tribunal, the Tribunal was not satisfied that the alleged victim has suffered relevant family violence.

27    The appellant referred, in this context, to [28] and [29] of the Federal Magistrate’s reasons, which state:

[28]    In my view, the authorities relied on by Mr Fernandez do not support his basic contention. Those authorities refer to the need for the statutory declarations to comply with the apposite regulations and in particular there needs to be set out in the declarations the evidence upon which the opinion expressed by the competent person is based. In my view, r.1.26(f) casts an obligation upon the deponent in relation to the quality of the evidence that is relied upon for the purpose of forming the opinion which in turn would attract the jurisdiction to consider a claim of family violence. The obligation is cast on the deponent. In my view, there is no relationship between r.1.26(f) and s.368 of the Act.

[29]    As I understand Mr Fernandez’s contention, he relies on the two decisions of Ryan J as a basis for founding the proposition that the Tribunal has some additional obligation to give reasons in relation to the evidence that is relied upon for the purpose of raising a claim of family violence, and attracting the Tribunal’s jurisdiction to determine such a claim. This, in my view, is misconceived. As stated, Ryan J’s decisions in Meroka and Kozel are directed at a different point, and that point is to what extent is the Tribunal entitled to go behind the findings of the independent expert? I am confident that that is what those two cases are concerned with and they do not form an authority for the proposition that the Tribunal has an obligation to set out evidence in relation to r 1.26(f). The obligation that Mr Fernandez kept coming back to, that is the obligation to set out the evidence on which the competent person’s opinion is based, is merely an attempt to transpose r 1.26(f), which is an obligation cast on the deponent, onto the Tribunal where such is clearly in my view not the legislative intention.

28    On appeal, the appellant alleged that his Honour erred in stating the above. The appellant reiterated, as I understood his primary argument, that s 368 obliged the Tribunal to refer to “all the evidence” and give reasons for why it was not satisfied that the appellant had suffered family violence before referring the matter to an independent expert. The contention and its basis were unclear, although as the Federal Magistrate observed, the appellant appeared to transpose the obligation on deponents under reg 1.26(f) onto the Tribunal.

29    In my opinion, the appellant’s allegation was unfounded. 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 for assessment. In Hadchity v Minister for Immigration and Citizenship [2010] FCA 144 (“Hadchity”) at [20] Edmonds J considered the circumstances in which the Tribunal could obtain an independent expert’s opinion. In Hadchity, the appellant submitted that because the Tribunal’s reasons failed expressly to state that it was not satisfied that he had suffered domestic violence, there was no lawful basis for referral to an independent expert. Edmonds J rejected that contention. His Honour stated:

I cannot agree. 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.

30    The appellant also complained that it was unclear whether a number of pages of transcript of the Tribunal’s interview of the appellant on 21 July 2011 were provided to the independent expert for his opinion and if so, alleged that the Tribunal erred in failing to consider the information itself before reaching the requisite state of satisfaction. The appellant also complained that the Tribunal’s statement at [93] that “[t]he Tribunal has had regard to the [appellant’s] response” disclosed error, but did not amplify the allegation. Those complaints did not constitute grounds of appeal, and were, in any event, uncertain and unclear.

31    In my opinion, as the first respondent submitted, the Tribunal complied with s 368 of the Act. It recorded its findings on material questions of fact and set out its reasons for reaching its decision (Minister for Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [1], [34], [68] and [217]). The Tribunal was not obliged to provide a line-by-line refutation of the appellant’s claims (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [65] per McHugh J).

32    As the Federal Magistrate stated, there is no relationship between reg 1.26(f) and s 368 of the Act, and therefore, Kozel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 181; [2004] FCA 658 (where Ryan J considered whether the Tribunal had erred about whether a competent person had “set out” the evidence for the purposes of reg 1.26(f) (Kozel at [45])) was not relevant. His Honour did not err as alleged.

33    Grounds 1 and 2 are not established.

GROUND 3

34    Ground 3 of the notice of appeal states:

The Tribunal has incorrectly interpreted Section 359A of the Act by giving notice to the Applicant pursuant to that Section.

35    Section 359A of the Act 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

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

36    The obligation under s 359A of the Act to give an applicant written clear particulars of any reason the Tribunal considers would be the reason or part of the reason for affirming the decision under review, is expressed in mandatory terms but is subject to the exceptions in subsections (3) and (4).

37    In this case, reg 1.23(10)(c) required the Tribunal to seek the opinion of an independent expert about whether the alleged victim had suffered relevant family violence and take the opinion as correct. As the independent expert’s finding that the appellant had not suffered relevant family violence may have formed the reason, or part thereof, for affirming the decision under review, the obligation under s 359A arose. It was satisfied, however, by the Tribunal’s letter to the appellant dated 12 October 2011. The letter stated that the Tribunal had referred the appellant’s claims to an independent expert, who had formed the view that he had not suffered relevant family violence. The letter stated that the Tribunal must take the expert opinion as correct and if it relied on the expert opinion, might affirm the Department’s refusal to grant the visa. The Tribunal enclosed a copy of the opinion and invited the appellant to comment or respond to the information in writing.

38    In reaching its decision, the Tribunal had regard to the appellant’s response to its invitation.

39    Accordingly, jurisdictional error was not established. Ground 3 was not made out.

Ground 4

40    Ground 4 of the notice of appeal states:

The Tribunal has breached Regulation 1.23(2) by its failure to ask of the Applicant all of the questions that the Tribunal is to ask to reach the state of satisfaction.

41    Regulation 1.23(2) stated:

1.23    When is a person taken to have suffered or committed family violence?

…

(2)    The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

42    As the Federal Magistrate held, reg 1.23(2) was not relevant to this case, as it was not contended, and there was no material before the Tribunal to suggest, that a court had granted an injunction pursuant to the Family Law Act 1975 (Cth). As the first respondent submitted, reg 1.23(2) does not apply to the exercise of power pursuant to reg 1.23(10) of the Regulations. Ground 4 was not made out.

GROUND 5

43    Ground 5 states:

The Tribunal has [sic] was in error in seeking the opinion of an independent expert before it reached the state of satisfaction thereby abdicating its powers but also giving information to the independent expert which was not correct.

44    The appellant’s submissions reiterated the above allegations but did not provide a cogent basis or identify the incorrect information that the Tribunal allegedly failed to provide to the expert.

45    As stated above, the Tribunal was not required to give reasons for why it was not satisfied that the appellant had suffered the relevant family violence at the time the matter was referred to the independent expert (Hadchity at [20] – [21] per Edmonds J).

46    Ground 5 was not made out.

GROUND 6

47    Ground 6 of the notice of appeal states:

The Tribunal has failed to set parameters for the expert to reach an opinion.

48    The appellant did not elaborate or present submissions on ground 6 and I was unable to attribute any clear meaning to it in the context of the appeal.

49    The Regulations did not prescribe any particular means by which the Tribunal must refer a matter to an expert under reg 1.23(10)(c). In this case, the Tribunal provided the expert with an accurate definition of the phrase “family violence”; an accurate record of the appellant’s claims and material before the Tribunal. It apprised the expert of relevant matters in a comprehensive and balanced way. As the first respondent submitted, in such circumstances, the Tribunal sought the expert’s opinion in an appropriate way.

50    Further, although the expert mistakenly referred to the superseded definition of “family violence” in reg 1.23(2)(b) (rather than the current reg 1.21(1)), the minor error had no material effect, as the definitions were in the same terms. The Tribunal, in seeking the expert’s opinion, accurately referred to “family violence” as defined in reg 1.21(1) and set out the regulation correctly.

51    Ground 6 is not established.

GROUND 7

52    Ground 7 of the notice of appeal provides:

The Tribunal has failed to interpret the provisions of Division 1.5 of the Regulations correctly.

53    The appellant did not amplify or present submissions on ground 7.

54    Contrary to the appellant’s claim, there is no basis on which to conclude that the Tribunal failed correctly to interpret, and make its decision in accordance with, the Regulations. The Tribunal set out the correct statutory provision and the legal principles. It recognised that Div 1.5 set out the evidentiary requirements for the claim and the obligation under both reg 1.23(1B)(b) and reg 1.23(10)(c) to refer the matter to an independent expert for assessment if the Tribunal was not satisfied that the alleged victim had suffered relevant family violence.

55    Ground 7 was not established.

Conclusion

56    In my opinion, the appeal should be dismissed.

Associate:

Dated:    6 February 2013