Cakmak v Minister for Immigration & Multicultural Affairs

Case [2003] FCA 503

FEDERAL COURT OF AUSTRALIA

Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503

MIGRATION – partner visa – relationship between applicant and sponsoring spouse had ceased – task of Migration Review Tribunal to determine whether applicant had suffered domestic violence committed by sponsoring spouse – mode of proof of domestic violence – statutory declarations of competent persons – whether open to tribunal to disregard statutory declarations because source of information on which they were based was applicant – whether open to tribunal to determine whether statutory declarations established conduct sufficiently serious on part of sponsoring spouse to amount to domestic violence – single episode of physical violence – reliance by competent persons on threats and verbal abuse by sponsoring spouse and members of her family – manner of dealing with mechanical modes of proof

Migration Regulations 1994 (Cth) regs 1.15A, 1.21, 1.22, 1.23, 1.24, 1.26, item 100.221, Sch 2

Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 referred to
Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 followed

FIKRI CAKMAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 1173 of 2001

GRAY J
22 MAY 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1173 of 2001

BETWEEN:

FIKRI CAKMAK
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

22 MAY 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1173 of 2001

BETWEEN:

FIKRI CAKMAK
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GRAY J

DATE:

22 MAY 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

  1. This application seeks the exercise of the Court’s jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) with respect to a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, “the Minister”) to refuse to grant to the applicant a visa of the type known as a Partner (Migrant) (Class BC) visa, subclass 100.

  2. On 10 February 1999, the applicant applied for a Spouse (Provisional) (Class UF) visa, subclass 309 and for a Partner (Migrant) (Class BC) visa, subclass 100, on the basis of his marriage to Nuray Fatma Cakmak (“the sponsor”).  The couple arrived in Australia on 25 April 1999.  On 15 May 2000, a delegate of the Minister refused to grant the subclass 100 visa, following information submitted by the sponsor that the marriage had ended.  The applicant applied to the Tribunal, which affirmed the decision on 27 February 2001.  The applicant then sought judicial review of that decision of the Tribunal by applying to the Court.  On…

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AGLC
Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503
Case
[2003] FCA 503
Decision Date

CaseChat Overview and Summary

Cakmak v Minister for Immigration & Multicultural Affairs was a case involving a dispute regarding the refusal of the applicant's application for a protection visa. The applicant challenged the decision of the Refugee Review Tribunal, which dismissed his appeal against the decision of a delegate of the Minister for Immigration and Multicultural Affairs. The case was heard in the Federal Court of Australia.

The central legal issues in the case were whether the Tribunal had correctly interpreted the relevant regulations in determining that the applicant's sponsor was not a "competent person" under the Migration Regulations, and whether the Tribunal's decision was affected by error. Specifically, the court examined whether the Tribunal had correctly determined that the "welfare worker" qualification of the sponsor did not satisfy the definition of a "competent person" and whether the Tribunal had properly considered the statutory declaration provided by the sponsor.

The court found that while the Tribunal had erred in one aspect of its reasoning, its decision was justified by another independent reason. The court held that the Tribunal was correct in concluding that the sponsor's qualification as a "welfare worker" did not meet the criteria for a "competent person" and that the statutory declaration did not provide sufficient evidence to support the applicant's claims of domestic violence. The court also noted that the error did not amount to jurisdictional error, and thus did not take the case outside the scope of section 474 of the Migration Act.

The court dismissed the applicant's appeal and ordered that the applicant pay the respondent's costs of the proceeding. This decision underscores the importance of meeting specific criteria for sponsorship and the thorough examination of evidence by the Tribunal in such cases.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
There was no substance in the submission on behalf of the applicant that the Tribunal had wrongly ignored the statutory declaration of Serpil Ozalp. The Tribunal was correct in holding that “welfare worker” was not a qualification satisfying the definition of “competent person” in reg 1.21. There was nothing in the statutory declaration itself to indicate either that Ms Ozalp had any of the qualifications referred to in reg 1.21(1)(a)(i) – (v), or that the Australian Turkish Association was a women’s refuge or a crisis and counselling service that specialised in domestic violence, within the meaning of reg 1.21(2). The Tribunal could not therefore take into account the contents of the statutory declaration as part of the mechanical process of establishing that the sponsor had committed domestic violence in relation to the applicant. To the extent to which the declaration could be viewed on its own, it suffered from the same vice as the declarations of Ms Guducu and Ms Sozer, in that it failed to distinguish between what had been done by the sponsor and what had been done by her relatives. Nor did it corroborate evidence of the applicant in relation to threats or verbal abuse because, as I have said, he gave none. To the extent to which Ms Ozalp corroborated the applicant’s evidence as to the scratching incident, even assuming that this single incident of physical violence had occurred, as the Tribunal appeared to do, it was open to the Tribunal to find that there was nothing serious enough to amount to domestic violence for the purposes of the relevant criterion.Conclusion The Tribunal’s decision was supported by two independent reasons. Although the Tribunal was in error in relation to one of them, its decision was wholly justified by the other. Accordingly, it cannot be said that the decision was affected by error. It is unnecessary to consider whether the error amounted to jurisdictional error, sufficient to take the case outside s 474 of the Migration Act. The application must be dismissed. Applying the usual rule that costs follow the event, the applicant should be ordered to pay the respondent’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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