Ejm v Commissioner of Victims Rights

[2021] NSWCATAD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJM v Commissioner of Victims Rights [2021] NSWCATAD 31

Hearing dates:

5 February 2021

Date of orders:

12 February 2021

Decision date:

12 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision of the respondent dated 5 June 2020 is affirmed.

Catchwords:

VICTIMS RIGHTS AND SUPPORT – administrative review – act of violence

Legislation Cited:

Victims Rights and Support Act 2013
Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Cases Cited:

R v Butcher (1986) VR 43

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

EJM (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
EJM (Applicant)
Victims Services (Respondent)

File Number(s):

2020/00189422

Publication restriction:

A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

Judgment

REASONS FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 26 June 2020, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘EJM’.

Background

Application for Victims Support

2. On 16 March 2018, EJM lodged an Application for Counselling under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that he was the primary victim of an act of violence in the nature of domestic/family violence that was perpetrated by a named offender on 17 February 2011, at Lakemba in New South Wales, as follows:

One of the my-exfriend interfering into my family. Having a relationship before marriage and trying to have a baby during temporary residence.

3. On 16 March 2018, EJM also lodged an Application for Victims Support under the Act, in which he alleged that over a period of time from 2003 to 17 February 2011, in Fiji and Lakemba in New South Wales, he was the primary victim of an act of violence in the nature of sexual assault, which was perpetrated by the same named offender, as follows:

Myself and ex-friend went to Fiji for prayer and check the application for spouse for fiancé (name provided) where he force to have sexual relationship. He interfering onto my family life, having a relationship before marriage and trying to have baby on temp visa.

4. EJM alleged that he tried to report these matters to Police on 17 February 2011, but NSW Police “did not want to know”. However, he said that his fiancée then accused him of assaulting her and his ex-friend became her witness. He alleged that he suffered physical injury as a result of the alleged act of violence.

Decision at First Instance

5. On 14 February 2020, an Assessor (Client Claims) issued a Notice of Decision and determined that an act of violence was not established on the balance of probabilities as required by s 19 of the Act and dismissed the application. The Assessor stated, relevantly:

What must be established for (EJM) to receive victims support?

7.   For (EJM) to be considered eligible for victims support, the documentary evidence must establish that he was a victim of an act that apparently occurred in the course of the commission of an offence, which has involved violent conduct and has resulted in injury (physical or psychological) or death (s. 19). When all of these elements are established, he is considered to be a primary victim of an act of violence.

8.   It is necessary for documentary evidence to be provided together with the application for victims support (s 39). For financial support for economic loss or a recognition payment, the following documents are required:

1)   a police report or report of a Government

2)   a medical, dental or counselling report verifying the primary victim has been injured as a result of the act of violence.

9.   This documentary evidence along with other material submitted by the applicant will be considered by an assessor on the balance of probabilities. This means I must be satisfied that it is more probable than not that an act of violence was committed against (EJM).

CONSIDERATION OF THE DOCUMENTARY EVIDENCE

Reports to police and court documents

10.   I have reviewed police records, consisting of a COPS report (number provided). According to the report, the alleged offender is (EJM)’s wife (initials provided). At the time of the report, they had been married for approximately 6 years and resided together in Lakemba.

11.   On the afternoon of 17 February 2011, (EJM) and the alleged offender were about to engage in sexual intercourse at their home when they had an argument. (EJM) then pushed the alleged offender on the left shoulder, back onto the bed. (EJM) then called the police.

12.   A short time later Police attended the scene. Inconsistent version (sic) of events were provided. Police came to the conclusion that (EJM) physically assaulted the alleged offender and informed the parties that an interim AVO would be applied for on the alleged offender’s behalf.

13.   I note the alleged offender is referred to as victim in the report and (EJM) as accused and that the interim AVO was later withdrawn/dismissed at Burwood Local Court. It remains unclear how the subject incident relates to the description of the act of violence in the application form.

Evidence of physical or psychological harm

14.   I have reviewed clinical notes from (name provided) medical centre which, amongst other medical issues, refer to (EJM)’s anxiety and depression in the context of family and marital problems between 2012 and 2019.

(EJM’s) supporting documentation

15.   (EJM) submitted an email on 20 January 2020 requesting Victims Services to prevent a Mr Reddy from praying illegally which “caused an accident” and has contributed to financial hardship. Unfortunately, it is unclear what this means and how it relates to the current application…

Is there an act of violence for the purposes of section 19 and 20 of the Act?

19.   I have read the application form which states that (EJM)’s friend forced his wife to have sexual relations in Fiji. Police records describe an incident where just before (EJM) and his wife, the alleged offender, engaged in sexual intercourse, they had an argument. During the argument, (EJM) pushed his wife onto the bed. An interim AVO was served upon (EJM) which was later withdrawn/dismissed.

20.   It is difficult to determine exactly what happened which prompted (EJM)’s application with Victims Services. Currently on file there is no evidence of a sexual assault that was perpetrated against (EJM). On the contrary, (EJM) is referred to as the accused in the police report in response to allegations of domestic violence against him by his wife.

21.   It is evident from the application form and the available evidence that the incidents that are referred to in (EJM)’s application do not satisfy the definition of an ‘act of violence” as required under section 19 and 20 of the Act. I have reached this conclusion because I am unable to determine that either an offence or a violent act was perpetrated on (EJM).

22.   Furthermore, please note that I am unable to consider any potential acts of violence which took place outside the state of New South Wales.

23.   The application for victims support must therefore be dismissed…

6. A copy of the Notice of Decision was posted to EJM under cover of a letter from the respondent dated 12 February 2020, although I note that this letter wrongly referred to the date of the decision as being 12 February 2020.

Internal review

7. On 8 May 2020, EJM sent an email to the respondent in support of an application for internal review, in which he stated, relevantly:

Since July 1998 I started shaking head and I have no idea why am shaking head which makes me mentally ill.

Every body saying why you shaking your head.

Sometimes when I refused he slept into my face.

He also act as astrologer which tell the perfect partner and the future.

On 2/2011 I came home to have sex with (name provided).

I made a phone call to (name provided)’s aunty about the relationship to (the alleged offender).

Aunty told me that I explained to (name provided) that (the alleged offender) will ruin your life.

(Name provided) never listen to me.

After (name provided) talking to aunty, she started swearing to me why did you tell aunty about my relationship with (the alleged offender).

I call the police.

When there saw police is comin

(the alleged offender) told (name provided) to tell police that I have assault her and to save himself from investigation he become the witness in the domestic violence.

Police charge me on (the alleged offer)’s statement that I assault (name provided).

In May 2011 the police arrest me for breach of AVO.

In June 2011 the appended Violence order (AVO) was dismissed in Burwood court that I called the police and was talking to (name provided)’s aunty.

Itemized phone call statement is attached with police report towards end of statement.

In her police statement (name provided) never mentioned that I was on the phone call.

I have seen doctor pain in my head due to shaking head.

I refer to ct scan which shows some movement and later can’t find any results.

I did another MRI scan in Penrith but doctor can’t get the right clue.

My head is paining due to injury which caused by shaking head.

(the alleged offender) make me mental in way so that I shake head and people that I have problems.

I was assaulted in Mt Druitt in which (the alleged offender) was involved in which one of friend assaulted me.

Matter was reported to Mt Druitt police.

In December 2016 I was assaulted by passenger in taxi.

I was punch in face. Blood everywhere,

I believe (the alleged offender) was involved in this case because he threaten to kill me when made phone call to (name provided).

I reported the matter to Liverpool police.

Due to (the alleged offender) crime I have physical and mental disorders.

I will asked your department to investigate this case before the final decision is made.

The police also failed to investigate this case in a proper way.

I am so traumatised of threatening and assault…

8. On 5 June 2020, the Senior Assessor issued a Notice of Review Decision, which determined that there was insufficient evidence to establish, on a balance of probabilities, that (EJM) was the primary victim of an act of violence. Accordingly, the application for victims support was dismissed. After discussing the available evidence, the Senior Assessor stated, relevantly:

26.   (EJM) has referenced two other assaults against him in his request for an internal review. One of these assaults occurred in Mt Druitt and another occurred in a taxi.

27.   Those new matters raised are not the subject of this application. I further note for (EJM)’s information, that he would be out of time to lodge further applications in respect of those alleged assaults on the basis it appears that they occurred in 2016 and the time limit for lodging in these circumstances is 2 years.

28. It is evident from the application form and the available evidence that the incidents that are referred to in (EJM)’s application do not satisfy the definition of an act of violence as required under section 19 and 20 of the Act…

9. A copy of the Notice of Review Decision was posted to EJM under cover of a letter from the respondent dated 5 June 2020.

Application for administrative review

10. The current application for administrative review was filed on 26 June 2020 and I am satisfied that it was filed within time.

11. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

12. The Application came before Senior Member McAteer for Directions on 7 August 2020, when Ms Srikanth appeared for the respondent, but there was no appearance by or on behalf of EJM. The matter was listed for further directions on 4 September 2020.

13. I conducted a directions hearing on 4 September 2020, when EJM appeared in person and Ms Srikanth appeared for the respondent. The respondent was ordered to file documents under s 58 of the ADR Act by 2 October 2020 and the matter was listed for hearing on 6 November 2020. The parties were granted leave to participate in the hearing by telephone and the Tribunal was requested to arrange for a Hindi interpreter to assist EJM.

14. However, on 6 November 2020, the hearing date was vacated and the matter was listed for hearing on 5 February 2021.

15. At the hearing of the matter on 5 February 2021, EJM appeared in person and Ms Srikanth appeared for the respondent. A Hindi interpreter assisted the parties and the Tribunal.

16. The Tribunal found it very difficult to understand EJM’s allegations regarding the alleged act(s) of violence, although he complained that after he married his wife, he learned that she had a previous relationship with the alleged offender. He alleged that he was made mentally disabled because of what he went through and said words to the effect, “it sent me crazy and my mind does not work very well”. He then said that on 17 February 2011, his wife accused him of domestic violence and that this was the act of violence that sent him insane. He also said that the alleged offender slapped him in the face and that his wife used the AVO against him in order to obtain residency.

17. The Tribunal drew EJM’s attention to the requirements of s 19 of the Act and asked him to explain how the matters referred to in his application for counselling and application for victims support involved violent conduct against him in the course or commission of an offence. However, EJM did not provide any response, other than asserting that the alleged offender assaulted him and that he “…would slap me when I wouldn’t be praying”. He alleged that the alleged offender was a spiritual healer praying for him to get a good wife and he told him that the spirits told him to slap him.

18. Ms Srikanth relied upon written submissions filed 6 November 2020, which provided, relevantly:

…

The applicant as the primary victim of an act of violence is not established

9. The respondent submits that the incidents of sexual violence noted in the application form do not identify the applicant as the primary victim. Furthermore, they appear to have taken place in Fiji. For any act of violence to be considered for giving of victims support, the Act requires it to have occurred within the geographical boundaries of NSW.

10.   The acts of violence noted by the applicant in his request for internal review, being the assault in Mr Druitt and in a taxi did not form the subject of the application for victims support submitted on 16 March 2018, or the reviewable decision. Consequently, these acts of violence are not relevant to the current review application before the Tribunal.

11.   Additionally, and in the alternative, the applicant’s submissions regarding ‘paining due to injury which is caused by shaking head’ does not constitute an act of violence which is a pre-requisite to giving of victims support under section 19 of the Act.

Definition of an act of violence

…

14.   Violent conduct is not defined in the Act. Further guidance on violent conduct is considered in case law:

In R v Butcher, Justice Meagher in considering violent conduct, stated that if actual force is not used, then the menace or threat must be either such as to cause personal intimidation, or be intended to cause intimidation or submission.

15.   Macquarie Dictionary defines “violent” as:

i.   acting with or characterised by uncontrolled, strong, rough force;

ii.   acting with, characterised by, or due to injurious or destructive force;

iii.   intense in force, effect, etc.

16.   Macquarie Dictionary defines “conduct” as:

i.   personal behaviour; way of acting; deportment;

ii.   direction or management; execution;

iii.   to direct in action or course; manage; carry on.

17.   The ordinary meaning of violent conduct can be construed as actions using rough or destructive force. The respondent submits that there is no evidence that actual force has been used against the applicant. Further this allegation did (sic) form the subject of the application for victims support submitted on 16 March 2018, or the reviewable decision dated 5 June 2020. Consequently, this allegation is not relevant to the current review application before the Tribunal.

Conclusion

18.   As outlined above, the applicant has failed to establish that he is the primary victim of acts of violence noted in the two application forms submitted on 16 March 2018. Alternatively, there is insufficient evidence to establish that the applicant was injured as a direct result of an act of violence that occurred in NSW.

19.   The respondent believes that the correct and preferable decision is to dismiss the application in light of the above.

20. The respondent submits that the Tribunal ought to affirm the decision of the respondent made on 5 June 2020 and dismiss the application for administrative review.

Consideration

Act of Violence

19. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

20. “Act of violence” is defined in s 19 (1) of the Act as follows (relevantly):

(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

(2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

21. The onus is on EJM to prove his allegations of sexual assault and “interfering into family life” on the balance of probabilities.

22. However, I am not satisfied that the incidents alleged in the application for counselling and application for victims support lodged on 16 March 2018 describe any act of violence against EJM. Accordingly, I am not satisfied that EJM has established, on the balance of probabilities, that he is the primary victim of any act of violence that occurred in NSW for the purposes of s 19 of the Act.

Orders

23. Accordingly, I make the following order:

1. The decision of the respondent dated 5 June 2020 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 February 2021