Gounder v Minister for Immigration - [2003] FMCA 487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOUNDER v MINISTER FOR IMMIGRATION

[2003] FMCA 487

MIGRATION – Review of decision of Migration Review Tribunal – Subclass 820 Spouse Visa – domestic violence by nominating spouse alleged – statutory declaration of applicant satisfies regulatory regime – jurisdictional error.

Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)
Statutory Declarations Act 1959 (Cth)
Migration Regulations1994 (Cth)
Migration Amendment Regulations 1999 (No.13)

Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57
Kioa v West (1985) 159 CLR 550 at 628-629
Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482
VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 205
Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 5
Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 (14 June 2000)
Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562
Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502

Applicant:

MUNIAPPA GOUNDER

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ110 of 2003

Delivered on:

7 November 2003

Delivered at:

Melbourne

Hearing date:

11 September 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Heerey

Solicitors for the Applicant:

Ravi James and Associates

Counsel for the Respondent:

Mr Gilbert

Solicitors for the Respondent:

Australian Government Solicitor

THE COURT DECLARES THAT:

The decision of the Migration Review Tribunal made on 22 November 2002 is invalid and of no effect.

THE COURT ORDERS THAT:

The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law.
The costs of the applicant be paid by the respondent as agreed or failing agreement as determined by this Court upon application made to it.
Certify for Counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ110 of 2003

MUNIAPPA GOUNDER

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This application for judicial review of a decision of the Migration Review Tribunal (MRT) is made under s.39B of the Judiciary Act 1903. Proceedings commenced in the Federal Court of Australia and by order of North J, made 31 January 2003, such proceedings were transferred to this Court pursuant to s.32AB of the Federal Court of Australia Act 1976 and O82 of the Federal Court Rules.
The MRT found that the applicant was not entitled to the grant of an Extended Eligibility (Temporary) (Class TK) visa. The decision of the Tribunal is dated 22 November 2002 and notification of it was provided to the applicant under cover of letter dated 22 November 2002. The Tribunal affirmed the earlier decision of a delegate of the respondent.

History

The applicant is a male national of Fiji. He arrived in Australia on

5 June 1999 as the holder of a subclass 686 Visitor visa which was valid until 5 September 1999. On 2 September 1999 the applicant applied for permanent residence on the basis of his relationship as a de facto spouse of an Australia citizen namely Ms Sheila Gounder, the nominator. The applicant stated in his visa application that he had met his de facto wife in December 1996 and commenced residing with her in August 1998.
In a letter sent to the Department of Immigration and Multicultural Affairs dated 26 March 2001 the nominator advised that she was withdrawing her application as the relationship between herself and the applicant had totally broken down. As a consequence, in correspondence of 15 October 2001 a delegate of the Respondent advised the applicant that his application for a TK Extended Eligibility (Temporary) visa and a Class AS General (Residence) visa had been refused.
The prescribed criteria for the various subclasses in Classes AS and TK are provided in Schedule 2 of the Migration Regulations 1994 as it existed at the time the application was made. The applicant was required at the time of decision to satisfy regulation 820.221. That required the applicant to continue to meet the requirements of whichever of subclauses 820.221(2) – (9) the applicant met at the time of application. Subclause 820.211 concerned criteria to be satisfied at the time of application. In this case the relevant subclause of 820.221 was subclause (2) which required the applicant to be nominated by an eligible person and be the spouse (as defined in Regulation 1.15A) of that nominator. The nomination which was in existence at the time of the application was subsequently withdrawn by the nominator and thus the applicant was at the time of decision no longer in a spousal relationship with the nominator and therefore unable to satisfy the relevant subclause of regulation 820.211.
Regulation 820.221 (3) contained special provisions. It contemplated an exception, namely the ceasing of the relationship and either:
1)
the applicant or a dependant child had suffered domestic

violence from the nominating spouse; or
2)there was a child of whom both the applicant and nominating spouse had obligations of custody and/or residence and/or access and/or of a contact nature.
The delegate found no evidence that either of the above situations existed and thus found the applicant could not satisfy subclause (3).
The applicant then applied in application dated 5 November 2001 to the MRT for a review of the decision of the delegate. The Tribunal firstly wrote to the applicant pursuant to s.359A of the Migration Act 1958 (the Act) seeking his response to the issue of the nominator having withdrawn her nomination.
The applicant failed to respond and the Tribunal finalised its decision. However before handing it down a facsimile was received from the nominator on 5 June 2002 which suggested that the nomination had not been withdrawn and which stated that the parties intended to marry in the near future. The Tribunal reopened the matter and pursuant to s.359(2) of the Act again invited the applicant to give additional information relevant to the review of a decision. The applicant's solicitor responded in letter dated 19 July 2002 enclosing photographs, notices, wedding invitations and statutory declarations from the nominator, the applicant's brother and two friends. The hearing before the Tribunal occurred on 10 October 2002 and the applicant gave evidence as to the continuation of the spousal relationship. The hearing then was adjourned and resumed on 7 November 2002 for the purposes of securing the attendance of Mrs Gounder at the hearing. In the intervening period the nominator forwarded a statutory declaration to the Tribunal which said in effect that the relationship had again broken down.
On 7 November 2002 the nominator and applicant gave evidence at the resumed hearing. The applicant's solicitor filed statutory declarations from the applicant; a psychologist Mr Edward Kleynhans; and a medical practitioner Dr Lal. These declarations sought to satisfy the domestic violence provisions in Division 1.5 of the Migration Regulations 1994 referable to the inclusion of the term “domestic violence” in subclass 820.221. Essentially, the evidence of both the nominator and the applicant at the resumed hearing was that there no longer existed a spousal relationship. The nominator denied the allegations of domestic violence.

The Tribunal hearing

The MRT found as a preliminary matter:
Taking all the circumstances into account, and applying the test outlined in Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 (14 June 2000), the Tribunal is not satisfied that at the time of decision the visa applicant and the nominator have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing, and that they do not live separately and apart on a permanent basis. The Tribunal finds that the visa applicant is not the spouse of an Australian citizen and does not satisfy subclass 820.221(1)(a)
The Tribunal found that the marital relationship between the visa applicant and the nominator had ceased and the visa applicant satisfied subclass 820.221(3)(a). Given the filing of statutory declarations as referred to in paragraph 9 above the MRT then went on to consider subclass 820.221(3)(b) and its relationship with Division 1.5 of the Regulations. The Tribunal referred to the requirements of the definition of domestic violence for the purposes of the Regulations as discussed by Wilcox J in Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562 and in particular the following extract:
In other words, 'domestic violence' is conduct against the victim, usually a course of conduct, that causes the victim to have fear or apprehension about her or his personal well being or safety. It is not sufficient that there be conduct which has had the effect of causing diminution of a person's feeling of well being. There must be conduct, of one party towards the other, which has the consequence of causing fear or apprehension.
At paragraphs 41 and 42 of its decision the Tribunal recited the requirements of clause 820.211 which the applicant was required to satisfy at the time of application but did not determine whether the applicant satisfied those requirements as at that date. Paragraphs 43 to 61 of the Tribunal's decision were devoted to the consideration of whether the applicant satisfied the requirements of clause 820.221 as at the time of decision.
Because of the applicant's claim that he had suffered domestic violence perpetrated upon him by the nominating spouse the MRT referred to Regulations 1.23, 1.24, 1.25 and 1.26 as it was required to do and as contained in Division 1.5. These provisions are "deeming" provisions. Relevantly, the provision of a statutory declaration from the applicant and two "competent persons" is required.

Legislative framework

The Migration Act 1958 (the Act) empowers the Minister to grant or refuse a visa. The Act is supported by the Migration Regulations 1994 which include the prescribed criteria for the grant of visas in various subclasses. The Minister has delegated the power to grant or refuse a visa to departmental officers. Except where special waiver provisions exist in the Regulations there is no power under the law for an officer to grant a visa to an applicant who does not satisfy all of the prescribed criteria for a specific subclass. Therefore once an application has been found not to satisfy at least one criterion for grant of a visa the application must be refused - whether or not other criteria can be satisfied.
The applicant applied for an Extended Eligibility (Temporary) (Class TK) visa. This visa included the subclass 820 Spouse visa. The relevant criteria for this subclass are found in Class 820 of Schedule 2 of the Migration Regulations. The term “spouse” is defined in Regulation 1.15A of the Regulations. It includes a de facto relationship (Regulation 1.15A (2)). If a relationship has ceased as at the time of decision, the primary criteria can nevertheless be satisfied if the applicant has suffered domestic violence. Where domestic violence perpetrated by the nominating spouse is claimed to have been suffered Division 1.5 of the Migration Regulations makes specific provisions for deeming when it is taken to have occurred. I note in passing that subclass 820 was removed with effect from 1 November 1999 but a transitional provision was set out in sub-regulation 5(5) of the Migration Amendment Regulations 1999 (No.13) providing that the regulations enforced immediately before 1 November 1999 continue to apply to this matter.
The Regulations provide for the manner in which the MRT determines that a person is "taken to have suffered domestic violence." Regulation 1.24 deals with the production of evidence to establish Regulation 1.23(1)(g) on which the applicant relied. That evidence includes a statutory declaration under Regulation 1.25 together with two statutory declarations under Regulation 1.26. Those declarations under Regulation 1.26 are to be declarations from two different categories of registered professionals as defined in sub-regulation 1.21(1)(a). Those professions include a medical practitioner and a psychologist. Regulation 1.25 sets out the requirements of the statutory declaration of the alleged victim. Regulation 1.26(f) provides that the competent person must set out the evidence upon which his or her opinion is based. Statutory declaration is defined in Regulation 1.21 to mean a statutory declaration under the Statutory Declarations Act 1959 and it is only such statutory declarations that are admissible as confirmed by Regulation 1.27. Each of the statutory declarations relied upon were admissible in the proceedings.
Subregulation 1.25(2) relevantly requires that such declaration by the applicant must:
a)set out the allegation; and
b)name the person alleged to have committed the relevant domestic violence.
Regulation 1.26 relevantly provides in respect of a declaration by a 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.
The concept of domestic violence does not necessarily involve physical assault. Psychological violence, such as belittling, intimidating or frightening may be sufficient. There must be however hostile conduct by one person toward another (see Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291 at 293-4).

Consideration

The applicant's grounds of application are set out in his application filed 18 December 2002. Further and better particulars of that application were provided in document filed 12 March 2003. In essence the applicant claims that the Tribunal fell into jurisdictional error in its consideration of the statutory declarations of both the applicant and Mr Kleynhans as set out in those further and better particulars.
It is also alleged that the Tribunal failed to comply with the rules of natural justice in that it failed to give notice to the applicant of any of the evidence referred to in paragraph 7 of those further and better particulars being evidence in its possession prior to making its decision. Further, it failed to give the applicant a fair opportunity for correcting or contradicting what was said against him in such evidence. As I indicated in the course of the hearing before me I do not find that the Tribunal failed to comply with the rules of natural justice. I shall deal with that issue firstly.
There is no reference in the reasons for decision of the MRT to the following material:
a)Minute dated 24 October 2002 describing a telephone conversation between “Mrs Gounder” and John Daly of the Tribunal;
b)Minute dated 24 October 2002 describing a telephone conversation between “Mrs Sheila Gounder” and Bill Niner of the Tribunal;
c)Statutory declaration of Sheila Gounder dated 24 October 2002;
d)Letter dated 7 November 2002 from V. Pillay to Bill Niner of the Tribunal.
The question is whether the applicant should have been appraised of this material. I accept counsel for the respondent's submission that the principal issue is whether the information in question was relevant and significant to the decision to be made, in particular whether the repository of power proposed to take it into account (see Re Minister for Immigration and MulticulturalAffairs and Another; Ex parte Miah (2001) 206 CLR 57 at 116 and Kioa vWest (1985) 159 CLR 550 at 628-629).
There was no obligation upon the Tribunal to provide this information in the circumstances of this particular case either generally or pursuant to s.359A of the Act. The Tribunal did not take the information into account in reaching its decision to affirm the decision under review. The information did not bear upon the decision as to whether the statutory declarations tendered complied with the requirements of the Regulations set out in Division 1.5. The Tribunal was well cognisant of the fact that if the applicant's case was such that there was deemed to be compliance with the Regulations then that was an end of the matter and domestic violence is taken to have occurred. The credit of the applicant or for that matter the alleged perpetrator of the domestic violence is not relevant. If the applicant's declaration under Regulation 1.25 complies, the Tribunal is not entitled to form its own view of the matter (see Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 at 41 and 54).
Although the Tribunal expressed reservations about the applicant's claim of domestic violence - given that the claim had not been raised at the primary stage nor at the first hearing before the Tribunal - those reservations were not integral to the Tribunal's decision. The Tribunal said:
Despite these reservations, the Tribunal recognises that the domestic violence provisions need only to be met at time of decision, and that “violence” includes threats of violence. The Tribunal also recognises that, in accordance with the decision of Ryan J in Meroka, the Tribunal may not examine the merits of the claim for domestic violence if the requirements of the Regulations are met. The Tribunal has therefore proceeded to assess whether the statutory declarations that have been submitted satisfy the requirements of the Regulations.
The failure of the Tribunal to disclose the information did not result in any lost opportunity for the applicant nor did it result in any practical injustice or unfairness (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 511). Even if there were error, which I do not find, it did not go to the exercise of the Tribunal's jurisdiction (see VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 205 at 28).
The real crux of this judicial review hearing is the Tribunal's lack of satisfaction with the statutory declarations of the applicant and Mr Kleynhans.

Mr Kleynhans’ statutory declaration

The applicant sought to comply with Regulation 1.26 by submitting statutory declarations of Mr Edward Kleynhans, a psychologist, dated

1 November 2002 and Dr Sabi Lal, a registered medical practitioner, dated 4 November 2002.
Dr Lal's declaration was made by him completing a form 1040 provided by the respondent's Department. The contents of that statutory declaration are brief. In describing the nature of the violence experienced by the applicant Dr Lal stated:
Verbally and psychologically abused the de facto husband. He was intimated by her and her son who abused drugs. Mr Muniappa Gounder felt threatened, anxious and insecure to the point of depression.
In answering the question briefly described the evidence on which you base your professional opinion Dr Lal stated:
Mr Gounder is depressed and anxious. He felt fearful of his safety. Symptoms of depression in light of his history of verbal and psychological abuse is consistent with spouse battery.

Dr Lal provided no further evidence. The Tribunal found the statutory declaration of Dr Lal complied with regulation 1.26.
Mr Kleynhans also completed a form 1040 provided by the respondent's Department but in addition Mr Kleynhans provided a six page report supplementary to the brief statements which filled the spaces available on the form 1040. The Tribunal found that that statutory declaration did not satisfy regulation 1.26 as:
It does not state that in the competent person's opinion, relevant domestic violence within the meaning of paragraph 1.23(2)(b) has been suffered by the visa applicant.
It is quite clear in its reasons that the Tribunal considered not only the contents of the form 1040 but also the contents of the accompanying report and found no difficulty in the contents being included in an accompanying report. Mr Kleynhans' statutory declaration set out his qualifications as a competent person and identified the applicant and the nominator as the victim and perpetrator of the relevant domestic violence.
The Tribunal did not find that Mr Kleynhans' statutory declaration failed to set out the evidence upon which his opinion was based. Mr Kleynhans' statutory declaration referred not only to the applicant's symptoms of depression and anxiety and "symptomology of a domestic/violent/victim" but also detailed the history of the applicant's relationship with the nominator and details of particular events between them. His declaration also set out the evidence he had obtained by use of psychological tests.
The Tribunal's decision is clearly limited to a finding that Mr Kleynhans' declaration failed to comply with subregulation 1.26(c).
The Tribunal found that the nature of the violence experienced and the evidence upon which Mr Kleynhans based his opinion were not capable as a matter of law of supporting the opinion expressed. The Tribunal found that the declaration did not indicate that the nominator's behaviour of belittling, harassing and threatening to have the applicant deported caused the applicant to fear for or to be apprehensive about his personal well being or safety. It also found that an alleged threat to kill the applicant was isolated, was not part of a course of conduct and did not have the effect of causing him fear or apprehension.
The Tribunal was relying on a passage from Ryan J in Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 at 34-35, wherein Ryan J stated:
Operation can be denied to regulation 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.
I do not consider that the person need 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 regulation 1.23(2)(b).
And further at 35:
However, as already noted, the statement of opinion by a competent person does 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 a 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.
In examining Mr Kleynhans' declaration it is clear that such declaration conveys by implication his opinion that the applicant has suffered relevant domestic violence. Furthermore I find Mr Kleynhans expressly sets out an opinion that relevant domestic violence has been suffered by the applicant.
The essence of the Tribunal's reasoning was twofold:
a)Mr Kleynhans did not state in his declaration that the applicant had been subjected to violence which caused him to fear for or to be apprehensive about his personal well being or safety; and
b)the Tribunal formed the view that the nature of the violence experienced and the evidence on which Mr Kleynhans based his opinion was not capable in law of supporting the opinion.
In dealing with Mr Kleynhans' declaration at paragraph 59 of its decision, the Tribunal fixed in particular upon a reference in Mr Kleynhans report to an allegation that the nominator had threatened to kill the applicant by way of her former husband. The relevant reference is as follows:
He has separated from her, but he still feels threatened by her; she threatened to have him killed by her ex-husband from the UK who is apparently in Australia. In fact he told me that she told him that her ex-husband, who allegedly was in Melbourne from the UK, was going to kill him if he was going to request more things from her or ask her questions.
With regard to this alleged threat to kill, the Tribunal said:
There is no evidence in the statutory declaration that the threat to kill the visa applicant was other than an isolated incident.
I accept the submissions of counsel for the applicant that here the Tribunal clearly fell into jurisdictional error. The Tribunal identified a wrong issue and asked itself a wrong question by considering whether the threat to kill was a single or multiple occurrence. In assessing whether the nature of the violence experienced or the evidence set out by Mr Kleynhans is incapable as a matter of law of affording a basis for Mr Kleynhans stated opinion, it is utterly irrelevant whether such a threat was a single or multiple occurrence. Clearly, a threat to kill must be, at the very least, capable as a matter of law of satisfying a requirement of conduct which had the consequence of causing fear or apprehension.
The MRT is not required to accept statutory declarations without question but its role is limited to seeing whether the description of the nature of the violence experienced or the evidence set out by the competent person is capable as a matter of law of affording a basis for an opinion relevant domestic violence has been suffered (see Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 5, Bryant CFM at page 21). The MRT is required to limit itself to examine the evidence to ensure that it complies with the regulatory requirements. Whether domestic violence in fact has occurred is not a matter to be determined by the MRT.
The nature of the violence stated by each of the competent persons is not inconsistent nor significantly different.
With respect to Mr Kleynhans statutory declaration, I find the MRT has embarked upon an erroneous investigation of the facts underlying the evidence provided rather than determining the sufficiency of the statutory declaration. The general practitioner's statutory declaration was acceptable but not Mr Kleynhans in a situation where both opinions were based on statements made by the applicant and a subsequent and similar professional diagnosis.
Any evidence given at the hearing by the visa applicant to the Tribunal was entirely irrelevant to the objective examination of the evidence set out in the competent person's declaration and to a consideration of whether such evidence was incapable as a matter of law of affording a basis for the competent person's stated opinion.
Mr Kleynhans states in his statutory declaration when asked to briefly describe the nature of the violence experienced, the following:
I believe that he suffered from domestic violence at the hands of his estranged de facto wife. She belittled him in public and told him that he was an uneducated bastard for example. She would be engaging in emotional outbursts and harass him in the process. She also exploited his timidness. A more detailed report will follow in due course.
When asked to briefly describe the evidence on which he based his professional opinion, he stated:
He is quite depressed and very anxious, which are typical of domestic violence clients. What is more, he is confused and startled which are also typical symptoms of domestic violence and trauma victims. He has been traumatised by her unpredictable behaviour and tantrums. Some of his symptoms match that of post traumatic stress disorder. He still feels threatened by her even after their separation. A more detailed profile will be provided in a detailed report to be submitted shortly.
That detailed report which accompanied his statutory declaration in particular referred to the following:
a)that the applicant was suffering from psychological trauma because of domestic violence at the hands of his estranged de facto spouse Sheila. The psychologist noted that the applicant was separated from her but still felt threatened by her and that the nominator had threatened to have him killed by her ex-husband from the UK who was apparently in Australia;
b)that the applicant presented with the symptomology of a domestic violence victim;
c)arguments would often lead to verbal fights involving shouting and swearing. All the nominator's anger and frustration were directed toward the applicant. It was the opinion of the psychologist that verbal abuse was progressive and took momentum during the time that the couple were together in a de facto relationship;
d)that the applicant was existing in a traumatic situation with his estranged de facto spouse causing him to become depressed. His de facto spouse abused him because he was so timid and vulnerable. The nominator was constantly taunting and harassing the applicant;
e)that because of the traumatic experiences involving the nominator the applicant started to portray symptoms of post traumatic stress disorder. The applicant was extremely fearful and felt threatened by the nominator. The applicant did not like conflict. When the nominator was abusing him he did not wish to get into physical fights and would only defend himself against her. The nominator liked conflict.
I find that an examination of the statutory declaration completed by Mr Kleynhans as a competent person does not lead unequivocally to the conclusion that he misconceived what was involved in the concept of domestic violence. He referred to evidence which was related to whether relevant domestic violence had been suffered by the applicant and he expressly stated his opinion that the applicant had suffered domestic violence perpetrated by the nominator. He also conveyed that the applicant suffered relevant domestic violence by implication. He made numerous reference to the applicant's state of mind and carried out psychological tests to determine the applicant's functioning.
The Tribunal fell into jurisdictional error in its finding that the nature of the violence experienced and the evidence on which Mr Kleynhans had based his opinion was not capable as a matter of law of supporting an opinion that relevant domestic violence within the meaning of paragraph 1.23(2)(b) had been suffered by the visa applicant.

The applicant’s statutory declaration

The Tribunal determined that the applicant's statutory declaration of

6 October 2002 did not satisfy regulation 1.25.
In the case of a spouse alleging domestic violence against himself the requirements of regulation 1.25 are such that the declaration must:

(a) set out the allegation; and (b) name the person alleged to have committed the relevant domestic violence.
The Tribunal did not dispute that the applicant's declaration complied with sub-regulation 1.25(b) by naming the alleged perpetrator. The Tribunal found, however, that the declaration did not satisfy sub-regulation 1.25(a).
The victim is required to set out the allegation. The allegation must describe conduct by the nominator against the victim which causes the victim to have fear or apprehension about his personal well-being or safety.
The MRT found:
The statutory declaration does not state that the nominator's behaviour of ridiculing, humiliating, abusing, and controlling the visa applicant, and threatening to have him deported, had the effect of causing him to fear for, or be apprehensive about, his personal well being or safety. Nor does the statutory declaration state that the nominator's threat that her husband would cause the visa applicant harm had the effect of causing the visa applicant to fear for, or be apprehensive about, his personal well being or safety. The statutory declaration therefore does not allege that the visa applicant is the victim of relevant domestic violence within the meaning of paragraph 1.23(2)(b). Consequently, the statutory declaration does not meet the requirements of sub-regulation 1.25(2)(a).
In his statutory declaration, the applicant says in paragraph 8 thereof:
I always accepted that in any relationship there would be difficulties and that I must be patient about her temper and moods. For most period of the relationship I have been subjected to ridicule, humiliation and control by her. She abused and threatened me saying that she will pack me and as she will report me to police saying this and that. I was scared and obeyed her.
Further in paragraph 16 thereof:
As events progressed I also realised, that she was continuing to abuse me, making use of the attachment and affection I have for her. In these days she started talking about her first husband and that he was spending time with her and he would cause harm to me, if he sees me.
And finally, in paragraphs 17 and 18:
… I understand the true nature of my domestic situation and that if I continued with it I will only endure further abuse (17).
…I request that I be granted residence, as a spouse subjected to domestic violence. Anything that has occurred to the relationship now, has been beyond my control (18).
The question is whether the information in the applicant's declaration including the clear and expressed allegations of domestic violence, being “scared” and the potential for “harm” to be inflicted upon him, could incorporate by implication a reference to a fear or apprehension for his personal well being or safety. Given the pivotal significance of a statutory declaration from an applicant under regulation 1.25, the respondent contends that clear and precise language is required. However, in my view it is not necessary that there be an express recital of any particular words relevant to the definition of relevant domestic violence. T he Tribunal asked itself the wrong question. The applicant was not required to make an express declaration. Rather his declaration, as a matter of law, was required to be capable of constituting an allegation of domestic violence, including any implied statement incorporated by reference to the definition of relevant domestic violence in Regulation 1.23(2)(b). A relevant consideration, to my mind ignored by the Tribunal, was whether the applicant’s express allegation of having suffered “domestic violence”, including threatened harm and his being “scared”, incorporated by implication a reference to a fear or apprehension for his personal well-being or safety. I would think it must.
In my view, the applicant’s declaration was capable, as a matter of law, of satisfying sub-regulation 1.25(a).
The manner in which this case proceeded before the Tribunal may well have lead the Tribunal to the view that the applicant’s claim to have suffered relevant domestic violence was inherently improbable.

I reiterate. That is irrelevant. The regulatory regime prevails.

I Sophie Killen certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 7 November, 2003