El Ghamrawi v Minister for Immigration

[2005] FMCA 156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EL GHAMRAWI v MINISTER FOR IMMIGRATION [2005] FMCA 156

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Partner (Migrant) (Class BC) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), reg.1.24, 1,25, 1.26, Sch.2 subcl.100.221

Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Meroka v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 482
Morgan v Minister for Immigration & Multicultural Affairs [1999] FCA 1059

Du v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1115
Alin v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 979

Applicant: RABIH EL GHAMRAWI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1424 of 2004

Delivered on: 24 February 2005

Delivered at: Sydney

Hearing date: 17 December 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant: Mr S B Marsh

Solicitors for the Applicant: Gareth Lewis Lawyers

Counsel for the Respondent: Ms R Pepper

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1424 of 2004

EL GHAMRAWI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 30 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) to refuse to grant a Partner (Migrant) (Class BC) visa.

2. Mr Rabih El Ghamrawi (the applicant), is a national of Lebanon who was born on 27 March 1975.  The applicant applied for a Partner (Migrant) (Class BC) visa on 24 December 1998.  The delegate’s decision to refuse to grant the visa was made on 25 July 2002.  The applicant lodged an application for a review to the Tribunal on

   
   22 August 2002

   .

Background

1. The applicant was sponsored in connection with a subclass 100 (spouse) visa by Elizabeth Ghamrawi (“the sponsor”) who is an Australia citizen by birth born on 22 December 1979.  The applicant claimed to have met the sponsor in Lebanon and that they married in Lebanon on 16 December 1998.

2. The applicant arrived in Australia in May 1999 after marrying the sponsor in December 1998.  He saw the sponsor on a video of his cousin’s wedding and asked his parents to arrange for him to speak to the sponsor.  The sponsor later came to Lebanon and stayed for approximately two and a half months with her uncle.  About fifteen days prior to her return to Australia, the applicant and the sponsor signed wedding papers and were legally married.  They planned to have another wedding in Australia but they never did so.

3. After coming to Australia, the applicant lived with the sponsor in her mother’s house in Auburn.  He and the sponsor lived with the sponsor’s mother, two of her brothers and her sister.  The applicant said he and the sponsor were happy for about five months before problems developed in their relationship.  The applicant had commenced work as a mechanic one month after his arrival in Australia.  He claimed that on one occasion he rang the sponsor to ask her to pick him up from work as he had finished early but the sponsor’s older brother told him to catch a taxi.  The applicant, because he does not speak English, was unable to catch a taxi and eventually walked home.  The sponsor later told him that she was unavailable as she had gone to visit a friend.  The sponsor’s mother told the applicant he could control the sponsor when they both lived in their own home but not before.  The applicant said he could see that the problems in his relationship with the sponsor would escalate so he decided to move from the sponsor’s mother’s house.  He claimed however that he still had problems after he left.

4. The applicant went to live with his aunt and uncle at Granville approximately six months after he arrived in Australia.  He has continued to live with his aunt and uncle and has tried a reconciliation with the sponsor in her moth’s house but this lasted only one week and he returned to live with his aunt and uncle.  The sponsor indicated that she was not interested in a reconciliation.

5. The reasons for the marriage breakdown appear to be that the sponsor did not seek permission from the applicant when she wanted to go out and this view was supported by her mother and brothers and the sponsor could continue this behaviour while she lived in her mother’s house.

Evidence of marriage breakdown

1. The applicant indicated that in addition to the problems with his marriage, the sponsor’s mother and brothers had scared, intimidated and threatened him.  He stated his brother-in-law had threatened to shoot him if he came to the sponsor’s house.  In a statutory declaration signed on 25 September 2003 the applicant said that the sponsor and her brother shouted at him and threatened him, leaving him with psychological problems.  The applicant claimed that the sponsor threatened him on two occasions in late 1999 and the sponsor and her brothers also threatened him after he moved to Granville.  The sponsor and her brothers visited Granville each week as the applicant’s uncle is also an uncle of the sponsor.  The sponsor’s brothers tried to physically attack the applicant on several occasions and their uncle had to intervene.  The applicant stated the sponsor was never involved in physical violence towards him however she was abusive and said she could have him “kicked out” at any time.

2. As a consequence of his marital breakdown and the effect it was having on the applicant, he began seeing Dr Girgis, a psychiatrist, every four to six weeks, Dr Dagher, his aunt’s family doctor, every three weeks and he saw a psychologist, Tony Awad, on two or three occasions.  During this time the applicant continued to work and he indicated his employer was very sympathetic to his situation.

The Tribunal’s findings and reasons

1. The Tribunal’s reasons have been effectively summarised by Ms Pepper, Counsel for the respondent, and I adopt that summary.  The Tribunal found on the basis of the evidence of both the applicant and the sponsor that the applicant had been in a genuine spousal relationship at the time of the visa application (Court Book p.16 [26]) (“CB”).  However, the Tribunal found that the applicant did not satisfy subclause 100.221(2) (CB p.168) because he was no longer in a relationship with the sponsor (CB p.169 [30]) and the issue therefore was whether or not he satisfied the requirements of subclause 100.221(4) in that he has suffered domestic violence committed by the sponsor.

2. The Tribunal noted that if the applicant satisfied the evidentiary requirements in Div 1.5 of the Migration Regulations 1994 (Cth) (“the Regulations”) he would be taken to have suffered domestic violence (CB p.171 [35]). It was further submitted that the Tribunal found that the statutory declarations of the applicant (dated 20 August 2002 and 25 September 2003 respectively) did not satisfy reg 1.25 because the declarations neither referred to any act, or threat of violence nor did they reveal that the applicant feared for his personal safety (CB p.172 [38]-[40]).

3. Further, the Tribunal found that the statutory declaration of Dr Girgis dated 21 March 2002 did not satisfy the requirements of reg 1.26 as it did not indicate that Dr Girgis was of the opinion that the applicant had suffered relevant domestic violence (CB p.173 [42]). The Tribunal also found that the statutory declaration of Dr Dagher dated 20 August 2003 did not satisfy the requirements of reg 1.26 as it identified the sponsor’s family (as opposed to the sponsor) as the perpetrators of the violence (CB p.173 [43]). Finally, the Tribunal found that the statutory declaration of Tony Awad (dated 29 September 2003) likewise did not satisfy the requirements of reg 1.26 because it did not identify any act, or threat of violence, that could be considered a description of “relevant domestic violence”, namely, a “reference to any act, or threat of, application of physical force” (CB p.173 [43]-[45]). Accordinly, the Tribunal found that the applicant had failed to provide the evidence required by reg 1.24 to establish that he had suffered domestic violence and had therefore failed to satisfy subparagraph 100.221(4)(c)(i) of the Regulations (CB p.174 [46]). In so concluding, the Tribunal relied almost exclusively on the reasoning in the recent decision of Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (“Cakmak”).

Application for review of the Tribunal’s decision

1. On 14 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The grounds for the application are not expressed in the usual form but under the heading “Particulars” there is a lengthy recital of the facts of the case generally and a further recital of a number of the major findings in the Tribunal’s decision which leads to a number of questions. Again this has been effectively summarised by Miss Pepper, the respondent’s Counsel, and I adopt that summary as follows:

   Summarised, the grounds of review listed by the applicant in his application are seven-fold, viz: 

   a)That the Tribunal erred by “misinterpreting the findings in… Cakmak” paragraph 16);

   b)That the statutory declarations sworn by the applicant do provide evidence that the applicant feared for, or was apprehensive about, his well being or personal safety (paragraph 17);

   c)That the statutory declarations sworn by the experts do provide evidence that in their opinion the applicant was a victim of domestic violence (paragraph 18);

   d)That the findings of the Tribunal were contrary to the Act and Regulations (paragraph 19);

   e)That the Tribunal breached the rules of natural justice (paragraph 20(a));

   f)That the decision involved an error of law (paragraph 20(b)); and

   g)That the decision was otherwise contrary to law (paragraph 20(c)).

   None of the grounds are particularised and no evidence is deposed to by the applicant or anyone else in support of the application.

The law

1. In the Tribunal’s decision under the heading “Findings and Reasons” the relevant provisions of the Regulations are reproduced in full (CB pp.167-171 [29], [32]-[34]). The Tribunal then summarised the procedure to be followed to determine whether the applicant met the requirements under subclause 100.221 of the Regulations. This summary is contained in paragraphs 30 and 31 of the Court Book at page 169, which is reproduced below:

   “There is no dispute that at time of decision, the relationship between the visa applicant and the sponsoring spouse has ceased.  The sponsoring spouse has confirmed this in her letter dated 13 July 2003 and the Tribunal accepts the visa applicant’s evidence that his relationship with the sponsoring spouse has ceased and he is no longer the spouse of the sponsoring spouse.  Therefore the visa applicant does not satisfy subclause 100.221(2).  There is no evidence that the sponsoring spouse has died.  Therefore, the visa applicant does not satisfy subclause 100.221(3) at time of decision.  The Tribunal next considered whether the visa applicant satisfies subclause 100.221(4) in that he has suffered domestic violence committed by the sponsoring spouse.  Under regulations 1.22 and 1.23 domestic violence is to be taken to have occurred when the requisite evidence prescribed under the regulations alleging that domestic violence has occurred has been provided to the Tribunal.

   The regulations stipulate the type of evidence that can be supplied to the Tribunal to evidence a claim for domestic violence.  When in receipt of such evidence the Tribunal will deem that domestic violence has occurred.  In examining this evidence the Tribunal will limit itself to examine this evidence to ensure that it complies with the regulatory requirements.  No examination will be made as to whether domestic violence has in fact occurred.  This approach has been affirmed by the Federal Court in the matter of Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482, where the Court clearly stated that it is not the role of the Tribunal to assess the credibility of the claims of domestic violence that have been made by the applicant.  The role of making an assessment as to the truth or otherwise of the claims has been entrusted, through the operation of regulation 1.23, to competent persons.”

2. The next step was to determine whether the applicant has suffered domestic violence committed by the sponsor and that was effectively summarised in paragraph 35 (CB p.171 [35]) as follows:

   “The Tribunal must now determine whether the visa applicant has suffered domestic violence committed by the nominating spouse. As discussed above, if the evidentiary requirements in Division 1.5 of the Regulations are satisfied, the visa applicant is taken to have suffered domestic violence. In Cakmak, the Full Federal Court stated (at [49]) that the correct question for the Tribunal to ask itself is, ‘Has there been presented the evidence called for by regulations 1.23(1)(g), 1.23(2)(b), 1.24 and 1.26?’. When examining the statutory declarations of the alleged victim, the Tribunal must ask itself the following questions:

   (a)Is the statutory declaration made by the spouse of the alleged perpetrator?

   (b)Does it set out the allegations of ‘relevant domestic violence’?

   (c)Does it name the person alleged to have committed the ‘relevant domestic violence’?

   (d)Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her, or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for or be apprehensive about the alleged victim’s personal well-being or safety?”

Submissions

1. Mr S Marsh of Counsel appeared for the applicant and made detailed oral submissions that the Tribunal’s application of the decision in Cakmak was an erroneous application of that decision to the present facts in this application. Mr Marsh took the Court through a detailed examination of each of Drs Girgis and Dagher and Mr Awad’s statutory declarations, considering their content to determine whether they met the requirements of the Regulations. Then the individual declarations were examined collectively to determine whether a cumulative approach satisfied the Regulations. Further, the statutory declaration made by the applicant on 23 August 2002 was reviewed in respect of its compliance with the requirements of the Regulations.

2. Ms R Pepper of Counsel, appearing for the respondent, filed written submissions prior to the hearing supported by oral submissions at the hearing. The respondent submitted that the Tribunal assessed the evidence provided to it as it was required to do so, in order to ascertain whether it might the requirements of the relevant Regulations. The Tribunal’s conclusion that the evidence presented by the applicant did not satisfy the requirements of the relevant Regulations in Division 1.5 was open to it on the material and was consistent with the approach taken by the Court in Cakmak.  It was submitted that there were no errors in the application of the principle enunciated in that decision.

3. The respondent submitted that the applicant did not identify any genuine basis upon which it could be said that the Tribunal’s decision was affected by error.  The Tribunal correctly outlined the relevant legislative provisions governing the grant of a visa and adopted and applied the correct test for determining whether or not he suffered domestic violence.  It was submitted that the weighing up of the evidence presented in the statutory declarations and the concomitant findings of fact made by the Tribunal in this regard was quintessentially a matter for the Tribunal and could not be reviewed by this Court.  Essentially the applicant complained about the factual determination of the Tribunal.  It was submitted that to review the Tribunal’s decision on this ground would amount to the Court engaging in a merits review, especially given that there was no evidence that the Tribunal did anything other than exercise its power in a bona fide way:  Minister for Immigration & Multicultural Affairs v Wu Shan Liang (“Wu Shan Liang”).  It was submitted that the Tribunal weighed up the objective evidence of the applicant as contained in the statutory declarations and made findings of fact that were open to it on the material before it and it was entitled to do so in the circumstances:  WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (“WAIJ”).

Reasons

1. Both parties indicated that they relied upon the authority of Cakmak.  The respondent did point out that this decision was subject to appeal to the High Court.  However, I note that leave has been refused.  (High Court of Australia Bulletin 2004 No. 10, as at 24 December 2004 – Proceeding No. M304 of 2003).

2. Division 1.5 of the Regulations contain the special provisions relating to domestic violence. If the requirements in Division 1.5 of the Regulations are satisfied the applicant is taken to have suffered domestic violence. In Cakmak per Giles, Conti and Allsop, JJ, at [49]:

   “The correct question for the Tribunal to ask itself here is: Has there been presented the evidence called for by regs 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26?”

3. Then following at [50]:

   “Thus, when the Tribunal is examining the statutory declarations of the alleged victim, it must ask itself the following questions:

   (a) Is the statutory declaration made by the spouse of the alleged perpetrator?

   (b)Does it set out the allegations of "relevant domestic violence"?

   (c)Does it name the person alleged to have committed the "relevant domestic violence"?

   (d)Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her, or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for or be apprehensive about the alleged victim's personal well-being or safety?”

4. Clearly, the Tribunal was cognisant of the test to be applied as set out in Cakmak and has made reference to that decision and the tests contained therein.  The Tribunal has set out the individual questions that it is required to ask and to apply to its decision making process.  This is set out in paragraph 35 of the Tribunal’s decision.

5. It was the applicant’s contention that the Tribunal misinterpreted the findings by the Full Federal Court in the matter of Cakmak and the statutory declarations sworn by the applicant referred to in paragraphs 38, 39, 40, 42, 43, 44, and 45 of the Tribunal’s decision provided evidence that the applicant feared for, or was apprehensive about his well being and personal safety as a result of the sponsorship.

6. Alternatively, the respondent submitted that the Tribunal’s conclusion that the evidence presented by the applicant did not satisfy the requirements of the relevant Regulations in Division 1.5 was open to it on the material and was consistent with the approach taken by the Court in Cakmak.  It was submitted that no errors in the application of the principle enunciated in the decision existed.

7. In Cakmak, their Honours set out the method as to how the task to determine whether the contents of a statutory declaration complied with the Regulations was to be undertaken:

   “We think it deflects attention from that proper expression of the task set for the Tribunal (or the Minister or delegate) to say that it is a question of law as to whether the evidence is capable of amounting to the required evidence.  The differences between questions of law, fact and mixed fact and law can be difficult to rationalise:  Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394-98, Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305, 319-322 (per Windeyer J), Lombardo v Federal Commission of Taxation (1979) 40 FLR 208, 210-12, Nizich v Federal Commissioner of Taxation (1991) 91 ATC 4,747, 4752 and Commissioner of Taxation v Roberts (1992) 37 FCR 246, 251-52.

   The Tribunal has a statutory declaration of the alleged victim. It must assess whether that is the presentation of the requisite evidence.  The Tribunal does not find what underlying conduct in fact occurred by weighing the statutory declaration against the surrounding evidence.  It reads and assesses whether the evidence presented to it satisfies the description called for in the delegated legislation.  The extent to which that task is one of fact, one of law or one of mixed fact and law need not, for present purposes, be explored exhaustively.  It suffices to refer to what was said by Gleeson CJ, Gummow J and Callinan J in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450-52, esp [24] to [28].

   If a Tribunal concluded that the evidence presented did or did not satisfy the statutory description and the contrary view was the only one open, that can be characterised as an error of law: Vetter at [24] and [27], Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, 128, Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, 155, 160-61.

   That does not mean, however, that where (as here) the words of the legislation are ordinary English words capable of being understood and applied by the Tribunal without resort to any process of statutory interpretation and legal reasoning, a view that the statutory declaration satisfies or does not satisfy the terms of the legislation may not be factual: Vetter, Hope v Bathurst City Council (1980) 144 CLR 1, Collector of Customs v Agfa-Gevaert Ltd 394-98, BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs [2003] FCAFC 61 at [30], NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 512, Federal Commissioner of Taxation v Broken Hill South Limited 155, Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (2001) 75 ALJR 542 at [35]. There may be room for debate between different readers of a declaration whether its contents are a presentation of the evidence that is called for. If that be so, it is not necessarily the case that there is error displayed by the Tribunal in reaching a conclusion which, on the material presented, is open. A difference of view from that of the Tribunal by the reviewing or appellate body may, nevertheless, lead to a conclusion that there has been error, which may be characterised as an error of law or an error of fact, depending on what is involved. However, error of fact or law or not, if the Tribunal has asked itself the correct question the error may well be seen to be one within jurisdiction.”   (Emphasis added)

1. The applicant made two statutory declarations, dated 20 August 2002 and 25 September 2003.  The first is addressed in paragraphs 37 and 38 of the Tribunal’s decision and the second is addressed in paragraphs 39 and 40 of the Tribunal’s decision (CB pp.172-173

2. When the Tribunal is addressing the relevant questions the other qualification that dictates the process is that the Tribunal is not determining that domestic violence has in fact occurred but is limiting itself to an examination of the evidence that appears on the face of the statutory declaration to determine whether the contents apply with the Regulations. This requirement was affirmed by the Federal Court in the matter of Meroka v Minister of Immigration & Multicultural Affairs and is referred to in the Tribunal’s decision at paragraph 31.  When the Tribunal embarked on its assessment of the statutory declarations filed by the applicant the Tribunal was aware of the two significant limbs which controlled the decision making process as expressed in the relevant authorities.

3. The Tribunal stated in its decision that it was not satisfied that the statutory declarations of the applicant satisfied the requirements of the Regulations. In its decision the Tribunal indicated a number of the elements that were found to be unsatisfactory when assessed against the contents of the statutory declarations. In respect of the declaration made on 20 August 2002, the Tribunal sets out in paragraph 38 the reasons for the rejection:

   “The Tribunal is not satisfied that this statutory declaration meets the requirements of regulation 1.25.  Firstly the Tribunal is not satisfied that the visa applicant has named an actual act of violence or threat of violence perpetrated by a third party.  There is no reference to any act, or threat of, application of physical force, as was said to constitute ‘violence’ by the Full Federal Court in Cakmak.  Secondly the Tribunal is not satisfied that the visa applicant has stated that he fears for his personal safety because of an act of violence or threat of violence committed by his spouse.  As the Full Court stated in Cakmak ‘There must be ‘violence’, or the ‘threat of violence’ involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety.”  (CB p.172)

4. In respect of the second statutory declaration of the applicant made on 25 September 2003, the Tribunal sets out its reasons for rejection at paragraph 40:

   “Although this declaration does refer to threats of violence made by the sponsor against the visa applicant, the visa applicant does not state that he fears for his personal safety or well being.  The Tribunal is not satisfied that this statutory declaration meets the requirements of regulation 1.25.”

5. When the Tribunal is considering whether the contents of a statutory declaration satisfy the requirements of the Regulations, the test is to be construed both technically and narrowly. In the decision of Morgan v Minister for Immigration & Multicultural Affairs, when the Court was considering whether the statutory declarations submitted in that case satisfied the Regulations, it was held that the statutory declarations were prepared under the Victorian legislation and not pursuant to the Statutory Declarations Act 1959 (Cth). It was held, therefore, that they were not statutory declarations as contemplated by the Regulations. In that case Hill J at [8] stated:

   “… the statutory declaration, which the applicant himself had sworn, was not a statutory declaration as contemplated by the Migration Regulations because it was not made under the Statutory Declarations Act 1959 …”

6. His Honour noted that this is an extremely narrow and technical basis upon which to find for the Minister, nevertheless he felt compelled to do so.

7. After reading the two statutory declarations and the Tribunal’s decision, I do not believe that an argument can be sustained that the Tribunal was so confused or incorrect in its decision making process that it can be characterised as an error in law.  The weighing up of the individual elements contained in the evidence detailed in the statutory declarations which resulted in the findings of fact made by the Tribunal is quintessentially a matter for the Tribunal and cannot be reviewed by this Court.  To review a decision of the Tribunal on this ground would amount to the Court engaging in a merits review:  Wu Shan Liang.  I accept the submissions that the Tribunal weighed up the objective evidence of the applicant as contained in the statutory declarations and made findings of fact that were open to it on the material before it.  The Tribunal was entitled to do so in the circumstances:  WAIJ at [30].

8. Counsel for the applicant submitted that the statutory declarations sworn by Dr Markram Girgis (Psychiatrist), Dr Mounjed Dagher (Medical Practitioner) and Mr Tony Awad (Consultant Psychologist) provide evidence that, in their opinion, the applicant was a victim of domestic violence. Within Division 1.5 these three individuals qualify as competent persons under the provisions of Regulation 1.21 to provide a statutory declaration under the requirements of Regulation 1.26. It was conceded by the applicant’s Counsel that on the face of these statutory declarations there were defects in that individually they did not satisfy the requirements of the relevant Regulations or satisfy every question set out in Cakmak. The argument was put forward that these statutory declarations should be considered cumulatively and that if they were considered as one then they would satisfy the Regulations and the individual defects would be remedied by relying on information supplied by one or other of the statutory declarations. No authority was quoted that supported this argument or this interpretation would satisfy the requirements of the Regulations.

9. I cannot accept that this is the intention of the Regulations in respect of statutory declarations prepared by a competent person stating that a third person meets certain criteria. Each of the six criteria specified in Reg 1.26 must be present and each of these criteria is linked so that it clearly indicates that all six elements must be present. It is hard to imagine that a number of statutory declarations competently prepared would state that a third party demonstrated certain characteristics. There is no statement on the face of the individual declaration that it should be read in conjunction with any other document or that it has been prepared as a component of a composite document. It is unacceptable to suggest that there can be cobbling together of documents until the criteria of Reg. 1.26 are satisfied or it could be contemplated that this process can occur until the six elements of the Regulation are satisfied.

10. Turning to the respective statutory declarations made by the competent persons, the declaration by Dr Girgis is set out in paragraph 42 of the decision as follows:

    “The Tribunal considers that the statutory declaration of Dr Girgis dated 21 March 2002 does not satisfy regulation 1.26.  The Tribunal is not satisfied that Dr Girgis states an opinion that the visa applicant has suffered relevant domestic violence committed or perpetrated by the spouse as required by the regulations.  The statutory declaration of Dr Girgis does not provide evidence of domestic violence but rather provides causes of the visa applicant’s depression.  He describes the domestic violence in these words:  ‘Although they were married, she ignored completely and severe depression and she withdrew her application.’  The Tribunal is not satisfied on the basis of this statutory declaration that the visa applicant suffered relevant domestic violence as defined in paragraph 1.23(2)(b) and so this statutory declaration does not comply with regulation 1.26.”   (CB p.173)

11. The next statutory declaration to be considered is that of Dr Dagher made on 20 August 2003.  The Tribunal rejects that declaration for the reasons set out in paragraph 43 of the decision as follows:

    “The Tribunal also considers that the statutory declaration of Dr Dagher dated 20 August 2003 does not satisfy regulation 1.26.  The statutory declaration states that the visa applicant was abused by his wife’s family in June/July 2002, and that ‘it seems he was a victim of domestic violence’.  The statutory declaration does not name the people who are the perpetrators of the domestic violence except to refer to a third party, the sponsor’s family.  As the Full Federal Court stated in Cakmak, ‘the meanings of ‘commit’ and ‘perpetrate’ direct one to the personal act of the spouse of the victim’.  Dr Dagher’s statutory declaration only refers to the sponsor’s family as being the perpetrators.  The Tribunal was also not satisfied that the statutory declaration describes ‘relevant domestic violence’ as defined in paragraph 1.23(2)(b) and so the Tribunal finds that this statutory declaration does not comply with regulation 1.26 domestic violence.”   (CB p.173)

12. The third statutory declaration of a competent person was that of the consultant psychologist, Mr Tony Awad, and the reason for the Tribunal’s rejection of that statutory declaration is set out in paragraph 45 of the Tribunal’s decision as follows:

    “The Tribunal is not satisfied that this statutory declaration meets the requirements of regulation 1.26.  Firstly the Tribunal is not satisfied that the visa applicant has named an actual act of violence or threat of violence perpetrated by the visa applicant’s spouse.  There is no reference to any act, or threat of, application of physical force, as was said to constitute ‘violence’ by the Full Federal Court in Cakmak.  The Tribunal is therefore not satisfied that the statutory declaration describes ‘relevant domestic violence’ as defined in paragraph 1.23(2)(b).”   (CB pp.173-174)

13. In Du v Minister for Immigration & Multicultural & Indigenous Affairs Matthews J states at [18]-[19]:

    “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.

    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.”

    This was cited with approval in Alin v Minister for Immigration & Multicultural & Indigenous Affairs.

Conclusion

1. The individual statutory declarations submitted by the applicant in these proceedings do not satisfy the tests required by the Regulations as set out in the Act. This analysis does not hinge on the interpretation of violence as the way that it is expressed is the subject of considerable judicial deliberation. These statutory declarations fail because they do not satisfy the various requirements set out in the Regulations. Authority indicates that the failure to comply with each element of Regulation 1.26 results in the statutory declaration failing to satisfy the Regulations. The contention that the statutory declarations can be considered cumulatively in order to satisfy the Regulation is made without any supporting authority and is contrary to the strict interpretation that has been applied to the Regulations in the past. The analysis adopted by the Tribunal does not demonstrate jurisdictional error and consequently, the application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  24 February 2005