Ejueyitsi v Minister for Immigration
[2006] FMCA 1900
•20 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EJUEYITSI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1900 |
| MIGRATION – Judicial review – Migration Review Tribunal – sub class 820 spouse visa – whether error by Tribunal in interpretation of requirements of Regulation 1.26 of Migration Regulations – whether error by Tribunal in interpretation of the meaning of assault for purpose of domestic violence and provision of police record pursuant to Regulation 1.24(1)(a)(ii) – application allowed. PRACTICE AND PROCEDURE – Pro bono Counsel refused – relevant factor when considering McKenzie friend. |
| Migration Act 1958 Migration Regulations 1994 |
| Ejueyitsi v Minister for Immigration [2004] FMCA 935 Ejueyitsi v Minister for Immigration and Multicultural & Indigenous Affairs [2006] FCA 328 R v Bow County Court; Ex parte Pelling (1999) 4 All ER 751 Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 Alin v Minister for Immigration & Multicultural Affairs [20002] FCA 979 Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251 Narayan v Minister for Immigration & Anor [2006] FMCA 658 R v Venna [1975] 3 All E.R. 788 Smith v Chief Superintendent Woking Police Station (1983) 76 Cr.App.R. 234 |
| Applicant: | VINCENT BABATUNDE EJUEYITSI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 477 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 4 August 2006 |
| Delivered at: | Melbourne (by video link to Perth) |
| Delivered on: | 20 December 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr J Allanson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 16 June 2004.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 477 of 2006
| VINCENT BABATUNDE EJUEYITSI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 16 June 2004. The Applicant seeks review of a decision of the Tribunal which had affirmed a delegate’s decision to refuse to grant to the Applicant an extended eligibility (temporary) class UK 820 (spouse) visa (a sub class 820 spouse visa). The Court had previously delivered a decision in this matter on 3 December 2004 in Ejueyitsi v Minister for Immigration [2004] FMCA 935. That decision was the subject of an appeal to the Federal Court of Australia and resulted in an order allowing the appeal and setting aside orders made by this Court on 3 December 2004.
In the appeal, which is Ejueyitsi v Minister for Immigration and Multicultural & Indigenous Affairs [2006] FCA 328, the reasons for judgment succinctly set out the issues raised on appeal in the following paragraph:
“1. This is an appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Migration Review Tribunal (“the MRT”): Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 935. The primary issue raised on the appeal is whether the MRT erred in law by determining the appellant’s case on the basis that he carried a persuasive burden of proof. There is also a secondary issue as to whether the MRT’s decision could have been different, in any event, having regard to the requirements of the Migration Regulations 1994 (Cth) (“the Regulations”). That secondary issue relates essentially to what relief, if any, the appellant may be entitled to even if he succeeds on his primary ground.”
Weinberg J, in the appeal conveniently set out the factual background which remains relevant for this application in paragraphs 2-18 of His Honour's decision as follows:
“2. The appellant is a citizen of Nigeria who was born on 7 January 1961. He arrived in Australia on 13 April 1997 on a student visa that was valid until 15 March 1998. He was granted a further student visa valid until 7 May 2000.
3. On 28 February 1999, the appellant married Nola Khan, an Australian citizen (“the nominator”). On 12 April 1999, he lodged an application for a Class TK Extended Eligibility (Temporary) subclass 820 (spouse) visa (“the spouse visa”). The appellant and the nominator were both interviewed by a Departmental officer on 22 June 1999. On 29 June 1999, the nominator withdrew her support for the application on the basis that the relationship had ended.
4. The appellant then sought to rely upon the domestic violence exception contained in Div 1.5 of the Regulations. That exception enables an Applicant for a spouse visa who is no longer living in a continuing relationship with his or her spouse at the time of the visa decision to maintain the claim for that visa.
5. On 30 April 2002, the respondent Minister’s delegate refused the application on various grounds. These included a finding that the relationship had not been genuine at the time of application, and a further finding that the requirements of reg 1.26, dealing with statutory declarations by “competent persons”, had not been met.
6. On 27 May 2002, the appellant applied to the MRT for review of the delegate’s decision. On 16 June 2004, the MRT affirmed that decision. The appellant then sought review of the MRT’s decision in the Federal Magistrates Court. On 23 November 2004, that application was dismissed. On 9 December 2004, a notice of appeal was filed, it appears by the appellant in person. Subsequently, I directed that the appellant be referred to the Registrar for referral to a legal practitioner for pro bono assistance. That was done. On 18 April 2005, the appellant filed detailed contentions that were prepared by counsel. The respondent filed contentions in reply on 17 May 2005.
THE MRT’S DECISION
7. The MRT accepted that the appellant had met the nominator in Perth in or about July 1997. At that time, he was living and studying in Victoria. They remained in touch, and the appellant eventually moved to Perth in about August 1998. They commenced living together in about January 1999, and were married on 28 February 1999.
8. The MRT found that the relationship between the appellant and the nominator swiftly deteriorated. The appellant submitted a statement to the MRT in which he outlined the circumstances of the breakdown of the relationship. He claimed, inter alia, that the nominator had become “aggressive” and “violently abusive”, and recounted three incidents which took place in March, May and June 1999. In the May incident (actually 24 May 1999), the nominator badly damaged two cars owned by the appellant, which led to him moving out of her house for several days. In the June 1999 incident, the nominator threatened him with a knife. After that incident, the appellant moved out permanently.
9. The MRT stated, as its reason for refusing the appellant’s application:
“36. Other than the evidence of the Applicant, there is no independent reliable evidence attesting to the state of the relationship from family or friends. Whilst the Tribunal is satisfied that the Applicant and Ms Khan may have shared some form of a relationship after the Applicant’s move to Perth in or around September 1998 and when the marriage broke up at the end of June 1999 the Tribunal finds that the relationship falls short of a genuine and continuing married relationship as required by law. It would be fair to described [sic] as lacking the evidence relating to indices of such a relationship as set out regulation 1.15A of the Regulations.
37. When considering the question of burden of proof in administrative review, the Tribunal is guided by various Administrative Appeals Tribunal (‘AAT’) [sic] and the Federal Court on the subject. Whilst acknowledging that an administrative tribunal should not ‘seek to determine matters … by strict application of the rules related to onus of proof’, Senior Member Ballard in Re Caruana and Australian Telecommunications Commission (1982) 5ALN N30 nevertheless said that ‘regard must be had to the application of those rules … in determining which party has the responsibility of satisfying the Tribunal as to any given fact’. (See also Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196). His Honour Fox J in Ladic v Capital Territory Health Commission (1982) 5 ALN N60 said (at N61) that,
‘the term ‘onus of proof’ (or ‘burden of proof’) … was a legal burden, or requirement and could, as a matter of common sense, be said to have rested with the party seeking the result’
38. This view was endorsed by Deputy President Todd in an AAT decision Re Holbrook and Australian Postal Commission (1983) 5 ALN N146 when he said that,
‘as a matter of common sense’, to use His Honour’s words, he who asserts, or he seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.’ (emphasis added)
39. In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Federal Court was again anxious to avoid the onus terminology. The result flowing from the Court’s dicta however does not appear to be much different from that raised by the decisions referred to above. When the whole of the evidence has been considered against the statutory requirements and the Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power.
40. The Tribunal finds that the Applicant has not discharged the ‘common sense’ burden of establishing the facts necessary to enable the Tribunal to reach a finding on the critical issue. The Tribunal is unable to reach a finding that the Applicant was the spouse of Ms Khan at the time of lodgement of the primary application.” (emphasis added)
10. The MRT went on to say that, by reason of its findings, as set out above, it was not necessary to consider whether the domestic violence provisions of the Regulations applied. However, in the event that it was wrong in its finding that the appellant was not in a spouse relationship at the time of lodgement of the primary application, and given that it was common ground that the relationship between the appellant and the nominator had ended, it would assess whether he had suffered domestic violence committed by the nominator, pursuant to cl 820.221(3)(b) of Sch 2 of the Regulations.
11. After setting out in detail the “special provisions relating to domestic violence” found in Div 1.5, the MRT noted that they formed the evidentiary framework within which domestic violence was deemed to have occurred. Regulation 1.23 defined domestic violence, and set out the circumstances in which a person was to be taken to have suffered such domestic violence.
12. The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as “a deeming mechanism”: Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251 (“Meroka”) at [5]; a “triumph of form over substance”: Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 (“Ibrahim”) at [40]; and as a “mechanical mode of proof”: Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 at [40].
13. The MRT then stated that it was established law that it was not its role, nor that of any decision maker, to assess whether domestic violence had taken place. In the words of Ryan J in Kozel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 181 (“Kozel”), it was “the Tribunal’s responsibility to assess whether statutory declarations have been furnished which express the opinions mandated by reg 1.26”.
14. It should be noted that reg 1.26 is in the following terms:
“1.26 Statutory declaration by competent person
A statutory declaration under this regulation:
(a) must be made by a competent person; and
(b) must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and
(d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
(e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
(f) must set out the evidence on which the competent person’s opinion is based.”
15. It should also be noted that reg 1.24(1)(a)(ii) provides that the evidence that may be relied upon to support a contention that a person has suffered or committed domestic violence includes:
“a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory”.
16. In summary, the MRT found that the statutory declarations upon which the appellant relied to satisfy the requirements of reg 1.26, namely those of Dr Norman Van Dort, a general practitioner, and Ms Cozette Esma Fraser, a social worker, both of whom had seen the appellant after the alleged domestic violence, did not name the person who, in the opinion of the competent person, had suffered the relevant domestic violence, did not name the person who, in the opinion of the competent person, committed that relevant violence, and did not set out the evidence on which the competent person’s opinion was based.
17. In addition, the MRT found that two police reports, in relation to the May 1999 incident, did not meet the requirements of reg 1.24(1)(a)(ii) because they were not records of an assault on the alleged victim, allegedly committed by the alleged perpetrator. In the MRT’s words:
“Neither of the police reports referred to above recorded any assault on the Applicant allegedly committed by Ms Khan. It only referred to certain alleged acts of damage to property.”
18. It followed that as neither of the statutory declarations, nor the police reports, were found to have met the requirements prescribed by the Regulations, the appellant could not be “taken” to have suffered domestic violence within the meaning of those Regulations. The criterion described under cl 820.221(3)(b) was not met.”
It will be noted that in the decision of Weinberg J on appeal, His Honour disagreed with the conclusion of this Court in relation to the treatment by the Tribunal of the burden of proof. It is relevant to set out the following paragraph in His Honour's conclusion:
“93. It follows that I disagree, with respect, with the learned Federal Magistrate who concluded that the MRT’s decision, though somewhat confused, could nonetheless be saved by application of the principles set out in Wu Shan Liang. His Honour did not have the benefit, as I did, of being referred to the judgment of Drummond J in Huang. Had that case been drawn to his attention, he may well have come to a different conclusion. I would therefore uphold the various grounds of appeal that raise the MRT’s treatment of the burden of proof as the basis for challenge.”
It then became apparent that on appeal, the Federal Court chose not to proceed to determine remaining issues raised by the Applicant which had not been determined by this Court. In this Court's decision (Ejueyitsi v Minister for Immigration [2004] FMCA 935) I found it unnecessary to consider further arguments advanced for and on behalf of the Applicant relating to the issue of domestic violence. The Federal Court remitted the matter back to this Court to hear further submissions from the parties in relation to that issue.
Again it is relevant to note that the Federal Court resisted the suggestion by counsel then for the First Respondent that it should proceed to determine whether there was any merit in the submissions of the Applicant regarding statutory declarations and police records. So much is evident from the following extracts from Weinberg J's judgment at paragraph 98 as follows:
“98. Ms Riley submitted that this Court was in as good a position as the Federal Magistrates Court had been to determine whether there was any merit in the appellant’s submissions regarding the statutory declarations and police records. In one sense, that is true. The issues raised are essentially questions of law. However, it is important to bear in mind that those issues are not actually before this Court. There is nothing in the notice of appeal that challenges the findings of the MRT regarding these matters, and the Federal Magistrate did not deal with them. The only basis upon which they have been agitated before me is in anticipation of an argument by the Minister that it would be futile to remit this case, and accordingly, that relief should be refused in the exercise of the Court’s discretion.”
In my view, it is also relevant to note observations made by Weinberg J which I accept, whilst obiter and not binding on this Court, should nevertheless be carefully considered and taken into account. The following paragraphs set out the relevant observations:
“99. I am unable to accept Ms Riley’s submission that the appellant cannot conceivably bring himself within the domestic violence exception. Indeed, it seems to me that in at least one respect, namely Mr Horan’s submission regarding the police records, the appellant has an eminently arguable case. I find it difficult to understand how the MRT could have concluded that the police records, whether viewed separately, or in conjunction with each other, did not contain a report of an assault. If pressed, I would infer that the MRT may have adopted too narrow a view of what constitutes an assault. In any event, it seems to me, without saying more, that this aspect of the appellant’s case is anything but hopeless.
100. The appellant’s submissions regarding the statutory declarations obviously face significant hurdles. Nonetheless, an argument can be put to the effect that the MRT erred in its treatment of this issue. Much will depend upon whether the approach taken by Ryan J in Meroka, which recognises the possibility that a statutory declaration may state an opinion “implicitly”, is good law.
101. In particular, the question may arise as to whether the distinction that Sundberg J drew in Alin between a statutory declaration on a form approved by the Department, which may contain implicit statements of opinions, and a declaration not in that form, which may not, is correct. It is fair to say that Sundberg J referred to the difference between the form used in Meroka, and that used in Alin, as a basis for distinguishing Meroka. However, his Honour did not explain, in any detail, why the difference in the form of the declarations used warranted a different result, at least in terms of whether an opinion could be “implicit”. It is arguable that the broader and more flexible approach taken by Ryan J in Meroka was not intended to be so constrained.
102. It is also arguable that the gloss that Sundberg J placed upon reg 1.26, in [12] of Alin, namely that the competent person must indicate that he or she “was aware of the definition of domestic violence in reg 1.23(2)(b)”, and refer to “the applicant’s state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety” is not warranted by the terms of the regulation itself.
103. In any event, it seems to me that these issues are not properly ones for me to determine. They do not arise directly under the notice of appeal. Their only relevance lies in whether relief should be refused on the basis of futility. For the reasons already given, I do not think that remittal would be futile.”
It is evident from those paragraphs that Weinberg J rejected the submission that a remittal "would be futile". Accordingly, the matter has been remitted to this Court to be dealt with according to law. His Honour reserved the costs of the previous proceeding before this Court and I note, although it was probably unnecessary to do so, also stated that the "future costs of that proceeding" will be reserved.
The Amended Application
The Applicant continues to rely upon the Amended Application filed on 23 September 2004. It is sufficient to note that the issue concerning "domestic violence" remains the issue to be determined by this Court.
Documents Relied Upon
The Applicant is self-represented and relied upon a number of documents filed, as follows:
1.Applicant's contentions of fact and law filed 16 November 2004, and in particular paragraphs 20, 21, 22, 23 thereof.
2.An affidavit sworn by the Applicant on 1 November 2004.
3."Supplementary document outline in a conceptual framework," dated 15 June 2006.
4.Statutory declaration of Applicant declared 12 June 2006.
5."Applicant's Response to First Respondent's written submission of 31 May 2006 filed 2 August 2006.
6.Document entitled "Oral Submission" filed 3 August 2006.
It should be noted that in addition to the Amended Application, the Applicant also sought to rely upon "Proposed Additional Grounds of Review" filed 5 May 2006, which includes the following grounds:
“1. The question whether the statutory declarations satisfied the requirements of reg 1.26 was a question of jurisdictional fact, and the Tribunal erred in finding that
(a) The statutory declaration of Dr Van Dort dated 2 August 1999; and
(b) the statutory declarations of Ms Fraser dated 9 August 1999 and 12 December 2003;
did not satisfy the requirements of reg 1.26.
Particulars
Each of the statutory declarations implicitly stated an opinion of the competent person that the applicant had suffered relevant domestic violence committed by Ms Khan.
In forming an opinion that a person (the alleged victim) has suffered relevant domestic violence and that the relevant domestic violence was committed by a particular person, a competent person is entitled to form and state such an opinion by accepting the history and facts recounted to the competent person by the alleged victim.
Further, whether or not the statutory declaration is made on a form approved by the Department, it may be presumed or inferred that the competent person is aware of the terms of the definition of ‘relevant domestic violence’ under reg 1.23, and of the purpose for which the statutory declaration is made. The terms of reg 1.26 do not require the competent person to state that he or she is aware of the definition of ‘relevant domestic violence’ under reg 1.23, or to state that the violence caused the alleged victim to fear for or be apprehensive about his or her personal well-being or safety.
2. Alternatively, in finding that the statutory declarations did not satisfy the requirements of reg 1.26, the Tribunal identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without or in excess of jurisdiction.
Particulars
In requiring each of the statutory declarations to contain an expression of an opinion that the applicant had suffered relevant domestic violence within the meaning prescribed by reg 1.23, and that Ms Khan had committed that relevant domestic violence, the Tribunal failed to consider whether each of the statutory declarations contained an implicit or implied opinion of the competent person that the applicant had suffered relevant domestic violence committed by Ms Khan.
3. Further or alternatively, the question whether the police reports satisfied the requirements of reg 1.24(1)(a)(ii) was a question of jurisdictional fact, and the Tribunal erred in finding that neither of the police reports recorded any assault on the applicant allegedly committed by Ms Khan, and that the police reports complied with the requirements of reg 1.24(1)(a)(ii).
Particulars
The conduct of Ms Khan as recorded in the police reports amounted to an assault against the applicant, including on the basis that the conduct of Ms Khan involved intentional or reckless conduct that was capable of causing the applicant to fear or apprehend immediate and unlawful violence.
4. Alternatively, in finding that the police reports did not comply with the requirements of reg 1.24(1)(a)(ii), the Tribunal identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without or in excess of jurisdiction.
Particulars
The Tribunal misconstrued the term ‘assault’ as used in reg 1.24(1)(a)(ii), by confirming it to physical violence or battery. On its ordinary meaning, and under the definition of assault at common law, an assault includes intentional or reckless conduct that causes a person to fear or apprehend immediate and unlawful violence.
5. Further or alternatively, to the extent that Division 1.5 of the Migration Regulations requires a person to obtain statutory declarations by competent persons under reg 1.26, the regulations are beyond power and are invalid.
Particulars
Regulation 1.26 requires a competent person to state an opinion that relevant domestic violence had been suffered by a particular person, and to name the person who committed that relevant domestic violence.
In circumstances where a competent person has not witnessed the relevant domestic violence, it is not possible for the competent person to form an opinion that relevant domestic violence has been suffered by a particular person or that the relevant domestic violence was committed by a particular person.
Accordingly, the operation of reg 1.26 is so unreasonable, arbitrary, capricious and irrational that it is beyond the power conferred by the Migration Act 1958 to make regulations prescribing criteria for the grant of visas (see, for example, Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381).”
A number of observations should be made in relation to the documents sought to be relied upon by the Applicant. The first observation is that the proposed additional grounds of review were not opposed by the First Respondent, and to the extent that it is necessary, leave is granted to the Applicant to rely upon those additional grounds. The second observation is that the Applicant's Response to the First Respondent's written submissions of 31 May 2006, which the Applicant filed on 2 August 2006, attached a number of documents, one of which included a further statutory declaration declared on 2 August 2006 which, it is noted, had annexed to it as "Annex BC" a document entitled "Compensation Award" dated 23 September 2004.
Objection was taken to the Court relying upon any document produced by the Applicant which post-dated the decision of the Tribunal, which in this case is 16 June 2004. Accordingly, the document dated 23 September 2004, I accept, should not be relied upon by this Court. The other documents, however, appear to effectively include, apart from submissions, copies of documents already in the Court book and, I am satisfied, should otherwise be received to the extent that they are relied upon by the Applicant.
Whilst reciting the documents relied upon by the Applicant, it is also important to record that the Court makes due allowance for the fact that the Applicant is self-represented. The hearing of this application was transferred from Melbourne to Perth at the request and for the convenience of the Applicant. It is also noted that in Melbourne, arrangements were made for pro bono counsel to appear for and represent the Applicant. The Applicant declined to accept the services of pro bono counsel in Melbourne despite the fact that counsel had agreed to act on a pro bono basis and was the same counsel who appeared for the Applicant in his successful application before Weinberg J in the Federal Court.
The orders in relation to pro bono counsel in Melbourne were made by the Court on 2 June 2006, where at that stage the matter was adjourned for hearing, proposed to be conducted by video-link to Perth, and the Court further specifically made an order in the following terms:
“2. So much of the Rules be dispensed with that would prevent the Court referring the Applicant this day to a Registrar pursuant to Rule 12.03 of the Federal Magistrates Court Rules 2001 for Pro Bono assistance with a request that the referral be expedited and that Mr C Horan of Counsel be approached and a request made of him to accept the Pro Bono appointment.”
Indeed, after the order was made on 2 June 2006, an audio-link hearing was conducted in chambers by the Court on 6 July 2006 where the Applicant appeared in person and the proposed pro bono counsel also appeared along with a representative of the First Respondent. It was made clear during that hearing that the Applicant did not wish to be represented by the pro bono counsel from Melbourne. The Court then, at the request of the Applicant, refixed the matter for hearing in Perth and ultimately the matter was heard on 4 August 2006 where the Applicant was self-represented.
When making the orders on 6 July 2006, the Court specifically noted on those orders that it requested the Perth registrar to "forthwith seek the assistance of pro bono counsel to assist in representing the Applicant". Pro bono counsel in Perth was then arranged by the Court. The Applicant unfortunately made it clear to the Perth pro bono counsel that he did not want that counsel to act for him, and accordingly counsel withdrew.
It is also noted that the Applicant had earlier sought the assistance of a person he described as a McKenzie friend. He did not seek that assistance at the hearing which occurred on 4 August 2006, and accordingly it is not necessary for the Court to further consider that matter, save to note that having regard to the rejection of the offer of two counsel prepared to act on a pro bono basis, it would be unlikely for this Court to permit any other person to act as a McKenzie friend, when an Applicant declined an offer of pro bono assistance which, in my view, is analogous to a party declining an offer of legal aid. This would be relevant in the exercise of the Court's discretion when considering an application for a McKenzie friend (see R v Bow County Court; Ex parte Pelling (1999) 4 All ER 751 at 754-9 per Lord Woolf CJ).
I have mentioned the chronology of events concerning representation so that the Court's due allowance for the Applicant should be noted. However, it became apparent during the course of the hearing that the Applicant was able to present his submissions clearly and sensibly relied upon a written version of what he described as his "oral submissions". Hence I am satisfied that the Applicant has not been prejudiced in any way by pursuing his application without the assistance of legal representation.
The First Respondent relied upon submissions filed on 31 May 2006 and did not seek to rely upon contentions of fact and law which had been filed earlier on 16 November 2004.
Relevant Legislation
The Court has previously set out the relevant legislation in its earlier judgment which for convenience I restate as follows:-
“Interpretation
121(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.
"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.
References to person having suffered or committed domestic violence
1.22(1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2) A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in relation to that person.
When is a person taken to have suffered or committed domestic violence?
1.23(1) For the purposes of these Regulations:
(a) a person ( the alleged victim ) is taken to have suffered domestic violence; and
(b) another person ( the alleged perpetrator ) is taken to have committed domestic violence in relation to the alleged victim;
if:
(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(j) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or
(g) if the alleged victim is a person referred to in subregulation (2) — the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:
(i)the alleged victim has suffered relevant domestic violence; and
(ii)the alleged perpetrator has committed that relevant domestic violence.
(2) In paragraph (1) (g):
(a) the persons referred to are the following:
(i) a spouse of the alleged perpetrator;
(ii) a dependent of:
(A) the alleged perpetrator; or
(B) the spouse of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse; or
(D) a person in an interdependent relationship with the alleged perpetrator;
(iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);
(iv) a person who is in an interdependent relationship with the alleged perpetrator; and
(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that 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.
Evidence
1.24(1) The evidence referred to in paragraph 1.23 (1) (g) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii)a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or
(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a) the same subparagraph of paragraph (a) of the definition of competent person ; or
(b) subparagraph (b) (ii) of that definition.
Statutory declaration by alleged victim etc
1.25(1) A statutory declaration under this regulation must be made by:
(a) the spouse of the alleged perpetrator; or
(b) if the alleged perpetrator is in an interdependent relationship with a person — that person.
(2) A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant domestic violence.
(3) A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant domestic violence; and
(e) set out the evidence on which the allegation is based.
Statutory declaration by competent person
1.26A statutory declaration under this regulation:
(a) must be made by a competent person; and
(b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and
(d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
(e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
(f) must set out the evidence on which the competent person's opinion is based.”
The Issues
It will be clear from the decision of Weinberg J that the matter has been remitted for the Court to now consider other arguments relied upon by the Applicant. The issues raised therefore which remain to be determined concern a significant issue of whether the Applicant had been the victim of domestic violence perpetrated by the nominator and whether the Applicant had provided evidence to satisfy the requirements of the Migration Regulations 1994 (the Regulations).
The First Respondent correctly conceded that Grounds 3(i) to (viii) in the Amended Application are taken to be made out.
The Applicant in submissions to the Court and in the document entitled, “Oral Submissions” clearly stated that the only issue left for the Court to decide was the question of domestic violence.
A significant portion of the submissions of the Applicant appear to re-state the factual basis upon which he sought to establish that he was a victim of domestic violence. It is not appropriate for the Court to consider further the factual matters now sought to be relied upon by the Applicant in submissions before this Court. In particular it is not appropriate to have regard to documents which post date the Tribunal hearing.
The issues remaining are conveniently dealt with under the headings identified by the First Respondent as follows:-
·The adequacy of the statutory declarations
·The police records
I shall deal with other grounds briefly though it was clear to the Court that the issue of domestic violence and the Tribunal’s findings in relation to those issues including the findings concerning the statutory declarations and the police report are critical to this application.
Adequacy of Statutory Declarations
The relevant declarations are first a declaration by a medical practitioner, Dr. Norman J Van Dort. In his declaration dated 2 August 1999 he states,
“On 28/6/99 I attended a man who identified himself at Babatunde Ejueyitsi. He related having problems with his legally married wife, an aboriginal lady with an alcohol problem. He stated that when under the influence of alcohol (which was most of the time) she was violent to him and to his property. He cited have (sic) reported the above to the police and showed me a report. He also showed me photographs of two cars which showed the windows and front and rear windscreen damaged. He was distressed and I feel that he was depressed. I commenced him on antidepressant approximately 20 mg daily and on (ineligible) valium 5 mg as required. He was also concerned about his legal status in Australia, which contributed to his depression. Prior to this visit I have had no contact with Mr Ejueyitsi & I have never met his wife. The history is wholly as he related it to me.”
(Court Book pp.76-77)
The second witness who provided declarations was Ms Fraser who made the first declaration on 9 August 1999 and a second on 12 December 2003. Ms Fraser a counsellor at the Curtin University Counselling Services provided counselling and guidance to the Applicant upon referral from Dr Van Dort. The Tribunal has set out the contents of Ms Fraser’s declarations as follows,
“49. Ms Fraser’s first declaration is set out below:
Mr Babatunde Ejueyitsi was seen by me in my capacity as a Counsellor at the Curtin University Counselling Services, on
5 July 1999.
Mr Ejueyitsi presented me with a written referral from Dr N J Van Dort, Belmont Medical Centre, requesting that the University Counselling Services provide ‘counselling and guidance’.
Mr Ejueyitsi presented with symptoms of stress related to what he defined as a situation of domestic violence. Mr Ejueyitsi claimed to have been subjected to physical and emotional abuse by his wife Nola.
Mr Ejueyitsi was given assistance in the area of stress management and was offered a further counselling appointment with me as required.
50. Ms Fraser’s second declaration of 12 December 2003 is set out below:
I refer to my Statutory Declaration concerning Mr Babatunde Ejueyitsi and his wife Nola declared on 9 August 1999, a copy of which is annexed to this declaration and marked ‘A’ and I confirm the truth of the contents of that declaration.
When Mr Ejueyitsi consulted me on 5 July 1999 he referred to 2 specific incidents of domestic violence committed against him by his wife Nola, the first incident involved Nola violently and extensively damaging 2 cars belonging to him, the second incident involved Nola threatening him with a knife. There are other more general comments made by him with respect to Nola’s behaviour.
I confirm that both now and at the time I made the declaration on 9 August 1999 I was and am currently recognised by the Australian Association of Social Workers as eligible to be a member of that Association. I further confirm that in seeing Mr Ejueyitsi on referral and in providing my previously declaration I was performing the duties of a social worker.”
In the Applicant’s contentions of fact and law dated 9 November 2004 the following submissions were made concerning the statutory declarations,
“21. In relation to the MRT’s findings on the issue of domestic violence it is submitted firstly that the statutory declaration of Dr. Norman Van Dort should have been sufficient to satisfy the requirements of regulation 1.26and 1.23. It refers to his wife being violent towards the Applicant and the Applicant being distressed and depressed. It is certainly difficult to see how this did not meet the requirements of regulation 1.26(d) and (e). It is implicit in this statutory declaration that relevant domestic violence has occurred and that the medical practitioner has this opinion. Further if the MRT was not satisfied of this the Applicant should have been appraised of this and given the opportunity of rectifying it either during the hearing or pursuant to section 359A of the Act.
22. In relation to the MRT’s findings on the statutory declarations of Ms. Fraser it is difficult to see how taken together the requirements of regulation1.26(d) and (e) have not been met. The Applicant’s wife is named as the perpetrator and the Applicant as the sufferer of domestic violence. Again it is submitted that the opinion of Ms. Fraser as to the occurrence of relevant domestic violence is implicit in the statutory declaration. The MRT after cautioning itself that it should not be overzealous in detecting some inadequacy of expression, it is submitted, does exactly what it cautions itself against. Further, if there were inadequacies these should have been pointed out to the Applicant either in the hearing or in its request for further information. This would be particularly the case in relation to the firsts statutory declaration which was provided to the Department initially and not to the Tribunal.”
In the Amended Application it was claimed that the Tribunal erred in finding that Dr Van Dort’s statutory declaration and Ms Fraser’s declarations did not comply with the Regulations. It was otherwise claimed in the Amended Application that the Tribunal erred by going behind the statutory declaration. The Regulation claimed to be breached is Regulation 1.26 set out above. In the proposed additional grounds of review in support of the claim that the Tribunal erred by finding the declarations did not satisfy the requirements of Regulation 1.26, the Applicant argued that each of the declarations implicitly ‘stated an opinion of the competent person that the Applicant had suffered relevant domestic violence committed by Ms Khan’. Further, the particulars claimed, ‘a competent person is entitled to form and state such an opinion by accepting the history and facts recounted to the competent person by the alleged victim whether the declaration is on a form approved by the Department or not’. It was argued that it ‘may be presumed or inferred that the competent person is aware of the terms of the definition of ‘relevant domestic violence’ under Regulation 1.23 under the purpose for which this statutory declaration is made. It is argued the terms of Regulation 1.26 do not require the competent person to state that he or she is aware of the definition of ‘relevant domestic violence’ under Regulation 1.23 or to state that the violence caused the alleged victim to fear for or be apprehensive about his or her personal well being or safety. It was argued further that the Tribunal in finding the declarations did not satisfy the requirements of the Regulations and failed to consider whether each of the declarations contained an implicit or implied opinion of the competent person and that the Applicant had suffered relevant domestic violence committed by Ms Khan.
The First Respondent submitted that the declarations of both persons do not express the professional opinion required by the Regulations as set out in the decisions of the Court in Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 (Du) and Alin v Minister for Immigration & Multicultural Affairs [20002] FCA 979 (Alin).
Reference was made to the decision of Matthews J in Du and in particular the following paragraphs,
“18 The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person.
19 This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here.”
It was noted that in Alin Sundberg J agreed with the decision of the Court in Du and found the declarations in that case did not satisfy the Regulations because they made “no reference to the Applicant’s state of mind, namely, that the violence caused the Applicant to fear or be apprehensive about personal well being or safety”.
In the First Respondent’s submissions reference was made to Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251 (Meroka) where Ryan J stated the following,
“[32] In my view, it is not sufficient for an applicant to adduce statutory declarations from two "competent persons" each of which recites the possession of an opinion that relevant domestic violence has been suffered by the applicant. Regulation 1.26(f) imposes the additional requirement that each statutory declaration must set out the evidence on which the competent person's opinion is based. The only purpose which can be imputed to the drafter who inserted that requirement is to provide an opportunity for objective examination of the evidence on which the opinion was based. Thus, if the competent person, in purporting to comply with Reg 1.26(f) were to refer to "evidence" which was quite unrelated to whether relevant domestic violence had been suffered by the applicant, the alleged victim could not be "taken" pursuant to Reg 1.23 to have suffered domestic violence.
[33] That is not to say that the Minister (or the Tribunal) can substitute for that of the "competent person", his or its own opinion of whether domestic violence has been suffered. Operation can be denied to Reg 1.23 only if the description of the nature of the violence experienced or the evidence set out by the competent person is incapable, as a matter of law, of affording a basis for an opinion that relevant domestic violence has been suffered by an applicant and has been committed by the person identified by the competent person as the perpetrator.”
The First Respondent submitted that Ryan J was prepared to accept in Meroka at [34] that where the statutory declarations were made on the standard form:
“[34] … the competent person need not state expressly that in his or her opinion relevant domestic violence has been suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of "domestic violence" in Reg 1.23(2)(b).”
The First Respondent submitted that Sundberg J in Alin distinguished that aspect of Meroka on the basis that it only applied where the standard form is used. The standard form was not used in Alin nor was it submitted in the present case. Where the standard form is not used it was noted Sundberg J held that the requisite opinion must be “expressly stated”. It was argued that the declarations in the present case do not express the professional opinion required by the Regulations as required in Du and Alin. On the authority of those decisions it was argued where the standard form is not used it is not enough for the opinion to be implicit. The First Respondent submitted a requisite opinion must be clearly expressed.
In the alternative it was argued in any event that the requisite opinion is not even implicit in the declarations.
Reference was made to the declaration of Dr Van Dort who said he felt the Applicant was depressed and had prescribed anti-depressants but did not offer any opinion whether express or implied as to the cause of the depression or whether the Applicant had suffered domestic violence at the hands of the nominator which caused the Applicant to be fearful for his well being or safety. Reference was made to the concluding sentence in the doctor’s declaration where he states,
“Prior to this visit I have had no contact with Mr Ejueyitsi and I have never met his wife. The history is wholly as he relayed it to me.”
It was argued by the First Respondent that the doctor appeared to have been ”at pains to make it clear that he was not personally vouching for the story that he had been told and had not formed a view about whether it was true or not”.
It was submitted that similar conclusions can be drawn from the declarations of Ms Fraser who reported the Applicant had presented with symptoms of stress and “claimed to have been subjected to physical and emotional abuse by his wife Nola”. In the second declaration Ms Fraser stated, “When Mr Ejueyitsi assaulted me, he referred to two specific incidents of domestic violence … there were other more general comments made by him with respect to Nola’s behaviour”. It was submitted that the social worker did not indicate that she believed the Applicant’s story and “much less that she had formed a professional opinion that he had been the victim of domestic violence that had caused him to be fearful for his well being or safety”.
It was submitted by the First Respondent that it cannot be “maintained that there was even an implicit opinion in either statutory declaration that the Appellant has suffered domestic violence at the hands of the nominator much less domestic violence of a level of seriousness that had caused the Applicant to be fearful for his well being or safety”.
Reasoning
This Court on another occasion has applied the reasoning of Meroka (see Narayan v Minister for Immigration & Anor [2006] FMCA 658). On the previous occasion the Court in addition to paragraphs 32, 33 and 34 referred to by the First Respondent and set out earlier in this judgment also cited the following paragraphs from Meroka,
“35 However, as already noted, the statement of opinion by a competent person will not cause the applicant to be taken to have suffered domestic violence if the description of the nature of the violence, or the evidence on which the express or implied statement of opinion is said to be based, reveals that the competent person misconceived what the definition required for the formation of the requisite opinion. An examination of the forms completed by the competent persons in this case does not lead unequivocally to the conclusion that either of them misconceived what is involved in the concept of domestic violence.
…
49 I am not persuaded that the analysis of the declarations of the competent persons which the respondent imputed to the Tribunal in this case is correct. To assess whether an opinion has been expressed that an alleged victim has been caused "to fear for, or be apprehensive about" something requires an understanding of the object of the presumptive fear or apprehensiveness. However, at the end of the passage from its reasons quoted at [27] above, the Tribunal stopped short of expressing any such understanding. It confined itself to noting that, in Malik, Wilcox J explained that "there must be conduct, of one party towards the other which has the consequence of causing fear or apprehension. That paraphrase of Wilcox J's reasoning omits to spell out that the fear or apprehensiveness must be about the victim's safety or well-being. In the context in which the Tribunal was speaking, the competent person's opinion must be that the victim had been caused to fear for, or be apprehensive about, his or her psychological safety or well-being. In my view, the preferable inference from their declarations is that each of Ms Sainovic and Mr Wa Mungai was of the opinion that the applicant had been fearful or apprehensive in that sense. Ms Sainovic asserted that he had been subjected to a systematic and constant "pattern" of verbal and emotional abuse which "he mostly feared". Mr Wa Mungai noted that the "calculated" psychological attacks by the applicant's wife had proved, according to the applicant, "to be more than a passing phase", and concluded "that Mr Meroka has suffered psychologically and the abuse has led to the break up of the relationship." In the absence of any other suggested reason for the breakdown of the marriage, it is difficult to resist the inference that both Ms Sainovic and Mr Wa Mungai considered that the applicant had escaped from it because he feared for his psychological well-being if it were to continue.
…
50 After a careful reading and re-reading of the Tribunal's reasons, I have been unable to dispel the impression that it declined to accept the declarations of Ms Sainovic and Mr Wa Mungai as activating the deeming mechanism in Reg 1.23(1), not because they failed to "state" the requisite opinions, but because the evidence on which those opinions were based did not, in the Tribunal's view, establish relevant domestic violence as defined. The Tribunal, I think, went beyond asking itself whether that evidence was capable, as a matter of law, of supporting an opinion that relevant domestic violence had been committed.”
It will be noted that the Court in Meroka and in particular in paragraph 50 was concerned that the Tribunal rejected declarations not simply because they failed to state the requisite opinions but because the evidence on which the opinions were based did not in the Tribunal’s view establish relevant domestic violence as defined. It is further noted that the Court in that case then stated the Tribunal went beyond asking itself whether that evidence was capable as a matter of law as supporting an opinion that relevant domestic violence had been committed.
In my view the approach taken by Ryan J in Meroka does not depend on whether the declarations are on a form approved by the Department or otherwise. The issue as expressed by Ryan J in my view is not restricted to approved forms. I note in passing that Weinberg J on appeal in the present case relevantly stated at paragraph 101 the following:-
“It is arguable that the broader and more flexible approach taken by Ryan J in Meroka was not intended to be so constrained.”
In my view it is not only arguable but is also correct to conclude that the approach taken by Ryan J should not be constrained simply by reference to the particular form used by persons completing statutory declarations.
I am not satisfied that it is correct to suggest that Regulation 1.26 requires a competent person to indicate that he or she, to use the words of Sundberg J in Alin at [12] “was aware of the definition of domestic violence in Regulation 1.23(2)(b)” or should refer to “the Applicant’s state of mind namely that the violence caused the Applicant to fear for or be apprehensive about his personal well being or safety”.
Again I note that Weinberg J in paragraph 102 in the appeal in this matter suggests that it is arguable that this is “not warranted by the terms of the Regulation itself”. In my view Regulation 1.26 does not require the person making the declaration to indicate that he or she was aware of the definition of domestic violence and nor does it require the person making the declaration to make reference to the Applicant’s state of mind.
Regulation 1.26 relevantly provides however that apart from establishing that the person making the declaration is a competent person and the basis of that competency also requires the person to state, “That, in the competent persons opinion, relevant domestic violence (within the meaning of paragraph 1.23(2(b) has been suffered by a person” and “must set out the evidence on which the competent person’s opinion is based”. It does require the competent person to name the person who in the opinion of the competent person committed the relevant domestic violence.
In the present case the declaration by Dr Van Dort clearly relies upon the history given to him by the Applicant. It is difficult to conceive that a medical practitioner could do anything other than refer to the history. By referring to the history the doctor implicitly has taken to accept the history. It is not for the doctor to undertake an investigation of his own to determine whether the history is true or untrue. The history relied upon included identification of the person who is alleged to have committed the domestic violence. Domestic violence is not confined to personal violence and the history included that the Applicant was “violent toward him and to his property”. Specific reference is made to property namely photographs of two cars which “show the windows in front and rear windscreen damaged”. Immediately after that reference Dr Van Dort in his declaration states, “He was distressed and I feel that he was depressed”. Relevant medication is referred to and the only other contributing factor to the depression referred to is the Applicant’s legal status in Australia”. This it is claimed by the doctor “contributed to his depression”. It is not suggested that the domestic violence was not a cause of the distress. It is also not suggested that the domestic violence was not at least one contributing factor to the depression.
In my view the declaration does satisfy the Regulation and the requirements of the Regulations. As indicated, I am not satisfied that the Regulations require by inference expressions of opinion of a kind referred to by Sundberg J in Alin and nor do I accept that the decision of Ryan J in Meroka which I apply is confined to declarations which comply with the form prescribed by the Department.
The declarations by Ms Fraser in my view are likewise sufficient to satisfy Regulation 1.26. Again, it is not a matter for Ms Fraser to indicate whether she rejects or accepts the claimed incidents. She has clearly referred to two incidents, one referring to her property namely the damaging of two cars and a second involved a threat to the Applicant by the nominator with a knife. The name of the person committing domestic violence was clearly given and symptoms of stress ‘related to what (the Applicant) defined as a situation of domestic violence” was clearly stated. Reference was made to the Applicant’s claim to have been subjected to “physical and emotional abuse”. Again one would not expect the social worker to be in possession of material consistent with the Applicant being the victim of domestic violence. Events described are “past events” to which the social worker was not a witness. It is unusual for social workers and indeed doctors to then undertake an investigation presumably of others or otherwise seek further information to determine whether the claims are consistent with domestic violence. Imposing that requirement is to go beyond the requirement of Regulation 1.26 in my view.
Accordingly in my view this ground succeeds as I am satisfied the Tribunal has erred in finding the declaration did not comply with Regulation 1.26 for the reasons stated in this judgment.
The Police Records
The Applicant submits that the Tribunal erred in finding the police report did not comply with the requirements of Regulation 1.24(1)(a)(ii) of the Regulations set out above. In the proposed additional grounds of review it was claimed that the Tribunal erred in finding that neither of the police reports recorded any assault on the Applicant alleged to be committed by Ms Khan. In the particulars subjoined to proposed ground 3 it is claimed, “The conduct of Ms Khan as recorded in the police reports amounted to an assault against the Applicant, including on the basis that the conduct of Ms Khan involved intentional or reckless conduct that was capable of causing the Applicant to fear or apprehend immediate and unlawful violence”.
In the alternative, it was claimed in proposed ground 4 that “in finding the police report did not comply with the requirements of Regulation 1.24(1)(a)(ii) the Tribunal identified a wrong issue, asked the wrong question and relied on irrelevant material or ignored relevant material and therefore acted without or in excess of jurisdiction.” The particular subjoined to this ground relevantly states,
“The Tribunal misconstrued the term ‘assault’ as used in Regulation 1.24(1)(a)(ii) by confining it to physical violence or battery. In its ordinary meaning and under the definition of assault at common law, an assault includes intentional or reckless conduct that causes a person to fear or apprehend immediate unlawful violence.”
To understand this ground it is relevant to note that the first report provided by the Western Australian Police Department (Court Book p.172) relates to a complaint made on 24 May 1999 and under the heading, “Job Description and Outcome” the following appears,
“COMPL WAS WOKEN BY HIS WITH A KNIFE IN HAND APP HAS CAUSED A LOT OF DMGE AT THE HOUSE. COMPL RAN OUT AND RANG FROM A PH BOX.”
The second complaint arises from an action report in relation to the same incident by another person (Court Book p.175) which referred to the Applicant and Ms Khan and stated relevantly,
“… HAD BEEN ARGUING OVER AN ELEGED (sic) AFFAIR AND DECIDED TO SEPARATE. NOLA HAD DAMAGED TWO VEHICLES …. PRIOR TO POLICE ARRIVAL.
BABATUNDE COLLECTED SOME OF HIS PROPERTY AND THEN DROVE TO A FRIENDS (sic) HOUSE.
ALL CORRECT ON DEPARTURE.”
The Tribunal after referring to Regulation 1.24(1)(a)(ii) then relevantly states,
“Neither of the police reports referred to above recorded any assault on the Applicant allegedly committed by Ms Khan. It only referred to certain alleged acts of damage to property. The Tribunal finds that the police reports tendered to not comply with the requirements of Regulation 1.24(1)(a)(ii) of the Regulations.”
(Court Book p.201)
Apart from the grounds relied upon and the proposed grounds, it was submitted on behalf of the Applicant that the two reports did indicate that an assault had been committed on the Applicant. An assault it was submitted involves no more than putting someone in fear.
The First Respondent referred to the report by the Applicant to the police (Court Book p.172) and submitted that it “indicates that a complaint was made by the Applicant but relevant details of the complaint are blanked out”. It was submitted that, “For that reason, it is incapable of being ‘a record of an assault on the alleged victim allegedly committed by the alleged perpetrator’”.
The First Respondent referred to Butterworths Concise Australian Legal Dictionary Third Edition which defines assault to mean,
“1. An act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence …
2. A general word to include both the threat of, and actual infliction of, personal violence …
3. A form of the tort of trespass to the person. It consists of an intention act or threat directly placing the plaintiff in reasonable apprehension of an imminent physical interference with his or her person, or the person of someone under his or her control …”
Reference was made to the complaint by the third party who it is conceded appears to be a ‘neighbour of the Applicant’. It was noted the complaint refers to an argument over an alleged affair and that the nominator had “damaged two vehicles prior to the police arriving”. It was submitted, “It does not indicate that the Applicant was subjected to physical violence or put in fear of being subjected to physical violence.”
The First Respondent submitted, “It just records the bare facts that there had been an argument and Nola had damaged two vehicles. There is no indication that the vehicle damage was deliberate or done in the Applicant’s presence or done in such a way the Applicant might have felt threatened.” Accordingly, it was submitted the second document does not constitute “a record of assault on the alleged victim allegedly committed by the alleged perpetrator”. Although it was noted that the definition of domestic violence in Regulation 1.23(2)(b) of the Regulations set out above includes “violence against a person’s property that causes him or her to be fearful or apprehensive about his or her personal well being or safety, the provision relating to police records in Regulation 1.24(1)(a)(ii) of the Regulations simply refers to an assault”. It was submitted that a person “may be put in fear of violence towards himself or herself in a context where damages done to his or her property but the bare fact of property damage is not an assault”.
Reasoning
I note the reservations expressed concerning this issue by Weinberg J on appeal set out above. I share the reservations of His Honour. In my view a proper understanding of the meaning of assault including the dictionary definition referred to by the First Respondent clearly refers to “an act” which causes another to apprehend immediate and unlawful personal violence”. The act does not need to be an act of violence towards the person. That definition would appear to be well established in criminal law (see R v Venna [1975] 3 All E.R. 788 at p.794).
Criminal law cases involve many degrees of assault. It is relevant to note for example that in Smith v Chief Superintendent Woking Police Station (1983) 76 Cr.App.R. 234 the Court held that “an assault was committed when the accused intending to frighten the occupant of premises looked through a window at a bed sitting room at night and was seen by the elderly female occupant who was dressed in her night clothes. The accused stared at her for 3-4 seconds, she jumped across the bed towards the window and screamed and was terrified”. In that case the court approved the definition of assault set out earlier in this judgment and held that although there had been no finding that the victim feared immediate violence the Justices below must have inferred that from the evidence. This case noted in Archibald, Pleading Evidence and Practice in Criminal Cases (42nd Edition) p.1657 also includes a note from the learned author that, “An assault includes, but is not limited to, an attempt to commit a battery”.
In my view the Tribunal has taken a far too narrow view of “assault” inconsistent with established authorities referred to above. Accordingly it has erred in its findings in relation to the reports to police.
I reject the submission by the First Respondent that the reference to “assault” in Regulation 1.24(1)(a)(ii) should somehow be read down against the definition of “domestic violence” which appears in Regulation 1.23(2)(b) of the Regulations which it is noted does include violence against “a person’s property that causes him or her to be fearful or apprehensive about his or her personal well being or safety”. It is clear the police records are provided as further evidence in support of a claim for domestic violence. In my view it would be inappropriate to read down the dictionary definition of assault to remove from it what has been included in the definition of “domestic violence” quite properly violence against a person’s property which may cause him or her to be fearful or apprehensive about his or her personal well being or safety. The inclusion of that reference in the definition of “domestic violence” is consistent with definitions of “assault”. The assault does not need to be directly against the person but may be conduct which is directed against property which itself can clearly cause a person to be fearful or apprehensive about his or her personal well being or safety.
Accordingly in my view the failure of the Tribunal to correctly interpret assault for the purpose of the Regulations and having regard to the definition of “domestic violence” and its interpretation of the reports provide a further basis for error and this ground should be upheld.
Conclusion
Whilst other grounds have been raised by the Applicant it is clear both in the oral submissions and documents relied upon by the Applicant that the Applicant regarded the question of the Tribunal’s interpretation of domestic violence and the meaning of assault together with the declarations as key issues in this present application. I agree they are the key issues and for the reasons given I am satisfied that the application should be allowed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 December 2006
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