Applicant Seeks Judicial Review of Tribunal's Refusal of her Visa

Nugrohowati v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 22 (21 January 2022)

The applicant sought a visa on the basis of family violence.  The Tribunal was not satisfied the applicant suffered family violence.  The Independent Expert was not satisfied the applicant suffered family violence.  The Court, in resolving this dispute, assessed whether the Independent Expert adequately considered the test for family violence.

Facts:

The applicant and the sponsor, Dr Edwards, began their relationship in about December 2010 in Batam, Indonesia.  

Dr Edwards and the applicant subsequently purchased properties in Indonesia, some or all being placed in the name of the applicant as, apparently, persons who are not Indonesian citizens were not entitled to own freehold property in Indonesia. 

The applicant disclosed to Ms Cartmill, a senior social worker with the Top End Health division of the Northern Territory Department of Health, "verbal and emotional abuse, financial abuse, intimidation and social isolation".  She said that the applicant continued to provide care for Dr Edwards but found it increasingly difficult to do so as his "abuse towards her can escalate very quickly and has a negative impact on [the applicant's] mental health”. 

It was claimed that Dr Edwards threatened the applicant that if “she doesn’t do housework etc. that he threatens to cancel her visa”. 

There is also reference to him threatening her visa if she did not agree to have a property in Batam “signed over to his name”.  The relationship between the applicant and the sponsor ended sometime around 18 January 2018 when the sponsor, Dr Edwards, notified the Department that he withdrew his sponsorship.  In February 2018 the applicant and the sponsor ceased living together and have not resumed cohabitation.  

The applicant then sought a visa on the new basis that she had suffered family violence.  The Tribunal was not satisfied the applicant had suffered relevant family violence and the Tribunal referred the matter to an independent expert in order to make an assessment of a non-judicially determined claim of family violence in accordance with the provisions of Division 1.5 of the Act. 

On June 30 2020, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of the Minister’s delegate made on 30 October 2017 to refuse the applicant a Partner (Temporary) (class UK) Visa under section 65 of the Migration Act (the Act).  The delegate refused the application because she was not satisfied that the applicant was the de facto partner of the sponsor. 

It appears that for some unknown reason the applicant had not provided a response to the delegate's request for further information and in the absence of information the delegate was not satisfied with the applicant’s entitlement to a visa.  By the time the applicant sought a review before the Tribunal it was not in issue that the applicant was the de facto partner of the sponsor at the relevant time.

Issue:

Whether or not the Independent Expert adequately considered the test for family violence.

Applicable law:

Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30 - relied upon by the respondent in submitting that the Tribunal was required to take the opinion as correct only if it were a valid opinion, formed in compliance with the Regulations, and until the applicant had been given the opportunity to make submissions about that, as she did, the use of the word “may” was correct.

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 - referred to by the respondent in submitting that first, that it is evident from the reasons of the Tribunal that it was aware of and identified the correct legal test and, secondly, was under no duty to make inquiries.

Nugrohowati v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1941 - where the first respondent accepted that it was “well-established that the defective formation of an opinion by an independent expert provides a basis for setting aside a decision of the Tribunal based upon that opinion”.

Analysis:

The contentious elements for family violence in this case were:

1. the existence of conduct, actual or threatened, and
2. whether such conduct, if any, caused the applicant to reasonably fear for, or be reasonably apprehensive about, her well-being or safety. 

The applicant pointed to, in particular, the sponsor’s conduct in threatening to withdraw his sponsorship for her spouse visa unless she transferred property to him and associated verbal abuse and denigration of her.  There was no dispute that this conduct had taken place and the SMS messages from the sponsor corroborated the applicant’s claim.  This was conduct calculated to coerce and control the applicant and, arguably, the threat to withdraw the sponsorship unless property was transferred to the sponsor constituted the criminal offence of blackmail. 

In the pro forma document completed by the independent expert she did not identify this conduct in the box requiring a “Summary of the incident as described in Part B12”. 

The independent expert wrote “Psychological Abuse” in the box. In the preceding section Part B12 the independent expert’s narrative referred to the applicant’s complaint of “psychological abuse, in particular verbal abuse”.  There she also recorded the applicant’s statement that the sponsor was “frequently asking her to sign over the title of a home they owned in Indonesia, placing it entirely in his name. He said he would continue to support her partner visa if she complied”. 

Later in the document the independent expert described the sponsor’s conduct as “He reportedly used the property as a means of bargining (sic) with Ms Nugrohowati, offering her ongoing support with her partner visa application in return for the title of the property”. 

There is nothing in the independent expert’s description to suggest that she characterised the sponsor’s conduct in relation to the property as threatening or coercive. On the contrary, she described the conduct as “bargaining”.

Conclusion:

The court was satisfied that the Independent expert failed to properly apply a legal test for family violence. The Court issued a writ of certiorari directed to the Second Respondent quashing the decision of the Second Respondent dated 30 June 2020.  Costs are reserved.  Parties may file and serve written submissions in relation to costs within fourteen (14) days of the date of this order.