Alam v Minister for Immigration and Border Protection

This matter came before Judge Emmett of the Federal Court of Australia concerning a review of a decision made by the Migration Review Tribunal (MRT). The applicant, Mr. Alam, sought to challenge the MRT's decision, alleging it was affected by jurisdictional error. The core of the dispute revolved around whether the MRT had correctly construed and applied the requirements of regulation 1.26 of the Migration Regulations 1994 (Cth) in assessing the applicant's claim of domestic violence.

The legal issues before the Court were whether the MRT had fallen into jurisdictional error by misconstruing regulation 1.26, and specifically, whether it was implicit in the statutory declaration of a competent person that, in their opinion, the applicant had suffered relevant domestic violence as defined by regulation 1.23(2)(b). Furthermore, the Court had to determine if the statutory declaration provided by the competent person adequately set out the evidence upon which their opinion was based, thereby complying with regulation 1.26.

Judge Emmett reasoned that regulation 1.26 mandates that statutory declarations must be made by competent persons and must explicitly state the competent person's opinion that relevant domestic violence has been suffered, along with the evidence supporting that opinion. The Court noted that a decision affected by jurisdictional error is not a decision made under the Act and thus is not protected by the privative clause under s.474 of the Migration Act 1958 (Cth). In this instance, the MRT found that Dr. Lennings' statement was insufficient because it appeared to reflect the applicant's opinion rather than the competent person's own opinion, and it failed to state whether, in Dr. Lennings' opinion, the applicant had suffered relevant domestic violence.

The Court found that the MRT had erred in its assessment of the statutory declaration provided by Dr. Lennings. The MRT's conclusion that the declaration did not meet the requirements of regulation 1.26 was based on a misinterpretation of the legislative provisions. Consequently, the MRT's decision was affected by jurisdictional error.