High Court Confirms That the Mrt had Misinterpreted Sok on Domestic Violence

Prior to the very recent decision of High Court decision of Sok v MIAC [2008] HCA 50(16.10.08), the MRT had been consistently misinterpreting the domestic violence provisions.  The MRT said that it could make its own determination of domestic violence if the independent expert had found no domestic violence.  The true position is that the MRT has always had a discretion to make its own determination on domestic violence and only if it decides it is not satisfied on domestic violence should it send the matter off to the independent expert.  It is a little complicated so here is the relevant regulation:

Reg 1.23(1)(f) & Reg 1.23(1B)(a) state, as relevant:

Reg 1.23 (1)  For the purposes of these Regulations:

(a)        a person (the alleged victim) is taken to have suffered family violence; and

(b)        another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim;

               if:

(f)        the Minister is satisfied, for paragraph (1B)(a), that the alleged victim has suffered   relevant family violence;

            or

Reg 1.23 (1B)

(1B)     If an application for a visa includes a non-judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and:

(a)        if satisfied that the alleged victim has suffered relevant family violence – consider the application on that basis; or

(b)     if not satisfied that the alleged victim has suffered relevant family violence – seek the opinion of an independent expert about whether the alleged victim has suffered relevant family violence.

One can see that from a combination of Reg 1.23(1)(f) & (1B)(a), the delegate can make a decision favourable to the Applicant without engaging the views of the independent expert.

In Sok the High Court overturned a previous decision which prevented the Migration Review Tribunal from looking at domestic violence if the applicant had not raised domestic violence in the initial spouse visa application.  So the MRT can, like the delegate make a decision favourable to the Applicant without engaging the views of the independent expert.

Firstly the High Court rejected any suggestions that the visa applicant had to first raise domestic violence before the minister’s delegate:

•28.              Contrary to the opinion of the Full Court, the relevance of the appellant’s claim to have suffered domestic violence is not to be determined by first considering the terms of Div 1.5 and observing that the provisions of that Division are hinged upon an application for a visa and that an application for a visa is made to the Minister. Neither the provisions of Div 1.5 generally, nor the frequent references made in the Division to the Minister, confine the criteria for the grant of the visa prescribed by cl 100.221 to those cases in which the visa applicant has made a claim of domestic violence before the initial consideration of the visa application. Rather, in reviewing the refusal to grant the permanent visa, the Tribunal is to determine whether the criterion for the grant of that visa (that the appellant “has suffered domestic violence committed by the sponsoring spouse”) is met. And that criterion is met only if the appellant is to be taken, under reg 1.23, to have suffered domestic violence. In deciding that question, the Tribunal may exercise all of the powers and discretions conferred by that Division of the Regulations on the Minister.

•32.                          In many, perhaps most, cases, “the issues arising in relation to the decision under review” that are referred to in s 360(1) will most easily be identified by considering the reasons for decision given by the primary decision-maker (the Minister or the Minister’s delegate). In the present case, however, the appellant raised a new issue in relation to the decision under review when he made his claim to have suffered domestic violence. Once the appellant made the claim that he had suffered relevant domestic violence, the Tribunal was bound by s 360 to invite him to appear before it to give evidence and present arguments relating to that issue, and any other issue that could be described as “arising in relation to the decision under review”.

•40                            It is necessary to bear steadily in mind that obtaining the opinion of an independent expert will determine any issue about whether there had been relevant domestic violence. That is to say, the obtaining of an opinion that satisfies the description in reg 1.23(1B)(b) – “the opinion of an independent expert” – is dispositive of an issue arising in relation to the decision under review by the Tribunal. Indeed, in the present case, the opinion was treated as dispositive of the appellant’s claim to a permanent visa. It is therefore not right to argue, as the Minister’s submission did, from a premise that the Tribunal can obtain additional information relating to an issue arising in relation to the decision under review, to a conclusion that an issue arising on the review may be decided against the applicant for review without first having invited the applicant to appear to give evidence and present arguments. Describing the opinion of the independent expert as “further information” or “evidence” neither requires nor permits that conclusion. The conclusion urged by the Minister would reduce the hearing required by s 360 to an opportunity to comment on whether the opinion obtained met the statutory criteria. It would deny any operation for the section in respect of an issue arising in relation to the decision under review that will often be an issue of critical importance to the fate of the review. That step cannot be taken.

41.The second question identified at the outset of these reasons – may the Tribunal decide that it is “not satisfied” of an applicant’s claim to have suffered domestic violence before inviting the applicant to give evidence and present arguments – should also be resolved in the appellant’s favour.

[All footnotes removed.]

Prior to this High Court decision, the MRT had determined that it could not hear evidence from the visa applicant about domestic violence if the independent expert had previously decided the matter adverse to the applicant. The High Court decision clearly establishes that the MRT can determine for itself the issue of domestic violence without referring the matter to the independent expert.  Of course it only refers a matter to the independent expert if it initially is unsatisfied of the issue of domestic violence.

Hence, as can be seen from the above, Sok does NOT limit the MRT’s ability to consider the matter of domestic violence at large.  It is only if the MRT were to consider that Reg 1.23(1B)(a) did NOT apply would the matter be sent to the independent expert.

It is always useful in cases such as this to return to the seminal cases on merit review. The most important case in this regard is the Administrative Appeals Tribunal decision of Drake v MIEA No 2 (1979) 2 ALD 634. The decision contains the seminal comments by Sir Gerard Brennan who was then sitting as a Presidential Member of the AAT.   In that decision he stated [EMPHASIS ADDED]:

It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so.

He went on to point out the advantages a Tribunal like the AAT or the MRT has over the original decision maker:

The creation of a jurisdiction in this Tribunal to review the decisions of the Minister, and the statutory requirement that the Tribunal be constituted by a Presidential Member sitting alone, results in the appointment of a number of Presidential Members to decide the cases brought to the Tribunal from decisions of the Minister…. The procedural advantages which the Tribunal enjoys in the production and testing of evidence frequently result in the Tribunal’s findings of fact…. being different from the findings of the Minister, and that is an intended consequence of the vesting of the jurisdiction in the Tribunal.

It is that very role, as identified by Brennan P (as he then was), that allows the MRT to determine domestic violence without recourse to the independent expert.

There is a clarification of the meaning of relevant domestic violence to add threatened violence, the new subregulation 1.23 (2) (b) (inserted by Migration Amendment Regulations  2007 (No. 13), dated 26.9.07) reads:

(b)a reference to relevant family violence is a reference to conduct, whether actual or threatened, towards:

(i)the alleged victim; or

(ii)a member of the family unit of the alleged victim; or

(iii)a member of the family unit of the alleged perpetrator; or

(iv)the property of the alleged victim; or

(v)the property of a member of the family unit of the alleged victim; or

(vi)the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

There is a comparable amendment to the evidentiary requirements in subregulation 1.24 (1) (a) (ii)

(ii)        a copy of a record of an assault, allegedly committed by the alleged perpetrator, on:

(A)       the alleged victim; or

(B)       a member of the family unit of the alleged victim; or

(C)       a member of the family unit of the alleged perpetrator;

that is a record kept by a police service of a State or Territory (other than a statement by the alleged victim or by the person allegedly assaulted); or