Is there anything that you can do to challenge the opinion of an independent expert concerning whether an applicant for a partner visa has suffered family violence?
Or does regulation 1.23(10), which requires that the Minister – that is either the Department or the Tribunal – to take the independent expert’s opinion to be correct the “end of the matter”?
Does this regulation necessarily put a Tribunal decision that is predicated on an independent expert’s opinion that the applicant was not the victim of family violence beyond contest?
The positive answer, as illustrated by the case of Armstrong & Anor v Minister for Immigration and Anor (No. 2) (2017) FCCA 2058 (15 August 2017) is that it “ain’t necessarily so” and that an application that is based on a claim of family violence is not “dead on arrival” just because the independent expert has rendered a negative opinion!
Here is the story of what happened in the Armstrong case:
The applicant’s application for a partner visa (in this case, Subclass 100) was refused after the Department received information that her relationship had ceased. Although a statutory declaration was provided to the Tribunal by a physician who supported the allegation that the applicant had been the victim of family violence, and who stated that she had seen photographs of bruises on the applicant’s body, the Tribunal was not satisfied that family violence had occurred.
Consequently, the Tribunal sought the opinion of an independent expert.
The expert returned a report with a finding that the applicant had not suffered family violence as defined by the regulations.
The Tribunal then provided a copy of the Family Violence Assessment and independent expert’s opinion to the applicant’s migration agent.
The migration agent then emailed the Tribunal, and attached to the email a series of photographs that depicted various injuries to the applicant.
However, in spite of this evidence, the Tribunal affirmed the refusal of the visa application.
It found that the photographs of the applicant’s injuries did not establish that the opinion of the independent expert was invalid. And, in spite of receiving evidence from the applicant’s friends that referred to her having suffered from physical violence at the hands of the sponsor, the Tribunal noted that it was required to accept the opinion of the independent expert, and thus concluded that relevant family violence had not occurred. Thus, the Tribunal proceeded to affirm the refusal of the partner visa application.
So exactly what did turn the tide in the applicant’s favour?
When the case came before the Federal Circuit Court, it was brought forward that the photographs of the applicant’s injuries that the applicant’s migration agent had sent to the Tribunal had not been provided to the independent expert.
The Court observed that the photos of the applicant’s injuries were “abhorrent” and were obviously material to the question of whether the applicant had in fact been the victim of family violence.
And it determined that the Tribunal’s failure to provide the photographs of the applicant’s injuries to the independent expert amounted to a denial of procedural fairness, and was thus a “jurisdictional error” that required that the Tribunal’s decision be set aside.
What is the lesson of this case?
It is to be extremely alert to the contents of the report of the independent expert, and to take careful note to what the report says concerning the materials that the expert has considered.
If it appears that the expert has not been provided with, or has failed to consider, evidence that related to the question of whether the applicant has been the victim of domestic violence, then it may very well be possible to persuade a reviewing court that the independent expert’s opinion has not been formed “in accordance with law”, and thus to get the Tribunal’s adverse decision overturned.
It goes to show that a negative opinion from the independent expert is not always an insurmountable obstacle to successfully basing an application on a claim of family violence.