Cao v Minister for Immigration
[2007] FMCA 1239
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1239 |
| MIGRATION – Permanent spouse visa – Migration Review Tribunal – whether jurisdictional error – Regulation 1.21 – meaning of ‘competent person’ – whether no evidence – manager or co-ordinator of women’s refuge. |
| Migration Regulations 1994, div.1.5, reg.1.21 Migration Act 1958, s.359A |
| Narayan v Minister for Immigration [2006] FMCA 658 Minister for Immigration and Multicultural Affairs v Yusuf (2003) 180 ALR 1 Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 NAB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30, El Hejjar v Minister for Immigration & Multicultural Affairs [2000] FCA 263 W168/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 538 Stefano Pomenti v Minister for Immigration & Multicultural Affairs [1998] 1400 FCA Celik v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1529 |
| Applicant: | KUN YU CAO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1195 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 2 May 2007 |
| Date of last submission: | 16 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr W.G. Gilbert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr C.J. Horan |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 August 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1195 of 2005
| KUN YU CAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 21 August 2006. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a class BC subclass 100 partner (migrant) visa ("the permanent spouse visa").
The Applicant is a national of the People's Republic of China (“the PRC”). On 12 November 2003 the Applicant applied for a spouse visa on the basis of her marriage to Mr Tao Ye ("the nominator"). The nominator is an Australian citizen, though the marriage between the nominator and the Applicant occurred in the PRC on 20 April 2003.
On 27 May 2004 the Applicant was granted a temporary spouse visa. The Applicant entered Australia on 13 June 2004.
By letter dated 11 February 2005 (Court Book p.104), the nominator withdrew his sponsorship of the application and relevantly stated:
“I advise you that I wish to cease in further sponsoring her the above visa ...” (sic)
By letter dated 14 February 2005 the First Respondent's Department sought a comment from the Applicant in relation to the nominator's withdrawal of sponsorship. The letter relevantly stated:
“Information available to this office indicates that the spouse relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before a decision is made on your application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.”
(Court Book p.107)
In a letter dated 28 February 2005 the Applicant's migration agent and family violence crisis support worker employed by WAYSS Ltd advised the First Respondent's Department of the Applicant's change in circumstances. In the letter the migration agent relevantly states:
“Ms. Cao is currently residing at WAYSS Emergency Youth Accommodation due to violence inflicted by her husband. Ms. Cao claimed that she was very fearful of her husband. I am therefore assisting Ms. Cao to apply for Permanent Residency under Domestic Violence Provision.”
(Court Book p.108)
The Applicant's migration agent, by letter dated 18 March 2005 (Court Book p.115), provided further information to the First Respondent's Department. Reference was made to the reluctance of the Applicant to seek an intervention order against her husband and accommodation arrangements for the Applicant. In addition, reference was made to medical treatment the Applicant claimed to have received after being assaulted by her husband. The migration agent then enclosed three statutory declarations, the first from the Applicant, a second from a psychologist and the third from a person described as "Coordinator of EYA" which stands for "Emergency Youth Accommodation" (Court Book pp.117-141).
By letter dated 26 June 2005 (Court Book p.146), the migration agent of the Applicant advised the First Respondent's Department that she was leaving her employment with WAYSS Ltd and seeking to act for the Applicant.
On 19 July 2005 a delegate of the First Respondent refused to grant a permanent spouse visa to the Applicant. The delegate found that the statutory declaration by the psychologist did not satisfy the requirements of Division 1.5 of the Migration Regulations 1994 ("the Regulations") as she had not provided evidence of her status as a "competent person" in that she did not establish she was registered as a psychologist under a law of the State or Territory providing for the registration of psychologists. The delegate did not find it necessary to make any findings in relation to the statutory declaration of the coordinator of EYA.
The delegate also referred to a defect in the psychologist's declaration in that it had not demonstrated that the nominator caused the Applicant to fear for or be apprehensive about her personal wellbeing or safety (Court Book p.154).
On 27 July 2005 the Applicant applied to the Tribunal for review of the delegate's decision.
On 2 June 2006 the Applicant's migration agent made submissions in support of the application (Court Book pp.191-194). The migration agent submitted new evidence including a statutory declaration from a medical practitioner and psychiatrist (Court Book pp.198-208). Submissions were made concerning the new statutory declaration and it was referred to as "a replacement" for the previous declaration of the psychologist. A request was made for the Tribunal to consider the second statutory declaration from the coordinator of EYA. The migration agent submitted that:
“… The violence inflicted by [the nominator] to [the Applicant] is consistent with the Statutory Declarations submitted by two competent persons, Dr. Terry Min-Sin Chong, Medical Practitioner and Ms. Shirlene Hart, Coordinator of Emergency Youth Accommodation”.
(Court Book p.194)
The Applicant attended a hearing before the Tribunal on 19 June 2006 and a further hearing on 10 July 2006.
On 19 July 2006 the Tribunal forwarded a letter to the Applicant pursuant to s.359A of the Migration Act 1958 ("the Act") (Court Book pp.231-232). In its letter, the Tribunal specifically invited comment on information which it claimed, "may be the reason or part of the reason for the Tribunal affirming the decision under review". The Tribunal then referred to the information in the following terms:
“On 11 February Tao Ye (the nominator) advised the Department that he wished to withdraw his sponsorship of the application for permanent residence.”
(Court Book p.231)
The Applicant's migration agent provided a response to the Tribunal by letter dated 14 August 2006 (Court Book pp.234-236). A detailed letter of response from the Applicant was attached to the migration agent's letter (Court Book pp. 237-238).
The Tribunal decision
On 30 August 2006 the Tribunal affirmed the decision of the First Respondent's delegate.
The Tribunal in its decision set out relevant statutory provisions. It relevantly then stated:
“Although the Tribunal has some concerns about the nominator's commitment to the relationship before and after the review applicant entered Australia in June 2004, it is satisfied that the review applicant was the nominator's spouse prior to her claim to have suffered domestic violence by the nominator. The Tribunal must therefore consider whether the review applicant's domestic violence claim meets the regulatory requirements.”
(Court Book p.255)
The Tribunal proceeded to consider the statutory declarations which had been provided and specifically made reference to the declaration of Ms Hart, described as "Co-Ordinator - WAYSS Ltd. Emergency Accommodation". The Tribunal relevantly set out the definition of "competent person".
The Tribunal relevantly stated:
“There is no evidence before the Tribunal to suggest that Ms Hart is a co-ordinator or manager of a women’s refuge, or a crisis and counselling service that specialises in domestic violence or is a person with decision-making responsibility for a women’s refuge or a crisis and counselling service that specialises in domestic violence and has a collective decision-making structure, and that she has responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service. The Tribunal finds that Ms Hart is not a competent person for the purposes of Division 1.5 of the regulations.
The Tribunal finds that the review applicant has provided statutory declarations under the domestic violence provision from herself and only one competent person, and has not provided other evidence in accordance with the requirements of regulation 1.23.”
(Court Book p.256)
The Amended application
In the Amended Application filed 18 April 2007 the Applicant relies upon the following grounds:
“(a)The Tribunal erred in the manner in which analysed the statutory declaration of Ms. Shirlene Hart in that it imposed a test for ‘specialises’ which was too restrictive and not warranted by the definition in Reg. 1.21(2) of the Migration Regulations;
(b)The Tribunal misunderstood or misapplied the relevant statutory criteria found in Reg 1.21(2) of the Migration Regulations or asked itself the wrong question;
(c)The Tribunal erred in finding that there was ‘no evidence’ that Ms. Hart met the criteria for a competent person;
(d)The Tribunal failed to deal with the applicant’s claim that Ms. Hart was a competent person.”
Relevant regulations
Regulation 1.21 of the Regulations provides the relevant interpretation of "competent person" as follows:
Interpretation
(1) In this Division:
"competent person" means:
(a)in relation to domestic violence committed against an adult:
(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii) a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973 ; and
(B)is performing the duties of a registered nurse; or
(iv) a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a court counsellor under the Family Law Act 1975 ; or
(vi) a person holding a position of a kind described in subregulation (2); or
(b)in relation to domestic violence committed against a child:
(i) a person referred to in paragraph (a); or
(ii) an officer of the child welfare or child protection authorities of a State or Territory.
independent expert means a person who:
(a)is suitably qualified to make independent assessments of non‑judicially determined claims of domestic violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non‑judicially determined claims of domestic violence.
"non-judicially determined claim of domestic violence" has the meaning given by subregulation 1.23 (1A).
"relevant domestic violence" has the meaning given by paragraph 1.23 (2) (b).
"statutory declaration" means a statutory declaration under the Statutory Declarations Act 1959 .
"violence" includes a threat of violence.
(2)The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:
(a) manager or coordinator of:
(i) a women's refuge; or
(ii) a crisis and counselling service that specialises in domestic violence; or
(b) a position with:
(i) decision‑making responsibility for:
(A)a women's refuge; or
(B)a crisis and counselling service that specialises in domestic violence;
that has a collective decision‑making structure; and
(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.”
Applicant's submissions
It was submitted by the Applicant that the Tribunal erred in the manner in which it dealt with the statutory declaration of Ms Hart. The Applicant claimed that the Tribunal either failed to deal with the claim or misunderstood the criteria.
Reference was made to the Tribunal's decision set out earlier in this judgment and in particular the following findings:
“Whilst there is evidence that the emergency youth accommodation service is affiliated or connected with the WAYSS domestic violence service, there is no evidence before the Tribunal to suggest that Ms Hart is employed as a co-ordinator of that, or any other, domestic violence service. (Emphasis added)
There is no evidence before the Tribunal to suggest that Ms Hart is a co-ordinator or manager of a women's refuge, or a crisis and counselling service that specialises in domestic violence ...” (Emphasis added)
It was submitted that the Tribunal was wrong in concluding there was "no evidence", as set out above, and further that it had imposed the incorrect test namely, one that interpreted "specialises" to mean a sole specialty.
Reference was made to the evidence concerning the Emergency Youth Accommodation (“EYA”) section of which Ms Hart was the coordinator and that it had a specialty in relation to domestic violence.
Reliance was placed upon the letterhead of WAYSS Ltd which indicated it had eight areas in which it offered services including the following:
·Transitional housing management
·Youth housing support services
·Emergency youth accommodation
·Family violence support services
·Women's outreach program
·Domestic violence crisis service
·Outer south rooming house program
·Drug Court homelessness assistance program
It was noted that the letterhead also states that WAYSS Ltd is engaged in "providing housing and support services in the community" (Court Book p.108).
It is noted in passing that the letter dated 28 February 2005 from WAYSS Ltd relevantly states, as set out earlier in this judgment, the following:
“Ms. Cao is currently residing at WAYSS Emergency Youth Accommodation due to violence inflicted by her husband ...”
The author of that letter, it was submitted, describes herself as "F.V. Crisis Support Worker". The court takes that to mean "family violence crisis support worker".
Reference was then made to the letter dated 18 March 2005, also referred to earlier in this judgment, from WAYSS Ltd (Court Book p.115) where the author relevantly states:
“Ms. Cao sought assistance from WAYSS Ltd. Family Violence Crisis Service on the 21st of February 2005 for crisis accommodation. She stayed few days at motel until a vacancy became available at WAYSS Ltd. Emergency Youth Accommodation.” (sic)
It was submitted that that letter is a clear indication of a service being provided of a kind which could properly be described as "family violence support service" and/or "domestic violence crisis service".
It was noted that the placement in the Emergency Youth Accommodation service for the Applicant, who was then aged 23 years, was a placement, as the name suggests, for "young people who are homeless or at the risk of being homeless". It is noted that in the letter dated 18 March 2005 the family violence crisis support worker encloses the report from Ms Hart, described as "Co-ordinator of EYA", which the Court accepts clearly refers to "Emergency Youth Accommodation."
Reference was made to the letter where the author relevantly states:
“Ms. Cao is adapting very well in the new environment and with the assistance of counselling, she starts to understand that the violence inflicted towards her wasn't really her fault...” (Emphasis added)
It was submitted that there is a clear reference in that letter to the Applicant receiving counselling at the Emergency Youth Accommodation in relation to the domestic violence that she had suffered (Court Book p.116).
Although the report from the psychologist dated 5 March 2005 was rejected by the delegate, Counsel for the Applicant referred to that report which indicated that amongst other things, the Applicant was receiving "short-term counselling and support from the staff team at WAYSS".
Reference was made to the statutory declaration of Ms Hart. Ms Hart completed what is described as "Form 1040". The parties agree that the Court Book should include the guidelines to persons completing Form 1040 which comprises three pages. Those guidelines include the heading "Notes for competent persons." Under that heading is a subheading "Who is a competent person?" The guideline then in part states that a "competent person" is defined in the regulations as:
“•A person who is a manager or coordinator of a women's refuge or crisis and counselling service that specialises in domestic violence…”
The guidelines also provide under the heading "Responsibilities of competent persons" the following:
“Under the Regulations, you must provide the following information in your statutory declaration:
·The basis of your claim to be a competent person for the purposes of assessing an allegation of domestic violence; and ...”
It was submitted that Ms Hart, when completing the statutory declaration in compliance with the guidelines, has identified herself as being "coordinator – WAYSS Ltd emergency accommodation" (Court Book p.137). The attachments to the statutory declaration include "Attachment A" and "Attachment B".
In "Attachment A" the author relevantly states:
“Kun Yu Cao was referred into by WAYSS Emergency Youth Accommodation by WAYSS Domestic Violence Service.
Kun Yu Cao presented in extreme distress and stated that for her the cultural ramifications would be devastating. Her demeanour was one of intense fear and it took workers a degree of time to assure Kun of her safety within the service.
During the course of Case Management Kun disclosed a number of episodes of domestic violence perpetrated by her husband. On each occasion Kun fel intimidated and worthless and was feeling incapable of asserting her personal power.
In October 2004 Kun’s husband grabbed her by the throat, twisted her hand up behind her back and pushed her to the ground.
January 8th, 2005 Kun’s husband dragged Kun fro ma car, threw her down on the ground and pinned her by knees in the back.
Jan 31st, 2005, Kun’s hair was pulled back by her husband who then proceeded to grab her and twist her arm behind her and threw her on the ground.
Kun Yu Cao stated that her husband has a very bad temper.
Kun attempted to end her life by cutting her wrists. Kun was taken to hospital where she had medical treatment. Kun stated this was out of desperation that this was her only course of action.
Kun was threatened by her husband by telephone to leave the house, which she did as she was fearful that he would follow through with his threats.
Kun has since, being at WAYSS EYA, received a letter from a solicitor stating that any further communication must go through a solicitor office.” (sic)
(Court Book p.140)
A number of observations were made concerning the contents of Attachment A. The first is that the author states that the Applicant was referred to WAYSS Emergency Youth Accommodation by "WAYSS Domestic Violence Service."
Attachment B to the statutory declaration of Ms Hart relevantly states:
“Kun was referred into WAYSS Emergency Youth Accommodation through the WAYSS Domestic Violence Crisis Service.
Evidence provided was through Case Management processes and interaction with EYA workers.
My own personal observation has been through conversation and Kun general demeanour.
In my professional opinion Kun Yu Cao is escaping domestic violence through her expression of fear and her behaviour within the crisis accommodation. This is in comparison with others within the service who have not referred in under domestic violence and family violence.”(sic)
(Court Book p.141)
It was noted that in Attachment B, reference is made to the Applicant being "referred into WAYSS Emergency Youth Accommodation through the WAYSS Domestic Violence Crisis Service". Further, it was noted that a distinction was made by the author between observations of the Applicant compared with observations of "others within the service who have not referred in under domestic violence and family violence". Clearly there is a word missing there and it should perhaps read, "who have not been referred".
It was submitted that there is no requirement in the regulation for the competent person to be a coordinator of a crisis and counselling service that specialises "solely" in domestic violence. It was submitted that it is clear on the evidence that Ms Hart was the coordinator of a crisis and counselling service that specialised, amongst other things, in domestic violence. As I understood the submission, it was argued this was sufficient to meet the criteria set out in Regulation 1.21 and the Tribunal had erred by misinterpreting the provision due in part to importing the concept of "sole speciality" when the regulation does not require anything more than a service that, amongst other things, "specialises in domestic violence".
It was submitted that rather than there being "no evidence", the material referred to in the course of submissions provided evidence that Ms Hart was a coordinator of a crisis and counselling service that specialised, amongst other things, in domestic violence namely, a crisis accommodation service to which the Applicant had been referred by WAYSS Domestic Violence Service.
It was further noted that the declaration from Ms Hart was dated 18 March 2005 and at that time the Applicant was staying at what was described as "the refuge", the refuge being what was described as "traditional housing" consistent with one of the objectives of WAYSS Ltd who had referred the Applicant to the Emergency Youth Accommodation. Reference was made to other evidence including a statement from David Wallace, who describes himself as "WAYSS Youth Housing Support Worker," who in a letter dated 26 July 2005 (Court Book p.180) relevantly states:
“I have known Kun for the past month in my role as her current Support Worker from WAYSS housing support service in Dandenong.
In April of this year, after Kun left the Refuge she moved into WAYSS supported accommodation and has been residing there since that time.
She had been awarded Special Benefit from Centrelink and has been using this money for all living expenses including food, travel and study.” (Emphasis added)
It was submitted that having regard to the evidence, the Tribunal should be found to have failed to carry out its statutory task.
Reliance was placed upon a decision of this court in Narayan v Minister for Immigration [2006] FMCA 658 where the court stated, it was argued by analogy, the following:
“72.In my view the Tribunal was entitled to reach a conclusion that there is “very little evidence that the parties have a genuine relationship as at the time of application”. That much is clear from appropriate authorities as to the manner in which a Tribunal may approach its fact finding task. However, in this case the Tribunal went further when it stated, “There is no probative evidence that the parties claimed relationship is genuine and continuing”. It made that specific finding no doubt in direct response to its obligation to make that finding pursuant to Regulation 1.15A(1A)(b)(ii) of the Regulations. In my view by asserting there is ‘no probative evidence’ the Tribunal has clearly fallen into error as it has failed then to assess the evidence which although perhaps ultimately rejected could not be described as constituting ‘no probative evidence’. The detailed reference to the evidence set out in the Applicant’s submission of parties upon whom the Applicant relied at the very least was relevant probative evidence which the Tribunal was bound to take into account even if ultimately rejecting that evidence. To suggest that that evidence justifies a conclusion that there is ‘no probative evidence’ means in my view that the Tribunal has failed to take into account relevant material directed to an integer of the case namely whether the Applicant was in a genuine and continuing spousal relationship with the nominator at the time of the application. That failure in my view is sufficient to constitute jurisdictional error.”
It was submitted that in the present case, all that needed to be shown was that Ms Hart was "the coordinator of a crisis and counselling service that specialises in domestic violence". It was submitted there was evidence that the Emergency Youth Accommodation was a crisis and counselling service and that it assisted people who had suffered domestic violence, including the Applicant, by providing crisis accommodation and counselling.
It was submitted that the mere fact that a service may provide people who are not victims of domestic violence does not mean that the service does not "specialise in domestic violence".
It was submitted:
“It is self evident that organisations and/or individuals can specialise in or concentrate on multiple areas or disciplines, thereby building up expertise in more than (one) field.”
In the present case it was submitted the Tribunal has unduly confined itself and/or did not deal with the case before it and accordingly it asked itself the wrong question or misconstrued the essential statutory criteria, resulting in jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2003) 180 ALR 1 and Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259).
In the alternative it was submitted the Tribunal failed to deal with this aspect of the Applicant's claim, which amounts to jurisdictional error. (See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] and NAB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]).
Accordingly, it was submitted the decision of the Tribunal should be set aside with costs and the matter remitted for reconsideration.
First Respondent's Submissions
The First Respondent was granted leave to file further submissions by way of response to the Applicant’s amended application and contentions of fact and law. The submissions were filed on 16 May 2007.
The First Respondent submitted that the Tribunal’s decision “turned on its finding that Ms Hart was not a competent person”.
It was noted the Tribunal found that Ms Hart was the co-ordinator at Emergency Youth Accommodation Service and accepted there was evidence that the service was affiliated or connected with the WAYSS Domestic Violence Service. It was then, however submitted that the Tribunal stated:
“(a)‘There is no evidence before the Tribunal to suggest that Ms Hart is employed as a co-ordinator of that, or any other, domestic violence service.’
(b)‘There is no evidence before the Tribunal to suggest that Ms Hart is a co-ordinator or manager of a women’s refuge, or a crisis or counselling service that specialises in domestic violence or is a person with decision-making responsibility for a women’s refuge or a crisis or counselling service that specialises in domestic violence and has a collective decision-making structure, and that she has responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.’”
It was argued that the statements set out above, which are also referred to earlier in this judgment, should be construed “in context as meaning that there was no evidence which satisfied the Tribunal of each of the relevant elements of the definition of ‘competent person’”.
The First Respondent relied upon the decision of the Court in A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 where the Court relevantly stated:
“1This appeal seems to us to turn entirely on the question what the Administrative Appeals Tribunal meant by statements in two paragraphs of its reasons. Those paragraphs and the circumstances are set out in the judgment of Katz J, and we need not repeat them. We agree with Katz J that the Tribunal did not mean to assert, as a legal proposition, that there was no evidence on either of the points with reference to which it used the words "no evidence". We think it simply meant there was no evidence capable of satisfying it on the issues in question: cf Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479. So understood, the reasons are not tainted with error of law. We agree with Katz J's conclusion that they were not otherwise so tainted.”
It was argued that a similar approach was adopted by Gummow J in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479. That approach, it was argued, has been followed in a number of other cases (see Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30, El Hejjar v Minister for Immigration & Multicultural Affairs [2000] FCA 263, W168/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 538, Stefano Pomenti v Minister for Immigration & Multicultural Affairs [1998] 1400 FCA and Celik v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1529).
The cases set out above, it was argued, can be distinguished from the decision in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50, where the Court inferred that the Tribunal had ignored particular evidence which contradicted its assertion as to “the absence of any mention [in the country information] of either an event or an attitude that would support the applicant’s claim”.
It was argued in the present case it cannot be said that the Tribunal overlooked or ignored any evidence or material before it. It was argued the evaluation of that evidence was a matter for the Tribunal.
In the alternative it was argued that the Tribunal’s reasons in any event were inaccurate as there was in fact “no evidence of the matters identified by the Tribunal which were required to be satisfied in order for Ms Hart to be a ‘competent person’”.
It was argued there was no evidence that the EYA service of which Ms Hart was the co-ordinator was a “crisis and counselling service”.
It was argued it was not an issue that the Applicant had received crisis services and counselling service from WAYSS, including the WAYSS Domestic Violence Service. However, it was argued “the relevant question was whether the EYA was a ‘crisis and counselling service’”. It was argued there was no material before the Tribunal suggesting that the “EYA itself provided counselling services”.
Further it was submitted there was no evidence suggesting that Ms Hart was employed as a co-ordinator of the WAYSS Domestic Violence Service and nor was there evidence suggesting that EYA “specialised in domestic violence matters” having regard to the ordinary meaning of that term as construed by the Tribunal.
It was further submitted that the meaning of the application of reg.1.21(2) was a question of fact “provided that it was reasonably open to the Tribunal to conclude that the EYA did not specialise in domestic violence”.
The First Respondent submitted that the relevant question was “not whether WAYSS had a specialisation in relation to domestic violence, but whether the EYA had such a specialisation”.
It was argued that if it were assumed that “WAYSS (as a whole) might satisfy the definition of a ‘crisis and counselling service that specialises in domestic violence’ there was no evidence suggesting that WAYSS had a collective decision-making structure in which Ms Hart held a position with decision-making responsibility or that Ms Hart had responsibility for matters concerning domestic violence within WAYSS” (see reg.1.21(2)(b)).
Accordingly it was submitted that it was “open to the Tribunal to find that Ms Hart was not a ‘competent person’” for the purpose of the Regulations on the basis that the evidence did not meet the requirements of the definition in reg.1.21.
Reasoning
In my view the Tribunal erred when it made the finding that there “was no evidence before the Tribunal to suggest that Ms Hart is a co-ordinator or manager of a women’s refuge, or a crisis and counselling service that specialises in domestic violence…”.
I accept, as submitted by the Applicant’s Counsel, that there was evidence before the Tribunal of the kind set out in the Applicant’s submissions that Ms Hart was the co-ordinator of a crisis and counselling service that specialises in domestic violence. That evidence included evidence that the EYA was a crisis and counselling service. There was evidence that it assisted people who had suffered domestic violence such as the Applicant who required crisis accommodation and counselling. I accept, as submitted by the First Respondent that the fact that the service also assisted people who were not the victims of domestic violence did not mean that the service did not specialise in domestic violence. I accept that in circumstances of this kind, organisations and/or individuals can specialise in or concentrate on a number of areas which relevantly, for the present purpose include, specialising in domestic violence.
I accept, as submitted by the Applicant, that the Tribunal accordingly confined itself unduly and did not deal with the case before it and to that extent asked itself the wrong question or misconstrued the essential statutory criteria which resulted, as submitted by the Applicant, in jurisdictional error.
It was clear in the Tribunal’s finding that Ms Hart was the co-ordinator of EYA and that it had a speciality in relation to domestic violence. The correspondence dated 28 February 2005, referred to during the course of submissions, clearly indicated the Applicant was residing in the “WAYSS emergency youth accommodation”. In my view, it was unduly artificial for the Tribunal to then ignore that evidence and reach the finding that there was “no evidence” set out earlier in this judgment. I am further satisfied that the Tribunal had evidence before it in the form of the letterhead of WAYSS Ltd to indicate that amongst other services it provided were services dealing with emergency youth accommodation and domestic violence.
There was further evidence from the psychologist noting that the Applicant had been receiving “short term counselling and support from the staff team at WAYSS”. Ms Hart had received on referral the Applicant into EYA by the WAYSS Domestic Violence Service. Again, there was evidence of that which should have been dealt with by the Tribunal rather than it simply finding that there is “no evidence” in relation to that issue.
Whilst the First Respondent has made submissions relating to the real issue to be considered, namely whether the “EYA had such specialisation” of a kind required by the Regulations, in my view there was evidence that it did in fact have that specialisation and the Tribunal should have pursued a finding which recognised the practical reality of the arrangements between agencies of the kind referred to in the declarations and other material before the Tribunal.
In my view, reg.1.21 of the Regulations should not be construed too narrowly when considering the definition of “competent person”. There was evidence before the Tribunal which could have been explored concerning Ms Hart and whether she was indeed a “competent person”.
I accept, as submitted by the Applicant, that the Tribunal had erred in the manner in which it analysed the statutory declaration of Ms Hart and that it did impose a test for “specialises” which was too restrictive and not warranted by the definition in reg.1.21(2). In my view, there is nothing in that sub-regulation which provides that the position should require the person to specialise in only one area or the organisation to which the person is attached if a women’s refuge or a crisis and counselling service that specialise in domestic violence cannot provide other services. There was evidence in the present case that the Applicant had attended upon EYA for the provision of crisis and counselling service and this should have been explored, in my view, by the Tribunal.
I accept, as submitted by the First Respondent, that in some instances there may be cases where a Tribunal refers to there being “no evidence” and that may be construed as being a finding that there was no evidence capable of satisfying the Tribunal on the relevant issue in question. However, in the present case I do not accept that that is a proper interpretation of the Tribunal’s finding.
Conclusion
It follows for the reasons given that the decision of the Tribunal should be set aside and appropriate orders made.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 July 2007
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