Gungor v Minister for Immigration
[2011] FMCA 516
•7 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUNGOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 516 |
| MIGRATION – Review of decision of MRT – family violence – whether Tribunal erred in misconstruing the definition in the Regulations – whether the existence of mutual violence could negate that of family violence. PROCEDURAL FAIRNESS – Whether the Tribunal erred in not referring back to the independent expert’s comments upon her report made by the applicant – legitimate expectation – whether the applicant could hold such an expectation in the circumstances of this case. |
| Migration Act 1958 (Cth), ss.357A, 359A Migration Regulations 1994, reg.1.21, 1.23, 1.24, 1.25, 1.26 |
| Alameddine v Minister for Immigration [2010] FMCA 313 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Canada (Attorney General) v Mavi [2011] SCC 30 Minister for Immigration v Seligman [1999] 85 FCR 115 Silver v Minister for Immigration [2007] FMCA 1955 Maman v Minister for Immigration [2011] FMCA 426 |
| Applicant: | RASIM GUNGOR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 524 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 July 2011 |
| Date of Last Submission: | 1 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 524 of 2011
| RASIM GUNGOR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Gungor seeks judicial review of a decision of the Migration Review Tribunal to affirm a decision of the delegate not to grant him a Partner (Migrant) (Class) BC visa made on 23 February 2011. The visa application was originally based upon Mr Gungor’s marriage to a Ms E and her consequent sponsorship of him. Mr Gungor and Ms E were married in November 2007 but her sponsorship was withdrawn and Mr Gungor advised the DIAC that the relationship had ended on 24 September 2008. Mr Gungor continued with his application basing it upon him being the alleged victim of family violence. As the Tribunal notes at [7] [CB 171]:
“To be granted a Subclass 100 visa, the applicant must meet, at the time of decision, one of the alternate requirements of either cl.100.221(2), (2A), (3) (4) or (4A) of Schedule 2 to the Regulations: cl.100.221(1). If the relationship with the sponsoring spouse/partner (the sponsor) has ceased, an applicant may still satisfy a criterion for the grant of this class of visa if, since arriving in Australia, the applicant, or a member of the family unit of the sponsor or of the applicant or both of them has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i).”
The governing regulation covering family violence is Reg 1.23 Migration Regulations 1994 (the “Regulations”), the relevant sub-clause which is 1.23(2)(b) [now renumbered as reg.1.21(1)]:
“1.23 When is a person taken to have suffered or committed family violence?
(2) In subparagraph (1A) (b) (ii):
(b) a reference to relevant family violence is a reference to conduct, whether actual or threatened, towards:
(i) the alleged victim; or
(ii) a member of the family unit of the alleged victim; or
(iii) a member of the family unit of the alleged perpetrator; or
(iv) the property of the alleged victim; or
(v) the property of a member of the family unit of the alleged victim; or
(vi) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.”
Also relevant are Regulations 1.21, 1.24, 1.25 and 1.26 although it is not in dispute in this case that Mr Gungor provided the requisite preliminary evidence which enabled both the delegate and the Tribunal to consider his claim. It is also not in dispute that the claim which he made was one classed in Regulation 1.23 as “non-judicially determined family violence” to which Regulation 1.23(1B) and (1C) apply [now renumbered as regs.1.23(10) and 1.23(10)(c)(ii)] :
“1.23 When is a person taken to have suffered or committed family violence?
(1) For the purposes of these Regulations:
(1B) If an application for a visa includes a non‑judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence (whichever of the circumstances mentioned in paragraph (1A) (b) exists) and:
(a) if satisfied that the alleged victim has suffered relevant family violence — consider the application on that basis; or
(b) if not satisfied that the alleged victim has suffered relevant family violence — seek the opinion of an independent expert about whether the alleged victim has suffered relevant family violence.
(1C) The Minister must take an independent expert’s opinion on the matter mentioned in paragraph (1B) (b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.”
Mr Gungor told that after he and his sponsor were first married they lived with her parents but they soon moved out into their own flat and then his problems began. The history of the family violence that he said he had suffered is set out at [34 – 46] [CB 176 – 178] of the Tribunal’s hearing record. Mr Gungor produced two witnesses Mr Hyde and Mr Dilek who also gave evidence to the Tribunal at [CB 178 – 179]. The Tribunal concluded from that evidence that it could not be satisfied that Mr Gungor had suffered relevant family violence and therefore sought the opinion of an independent expert (“IE”) as required by the Regulations. The IE produced a report at [CB 142 – 156] and an opinion [CB 157 – 158]. In the report the expert referred to information that had been received from Ms E concerning her allegations of domestic violence instigated by Mr Gungor including details of an application for an AVO and some medical reports which suggested that she had been giving her doctors a history of psychological and physical abuse from her husband.
The expert’s opinion was that:
“The alleged victim has not suffered relevant family violence (as defined in Regulation 1.21(1) of the Migration Regulations 1994), committed by the alleged perpetrator (identified above).”
In her reasons for coming to this opinion the expert refers to a three and a half hours face to face interview with Mr Gungor and states that she has taken into consideration all of the information provided to her from the MRT and Phoenix Migration, Mr Gungor’s migration agent:
“From the information it is noted that there are several inconsistencies in the reports of incidents of family violence, separation dates and Mr Gungor’s alleged fear for his safety, apprehension and well being.”
The IE refers to certain inconsistencies between Mr Gungor’s evidence and that of his experts and stated:
“Information provided by friends of Mr Gungor also recount inconsistent incidents of abuse allegedly experienced by Mr Gungor. Ms B writes that Ms E would threaten to beat Mr Gungor with a stick. Mr S advised the details of contacts made between Mr Gungor and Ms E following separation. IE notes that both of these matters were not mentioned by Mr Gungor during his interview. Information from other third parties makes no mention of the impact of the family violence on Mr Gungor’s fear and apprehension for his wellbeing and safety however, it is noted that Ms B states that Mr Gungor is fearful of his future.
In regard to Mr Gungor’s fear and apprehension for his wellbeing and safety, IE has questioned his authenticity of his alleged fears given that he reportedly met with Ms E following separation and evidently took little action to protect himself. IE considers that typical victims of family violence who are fearful of their safety or apprehensive for their wellbeing, do not continue having contact with their former in-laws or place themselves in situations where they may risk contact or further harm from their ex partner.
The conflicting information raises concerns about the authenticity of information contained in the statutory declarations from Mr Gungor to the IE.”
The IE’s opinion ends with the following paragraphs which contain the essence of Mr Gungor’s complaint:
“In regard to the marriage between Mr Gungor and Ms E, it appears that their relationship was characterised by mutual violence. IE has drawn this conclusion given the evidence presented for this assessment including from the Turkish Community Centre that refused to assist Mr Gungor following separation as they were assisting his wife via a referral from the police. Given this information IE considers that a relationship consisting of mutual violence tends to negate the issue of a power imbalance which can be a precursor to forms of violence.
Therefore IE considers that there is no evidence that Mr Gungor experienced relevant family violence as defined nor is there is any reliable evidence that any conduct, whether actual or threatened, caused Mr Gungor to reasonable fear for, (sic), or to be reasonably apprehensive about his own wellbeing or safety.”
Upon receipt of this report the Tribunal wrote to Mr Gungor pursuant to s.359A of the Migration Act 1958 (the “Act”) providing him with a copy of the report and stated:
“This information is relevant because the Tribunal must take as correct the opinion of the expert that the alleged victim has suffered domestic violence. If the Tribunal finds that you have not suffered relevant domestic violence you may not be able to meet the requirements of the grant of a visa for which you have applied. You are invited to give comments on or respond to the information in writing.”
On 8 February 2011 Phoenix Migration wrote to the Tribunal noting the grounds upon which the IE had come to her conclusion including that relating to mutual violence. It stated in regard to that issue:
“We are advised by Mr Gungor that during his one attempt to make a complaint to the police about Ms E, his ex-wife’s violent behaviour towards him he discovered that she had pre-empted him as she had already taken out an AVO against him. Therefore the police refused to assist him to avoid a conflict of interest. The police then referred our client’s ex-wife to the Turkish Community Centre at which Mr Gungor had been receiving help. As a consequence of the police having referred the client’s ex-wife to the Community Centre the Centre had refused to provide our client with any further assistance.” [CB 166]
Mr Gungor also wrote to the Tribunal about the IE’s report in a letter dated 2 February 2010 but noted as having been received on 14 February 2011 [CB 82 – 94]. In that submission at [CB 90] Mr Gungor makes reference to his attending at the police station and being refused assistance because his wife had taken out an AVO against him and also states at [CB 94]:
“Had I knew that I should’ve been the first to approached the police with first and scratch marks on my face. Had I knew that Police would actually favour/protect the man from a woman’s slavery, abuse, assaults and violence. I certainly would’ve made that first choice to race off to the Police station, however as I had said above I just did not know how to support myself or knew the loops & laws.”
The Tribunal received these submissions stating:
“He disputed the opinion and asserted he was a victim of family violence. He reiterated his claims and responded to the expert’s opinion that there were inconsistencies in his claims. Under Regulation 1.23(1)(C) the Tribunal is required to take as correct an independent expert’s opinion properly made, about whether the alleged victim suffered relevant family violence. Accordingly, under Regulation 1.23(1)(g) the Tribunal finds that the alleged victim (the applicant) is not taken to have suffered family violence and the alleged perpetrator, the sponsor has not taken to have committed family violence.” [80 – 81] [CB 183]
On 22 March 2011 Mr Gungor filed an application with this court seeking judicial review of the Tribunal’s decision. The grounds for that review are those contained in an Amended Application filed on 1 July 2011. There are two grounds:
“1.The Tribunal erred in finding that the opinion of an “independent expert” appointed under Migration Regulation 1.23(1B), was authorised by the Migration Regulations, and so erred accepting it for the purposes of Migration Regulation 1.23(1C).
Particulars
(a)The “independent expert” took into account an alleged lack of a power imbalance between the applicant and his former spouse, and,
(b)In doing so misconstrued and misapplied the definition of family violence in Migration Regulation 1.23(2)(b).
(c)The “independent expert” failed to consider whether the “mutual violence” which she found to have been present in the relationship between the applicant and his ex wife could have come within the definition of family violence in Migration Regulation 1.23(2)(b).
2. The applicant was denied procedural fairness.
(a)Failure of the “independent expert” to raise with the applicant and invite comment on information to the effect that he had been violent towards his ex wife.
(b)Failure of the Tribunal member to refer the applicant’s response to her s.359A letter back to the independent expert for consideration.”
In support of the second ground Mr Gungor filed an affidavit dated 22 June 2011. This states omitting formal parts:
“[2]My solicitor Howard Murdock has shown me today from the Green Court Book filed 12/05/2011, pages marked 31 to 35 inclusive and page 154.
[3]During my Migration Review Tribunal hearing conducted in late August 2010 I became aware of the existence of these reports.
[4]My Migration Agent at the time advise me some weeks later that she had received the documents from the Tribunal but I do not recall her ever discussing them with me. I am aware now that she never responded to the Tribunal.
[5]I did not later read them because I have had reading difficulties with English and was at the time reliant on my Migration Agent.
[6]At the time of Independent Expert interview the reports I do not remember them being discussed with me during the interview. The Independent Expert did not ask me if I had been violent towards my ex-wife or suggest to me that I had been violent.”
Pages 31 to 35 of the Green Book contain a letter dated 3 September 2008 by Dr Emin to DIAC dealing with alleged abuse by Mr Gungor of his wife including his patient visit record, a letter from the Turkish and Kurdish Community Services Co-Operative dated 8 September 2008 to DIAC which states that Ms E:
“Has recently separated from her husband due to domestic violence perpetrated by her husband physically emotionally and verbally.”
Finally there is a letter from Ms E to DIAC dated 23 October 2008 withdrawing her sponsorship:
“Because I am a victim of domestic violence by Mr Gungor. I am also supporting all required evidence of the AVO granted by the Burwood Local Court and also I am submitting this with a letter from my Doctor’s report outlining physical abuse.”
[CB 154] is part of the IE’s report setting out the substance of those letters.
Mr Gungor filed an affidavit upon which he was cross examined by Ms Graycar who appeared for the respondent. He told that he had become aware of the documents at the hearing and that he was well aware that his wife had taken out an AVO against him. He said that he understood that his wife had claimed that he had been violent to her. He accepted that he had been told by the Turkish Community Centre that they were assisting his wife in relation to her complaints against him. He stated that the Tribunal had told him that there were documents on the file that were adverse, one was from the Turkish Community and there was one other. He said that the IE had not discussed the documents with him. He accepted the Tribunal’s record that it had put to him its concerns that the sponsor had claimed and had provided information to DIAC that she was a victim of domestic violence. Mr Gungor responded that the sponsor was acting out of spite and wanted him out of the country. Mr Gungor told the court that he couldn’t remember everything and that he may well have said this to the Tribunal. He then said that whilst he didn’t think that the reports were discussed with him by the IE he couldn’t remember but said:
“She didn’t ask me if I had been violent. I do remember that. She said no-one is going to blame you for anything, you are just being asked some questions.”
Mr Gungor was questioned as to why in neither his response nor that of his agent was there any indication that the question of his violence against his wife had not been discussed. In response he said words to the effect that he thought his other complaints were more important.
Having considered Mr Gungor’s responses to the cross examination, and noting that he was clearly aware that his wife had taken out an AVO against him and that she had made representations to the Turkish Community Centre, I am of the view that he did not make reference to the fact that the IE had not questioned him about his alleged violence to his wife because at the time he wrote his own letter and instructed his agent he had a better recall of the interview than he now does and that recall included the fact that reference was made to these matters. I am of the view that the applicant has not made out his claim that the IE failed to raise with him and invite comment upon information to the effect that he had been violent towards his ex wife. This is matter upon which the applicant bears the onus and he has not satisfied it to the required standard.
The second part of this ground, being the failure to refer the applicant’s response to the s.359A letter back to the expert for consideration, raises interesting questions. There is obviously tension between the obligation on the Tribunal to accept an IE’s report and that articulation of the natural justice hearing rule found in s.357A and Division 5 of the Act. Mr Karp, for the applicant, suggested that the wording of the 359A letter constituted a representation which would have given the applicant a legitimate expectation that any comments which he did make would be forwarded to the IE. A similar suggestion was made to me in Alameddine v Minister for Immigration [2010] FMCA 313. In this regard I said:
“[16]Although the applicant could not point to any statutory obligation to do so, the Court considered whether the expert’s statement that, upon receipt of new information the opinion could be reconsidered, combined with the Tribunal’s action in inviting comment on the opinion, could give rise to a legitimate expectation that the Tribunal would pass on the information. I considered this ground of review in SZEUI & Ors v Minister for Immigration & Anor [2007] FMCA 2134 at [11]:
“[T]here must be some doubt now as to the extent of any legitimate expectation doctrine following the views expressed by the High Court in Re Minister for Immigration; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 and the views of Gummow J concerning estoppel in administrative law found in Minister for Immigration v Kurtovic (1990) 21 FCR 193. There is also s.422B of the Act to be taken into account which makes s.424A part of a code and an exhaustive statement of the requirements of the natural justice hearing rule.”
In that case it was not necessary to decide the issue since the material which the applicant alleged should have been put to him on the basis of legitimate expectation was excluded by s.424A(3)(b).
[17]In Re Minister for Immigration; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 (“Ex Parte Lam”) (a case which was decided before s.422B was inserted into the Act) Gleeson CJ commented at [34]:
“…it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”
[18]On this basis, legitimate expectation may still be a useful way of characterising some procedural unfairness which falls outside the ambit of Division 5 or, at least, giving practical content to procedural obligations prescribed by the legislation. However, the applicant has not pointed to any failure of the Tribunal to comply with the procedural code set out in Division 5, nor has he shown any other basis for finding a breach of procedural fairness. Even if there was some other basis on which to find that the failure to pass on the information was a breach of procedural fairness, the applicant would still be required to show that he had suffered some detriment in reliance on the expectation. In Ex Parte Lam at [36] Gleeson CJ noted:
“The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.”
In the instant case, it is not clear that the applicant suffered any detriment in relying on the expectation. He has not said what more favourable course he might have taken had it not been for his expectation that the Tribunal would pass on the information. It may also be argued from a reading of the s.424A letter [in fact s.359A letter] and the particulars outlined therein that the Tribunal was not inviting comment on the individual findings of the expert but rather the ultimate decision and whether it was properly made. In this sense the Tribunal’s actions could not be said to give rise to an expectation that submissions of the sort made would be passed onto the independent expert.”
Mr Karp was unable to provide me with any authority that went directly to the point in this particular type of case. He relied heavily on what fell from the Full Court; Northrop, Miles and French JJ in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
An interesting opinion on the nature of legitimate expectations can be found in Canada (Attorney General) v Mavi [2011] SCC 30 where the Supreme Court of Canada (McLachlin CJ; LeBel, Deschamps, Fish, Abella, Charron, Rothstain and Cromwell JJ concurred with Binnie J who provided a test for the application of the doctrine of legitimate expectations stating at [68]:
“Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the presentations said to give rise to the legitimate expectation are clear, unambiguous and unqualified, to the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.”
The test therefore comprises multiple components. Firstly, representations must be made by a government official within the scope of his or her authority. Secondly, the representations must be about an administrative process that the government will follow. Thirdly, the legitimate expectation to which the representation gives rise must be clear, unambiguous and unqualified. Fourthly, it must be procedural in nature and, fifthly, it must not be in conflict with the decision-maker’s statutory duty. If these conditions are met then the government may be held to its word. In such a case, Binnie J held that a failure to abide by the representations in a substantial way would be a breach of the duty of fairness.”
I am of the view that the only representation that an applicant in the position of Mr Gungor could properly argue was being made to him by the Tribunal was that it, the Tribunal, would consider any representations that were made. I cannot see that the Tribunal could be held to have made a representation so clear, unambiguous and unqualified that it would provide Mr Gungor with a legitimate expectation that the comments which he made to the Tribunal would be passed to the IE for her consideration and response. I am of the view that there are only two categories of matters upon which the Tribunal would be required to act should they appear in a response to a s.359A letter. The first is the provision of what is truly new evidence and the obligation to consider it arises from the wording found in bold at the completion of the IE report:
“If relevant new evidence is submitted before the application is finally determined this opinion can be reconsidered.”
The second type of comment which I believe the Tribunal is obliged to take into account would be submissions that the IE’s report was not “properly made”, that is something which would affect the Tribunal’s decision to the extent of invalidating it if the complaint was justified: Minister for Immigration v Seligman [1999] 85 FCR 115; Silver v Minister for Immigration [2007] FMCA 1955; Maman v Minister for Immigration [2011] FMCA 426. I hold to the view which I expressed in Maman that if a response to a 359A letter articulates a matter which would constitute the failure to properly make the report (in that case a failure to provide the applicant with procedural fairness) then the Tribunal is under an obligation to consider the representations and either refer the matter back to the IE or explain in its own reasons why it did not do so. I also remain of the view expressed in Maman that the Tribunal is under no obligation either to refer back to the IE or to comment upon representations that do no more than seek a further merits review of the IE’s decision. This is what the instant applicant’s representations were doing. For these reasons I would not find that the Tribunal fell into jurisdictional error in the manner suggested by Ground 2 of the grounds of the Amended Application.
In regard to the first ground of the application the final two paragraphs of the IE’s report extracted at [4] of these reasons do appear on their face to be internally inconsistent. It states that the relationship between the parties was characterised by mutual violence in the first paragraph but in the second paragraph it states that there is no evidence that Mr Gungor experienced relevant family violence as defined. The definition of family violence is conduct towards the alleged victim that causes the alleged victim to reasonably fear for or be reasonably apprehensive about his or her own wellbeing or safety. The IE goes on to say:
“Nor is there any reliable evidence that any conduct, whether actual or threatened caused Mr Gungor to reasonable (sic) fearful or to be reasonably apprehensive about his own wellbeing or safety.”
This raises the question of what the IE was talking about in the first part of the sentence. If she was trying to separate conduct from the affect of the conduct, which is a perfectly legitimate thing to do, it is internally inconsistent to find that there was no conduct when she has already found that the relationship was characterised by “mutual violence”. Is she saying that mutual violence is something different from “family violence” as defined? Mr Karp’s argument is that by making reference to “the issue of power imbalance” the expert has added something to the definition of family violence that is not contained in the Regulations. This is not a proposition I accept. Whilst I think that the last two paragraphs of the expert’s report are unhappily worded I do not think that they should be looked at with an eye attuned to the perception of error and I think a more balanced view of what was written in this regard was that the expert considered that the lack of power imbalance would affect a party’s fear. It was part of the evidence that she considered in coming to a final conclusion, as opposed to being definitional.
The second complaint made by Mr Karp is, to my mind, negated by the very reference to power imbalance that he complained about in the first part of the ground. If what the IE is saying is that where there is mutual violence there tends to be no power imbalance and therefore no fear then she is saying that where there is mutual violence then it is unlikely to come within the definition. I agree with Mr Karp that every case should be looked at upon its merits and it may well be that in some cases of mutual violence fear does exist and the fearful party will have found him or herself within the definition. But if this report is read as a whole it is clear that the IE was not convinced that Mr Gungor did have the required fear as a result of his wife’s conduct. In this regard I would particularly refer to the part of the decision extracted at [4]. In my view these remarks show an independent basis for excluding Mr Gungor from the definition that has nothing to do with the fact that the violence between him and his wife was mutual. I am satisfied that the IE was aware of the statutory definition of family violence and excluded Mr Gungor from that definition because of his lack of fear, the existence of which she was not satisfied.
In the light of these findings I am unable to conclude that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $5,500.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 7 July 2011
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