Alam v Minister for Immigration and Border Protection

[2015] FCCA 702

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 702

Catchwords:

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal had fallen into jurisdictional error in misconstruing the requirements of reg.1.26 of the Migration Regulations 1994 (Cth) – whether it was implicit in the statutory declaration of a competent person that, in his opinion, relevant domestic violence, within the meaning of reg.1.23(2)(b) of the Migration Regulations 1994 (Cth), had been suffered by the applicant – whether the statutory declaration of the competent person set out the evidence on which his opinion was based and had therefore complied with reg.1.26 of the Migration Regulations 1994 (Cth).

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.57, 65, 474
Migration Regulations 1994 (Cth) regs.1.21, 1.23, 1.24, 1.25, 1.26, 2.01.

Cases Cited:
Milyana v Minister for Immigration and Citizenship (2010) 183 FCR 170; (2010) 114 ALD 211; [2010] FCAFC 24
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89
Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115
Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280

Applicant: MASI UL ALAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2422 of 2013

Judgment of: Judge Emmett

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Sydney

Delivered on: 31 March 2015

REPRESENTATION

Counsel for the Applicant: Mr Ben Zipser

Counsel for the Respondents: Mr Mark Cleary

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2422 of 2013

MASI UL ALAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal, dated 11 September 2013 and handed down on 12 September 2013, to refuse to grant the applicant a Class BC (Partner - Migrant) visa (“the  MRT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”) and a summary of the MRT’s review and decision.

Background

1. The applicant is a citizen of Bangladesh.

2. On 22 November 2005, while offshore, the applicant applied for a Class UF (Partner – Provisional) (Subclass 309) and Class BC (Partner – Migrant) (Subclass 100) visa. The applicant specified as his partner sponsor Ms Lubna Hafeez Waraich, an Australian citizen since 1 May 1997 and the applicant’s wife since 3 September 2005.

3. On 28 May 2007, an officer of the Department of Immigration and Citizenship (“the Department”) wrote to the applicant informing him that his application for a Subclass 309 visa had been granted.

4. On 30 November 2007, an officer of the Department wrote to the applicant informing him that the Department had been advised that the spousal relationship on which his application was based was no longer continuing. The correspondence invited the applicant to respond to the information within 28 days of receiving the letter or to withdraw his application.

5. On 8 January 2008, the applicant’s migration agent wrote to the Department requesting an additional 8 weeks to respond.

6. On 7 April 2008, the applicant’s migration agent wrote to the Department informing the Department that the applicant’s spousal relationship had ended as a result of family violence committed by the sponsor spouse.

7. On 28 July 2008, an officer of the Department wrote to the applicant’s migration agent informing him that the Department was not satisfied that the applicant had suffered family violence and was referring the matter to an independent expert for the purpose of assessing the applicant’s claim.

8. On 9 September 2008, the Department wrote to the applicant enclosing a copy of the independent expert’s report, dated 1 September 2008.

9. On 2 October 2008, an officer of the Department wrote to the applicant’s migration agent pursuant to s.57 of the Act. That letter stated that it was the Department’s position that the applicant had not suffered family violence and put information that may form the reason or part of the reason for refusing to grant a visa.

10. On 28 October 2008, the applicant’s migration agent wrote to the Department seeking the matter be reassessed by a different independent expert.

11. On 17 June 2009, following a second independent expert assessment, the Department wrote to the applicant’s migration agent pursuant to s.57 of the Act. The Department invited the applicant to respond to information in the independent expert’s report that the applicant had not been the subject of family violence.

12. On 7 July 2009, the applicant’s migration agent responded to the Department’s letter of 17 June 2009.

13. On 17 March 2011, the Delegate refused the applicant’s application for a Class BC (Partner – Migrant) (Subclass 100) visa.

14. On 18 April 2011, the applicant lodged an application for review of the Delegate’s decision by the MRT.

15. On 11 September 2013, the MRT affirmed the decision of the Delegate not to grant a Class BC (Partner – Migrant) (Subclass 100) visa.

16. On 8 October 2013, the applicant filed an application to this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Class BC (Partner – Migrant) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. At the time that the applicant applied for his visa, Class BC contained both Subclasses 100 and 110. The applicant advanced claims only in respect of Subclass 100, the requirements of which are set out at Part 100 of Schedule 2 to the Regulations.

3. The primary criteria for the grant of a Subclass 100 visa are contained in cl.100.221 of Schedule 2 to the Regulations. Clause 100.221 requires that the applicant be the ‘spouse’ of the visa sponsor unless the relationship has ceased and particular circumstances exist. Clause 100.221(4)(c)(i) allows for the grant of the visa, relevantly, where the applicant has suffered domestic violence committed by the sponsoring spouse and is no longer in a relationship with the sponsoring spouse for reasons of family violence.

4. Division 1.5 of the Regulations prescribes special conditions in relation to domestic violence. Regulation 1.23(1A)(b)(ii) specifies that a person is taken to have suffered non-judicially determined domestic violence if, relevantly, the alleged victim has presented evidence in accordance with reg.1.24 that the alleged victim has suffered relevant domestic violence.

5. Relevantly, reg.1.24(1)(b) requires the evidence referred to in reg.1.23(1A)(b)(ii) to be in the form of a statutory declaration by the alleged victim in accordance with reg.1.25 of the Regulations, together with two statutory declarations in accordance with reg.1.26 of the Regulations.

6. Regulation 1.26 requires that the statutory declarations must be made by competent persons and must state that, in the competent person’s opinion, relevant domestic violence has been suffered by a person and must set out the evidence upon which the competent person’s opinion is based. Relevantly, reg.1.26 is as follows:

   “1.26        Statutory declaration by competent person

   A statutory declaration under this regulation:

   (a)    must be made by a competent person; and

   …

   (c)    must state that, in the competent person’s opinion, 

   
   

   relevant family violence (within the meaning of subregulation 1.21 (1)) has been suffered by a person; and

   …

   (f)    if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

   (i)    must name the person whom the conduct of the alleged perpetrator was towards; and

   (ii)    must identify the relationship between the alleged victim and the person whom the conduct was towards;”

7. Regulation 1.23(2)(b) of the Regulations provides that a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim to fear for, or to be apprehensive about, the alleged victim’s well-being or safety.

8. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The MRT’s review and decision

1. On 18 April 2011, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 29 May 2013, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 3 July 2013 to give oral evidence and present arguments.

3. The applicant attended the hearing on 11 July 2013. The matter was adjourned to 22 July 2013.

4. On 22 July 2013, the applicant attended the resumed hearing.

5. On 24 July 2013, the applicant’s migration agent made a post-hearing submission.

6. The MRT was satisfied that the applicant and the sponsor were at one time in a spousal relationship and that the relationship had ceased. The issue before the MRT was whether the applicant had suffered relevant domestic violence committed by the sponsor within the meaning of the Regulations. The MRT noted that in the present case, the applicant was seeking to establish domestic violence on the basis of a non-judicially determined claim of domestic violence.

7. The MRT considered the applicant’s statutory declaration, dated 5 April 2008, and the statutory declarations of Ms Sally Cantwell and Dr Christopher Lennings, dated 2 March 2008 and 10 June 2008 respectively.

8. The MRT formed the view that Dr Lennings’ statement was not sufficient to meet the requirements of the legislation, finding that the report reflected the opinion of the applicant and did not satisfy the requirement that the competent person must state whether, in the competent person’s opinion, the relevant domestic violence had been suffered by a person.

9. Having found that Dr Lennings’ report did not satisfy the relevant legislative requirements, the MRT found that the requirements of regs.1.25(2) and 1.26 of the Regulations had not been satisfied.

10. The MRT was therefore not satisfied that evidence had been presented in accordance with reg.1.24(1)(b) of the Regulations that domestic violence had occurred and therefore found that reg.1.23(1A)(b)(ii) of the Regulations was not satisfied. Accordingly, pursuant to reg.1.23(1A) of the Regulations, a non-judicially determined claim of domestic violence had not been made out.

11. Accordingly, the MRT found that the applicant did not meet the requirements of cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations and affirmed the decision not to grant the applicant a Class BC (Partner - Migrant) visa.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Ben Zipser, of counsel.

2. Despite the grounds as identified in the applicant’s originating application filed on 8 October 2013, Mr Zipser confirmed that the applicant relied only on a contention that the MRT had fallen into jurisdictional error in misconstruing the requirements of reg.1.26 of the Regulations. Mr Zipser contended that it was implicit in Dr Lennings’ report that, in his opinion, relevant domestic violence, within the meaning of reg.1.23(2)(b) of the Regulations, had been suffered by the applicant and that Dr Lennings had set out the evidence on which his opinion was based and had therefore complied with reg.1.26 of the Regulations.

3. Dr Lennings commenced his report by stating that he had read the definition of domestic violence in reg.1.23(2)(b) of the Regulations. Thereafter, Dr Lennings provided his qualifications as a “competent person”, which are not in dispute.

4. Dr Lennings then set out in detail the background of the applicant’s relationship with his wife and his arrival in Australia. Dr Lennings went on to provide a detailed account of the applicant’s evidence of the abuse that he claimed to have suffered at the hands of his wife. This conduct included berating the applicant, not letting him sleep, engaging in controlling behaviours, requiring him to take homeopathic medicines that caused the applicant to be concerned that he may be being poisoned, hitting the applicant, waking him from sleep and verbally abusing the applicant. Dr Lennings then referred to the applicant’s current living situation.

5. Dr Lennings goes on to provide his psychological assessment and conclusion. Dr Lennings noted that the applicant reported “being scared” as his dominant emotion and that he had disrupted sleep and worries about returning to Bangladesh. The applicant claimed to have lost his appetite and has financial worries. Dr Lennings stated that the applicant appeared to be “a somewhat disconsolate man” who was struggling with his emotions.

6. Dr Lennings concluded that the applicant seemed to have tried to please his wife but, for a reason that was not clear, the relationship had collapsed when he had come to Australia. Dr Lennings expressed surprise that, according to the applicant, there had been no hint of problem or difficulty with the frequency of the applicant’s contact with his wife prior to his arrival in Australia, in circumstances where his wife met him at the airport in Sydney dressed in black, conduct which implied something was wrong.

7. Dr Lennings noted the applicant’s claim to be a victim of both psychological and physical violence within the marriage and that this conduct would satisfy the definition of domestic violence as required under reg.1.23(2)(b) of the Regulations. Dr Lennings summarised the violence as including physical assault, psychological abuse and controlling behaviours. Dr Lennings concluded as follows:

   “I am not sure what to make of his comments about homeopathic medicines, I do not believe there is any substance to a belief his wife was attempting to poison him, but clearly he was subject to unusual treatments and his lack of language skills, social isolation and unfamiliarity with Australian society made him acutely vulnerable to his wife’s control. Such violence appears to have been a consistent feature of the marriage since arriving in Australia and has caused in Mr Alam an adjustment disorder impacting on his routines and his well-being. I am aware that under the regulations, a visa may be issued if the Tribunal are satisfied that domestic violence has occurred within a genuine relationship that has broken down. Mr Alam’s account is that the relationship was genuine, the couple were married, and he reports a strong commitment to the relationship. However, it is unlikely any reconciliation will occur given the account Mr Alam gives of his wife’s animosity towards him.”

8. The MRT considered Dr Lennings’ statutory declaration and noted that in order to satisfy the legislative requirements, Dr Lennings must state his opinion that relevant domestic violence has been suffered by a person as required by reg.1.26(c) of the Regulations; that is, an opinion that reflects an assessment of the state of mind of the applicant by reference to the correct definition. The MRT referred to Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 (“Ejueyitsi”) and Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 (“Du”) as support for the proposition that it is not sufficient for Dr Lennings to state that the applicant’s presentation is consistent with a claim of domestic violence. The MRT also stated that it is not sufficient for Dr Lennings simply to recite the applicant’s evidence and find that it is consistent with the definitions of domestic violence.

9. True it is that Dr Lennings has not stated in clear terms whether in his opinion the applicant has been the victim of domestic violence or whether he has not. However, in finding that the applicant has an “adjustment disorder” Dr Lennings similarly did not state that finding by using the language “in my opinion”.

10. Dr Lennings appears to have accepted that the applicant was subject to unusual treatments in relation to his wife’s use of homeopathic medicines; and that his lack of language skills, social isolation and unfamiliarity with Australian society made him “acutely vulnerable” to his wife’s control. Dr Lennings appears to accept that such conduct is capable of being characterised as violence and that such conduct has been a consistent feature of the applicant’s marriage since arriving in Australia. Moreover, Dr Lennings states that he is aware that the MRT must be satisfied that domestic violence has occurred within a genuine relationship that has broken down. Dr Lennings refers to the applicant’s account of the relationship in expressing the view that it is unlikely that any reconciliation will occur based on the applicant’s evidence of his wife’s animosity towards him.

11. Regulation 1.26 of the Regulations clearly provides that a statutory declaration, such as that of Dr Lennings, must state that in his opinion relevant domestic violence within the meaning of reg.1.23(2)(b) of the Regulations has been suffered by the applicant. He does not do so in terms. However, in Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 at [34] (“Meroka”), Ryan J stated that it was not necessary that the competent person state expressly that in his or her opinion relevant domestic violence has been suffered. Ryan J stated that the requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of domestic violence. Ryan J found that an implication can arise in the context of directions on such a form from the insertion in the respective spaces provided of details of the victim and the name of the person believed to have been the perpetrator of the domestic violence.

12. To that end, Dr Lennings completed a pro forma form stated to be a statutory declaration relating to family violence. At the commencement of the form, the competent person is asked to ensure that they have read the explanatory notes accompanying the statutory declaration. The form then requires the competent person to state what evidence there is that indicates to the competent person that the visa applicant is the victim of relevant domestic violence. The form then requires details to be given of the specific incidents of family violence, including naming the victim and identifying the relationship between the victim and perpetrator, the dates on which the incidents occurred and the impact of those incidents upon the applicant, including physical, emotional and state of mind. The form then goes on to state that the Regulations require the competent person to provide, with reference to the definition of “relevant family violence on page 2 and responsibilities of competent persons on page 3 of the Guidelines on the front of this form”. In the box provided, Dr Lennings summarised briefly information he had been told by the applicant and referred to his report, which he had annexed to the form.

1. The form contemplates that the competent person is completing it on the basis that the visa applicant is the victim of relevant family violence.

2. In Ejeuyitsi, the Full Court of the Federal Court noted that in Meroka Ryan J found that when comments were read with conjunction with directions on the form, the requisite state of opinion was able to be discerned.

3. In Ejeuyitsi at [34], the Full Court stated that is not sufficient that the competent person states the victim’s presentation is consistent with the claim of domestic violence. However, the statutory declaration being considered by the Full Court of the Federal Court in Ejeuyitsi had none of the contextual hallmarks of Meroka or the case before this Court in that the statutory declaration did not imply any opinion as to domestic violence and simply diagnosed the visa applicant as depressed and identified the medical treatments prescribed. There is nothing in the facts of that case to suggest that the information in the Statutory Declaration Form completed by Dr Lennings was completed by the competent person in Ejeuyitsi.

4. The Full Court of the Federal Court in Ejeuyitsi also referred to Du in support of the proposition that it is not sufficient compliance with the Regulations for a competent person to simply note the consistency between a person’s presentation and their account of domestic violence, or even the occurrence of domestic violence. In Du at [18], Matthews J stated that the competent person was required to express an opinion in very specific terms about whether relevant domestic violence as defined in reg.1.23 of the Regulations has been suffered by the visa applicant. Matthews J stated at [19] that this consideration involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim.

5. Read fairly without an eye keenly focused on error, Dr Lennings’ report accepts that past acts of conduct that he characterised as violence had occurred and assessed the state of mind of the applicant (see: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

6. It is well established that the “question of whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law” (see: Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ).

7. By implication, Dr Lennings conveyed his opinion having regard to the way in which the standard form of his Statutory Declaration directed the attention of the competent person to the definition of domestic violence in reg.1.23(2)(b) of the Regulations. That implication arises from the context of Dr Lennings’ insertion of the relevant information in the respective spaces provided and supplemented by Dr Lennings’ comprehensive report. I do not accept that Dr Lennings misconceived the definition of domestic violence required for the formation of the requisite opinion. Read together, his completion of the Statutory Declaration Form and his report implied a statement of opinion that fulfils the requirements of reg.1.26 of the Regulations.

8. In conclusion, Dr Lennings was aware of the requirements of reg.1.26 and the definition at 1.23(2)(b) of the Regulations as he states in his report. Fairly read, the overwhelming inference that I draw from Dr Lennings’ report and his Statutory Declaration is that he was aware of his obligations as a competent person under the Regulations and addressed them satisfactorily.

9. Accordingly, the MRT committed an error of law which, in the circumstances, is a jurisdictional error.

10. The decision of the MRT should be set aside and the matter remitted to the Migration Review Tribunal for determination according to law.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  31 March 2015