Cakmak v MIMIA

[2004] HCATrans 558

[2004] HCATrans 558

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M304 of 2003

B e t w e e n -

FIKRI CAKMAK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 10.35 AM

Copyright in the High Court of Australia

MR E.J.C. HEEREY:   May it please the Court, I appear for the applicant.  (instructed by Clothier Anderson & Associates)

MR W.S. MOSLEY:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Heerey.

MR HEEREY:   Your Honours, there are three special leave points contended by the applicant.  The first two raise issues, in my submission, of public importance and general application.  The third issue depends upon treatment of the first two issues and how they would apply in the facts of this case.

With regard to the first issue, before the Full Federal Court both the respondent and the applicant submitted that the concept of “domestic violence” as defined in these regulations was not limited to only physical violence.  Both parties also submitted that the concept of “domestic violence” as defined in these regulations included emotional and ‑ ‑ ‑

GUMMOW J:   Well, what do you say, Mr Heerey – if you go to page 75 of the application book, what do you say about that paragraph beginning at line 26, “Implicit in the Tribunal’s approach”.

MR HEEREY:   Yes, your Honour, that comes at the end of the Full Court’s decision.

GUMMOW J:   I know.

MR HEEREY:   It also turns on the Full Court’s treatment of the second special leave point, which is the relevance of acts committed by or on behalf of the members of the wife’s family.  That was rejected by the Full Federal Court.  That was also a matter which the Tribunal failed to deal with altogether.  So my second special leave point is that – and I can go straight to that point if it would assist your Honours.  With regard to ‑ ‑ ‑

HAYNE J:   Well, before you go to what you see is the second point, am I right in understanding the course of events as being that the applicant himself did not put material before the Tribunal that revealed acts of verbal or psychological abuse, to use a shorthand that may obscure more than it illuminates?

MR HEEREY:   Not in so many words, your Honour.  That was a matter that I argued before the Full Court was at the very least implicit in the statutory declarations which the applicant put to the Tribunal.

HAYNE J:   There was material from people associated with him that he had been subjected to this form of abuse, but he himself did not depose to it, did he?

MR HEEREY:   He deposed to the fact that he was afraid of the wife and afraid of her family.  He deposed of the elements leading to that.  The regulations insofar as they applied to the applicant’s own statutory declaration were less onerous than those applying to the declarations to be filed by the competent persons, in that the applicant need only file a declaration which the words are “sets out an allegation of relevant domestic violence”.  So we then turn back to the definition of “what is relevant domestic violence” and that includes violence which could be emotional or psychological, and in circumstances where the applicant had given evidence that he did fear the wife as a result of those actions taken against her, my submission is that that was open to fulfil that aspect of the regulations.

In any event, I am happy to continue with the question of domestic violence because, your Honour, it was a matter which was not properly debated before the Full Federal Court and because of that the Full Federal Court did not get the benefit of parties providing material such as the explanatory memorandum of November 1995 presented to Parliament in respect of the precedessing legislation which contained a materially identical definition of “family violence”.  That explanatory memorandum confirms that when enacting that definition, Parliament expressly turned its mind to the inclusion of “non-physical violence” within the definition of “family violence”.  Six months later, the relevant regulations were made, as apply in our case, with materially identical language save only for some substitution of some synonymous words.

On that basis, our submission is that Parliament’s intention was really quite clear, that this definition did include non-physical violence.  So in the absence of that sort of material being put before the Full Federal Court, it can be understood how the Full Federal Court slipped into the error of thinking that the Parliament’s intention was in fact the reverse.  So this is an opportunity, your Honours, in the High Court to correct that wrong and to give the proper meaning as Parliament intended to that definition.

Now, your Honours, despite the position that the respondent took before the Full Federal Court, subsequently the respondent has taken a 180 degree turn and now seeks to uphold the principle espoused by the Full Court below insofar as the Full Court says that domestic violence does not include non-physical violence.  The respondent has also abandoned the previous position held before the Full Federal Court that the earlier decisions of Justice Wilcox in Malik’s Case and Justice Ryan in Meroka’s Case were correct in that regard.

At the same time, your Honour, the respondent’s contentions argue that, “Well, it’s only an obiter matter”, as if that should protect that issue from further review by this Court.  However, in a recent decision by Justice Ryan in Kozel v The Minister [2004] FCA 58 at paragraph [24] Justice Ryan found that in fact his Honour was bound by this statement of principle from the Full Federal Court. So there is a judge already of the Federal Court who does not regard this principle as merely obiter, but instead as a binding principle.

I note also, your Honour, in my friend’s contentions that it is contended that regard should not be had to the corresponding definition in the Family Law Act.  In response to that I say that regulation 1.23 of the Migration Regulations itself contains an explicit reference to the Family Law Act which means it is only natural that it should be construed in light of what Parliament intended for that Act.

My friend also relies on the authority of Yager’s Case, but that case really goes to an opposite principle.  That case goes to the effect of saying that in construing one piece of legislation regarding a certain subject matter, you cannot modify and qualify a definition in that legislation by reference to other legislation which uses a different definition for the same subject matter.  The present case is the reverse, your Honours, because we have the same subject matter, domestic violence – call it family violence – and in both Acts the definition is materially identical.  So Yager’s Case does not stand in the way of referring to the explanatory memorandum from the Family Law Act.

That is the essence of the first special leave point, your Honours.  I say it is a matter of public importance for the notorious fact that domestic violence is a serious and enduring problem, and there has been material that we filed in support of this application to say that it affects, according to the Australian Bureau of Statistics, over 20 per cent of women in marital or de facto relationships.  It is an issue that just has to be addressed.

With regard to the second special leave point, your Honours – and this is the question of whether it is relevant to consider acts done by other persons by or apparently on behalf of spouse.  Now, the relevant evidence in this case was as follows in the applicant’s statutory declarations.  Firstly, there was a threat that his wife’s father would stab him.  Secondly, the wife’s sister was involved by communicating that threat to the applicant.  The wife had five sisters and two brothers, and the evidence from the applicant was that they were very protective of her.  When the wife left the marital home she went to live with the parents.  Finally, as a conclusion to all this, the applicant says that he was afraid of the wife and of her family.

In Kumar’s Case the Chief Federal Magistrate, who is now the Chief Justice of the Family Court, held that within these regulations domestic violence does include threats by other persons, apparently acting on behalf of the spouse, and I relied upon that authority before the Full Federal Court.  The Full Federal Court rejected that authority, and that raises the second special leave point, your Honours, whether the Full Federal Court erred in that regard.

Insofar as the regulations only refer to the primary perpetrator of domestic violence, by the usual principles applying from Giorgianni’s Case, your Honours, a secondary perpetrator should also be caught if that person can be seen to be linked in purpose with knowledge or connivance or wilful blindness as to the acts of the perpetrator.  So it is not an answer simply to say that the regulations only refer to the spouse in light of that authority, your Honour.

The general application of the principle that has been left with us by the Full Federal Court’s decision is that those who wish to continue this conduct can do so by way of their family members or other people making the relevant threats.  I say this in this context, your Honours.  Surely the policy objective of these regulations is to protect those migrants who are in violent relationships.  The policy objective must be that such migrants should not feel trapped to remain in such relationships purely to preserve their visa status.  So the regulations create an exclusion whereby if the relationship has ended in circumstances of domestic violence that visa status is not annulled.

So in that context the focus is clearly on protecting migrants who are victims to domestic violence.  It is not focused on punishing the perpetrators.  In fact, regulation 1.27 says that such evidence cannot be used against the perpetrators in criminal proceedings.  So the focus is on protecting these migrants, and it would be a perverse result, your Honours, if the ultimate effect was that such migrants were not protected from domestic violence through secondary perpetrators in the same way that they would be under the normal consequences of criminal law.  So that is the essence of the second special leave point, your Honours.

I submit that this is a suitable vehicle for the consideration of these issues.  The Full Federal Court has set out a detailed analysis of its position and has set its position in a very contrary fashion to the equally detailed discussion set out by Justice Wilcox in Malik’s Case and Justice Ryan in Meroka’s Case and the Chief Federal Magistrate in Kumar’s Case.  As a result of all of these decisions, the issues have been set in stark relief and allow a convenient opportunity for the High Court to consider and clarify the issues.

The fact that the Full Court made its decision contrary to the joint submissions of both parties in itself is reason to doubt the correctness of the Full Court’s decision.  This is an opportunity for the High Court to clarify the issues and make a clear ruling as to whether domestic violence is limited to physical violence and should exclude the acts of secondary perpetrators.

Finally, your Honours, how would these issues determine the case?  The second point is easily dealt with because it was completely ignored by the Tribunal and rejected by the Full Federal Court.  If your Honours will accept the assumption that a threat to stab the applicant is enough to constitute violence, domestic violence, then surely that was an issue which was open to the Tribunal to consider, and in fact the Tribunal is required to consider it, and in failing to consider it it did fall into jurisdictional error.  The primary judge in the Full Federal Court erred in not finding that equally.

The Full Federal Court concluded that in its view there was nothing to suggest that the wife’s family acted on her behalf.  In my submission, that is an extreme conclusion in light of the evidence which I just recounted to your Honours and, at the very least, if that conclusion was – well, to say there was nothing to suggest such a conclusion is really taking it too far.  That issue was open to the Tribunal to consider, and it ought to have considered it as required of its jurisdiction.  So in that respect alone, if the second special leave point is good and succeeds then so too should the applicant’s claim that it be remitted to the Tribunal.

As to the Full Federal Court’s erroneous consideration of non‑physical violence, in my submission that erroneous consideration clouded its proper treatment of the other acts of the applicant herself.  While the Full Federal Court at appeal book 66, paragraph 50, started to identify the correct issues, at the bottom of that page, your Honours, the Full Federal Court there identified what the Tribunal was actually required to consider, but then went off on a different tangent by engaging in a subjective assessment of the level of violence.

Now, the language of the regulations contends entirely against that.  They are deeming provisions, difficult as that may be to reconcile with many other principles of the law.  That is what Parliament has intended, that if the regulations are met and evidence is submitted which fulfils the regulations, then domestic violence should be deemed to have occurred.  So it was erroneous for the Full Federal Court, and for the Tribunal, to engage in a subjective assessment as to the violence involved, as set out in the statutory declarations.

GUMMOW J:   What do you say about page 74, line 8 and following, the sentence beginning, “Here, apart from the incident in December”?

MR HEEREY:   Yes.  Well, that is a correct assessment of the evidence, and the next sentence there is the sentence I was referring to a moment ago, where the Tribunal says:

There was nothing to suggest on the evidence that these were done “by or on behalf of” Mrs Cakmak –

That seems an extraordinary conclusion to rule out the possibility of any involvement of Mrs Cakmak in those acts, where in the evidence ‑ ‑ ‑

HAYNE J:   It is not ruling it out.  It is simply saying no evidence.

MR HEEREY:   Well, it is ruling out the possible conclusion.  It is saying there was no evidence.  My submission is clearly there was evidence to that regard, as I detailed before, whereby the applicant was living with the parents, aware of their activities – at least inferentially.  At the very least it is wilful blindness as to what they were doing.  So, your Honours, the yellow light is already on.  I would like to conclude before the red light.  Those are the three special leave points that we seek to agitate, and those are my submissions.

GUMMOW J:   Yes thank you, Mr Heerey.  Yes, Mr Mosley.

MR MOSLEY:   Your Honours, leave to appeal is sought against a decision, not the reasons.  The special leave questions, the two, that are sought to be agitated today take issue with matters which, in our submission, are hypothetical.  Even if the applicant were to be successful in relation to them, it would not assist him.

The first special leave matter was whether the relevant domestic violence was limited, as the Full Court found, to violence that involves physical force or an apprehension of physical force or, as the applicant maintains, encompasses emotion or psychological violence.  As your Honour Justice Gummow pointed out, the Full Federal Court had specifically stated that its consideration of this matter was obiter, as your Honour says at page 75 of the application book.  What was in fact fatal to the appeal was the fact that the applicant’s statutory declarations failed to satisfy the regulations and the Court found that there was no evidence that the applicant was in fear, notwithstanding what my learned friend had put to your Honours that there was evidence regarding the fear of the wife.  The Full Court found at 74, at line 30 and following, that:

No other act of violence –

apart from the December act –

physical, emotional or psychological, is ascribed to her.  His statutory declarations do not present any evidence, either at the time of the incident when he was scratched or thereafter, that he had any fear or apprehension for his well-being or safety by reason of violence or threat of violence from his spouse.

Nothing, in my submission, could be clearer.  That is the basis that the Full Court went on to conclude that he had no fear and, therefore, he could not satisfy regulation 1.23(2)(b), which requires that the relevant domestic violence:

causes the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well‑being or safety.

In fact, indeed, the statutory declarations, as the Full Court said, contained evidence that the applicant had no personal fear of his well‑being and safety.  So much appears at 74 of the application book.  In regard ‑ ‑ ‑

GUMMOW J:   We do not need to hear you any further, Mr Mosley.  Anything in reply, Mr Heerey?

MR HEEREY:   Your Honours, only to take your Honours to page 58 of the application book.  At the bottom of that page, your Honours, is the part of the applicant’s statutory declaration where the applicant states that his wife’s sister:

told me that if my marriage . . . ended for any reasons her father would do the same to me –

which was to stab him –

as it was a matter of pride and honour.  She stated that he would have to harm me to punish me for the marriage ending.  I later learned from Nuray that her father had spent time in prison for the stabbing –

of the other person, I interpose –

This is just one example of the threats made against my safety by my wife or her family.

At the top of that page, your Honours, in another part of his declaration, the applicant said:

In any event, I was the one who was afraid of her and her family as they had behaved violently towards me in the past and I had no intention of going anywhere near her or her family.  Nuray has two brothers and five sisters who are all extremely protective of her and I was afraid that they would continue to harass me.

So it is in light of that evidence that I say it is an extraordinary conclusion to rule out the question as being at all open that there was evidence that the applicant was in fear of anything done by or on behalf of the wife by her family members.  Thank you, your Honours.

GUMMOW J:   We are not satisfied that any of the questions of principle contended for by the applicant necessarily would arise on an appeal were special leave to be granted.  Special leave is refused with costs.

We will adjourn to reconstitute.

AT 10.59 AM THE MATTER WAS CONCLUDED