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Wu & Anor v Minister for Immigration & Anor [2011] FMCA 14 (28 January 2011)

Last Updated: 2 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Partner visa – review of Migration Review Tribunal decision – claim of domestic violence – invitation to comment on information under s.359A of the Migration Act 1958 – failure to include confidential information in s.359A notice – nature of Tribunal’s s.359A obligations when matter referred to independent expert for report – Tribunal’s disclosure obligations in relation to confidential information – what documents are supplied by Tribunal to expert – apprehended bias on the part of the Tribunal and the expert – whether Tribunal obliged to consider whether expert’s opinion properly made – failure to consider claim.

Migration Act 1958, ss.5, 352, 357A, 359A, 474
Migration Regulations 1994, regs.1.21, 1.23, 1.24, 1.26, cl.801.221 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56; (2005) 144 FCR 170
Victorino v Minister for Immigration & Citizenship [2007] FMCA 1294; (2007) 214 FLR 228
MZYFH v Minister for Immigration & Citizenship [2010] FCA 559; (2010) 188 FCR 151
SZMNP v Minister for Immigration & Citizenship [2009] FCA 596
Sie Sok v Minister for Immigration & Citizenship [2008] HCA 50; (2008) 238 CLR 251
Minister for Immigration & Citizenship v Kumar (2009) 238 CLR 448
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
SZDTU v Minister for Immigration & Citizenship [2007] FCA 1135
Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115
Silva v Minister for Immigration & Citizenship [2007] FMCA 1955
Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182
Minister for Immigration & Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627
SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79; (2010) 185 FCR 129
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

First Applicant:
HONG WEI WU

Second Applicant:
DI WU

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 325 of 2010

Judgment of:
Cameron FM

Hearing date:
2 June 2010

Date of Last Submission:
15 June 2010

Delivered at:
Sydney

Delivered on:
28 January 2011

REPRESENTATION

Counsel for the Applicant:
Mr N. Poynder

Counsel for the First Respondent:
Ms L. Clegg

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 325 of 2010

HONG WEI WU

First Applicant


DI WU

Second Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicants, who are father and son, are citizens of China. On
    6 September 2002 the first applicant lodged an application for a Partner (Residence) (Class BS) subclass 801 visa. The application was refused by a delegate of the first respondent (“Minister”) on 14 January 2008. The applicants then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
  2. The second applicant was included in the visa application as a member of the first applicant’s family unit. In these reasons, the first applicant will be referred to as “the applicant”.
  3. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants. There was a previous Tribunal decision signed on 2 June 2008 which was later quashed by order of this Court.
  4. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  5. For the reasons which follow, the application will be dismissed.

Relevant law

  1. The applicant’s application for a partner visa is considered to be an application for two separate visas: a Partner (Temporary) (Class UK) subclass 820 visa and a Partner (Residence) (Class BS) subclass 801 visa. The latter visa, which is a permanent visa, is generally not granted until at least two years have passed from the date of lodging the application to ensure that the relevant relationship, on which basis the application is made and the visa granted, is ongoing.
  2. To be granted a subclass 801 visa, an applicant must, at the time of decision, satisfy one of the alternative requirements contained in cl.801.221 of sch.2 to the Migration Regulations 1994 (“Regulations”). Relevantly in this case, cl.801.221(6) provided that an applicant could, even if his or her relationship with the sponsoring spouse had ceased, still satisfy the criteria for the grant of a subclass 801 visa if the applicant or a dependent child of the sponsoring spouse or of the applicant or both of them, had suffered “domestic violence” committed by the sponsoring spouse. Clause 801.221(6) as it stood at the relevant time stated:
  3. Division 1.5 of the Regulations as it was prior to amendments which commenced on 15 October 2007, and which do not apply in this case, set out the substantive provisions and evidentiary requirements applicable to the claim of domestic violence made by the applicant. Relevantly for these proceedings, reg.1.23(1A) provided that an application for a visa is taken to include a “non-judicially determined claim of domestic violence” if:
  4. “Relevant domestic violence” was defined in reg.1.23(2)(b) as follows:

In Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56; (2005) 144 FCR 170 it was held that for the purposes of reg.1.23(2)(b) “violence” is not restricted to physical violence.

  1. The evidence which would satisfy reg.1.23(1A)(b)(ii) was prescribed in reg.1.24 as follows:
  2. Regulation 1.26 provided:
  3. Pursuant to reg.1.23(1B), where an application for a visa included a non-judicially determined claim of domestic violence, the Minister was required to consider whether the alleged victim had suffered relevant domestic violence and
  4. Where the opinion of an independent expert was sought by the Minister, reg.1.23(1C) provided that:

Background facts

Application to the department

  1. As noted earlier in these reasons, the applicant lodged an application for a partner visa on 6 September 2002. On 15 January 2003 he was granted a Partner (Temporary) (Class UK) subclass 820 visa on the basis of his relationship with his then wife and sponsor, Ms Jane Chanell.
  2. On 7 September 2007 Ms Chanell advised the department that she wished to withdraw her sponsorship of the applicant.
  3. By a decision dated 14 January 2008, apparently substituting for a decision dated 22 October 2007 which had been sent to the applicant at an address which was incorrect, a delegate of the Minister refused the applicant’s application for a subclass 801 visa on the basis that the relationship between the applicant and Ms Chanell had ceased and was not therefore genuine or continuing as required by the Regulations. The delegate also found that the applicant did not satisfy any of the criteria under cl.801.221(6) for the grant of a subclass 801 visa, including the provision relating to domestic violence.

Tribunal as first constituted

  1. Following the lodgment of his application for review, the applicant provided to the Tribunal as first constituted a statutory declaration dated 27 May 2008 in which he made the following claims:
    1. he and Ms Chanell were married in August 2002;
    2. their relationship ended in January/February 2007;
    1. he had had monetary problems with Ms Chanell and had been threatened by her and her brother; and
    1. he was seeking permanent residence under the domestic violence provisions because he had been under constant threat from Ms Chanell and her family since the beginning of 2007.
  2. The applicant also provided a statutory declaration dated 21 April 2008 from a psychologist, a Mr Kleynhans, who confirmed that the applicant had been a victim of domestic violence as defined in reg.1.23(2)(b) of the Regulations.
  3. The applicant also gave evidence at a Tribunal hearing on 29 May 2008.

Tribunal as secondly constituted

  1. At a hearing on 28 January 2009 before the Tribunal as secondly constituted, the applicant made the following additional claims:
    1. he and Ms Chanell purchased a property during their marriage. He contributed moneys to buy the property but Ms Chanell told him that his name could not be included on the title as he was not an Australian permanent resident;
    2. they also ran an embroidery factory together. He worked there for five years without pay as Ms Chanell told him that they needed to pay off their mortgage as soon as possible;
    1. during their marriage, Ms Chanell would not allow his young son to stay with them. On one occasion, she tried to stop him from seeing his son and they had a fight in the street. She hit him but told the police that he had hit her;
    1. he had contributed up to $500,000 during the marriage but Ms Chanell told him that he could have no more than $100,000 to $150,000;
    2. Ms Chanell’s brother told the applicant that if he sued for the money he would “get someone from the underworld”. The brother intimidated him on more than one occasion;
    3. Ms Chanell’s brother said that he had lent money to Ms Chanell but demanded that both the applicant and Ms Chanell pay him back;
    4. Ms Chanell withdrew her sponsorship so that he would have to go back to China and would not be able to claim the money owed him;
    5. Ms Chanell’s sister also hit him; and
    6. the domestic violence lasted for about one year.
  2. The Tribunal advised the applicant during the course of the hearing that it did not have the requisite evidence (pursuant to reg.1.24) such that it could be satisfied that he had made a claim which the Regulations recognised as a claim of non-judicially determined domestic violence. Subsequently, on 29 January 2009, the Tribunal invited the applicant to provide the evidence which regs.1.23 and 1.24 required be lodged in order to make such a claim. On 20 February 2009 the applicant submitted a statutory declaration dated 20 February 2009 from a medical practitioner, Dr Anne Amigo, who concluded that the applicant had been a victim of domestic violence.
  3. This satisfied the Tribunal that a claim of non-judicially determined domestic violence had been made but it was nevertheless, impliedly, not satisfied that that claim had been made out. Consequently, on 6 March 2009 it sought the advice of an independent expert at Centrelink pursuant to reg.1.23(1B)(b).
  4. When seeking the expert’s opinion the Tribunal provided her with a “Domestic Violence Referral Form M52” together with a number of documents. A list of the documents supplied to the expert appeared at para.18 of Part A of the Domestic Violence Referral Form M52 and was followed by this rider:

Some of the documents provided to the expert had been supplied to the Tribunal or to the Minister’s department by the applicant. Some of them came from other sources. Copies of the latter documents were not supplied to the applicant.

  1. On 3 June 2009 Centrelink supplied the expert’s report to the Tribunal by returning a completed version of Part B of the Domestic Violence Referral Form M52 entitled “Assessment from Centrelink to MRT”. The completed Part B contained a description of the applicant’s claims and a discussion of the evidence before the expert and, in a separate part of the document, the expert’s opinion dated 26 May 2009. It was the expert’s opinion that the applicant had

In section 17 of the discussion of the claims and evidence, the independent expert referred to having received extensive information from “DIAC”. She then made specific reference to some of the information which had been supplied to her, but which had not also been given to the applicant, and commented:

From these materials, a number of discrepancies arise regarding Mr Wu’s presentations, which cast doubt as to the accuracy of the information provided by Mr Wu. (Bundle of Relevant Documents (“RD”) page 245)
  1. On 9 June 2009 the Tribunal wrote to the applicant pursuant to s.359A of the Act attaching a copy of the expert’s opinion dated 26 May 2009. The notification did not include that part of the completed Part B which described the applicant’s claims and the evidence before the expert.
  2. On 22 June 2009 the applicant provided submissions in response to the expert’s opinion. Amongst other things, the applicant claimed that the expert was biased and unqualified, had deliberately ignored important evidence and had used inappropriate “approaches” in writing the report. The applicant also submitted additional documents, including a report from a Dr Wong.
  3. In light of the additional information which the applicant had provided, the Tribunal sought a further opinion from the expert as to whether the applicant had suffered relevant domestic violence. The additional information was referred to in Part C of the Domestic Violence Referral Form M52 which the Tribunal sent to Centrelink on 24 July 2009. The expert supplied a further report dated 9 October 2009 in a completed Part D of the Domestic Violence Referral Form M52, entitled “Further Assessment from Centrelink to MRT”. In that report the expert referred to the additional information which had been supplied and advised that it had not changed her opinion that the applicant had not suffered domestic violence as defined in reg.1.23(2)(b) of the Regulations.
  4. A s.359A notification dated 6 November 2009 was sent to the applicant enclosing the expert’s report of 9 October 2009. It also enclosed a copy of the original report dated 26 May 2009.
  5. The applicant provided additional submissions to the Tribunal on 11 November 2009 challenging the validity of the expert’s opinion of 9 October 2009. Again, the applicant raised concerns regarding the expert’s factual conclusions and the methodology she employed, her reliance on inconsistencies, her qualifications and training and the allegedly inadequate opportunity for the applicant to explain or comment. The applicant also expressed concerns that the report did not address the relevant issue as well as concerns that the expert had not taken relevant evidence into account.
  6. By a decision dated 25 January 2010, the Tribunal found that the opinion of the expert dated 9 October 2009, which incorporated aspects of the original report dated 26 May 2009, was a valid opinion under the Regulations, noting that:
    1. the Tribunal was satisfied that the expert’s report reflected a correct understanding of the meaning of “relevant domestic violence” as defined in regs.1.21(1) and 1.23(2)(b);
    2. the expert’s report of 9 October 2009 contained an “opinion” which was sufficient for the purposes of reg.1.23(1B)(b); and
    1. the expert held a Bachelor of Social Work and was employed by Centrelink as a senior social worker and was therefore “suitably qualified” within the meaning of reg.1.21 to make the assessment.
  7. The Tribunal found that, having sought the opinion of an independent expert pursuant to reg.1.23(1B)(b), it was bound under reg.1.23(1C) to take that opinion as correct for the purposes of deciding whether the applicant had suffered relevant domestic violence. Accordingly, the Tribunal found that the applicant was not taken to have suffered domestic violence under the Regulations and therefore did not meet the requirements of cl.801.221(6) for the grant of subclass 801 visa.

Proceedings in this Court

  1. The amended application pleaded the following grounds:

Breach of s.359A

Parties’ submissions

  1. The first allegation pleaded in the amended application was particularised as follows:
  2. Section 359A relevantly provides:
  3. “Non-disclosable information” is relevantly defined by s.5 of the Act to be information:
  4. The applicant submitted that the Tribunal stated in its decision that it had considered “all of the evidence before it” and that part of that evidence was confidential material which had been supplied to the independent expert but not to him. The applicant referred in this connection to certain of the confidential documents which had been supplied to the expert in March 2009. The applicant submitted that this confidential information was the reason or a part of the reason for the Tribunal affirming the delegate’s decision because it undermined his claim to have suffered domestic violence. In support of this submission the applicant provided the Court with a table which analysed certain of the confidential documents and submitted that some of them undermined his credibility and others undermined his factual claims. The applicant submitted that it could be inferred that the Tribunal had considered the confidential information because it viewed it as important enough to pass on to the expert.
  5. It was submitted that this confidential information had a two-fold effect by being:
    1. a reason for the Tribunal’s preliminary decision under reg.1.23(1B) that it was not satisfied that the applicant had suffered domestic violence, thereby necessitating a referral to an independent expert pursuant to reg.1.23(1B)(b); and
    2. a reason for the expert’s opinion that the applicant had not suffered domestic violence, an opinion which was binding on the Tribunal pursuant to reg.1.23(1C).
  6. The applicant submitted that part of the reason for ultimately affirming the delegate’s decision was the Tribunal’s own preliminary decision that it was not satisfied that the applicant had suffered domestic violence which in turn led to the reference to the expert. It was submitted that the information which was the basis of that preliminary decision ought to have been notified pursuant to s.359A(1). This was said to be so because an essential part of the Tribunal’s ultimate decision was its preliminary decision to refer the matter to the expert. It was submitted that although an expert opinion was sought, the decision-making process always remained with the Tribunal.
  7. The applicant submitted that the fact that information had been given to it in confidence did not relieve the Tribunal of the duty to provide him particulars, or at least the “gist”, of it so that he could respond to it. He further submitted that although some information might have been given in confidence, the Tribunal’s enquiries went beyond that information and much of the information given in confidence to the expert had been obtained by the Minister independently of any person who had sought confidentiality. He argued that disclosure of that information would not have founded an action for breach of confidence and that, at the very least, the Tribunal should have notified him that it had received information in confidence which stated that his marriage was contrived for the sole purpose of his migration to Australia and invited his response to it.
  8. The Minister submitted that the particulars of the allegation referred to information that was “credible, relevant and significant” rather than to information that “the Tribunal considers would be the reason, or a part of the reason, for affirming the decision ... under review” which is the test under s.359A(1). In this connection, the Minister pointed to the fact that the common law natural justice hearing rule had been codified for the purposes of the Tribunal’s hearing in those sections found in pt.5 of div.5 of the Act.
  9. The Minister further submitted that, in any event, it ought not be inferred that any of the confidential information was subjectively the Tribunal’s “reason or part of the reason for affirming the decision” and the mere fact that it was before the Tribunal was not sufficient to attract s.359A(1) obligations. It was said that the particular material or information was not “dispositively relevant” to the question of whether the applicant had suffered relevant domestic violence because the Tribunal did not engage in a reasoning process which disposed of that question. The Minister submitted that what attracted the subsection’s obligation was not the underlying information but what the Tribunal considered to be the reason for affirming the decision under review, namely, the opinion of the independent expert, which had been twice notified to the applicant pursuant to s.359A(1). In this regard, the Minister referred to Victorino v Minister for Immigration & Citizenship [2007] FMCA 1294; (2007) 214 FLR 228 where Riethmuller FM held in similar circumstances that the Tribunal could discharge its s.359A(1) obligations by providing an applicant with a copy of the expert’s opinion and was not required also to provide an applicant with the remainder of the completed Part B of the Domestic Violence Referral Form M52.
  10. As to the information in question, the Minister submitted that the s.359A(1) obligation is only attracted by information which objectively contains, in its terms, a rejection, denial or undermining of the applicant’s claims. He submitted that none of the confidential information positively undermined the applicant’s claim that he had suffered or experienced the things which he had alleged and the fact that some of the information cast doubt on his general credibility was not the point.
  11. Moreover, submitted the Minister, to the extent that the confidential material contained “information” which invited s.359A(1) obligations, it was information which would found an action by a person, other than the Commonwealth, for breach of confidence thus making it non-disclosable information falling within the exemption to s.359A(1)’s operation found in s.359A(4)(c). It was submitted that if information is given in confidence, in the ordinary course it would and should be protected from disclosure.

Consideration

  1. The information which the Tribunal must give to an applicant pursuant to s.359A(1) is information which, unless the Tribunal is persuaded to the contrary by the applicant, would be the reason or part of the reason for affirming the decision under review: MZYFH v Minister for Immigration & Citizenship [2010] FCA 559; (2010) 188 FCR 151 at 164 [64]. However, that does not require the Court to pore over all the information in the Tribunal’s hands to determine which of it might possibly be considered to be dispositively relevant, even if the Tribunal did not think that it was. The Court is to determine the question objectively from the available evidence including, in appropriate cases, the Tribunal’s reasons: SZMNP v Minister for Immigration & Citizenship [2009] FCA 596.
  2. Regulation 1.23(1C) provides that if an applicant seeks to convince the Tribunal that he or she has, for the purposes of cl.801.221(6), suffered domestic violence committed by the sponsoring partner and the evidence fails to satisfy the Tribunal that such violence has occurred, the only matter which the Tribunal may then take into account when considering whether the applicant meets the domestic violence criterion is the opinion of the independent expert whom reg.1.23(1B) requires be consulted. Because reg.1.23(1C) requires the Tribunal to take as correct the expert’s opinion on the issue of whether the applicant has suffered relevant domestic violence, the only information which it is open to the Tribunal to consider would be the reason or part of the reason for affirming the delegate’s decision is the opinion of the expert. Being required to accept the expert’s opinion as correct has the corollary that nothing underpinning that opinion is relevant to the Tribunal’s process of decision-making as far as s.359A is concerned. As the High Court put it in Sie Sok v Minister for Immigration & Citizenship [2008] HCA 50; (2008) 238 CLR 251:
  3. For instance, although the Tribunal’s preliminary decision that it was not satisfied that the applicant had suffered domestic violence was a necessary pre-condition to the decision which was ultimately made based on the expert’s opinion, the affirmation of the delegate’s decision was not the necessary consequence of that preliminary decision. The expert might have arrived at an opinion that the applicant had indeed suffered relevant domestic violence in which case the Tribunal would have had to vary or set aside the delegate’s decision, not affirm it. It cannot be said that the Tribunal could consider that the information upon which its preliminary decision to refer the matter to an expert was based “would be the reason, or a part of the reason, for affirming the decision ... under review” because once the matter was referred to the expert the Tribunal’s own views on the merits of the claim became irrelevant.
  4. Further, the applicant’s case appears to be that the postulated s.359A(1) obligation may arise at the time the Tribunal decides to refer the matter to the expert, although it might also be said to arise at a later date. However, whether it is said to arise before the expert is consulted or afterwards, the situation is the same. Once the Tribunal decides that it is not satisfied that an applicant has suffered relevant domestic violence, the outcome of the review will be determined by the opinion of the expert, not by what the Tribunal thinks of the evidence.
  5. For these reasons, s.359A(1) did not require the Tribunal to provide the confidential information, or the substance of it, to the applicant.
  6. Further, to the extent that the information in question had been supplied to the Minister’s department in confidence, it was non-disclosable information for the purposes of s.359A(4)(c). In Minister for Immigration & Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448, information which had been imparted in circumstances importing an obligation of confidence was held to be non-disclosable information within the meaning of s.359A(4). In that case, the Tribunal complied with its s.359A obligations by notifying the applicant that it had received information in confidence which stated that his marriage was contrived for the sole purpose of migrating to Australia and inviting his response. The visa applicant was unsuccessful in his submission that s.359A required the Tribunal to disclose to him “the identity of the informant and the full nature of the information”.
  7. In this case, the information which was equivalent to the information notified in Kumar’s case was the conclusion drawn by the expert that the applicant had not suffered relevant domestic violence. At least as far as the documents in respect of which an obligation of confidentiality existed, no more extensive notification would have been required. However, as to the totality of the documents which were not supplied to the applicant, it is difficult to see how all the information they contained might fall within s.359A(4)(c), particularly some of the information mentioned in the table of documents provided by the applicant. But in light of my finding above at [48], it is unnecessary to take this issue further.
  8. Nor, in light of my finding at [48], is it necessary to consider whether the confidential information contained a rejection, denial or undermining of the applicant’s claim to have suffered domestic violence in the sense discussed in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 or merely revealed inconsistencies.

Bias

  1. The applicant provided a lengthy particularisation of the allegation that the Tribunal’s decision should be set aside because it was tainted by apprehended bias and because it relied on an expert’s opinion which was also tainted by apprehended bias. Those particulars were:

Parties’ submissions

  1. The applicant referred to the test of apprehended bias found in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434-435 [27]- [28]:
  2. It was submitted that an inference that the decision-making process was affected by bias could be drawn from the following matters:
    1. the Tribunal did not advise the applicant that confidential documents containing information highly prejudicial to his claims had been supplied to the expert;
    2. when it supplied the documents to the expert the Tribunal expressly advised that it was doing so in confidence; and
    1. highly prejudicial comments about the applicant’s credibility were included in the expert’s opinion but were never passed on to the applicant.

The applicant said that the Tribunal ensured that the expert had prejudicial information which she ought not to have had and by failing to disclose this to him as the applicant, the Tribunal thereby set the scene for a claim of apprehended bias.

  1. At the hearing the applicant submitted that the first fifteen documents listed in para.18 of Part A of the Domestic Violence Referral Form M52 should not have been given to the expert and that although they were supplied without comment, the simple fact of passing them on was sufficient for the expert to take “the cue”.
  2. The applicant submitted that the interaction of the Tribunal and the independent expert was analogous to the situation in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, saying that what had occurred in this case amounted to a private communication which was highly critical of him and done “behind his back”. It was submitted that the fair-minded lay observer would reasonably apprehend:
    1. that the Tribunal had formed a view that the applicant had not suffered relevant domestic violence and that it was intent on reinforcing this view to the independent expert by passing on prejudicial material without the applicant’s knowledge;
    2. that the independent expert would have been swayed by the Tribunal’s conduct and would have formed a view that he had not suffered relevant domestic violence; and
    1. that the independent expert was not prepared to consider whether or not the information in the confidential documents was accurate or reliable by making the applicant aware of the material that it contained or by providing him with an opportunity to comment on it.
  3. It was further submitted that not only was the Tribunal’s decision liable to be set aside on the grounds of apprehended bias but it was also vitiated by the Tribunal’s reliance on the expert’s opinion which was itself infected by bias and thus not properly made. In this connection, the applicant submitted that the Tribunal was required to consider whether the expert’s opinion had been properly made and, if not, whether any reliance on it would amount to jurisdictional error.
  4. The Minister submitted that the applicant’s complaint was really about an alleged denial of procedural fairness dressed up as a bias claim. It was submitted that the statutory code established by s.357A of the Act identified the Tribunal’s procedural fairness obligations and that there were no obligations beyond that code. It was submitted that the fair-minded lay observer would not apprehend bias in the Tribunal not doing something it was not obliged to do.
  5. It was also submitted that, considering the conduct of the review as a whole, the applicant’s case had none of the hallmarks which have featured in most cases in which apprehended bias had been established such as constant interruptions and challenges to an applicant’s evidence, a hostile attitude, an inappropriate tone or hectoring, a failure to acknowledge mistakes, an aggressive and unfair style of questioning, intimidation, unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation, and brevity of reasoning where more reasoning is demanded.
  6. It was submitted that the fact that the Tribunal and the expert engaged in a procedure to which the applicant objected did not establish an apprehension of bias and that, moreover, Re JRL; Ex parte CJL was distinguishable on the facts.

Consideration

  1. The first element of the applicant’s allegation is that
  2. The success of this allegation depends not only on the fact that the Tribunal gave the confidential information to the expert and did not tell the applicant this but also on demonstrating that such conduct, in context, would lead a fair-minded lay observer reasonably to apprehend that the Tribunal was not bringing, not might not have been bringing, an impartial mind to the determination of the review. In this connection, it must be assumed that the fair-minded lay observer is aware of how the review has been conducted throughout, and not just that the Tribunal has supplied documents to an expert and not told the applicant.
  3. At the outset it must be observed that the background to the Tribunal’s decision to seek the opinion of an independent expert gives no reason to suppose that the Tribunal approached the review in other than a conscientious fashion. At the hearing, as demonstrated by the transcript annexed to Mr Shi’s affidavit, the Tribunal was obviously concerned by Mr Wu’s failure to supply sufficient statutory declarations, as required by regs.1.23 and 1.24, such that it could be satisfied pursuant to reg.1.23(1A) that a “non-judicially determined claim of domestic violence”, as defined by the Regulations, had actually been made. This was notwithstanding the fact that Mr Wu had made his review application to the Tribunal more that twelve months earlier and had had more than enough time to gather his evidence.
  4. Although the Tribunal did not have before it at the 28 January 2009 hearing a proper “non-judicially determined claim of domestic violence” it nevertheless allowed the applicant to give his oral evidence and then indicated that he would be allowed more time to satisfy the formal requirements of the Regulations. Far from suggesting that the Tribunal was not bringing or might not have been bringing an impartial and unprejudiced mind to the determination of the review, its conduct demonstrated flexibility and open-mindedness. It should also be noted that the transcript of the hearing provides no support for an apprehension that the Tribunal might possibly have been other than impartial.
  5. The applicant thereafter provided the statutory declarations which should have been provided at or before the second Tribunal hearing and these satisfied the Tribunal that he had made “a non-judicially determined claim of domestic violence”.
  6. Having allowed the applicant time to get his case together, the Tribunal then proceeded to consider the information which he had provided. This included his evidence at the hearing which contained the factual allegations summarised above at [20] as well as the reports, which the applicant had submitted at various times, from Mr Kleynhans, Dr Amigo, Dr Wong and from the police.
  7. I find that, in all the circumstances, a fair-minded lay observer would not conclude from its conduct of the review that the Tribunal was not, or might not have been, approaching it with an open mind.
  8. Nor does the Tribunal’s lack of satisfaction as to the occurrence of domestic violence support such a conclusion. Mr Kleynhans, psychologist, described the applicant as feeling threatened by his wife and brother-in-law and of having been abused and threatened such that he felt extremely fearful for his life. Mr Kleynhans also described controlling behaviour on the part of the applicant’s wife, including her refusal to permit his sons to stay at the matrimonial home, and one occasion when she followed him down the road and started to hit him because he had disobeyed her orders to have nothing to do with his sons. Mr Kleynhans said:

Mr Kleynhans also said that the applicant’s feelings of

... powerlessness and helplessness ... are also symptoms one would expect of victims who suffered from relevant domestic violence. (RD 148)
  1. Dr Amigo, medical practitioner, referred to the applicant having given her a long history of psychological dysfunction due to psychological abuse by Ms Chanell. Dr Amigo described the conduct in the following terms:
  2. The police report dated 19 September 2008 described an altercation between the applicant, his second wife and Ms Chanell on 8 February 2007 as being “domestic violence – no offence”, categorising it as “verbal argument”. The overall tenor of the report was that if anybody suffered violence during the altercation it was Ms Chanell, not the applicant.
  3. The report of Dr. Wong, consultant psychiatrist, dated 18 June 2009 did no more than explain that the applicant’s son failed to attend an appointment on 8 February 2007 because
  4. Although the information which the applicant supplied to the Tribunal tended to support his allegation of domestic violence, as earlier paragraphs of these reasons make clear this was not the only information before the Tribunal. The additional, confidential information in the Tribunal’s possession was not supportive of the applicant’s allegations of domestic violence and, in particular, of the histories of psychological abuse which the applicant had given to Mr Kleynhans and Dr Amigo.
  5. Given that the confidential information tended to cast doubt on the applicant’s version of events, it was reasonably open to the Tribunal to conclude that it was not satisfied that the applicant had suffered relevant domestic violence, which is what it impliedly did. In the circumstances, a fair-minded lay observer would not apprehend, from the Tribunal’s lack of satisfaction that the applicant had made out his claim of domestic violence, that it was not or even might not have been bringing an open mind to the review.
  6. Further, proof that the Tribunal was concerned to “reinforce” to the expert a view that the applicant had not suffered relevant domestic violence requires more than a finding that the Tribunal reasonably concluded on the totality of the evidence that it was not satisfied that the applicant had made out his claim. In this connection, the applicant referred to Re JRL: Ex parte CJL and submitted that the Tribunal and the expert had what amounted to a private communication “behind his back” which was highly critical of him. However, the facts of Re JRL: Ex parte CJL are quite different from those here. In Re JRL: Ex parte CJL, a Family Court counsellor spoke to a judge in chambers and expressed a view which strongly favoured one of the parties. The High Court held that the actions of the counsellor gave rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the issues before her. In Re JRL: Ex parte CJL, it was no part of the court counsellor’s function to supply the judge with information in person except as a witness in court. In the present case, the Tribunal had a practical if not statutory obligation to provide the expert with background information so that she could undertake her inquiry in an informed manner. As Finn J said in a different context in SZDTU v Minister for Immigration & Citizenship [2007] FCA 1135:
  7. Moreover, in Re JRL: Ex parte CJL there was an element of advocacy which is absent here. The provision of information to the expert cannot be characterised as advocacy unless it can be demonstrated that the information which was provided was selected in such a way as to paint a tendentious picture of the facts. There is no evidence of that occurring in this case. What appears to have happened is that the Tribunal provided the expert with information which it considered to be relevant to the expert’s inquiry in an action analogous to the department’s provision of information to the Tribunal pursuant to s.352(4). Importantly, it has not been suggested that the Tribunal omitted to send relevant documents to the expert, merely that it included documents which may have been unhelpful to the applicant’s claim. Importantly, the Tribunal supplied the expert not only with the confidential documents but also with the reports which the applicant had himself submitted in support of his application.
  8. In the absence of any evidence to suggest advocacy on the part of the Tribunal, the mere provision by it, to the expert, of information which the applicant finds disagreeable is no basis for a fair-minded lay observer to conclude that it was or might not have been bringing an impartial mind to the resolution of the review and, in particular, that it was attempting to “reinforce” a particular view of the facts.
  9. Nor does the fact that the Tribunal did not tell the applicant that information “prejudicial to his claim” had been provided to the expert support a finding of apprehended bias. The Act did not require the Tribunal to tell the applicant that it was providing information to the expert or what it was providing and I am not persuaded that the possibility of a lack of an open mind can be inferred from the Tribunal not doing something which it was not obliged to do. This is particularly so in the case of information which had been supplied to the department or to the Tribunal on condition of confidence. For the same reasons, the fact that the Tribunal did not provide the applicant with the expert’s discussion of the information which had been provided to her would not lead a fair-minded lay observer to apprehend that the Tribunal might not have been bringing an unprejudiced mind to the matter it had to decide.
  10. The applicant also submitted that the Tribunal erred because it failed to consider whether the expert’s opinion had been properly made. In this regard, the applicant referred to Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 and Silva v Minister for Immigration & Citizenship [2007] FMCA 1955. However, no proposition that the Tribunal errs if it fails to consider whether the expert’s opinion is properly made emerges from those cases. The proposition for which they do stand, as does Robinson v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1626; (2005) 148 FCR 182, is that if the expert’s opinion is vitiated by error of law then the Tribunal errs if it takes the opinion as correct. Although a consideration of the legal validity of the expert’s opinion may be of some practical benefit to the Tribunal’s decision-making, the ultimate decision on that question is one for a court on review. The Tribunal errs if it relies on an opinion which is vitiated by bias but it does not err by not considering whether the opinion might be void on that account. Were this to be so, the Tribunal’s decision could be vitiated by failing to ask that question in respect of a perfectly valid expert opinion. Jurisdictional error would not be found in such circumstances: Minister for Immigration & Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at 640 [35]; SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 at 137 [30] per Emmett J and 145-146 [66] per Buchanan and Nicholas JJ.
  11. The second element of the applicant’s allegation of apprehended bias concerned the expert and was that:

The significance of this allegation lies in the applicant’s submission that the Tribunal’s decision was vitiated because the expert’s report was itself vitiated by bias.

  1. The applicant submitted that the expert would have been “swayed by the Tribunal’s conduct” and would have formed a view that he would not have suffered relevant domestic violence. However, mere provision of information to the expert subject to an obligation of confidentiality says nothing about the expert’s state of mind and, relevantly, does not give any reason to suppose a possible lack of impartiality. Nor does the fact that some of that information was adverse to the applicant’s claims, given that information supportive of those claims was supplied at the same time. A reasonable apprehension that the expert might not have been bringing an impartial mind to her inquiry requires more than this. In this case, a finding on the applicant’s allegation of apprehended bias also requires a consideration of how the expert conducted her inquiry, including how she dealt with the confidential information, and the opinion at which she arrived, together with the reasons expressed for reaching it.
  2. Evidence of the conduct of the expert’s inquiry does not suggest the existence or even a real possibility of a lack of impartiality on her part. The expert’s report of 26 May 2009 indicates that the applicant attended a three hour interview with her and was accompanied by his migration agent. The report records that “Mr Wu indicated that he was satisfied with the interview” although he said that he felt “framed” by Ms Chanell and her brother. The summary of the expert’s interview with the applicant does not suggest any basis for a finding of apprehended bias. Moreover, the applicant led no evidence which contradicted these statements or otherwise supported a conclusion of bias on the part of the expert in the conduct of the interview. Although an affidavit of the applicant’s migration agent affirmed 28 May 2010 was filed, it merely annexed transcripts of the Tribunal hearings on 29 May 2008 and 28 January 2009. No evidence was given by the applicant or by his agent, Mr Shi, of the expert’s conduct during the interview.
  3. From the expert’s summary of the evidence before her, it is apparent that the opinion she formed was one which was open to her. Further, a consideration of the reasons which the expert gave for her opinion discloses no basis to reasonably apprehend a real possibility of bias on her part. Those reasons are logical and cogent and disclose a conscientious approach to the given task.
  4. Central to the applicant’s allegation that the expert had already formed a view is the related allegation that she did not make him aware of the material in question and did not give him an opportunity to comment on it. However, when considering these claims it must be recalled that the information given to the expert had expressly been given in confidence. For instance, when discussing the reports of Mr Kleynhans and Dr Amigo, the expert said:

The fact that the expert observed the condition upon which information was given to her is no basis to suspect that she might not have been bringing an open mind to the inquiry.

  1. Even so it is possible that para.17 of the completed Part B of the Domestic Violence Referral Form M52 records the expert, albeit subject to the constraints of confidentiality, doing exactly what the applicant says she should have done. After identifying discrepancies between the applicant’s account and some of the confidential information the expert stated:

It is difficult to see how the expert could have tested some of the applicant’s assertions without having put some of the confidential information to him in some way.

  1. Overall, given the condition of confidentiality on which the information was given to the expert, the evidence concerning her conduct of her inquiry, the opinion she reached and the reasons given for that opinion, I do not conclude that a fair-minded lay observer would reasonably apprehend that the expert might not have been bringing, let alone was actually not bringing, an unprejudiced mind to her inquiry.

Failure to consider a claim

  1. The third allegation made in the amended application, that the Tribunal’s decision was unlawful because it was based on an expert opinion which was affected by error of law, was particularised as follows:

Parties’ submissions

  1. The applicant submitted that the expert’s opinion was unlawful because she had failed to consider the fundamental nature of his claim that he suffered domestic violence because of his and his son’s reliance on Ms Chanell for their residence in Australia and that this was used as a threat by Ms Chanell to impose financial deprivation and other control over the applicant. It was submitted that the expert also failed to consider other unreasonable and intimidating conduct by Ms Chanell and her brother and the fact that they had sought to intimidate the applicant into leaving Australia for China without the money that was due to him.
  2. It was submitted that the expert’s assessment of the case really did not go beyond a consideration of the physical violence which the applicant claimed to be facing from Ms Chanell and her brother and that she never really addressed the issue of domestic violence arising out of economic bullying. The applicant submitted that these claims were ignored by the expert who based her opinion only on the possibility that the applicant might have been in physical danger from Ms Chanell and her brother. It was submitted that, for this reason, the Tribunal ought not to have relied on the expert’s opinion.
  3. The Minister submitted that the imbalance of power, to which the particulars of the allegation refer, and the threatening way in which this was allegedly used were no more than part of the factual matrix of the claim that the applicant suffered relevant domestic violence, rather than “an integer” or separate aspect of the claim to have suffered domestic violence. The Minister submitted that the other behaviour of Ms Chanell and her brother which the applicant had particularised suffered the same limitation. It was therefore submitted that the matters which the applicant relied on did not demand a separate finding from the expert.
  4. Moreover, it was submitted, the expert’s broader conclusion in her second report that there was no clear imbalance of power was an answer to the applicant’s factual assertions and also demonstrated that these factual issues were clearly considered as part of the expert’s ultimate conclusion.

Consideration

  1. The first particular of the allegation asserts that the applicant had claimed that he and his son were reliant on Ms Chanell for accommodation and, impliedly, that the threat of its withdrawal was used as a lever to impose financial deprivation and other control over him. At the outset it should be observed that the applicant never went so far as to claim that either of his sons was reliant on Ms Chanell for accommodation. Mr Kleynhans reported that the applicant had said to him that Ms Chanell would not allow the applicant’s sons to stay overnight with them and controlled him over his access arrangements with them. Dr Amigo related that the applicant told her that Ms Chanell forbade the applicant’s relationship with his two sons. The expert recorded in her completed Part B of the Domestic Violence Referral Form M52, that on an earlier occasion the applicant had said that his son Arthur (presumably Di Wu, the second applicant) preferred to live alone and, impliedly, that his younger son, Billy, lived with his mother, the applicant’s second wife. In fact, in relation to Billy, the applicant had said, as the expert recorded, that he did not agree to Billy being sent to him when his mother asked if she could.
  2. Turning to the assertion that the applicant himself was reliant on Ms Chanell for a home and that this was a means by which to impose financial deprivation on him and to control him, it should be noted that no allegation of this sort was made, in terms, to the Tribunal. Nor does such a claim emerge from the allegations which the applicant did make during the review process. For instance, although the applicant told Mr Kleynhans that he had left the matrimonial home in around January/February 2007 this was not linked, expressly or impliedly, with any preceding feelings of insecurity as to residence but was said to have arisen out of the abuse and threatening behaviour of Ms Chanell, her brother and other members of their family. Additionally, although the applicant told Mr Kleynhans that Ms Chanell had placed only her name on the title to the matrimonial home this was not identified as a source of insecurity as to residence. Rather, it was characterised as an example of Ms Chanell’s control over the applicant.
  3. Similarly, the patient history in Dr Amigo’s report makes no reference to the applicant having concerns regarding his accommodation nor can anything of that sort be reasonably inferred from it. Further, according to the expert’s summary of her interview with the applicant, he said nothing to her which suggested that prior to his separation from Ms Chanell he thought that his residence at the matrimonial home was in some way conditional or threatened.
  4. The applicant has failed to demonstrate that he claimed to the Tribunal that residence at the matrimonial home, whether his or that of either of his sons, had been used as a threat to impose financial deprivation and other control over him. Nor can it be said that claims of this nature arise tolerably clearly from the other claims which he did make. Consequently, the first element of the third allegation in the amended application is not made out.
  5. The second particular of the allegation refers to the applicant’s allegations that Ms Chanell had refused to allow his name to be registered on the title to the matrimonial home, had refused to pay him for his work and had sought to intimidate him into leaving the marriage and returning to China.
  6. In relation to the first aspect of the second particular, it is true that although the expert referred to the issue of joint ownership of the matrimonial home in her summary of the evidence, in her reasons she did not expressly consider it nor what a failure to register the applicant’s claimed interest might specifically represent. Although an administrative decision-maker’s failure to advert to an issue in his or her reasoning may indicate that the issue was overlooked, it is not always necessary for reference to be made to all the contentions which have been advanced. As the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]:
  7. The question before the expert was whether the applicant had suffered relevant domestic violence. In considering this question the expert referred to Mr Kleynhans’s conclusion that the applicant had suffered relevant domestic violence because of psychological abuse, including control, verbal abuse and social isolation, and to Dr Amigo’s conclusion that the applicant’s psychological condition was consistent with the history he gave of domestic violence in the form of psychological abuse. The expert was of the view that the conclusions reached by Mr Kleynhans and Dr Amigo were not well supported by the weight of evidence and she disagreed with them. In this connection she observed that Mr Kleynhans and Dr Amigo had either had an intermittent or only a recent relationship with the applicant and that neither of them had been apprised of all the relevant facts.
  8. The applicant complained to the expert that Ms Chanell had scratched and bitten him, thrown things and spat at him and said in his submission letter dated 27 May 2008 that he had separated from Ms Chanell because she would not allow him to contact his sons. He also complained to the expert about Ms Chanell’s behaviour and of becoming extremely fearful once he began to be threatened by her and her brother. The expert concluded that the applicant’s claims of being hit, bitten, pinched and spat at had not been substantiated and neither had his claims that Ms Chanell had excluded his children. She observed that the applicant did not describe any serious assault, cycle of violence or ongoing intimidation by Ms Chanell while also noting that he spent lengthy periods away from home, including nearly half of 2006 in China. She noted inconsistencies in the substance of the applicant’s various claims to have been threatened by Ms Chanell and her brother and rejected the conclusions of Mr Kleynhans and Dr Amigo that the applicant held strong fears for his own safety.
  9. The expert rejected the bases of the applicant’s claims to have suffered domestic violence in all their significant aspects. In such circumstances, it should not be inferred that the land title question was overlooked, particularly when it is plain that the expert was aware of it. Rather, it should be concluded that the particular question of whether excluding the applicant from the property’s title represented a form of financial deprivation and control evidencing relevant domestic violence was subsumed in findings of greater generality which were to the effect that the pattern of behaviour alleged by the applicant against Ms Chanell and her brother was not made out on the facts.
  10. The second aspect of the second particular is that the expert overlooked Ms Chanell’s alleged failure to pay the applicant for work at the embroidery factory which she operated. This allegation was recorded in Mr Kleynhans’s report although not in Dr Amigo’s. In her summary of the evidence, the expert referred to this issue in the following terms:

The expert went on to say that notwithstanding her attempts to clarify his versions of events the applicant still contradicted himself on several occasions. She concluded that it was

... extremely difficult to confidently accept Mr Wu’s presentations or the accuracy of his account

and that

... his inconsistent presentation influences my assessment that Mr Wu was not a victim of relevant Domestic Violence. (RD 246)
  1. In light of what the expert had said in this discussion of the evidence, the absence from her opinion of a reference to the applicant’s allegation that he had not been paid for his work at the embroidery factory cannot be interpreted as a failure on her part to have regard to that issue. This is particularly so when it is recalled that the expert expressly found that the conclusions drawn by Mr Kleynhans and Dr Amigo as to the applicant’s claims were not well supported by the evidence, noting that they had not been apprised of all relevant facts. The claim of non-payment was raised in Mr Kleynhans’s report, so the expert’s rejection of his conclusions because they were not supported by the evidence also amounted to an implicit rejection of the applicant’s allegations which underpinned those conclusions. In the circumstances, it was not necessary for the expert to go further and specifically mention the non-payment claim in her opinion.
  2. The third aspect of the second particular is the assertion that the expert failed to have regard to the applicant’s allegations that Ms Chanell and her brother sought to intimidate him into leaving the marriage and returning to China without money due to him. In her summary of the evidence, the expert recorded that, at her interview, the applicant said that he had become extremely concerned once his brother-in-law started to make threats against him. He told the expert that immediately prior to the separation he had been threatened by Ms Chanell and her brother regarding repayment to the brother of a large sum of money. He told the expert that he considered it likely that the threats which he alleged had been made against him by Ms Chanell and her brother had been made to frighten him into leaving the relationship with no proceeds from a property settlement.
  3. Although the expert did not, in relation to this issue, refer to the report of Dr Amigo where threats by Ms Chanell’s brother are recorded in the history, she did refer to that part of Mr Kleynhans’s report which recorded the applicant as presenting as distressed and feeling threatened by Ms Chanell and her brother and as saying that the threats were so bad that he left the matrimonial home in around January/February 2007 and then left Australia for China. The expert went on to refer to other evidence which was not supportive of the allegation of intimidation and observed that she found it difficult to accept the accuracy of the applicant’s account.
  4. The expert noted in her opinion that although the applicant had claimed that his life was threatened in January 2007, he did not mention any such threats when he was interviewed by the department on 26 February 2007. She went on later in her opinion to say:
  5. Again, the reports of Mr Kleynhans and Dr Amigo are relevant to this consideration because both make reference to intimidation by Ms Chanell and her brother. However, as already recorded, the expert rejected the conclusions expressed in those reports on the basis that they were not well grounded evidentially. Again, the expert’s rejection of the conclusions of Mr Kleynhans and Dr Amigo amounted also to an implicit rejection of the applicant’s allegations which underpinned them.
  6. In essence, if not in so many words, the expert dismissed the allegations of intimidation. Having done so, a discussion of the applicant’s theory that the alleged intimidation was to force him out of Australia without the money due to him was unnecessary. The third aspect of the second particular discloses no error on the Tribunal’s part.

Conclusion

  1. Jurisdictional error on the part of the Tribunal has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding one-hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Cameron FM


Date: 28 January 2011

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