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Is Tribunal Affording Procedural Fairness in Family Violence Cases?

Is there something rotten in the state of Denmark?

Or to put the question in contemporary and migration terms, is the existing framework for assessing non-judicially determined claims of family violence flawed?

Is it fair? Is it just?

What has your experience been in presenting claims of non-judicially determined family violence to the Tribunal? Please share them in the comments section below.

It’s my anecdotal impression from reading the case law that an awful lot of family violence claims are disbelieved by the Tribunal. What do you think?

A report that the Migration Alliance received late last week from a firm of migration lawyers concerning a recent case that they handled before the Tribunal prompted me to wonder again whether applicants are truly getting a “fair shake” on this issue, or not.

As readers will recall, regulation 1.23(10)(c) provides that when a non-judicially determined claim of family violence is made, the Minister (and thus the Tribunal, figuratively “standing in the shoes of the Minister” in the context of an application for merits review) must consider whether the alleged victim has suffered family violence; if not satisfied that the victim has suffered the family violence, then the Tribunal must seek the opinion of an independent expert and must accept the opinion of the independent expert to be correct.

At the moment, there is only a single “independent expert” that has been appointed to assess non-judicially determined claims of family violence in the whole of Australia. That is a firm of forensic and clinical psychologists known as “LSC Psychology”.  This firm was appointed under a Legislative Instrument (IMMI/023) that was made by the former Minister, Brendan O’Connor, on 19 March 2013.

The report that we received from our colleagues indicated that in their case before the Tribunal, the Tribunal member declined to consider a report by a psychiatrist that was prepared by a psychologist, and which identified that family violence had occurred ad that symptoms to that effect were exhibited  by the applicant to be “independent” for the reason that the applicant had initiated contact with the psychologist, and the psychologist was apparently neither employed by or contracted to LSC Psychology.

It does seem clear that the psychologist who was relied on by our colleagues was not an “independent expert” within the meaning of regulation 1.21 because the psychologist was not employed by or contracted to the only organization so nominated in the Legislative Instrument.

It is not entirely clear to us what may have occurred at the hearing (e.g. whether the Tribunal declined to consider the report sought to be relied upon by the applicant at all on the basis that the report was considered not to be the product of an “independent expert”. 

If that is what occurred, and we do not know if it did or not, then there is a possibility that there was jurisdictional error at the Tribunal. 

The regulations do not prohibit the Tribunal from considering the evidence of a psychologist who is not a nominated independent expert as to whether relevant family violence has occurred. To the contrary, the regulations require  the Tribunal to consider whether family violence has happened, and to refer the case out to an independent expert only if it is not satisfied that family violence has occurred.

In other words, the framework surely does not prevent the Tribunal from accepting and considering evidence of alleged family violence that an applicant seeks to rely on, even if that evidence is not sourced from the “independent expert” referenced in the regulations.

And indeed, why not? It is a commonplace for courts and Tribunals throughout Australia to consider and assign weight to the reports of experts, whether they are on government-appointed panels or not.

Moreover, if the applicant wishes to provide evidence to the Tribunal in support of a claim of family violence, should not the applicant be able to tender any competent and probative evidence? What difference does it make to the reliability of that evidence if an applicant has initiated contact with a psychologist/psychiatrist to prepare a report? Isn’t it open to the Tribunal to evaluate the report and make an informed judgment about its reliability?

Here is another issue raised by our colleagues: It is apparently common when the Tribunal refers a case of alleged family violence out to LSC Psychology that the Tribunal will provide  LSC with a document outlining why the Tribunal believes or disbelieves the claim of family violence. 

Apparently, this Tribunal-generated document is not being given to applicants before the independent expert finalizes its report. And again, once that report is finalized, the regulations require that the Tribunal accept it to be correct.

Is there a problem of denial of procedural fairness here?  After all, standard principles of procedural fairness before the Tribunal require the Tribunal to identify particulars of the matters which form the reason, or part of the reason, which the Tribunal considers for affirming the decision.

So wouldn’t those principles of basic fairness suggest that the applicant should be provided with a copy of the document that the Tribunal transmits to the independent expert stating the member’s views as to the merits of the family violence claim?

Lastly and while we’re on the topic: Is psychological or psychiatric evidence always necessary in order to enable the Tribunal to determine the credibility of non-judicially determined claims of family violence? Is not the evidence of an applicant itself capable of proving such a claim? What about the evidence of eyewitnesses to incidents of family violence? Medical reports of physical injuries?

Can someone out there please help me?

I thought that the government was supposed to be making a concerted effort to combat domestic violence, including in the sphere of family-streamed visa applications.

Why then is it necessary for the Department and the Tribunal to be so reflexively skeptical of such claims?

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Comments

  • Shamser S Thapa
    Shamser S Thapa Monday, 20 March 2017

    We raised the same issues but have been unsuccessful. Please see: Gounder v Minister for Immigration & Anor [2015] FCCA 1658 (19 June 2015)

    The Department and Tribunal both refer to LSC for Independent Expert's reports and consider "independent".....

  • Guest
    S Thapa Monday, 20 March 2017
  • Guest
    veronica Thursday, 23 March 2017

    Hi Michael,
    Statutory interpretation points to the fact that if the Minister is not satisfied that the applicant has not suffered family violence, then a professional opinion of the independent expert is to be required. Once given, that opinion is correct.
    The procedural unfairness only arises (in my opinion) if the independent experts does not come to the conclusion that family violence has occurred. If this is the case, then further investigation as to how LSC has come to that conclusion may give rise to procedural unfairness if proper care and due diligence is not taken in the assessment.

    Without non-judicially determined family violence, it would be extremely difficult to prove, especially in non-traditional situations of family violence i.e. female to male violence, same sex violence, as there is an inherent bias that violence in these situations does not actually take place or the perpetrator is deemed to be the weaker party therefore the "victim" can protect themselves.

    In my opinion, non-judicially determined family violence should be scrutinised and it should be a high threshold considering the police assistance with AVO's.

    Without links to the cases that you refer to, it is difficult to agree with your stance.

  • Guest
    Nathan WIllis Friday, 24 March 2017

    We have had one successful non-judicially determined family violence matter within the last 12 months and another two are currently on foot. The IE/Psychologist (was LSC) was not an expert in family violence but instead arson! We consider that this is a 'lie test' of sorts. Our client was successful following the IE assessment although we did argue that IE assessment was not required in the first instance with the Department. The latest approach now seems to be for the Department to argue that the relationship did not exist at the time of non-judicially determined family violence and hence non-judicially determined family violence does not arise - we are still arguing that for another matter.

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Guest Monday, 01 May 2017