Helvaci v Minister for Immigration - [2007] FMCA 1306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HELVACI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1306

MIGRATION – Visa – spouse – sponsorship withdrawn – allegation of domestic violence by sponsor – independent expert – allegation that translation at interview with independent expert was inadequate.

Migration Act 1958, ss.65, 359A, 366D
Migration Regulations 1994, regs.1.22, 1.23, sch.2, cl.100.221

Applicant:

IBRAHIM HELVACI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 17 of 2007

Judgment of:

Cameron FM

Hearing dates:

22 March 2007 and 14 May 2007

Date of Last Submission:

14 May 2007

Delivered at:

Sydney

Delivered on:

10 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr K. Tredrea

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 17 of 2007

IBRAHIM HELVACI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 29 January 2007, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) dated

18 December 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 7 July 2005 refusing the applicant’s application for a Partner (Migrant) (Class BC) visa.

Background facts

Although the applicant was granted a Subclass 309 Spouse (Provisional) visa in February 2004, the delegate of the Minister subsequently refused to grant to the applicant a Partner (Migrant) (Class BC) visa on the basis that the applicant did not satisfy clause 100.221 of Schedule 2 to the Migration Regulations 1994 (“Regulations”).
The delegate of the Minister found that the applicant did not satisfy clause 100.221 because his sponsoring spouse, Ms Susan Maree Summerhayes (“sponsor”), informed the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) on 20 May 2005 that their relationship had broken down and that she withdrew her sponsorship of the applicant. (Court Book (“CB”) page 122)
By facsimile to the Department dated 1 July 2005, the applicant’s representative confirmed that the relationship was over but said that the applicant was the victim of domestic violence. (CB 39) However, the delegate of the Minister found that there was no evidence that the applicant was the victim of domestic violence committed by the sponsor.
The Tribunal described the applicant as follows:
It is claimed that the applicant first met the sponsor over the Internet when playing Backgammon in early 2002. They continued to meet on-line and spoke by telephone. The applicant proposed to the sponsor later in 2002. The sponsor travelled to Turkey in May 2003 and she and the applicant married on

14 June 2003. The sponsor returned to Australia in August 2003. The applicant arrived in Australia on 13 March 2004, having been granted a Subclass 309 visa on 10 February 2004. For a short period the parties cohabited at Armidale. During the sponsor’s stay in Turkey they had discussed moving to Adelaide where the applicant had a friend. The applicant moved to Adelaide and commenced work. In September, 2004 the sponsor moved to Adelaide and stayed for 2-3 months. (CB 124)
The facts alleged in support of the applicant’s claim as set out in his statutory declaration dated 21 June 2006 are summarised on pages 5 - 6 of the Tribunal’s decision (CB 125 - 126). Relevantly, they are:
a)about one week after the applicant’s arrival in Armidale the sponsor was “abusive and rude” to him and threw a telephone at his head;
b)the sponsor continued to drink and each time she drank she was abusive and threatened the applicant;
c)the applicant was worried about his safety;
d)the applicant and the sponsor had an argument after which the sponsor told the applicant to leave the house. The applicant went into the garage and waited for the sponsor’s son to return home. When the sponsor’s son came home, the applicant went with him to his bedroom and slept under his bed;
e)the applicant moved to Adelaide to learn English and to learn business skills from his friend;
f)the sponsor began to demand money from the applicant, giving reasons such as the need to pay rent, the loss of her son’s mobile phone on four separate occasions and the need for repairs to her son’s car;
g)the applicant borrowed money from a friend in order to give money to the sponsor;
h)in September 2004 the sponsor moved to Adelaide for two – three months. During this time she drank heavily and was abusive and threatening;
i)on one occasion she threw hot tea over the applicant but he was not burned;
j)she also chased him with a kettle full of hot water but he was able to restrain her; and
k)when the sponsor asked the applicant for more money to repair her son’s car which had been involved in an accident, he refused. As a result, the sponsor told the applicant that their marriage was not working.
The applicant also relies on a statutory declaration made by psychologist Mr Michael Damien McInerney dated 20 July 2005 and a statutory declaration made by medical practitioner Dr Siew Meng Lum dated 20 July 2005.
In his statutory declaration dated 20 July 2005, psychologist

Mr Michael Damien McInerney concludes:
1. the applicant was the victim of emotional, verbal and financial abuse during his marriage to the sponsor.
2. the applicant was under extreme pressure to provide money to the sponsor because of his fear of ongoing emotional and verbal abuse by her.
3. the sponsor’s abuse has had a negative impact on the applicant’s emotional health and the applicant suffers a significant depressive disorder and severe levels of stress and anxiety. (CB 126)
In his statutory declaration dated 20 July 2005, Dr Siew Meng Lum states:
In conclusion, I am of the opinion that Ibrahim has suffered adversely from the constant abuse and stress placed upon him by his estranged wife. Her threats of blackmail regarding his immigration status has [sic] contributed immensely to his poor mental state. (CB 126)
The applicant also relies on statements from Mr Saher Turkoman, Mr Alex Tunno and Mr Eric Walker. Mr Turkoman’s statement, dated

21 September 2006, describes the sponsor abusing the applicant and “swearing, falling down, drunk, violent”. Mr Tunno’s statement, dated 21 September 2006, refers to drunken phone calls made to the applicant by the sponsor when he was at work and joint bank statements which showed the sponsor spending money on “alcohol, gambling and hotels”. Mr Walker’s statement, dated 21 September 2006, describes conversations between the applicant and the sponsor where there “appeared to be issues with money and arguments about money and her drinking problem”. Mr Walker also witnessed “abusive incidents” in Adelaide where the sponsor was swearing and asking about the applicant at the yiros shop where he worked.
Having regard to all the evidence available as at July 2006, the Tribunal was not satisfied that the applicant had suffered domestic violence committed by the sponsor and it referred the matter to an independent expert at Centrelink for an opinion pursuant to reg.1.23(1B)(b) of the Regulations. (CB 83)
On 22 August 2006, an employee of Centrelink provided to the Tribunal an independent expert opinion that the applicant had not suffered domestic violence. That report stated:
It is my professional opinion that Mr Helvaci’s claims that he [was] subjected to abuse by his wife Sue throughout their marriage and that he feared for his safety are not substantiated … There is no independent verification of these claims. …
There is also no clear and conclusive evidence that he feared for his safety … (CB 127)
On 31 August 2006 the Tribunal sent the applicant a letter under s.359A of the Act inviting him to comment on the opinion of the Centrelink independent expert. The Tribunal’s letter stated that pursuant to reg.1.23(1C) of the Regulations it had to take as correct the independent expert’s opinion on whether or not the applicant had suffered domestic violence. (CB 86)
On 27 September 2006, the applicant’s representative responded to that invitation with the comment:
In the interest of the application of natural justice to our client, our client should be afforded the opportunity to cross examine the expert. (CB 90)
The Tribunal invited the applicant to a hearing on 28 November 2006. In the response to the invitation to the hearing the applicant requested that the Tribunal take oral evidence from the Centrelink independent expert and that a formal summons be issued requesting her attendance at the hearing.
By letter dated 20 November 2006 the Tribunal declined the applicant’s request that the Centrelink expert be summonsed to give oral evidence. In the letter the Tribunal referred the applicant to s.366D of the Act and reg.1.23(1C) of the Regulations.

The law

Section 65 of the Act requires the Minister to grant a visa in response to a valid visa application if he is satisfied that the criteria for it have been met. But, if he is not so satisfied, he must refuse the visa. As set out at [3] and [4] above, the applicant’s marriage with his sponsoring spouse having broken down and her sponsorship being withdrawn, the applicant sought to demonstrate a continued entitlement to a visa on the basis that he was the victim of domestic violence at the hands of his estranged wife. In this regard, cl.100.221(4) of Schedule 2 to the Migration Regulations provides, relevantly:
The applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and …
(i)      continues to be the holder of that visa; …
… and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) …
(i)      …
(A)     the applicant;
…
has suffered domestic violence committed by the sponsoring spouse.
Regulation 1.22 provides:
(1)A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence. …
Regulation 1.23 provides:
(1) For the purposes of these Regulations:
(a)a person (the alleged victim) is taken to have suffered domestic violence; and
(b)   another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim;
if:      …
(f) the Minister is satisfied, for paragraph (1B) (a), that the alleged victim has suffered relevant domestic violence; or
(g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence.
(1A)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of domestic violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered domestic violence; and
(b)either of the following circumstances exists:
(i)     …
(ii)     for an alleged victim who is a person referred to in subregulation (2) -- the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:
(A)the alleged victim has suffered relevant domestic violence; and
(B)the alleged perpetrator has committed that relevant domestic violence.
(1B)If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A) (b) exists) and:
…
(b)if not satisfied that the alleged victim has suffered relevant domestic violence -- seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic 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 domestic violence.
(2) In subparagraph (1A) (b) (ii):
(a) the persons referred to are the following:
(i)     a spouse of the alleged perpetrator…
(b)a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that the applicant had not been the victim of domestic violence.
The Tribunal found that the statements from third parties provided to the Tribunal failed to substantiate the applicant’s claim that he was the victim of domestic violence because the statements did not “link the sponsor with violent behaviour towards the applicant” and did not “reveal any evidence of the author witnessing the sponsor committing acts of domestic violence towards the applicant” (CB 132 and 133). Moreover, he sought reconciliation with his wife.
In essence, the Tribunal:
… failed to be satisfied because the applicant had not demonstrated that the alleged violence of the sponsor had caused him to fear … or to be apprehensive about his personal well-being or safety and his claims in relation to the sponsor’s behaviour were not verified. In accordance with regulation 1.23(1B)(b), on 12 July 2006 the Tribunal sought the opinion of an independent expert as to whether the applicant (the alleged victim) had suffered relevant domestic violence. … on 22 August 2006 the independent expert of Centrelink provided an opinion that the applicant, the alleged victim, had not suffered relevant domestic violence. (CB 131 - 132)
The Tribunal also relied on the expert’s report in reaching its finding saying:
Under regulation 1.23(1C) the Tribunal is required to take an independent expert’s opinion about whether an alleged victim has suffered relevant domestic violence to be correct. The independent expert stated that her opinion was given according to the definition of ‘relevant domestic violence’ as defined by regulation 1.23(2)(b) which she included in the opinion. The Tribunal is satisfied on examination of the independent expert’s opinion that in forming her opinion in this case she has applied the criteria with respect to domestic violence in the Regulations correctly. As the Tribunal has found that the independent expert applied the Regulations correctly, the Tribunal makes the further finding under regulation 1.23(1)(g) that the applicant is not taken to have suffered relevant domestic violence committed by the sponsor. (CB 133)

Proceedings in this Court

The grounds of the application are:
1. Decision made on report by Centrelink based on interview with bad interpreter.
2. I did not receive naturel [sic] justice.

Interpreter at Centrelink interview

The applicant asserts that the interpreter provided to him for the interview he had with the Centrelink expert, whose report was relied upon by the Tribunal to affirm the decision of the delegate, was a Turkmen interpreter, rather than a Turkish interpreter and that he advised the Tribunal of this but it nevertheless relied on that expert’s report in arriving at its decision. The applicant told the Court in evidence and submissions that the interpreter was only present for thirty to forty five minutes of the interview with the expert which, in total, lasted approximately three hours and that after the interpreter left the applicant endeavoured to communicate with the expert in English. The first respondent did not contest the applicant’s assertions in relation to the interpreter at the interview with the expert.
Two issues arise out of the applicant’s claim. The first is whether the Tribunal failed to consider relevant material going to the exercise of its jurisdiction, namely a claim by the applicant that he had not had the ability to explain himself properly to the Centrelink expert as a result of translation difficulties. The second is, if it is accepted that the Tribunal did fail to take account of such a claim, whether the conduct of the Centrelink interview was such that the Court would exercise its jurisdiction to decline to set aside the Tribunal’s decision notwithstanding that the Tribunal had failed to consider the applicant’s claim.
The application is unparticularised but, as already noted, the applicant said in his submissions and evidence that he had told the Tribunal that the interview with the expert had been conducted with a Turkmen rather than a Turkish interpreter and that the interpreter had left thirty to forty five minutes into the interview whereas the meeting went for three hours. The applicant also said that he told the Tribunal that the wrong interpreter had been used but that not much importance was placed on this by the Tribunal.
Although the first respondent does not contest the applicant’s assertions as to the conduct of the Centrelink interview he does contest the applicant’s assertion of having raised it with the Tribunal. The first respondent tendered a transcript of the Tribunal hearing and read an affidavit of Ayse Cunningham sworn 27 April 2007 who deposed to having read the transcript and listened to the tapes of the applicant’s hearing before the Tribunal. The applicant did not object to the tendering of the transcript nor did he require Ms Cunningham for cross-examination.
In his own cross-examination the applicant agreed that the only reference that he had made to the Tribunal in relation to interpretation difficulties is what is set out in paragraph 5 of Ms Cunningham’s affidavit. What appears there is a more accurate translation of comments made by the applicant to the Tribunal. The Tribunal’s question was as follows:
All right [sic]. Now, that you have said in the papers – I’m referring particularly to your statutory declaration dated 21 June 2006. You said in your declaration that this telephone-throwing incident occurred within the first week after you arrived. Is that correct?
The response appearing in the transcript is as follows:
Yes. Yes, I said that in my stat dec, and last time I wanted an interpreter a lady came and she was a Turkmen and we couldn’t understand each other well. So there might be a discrepancy in what I said, but we had two fights within the first 10 days of my arrival here.
By contrast, Ms Cunningham says that the correct translation of what the applicant said was:
Last time I said the same thing I had a problem in my statutory declaration. I wanted that interpreter to come here today. That time they gave me Turkoman interpreter not Turkish interpreter. That time interpreter lady stayed ½ hour or 45 minutes. I think because my English is not good enough. I couldn’t interpret very good, that woman…[inaudible]…I did mix up things.
Although the applicant does make reference in this answer to difficulties he had had with a Turkmen interpreter the “last time”, he does not make a complaint which expressly relates to the interview with the Centrelink expert or which is more generally about the translation services available the “last time”. Rather, what the applicant is doing in the quoted passages is elucidating what he said in his statutory declaration about the telephone-throwing incident, being the matter which was the subject of the Tribunal’s question.

For the reasons set out above at [30] it would be wrong to understand the passage quoted at [29] as an invitation to the Tribunal to question the validity of the report of the Centrelink expert on the basis that there had been an inadequate translation at the Centrelink interview. This is borne out by the fact that at no other part of the Tribunal hearing was a complaint made about the translations at the Centrelink interview. If the applicant had had real concerns on this score, he would have raised them clearly and directly with the Tribunal but a review of the transcript of the Tribunal hearing indicates that he did not. The fact that he did not, clarifies the meaning of the passages quoted above at [29]. That is, what the applicant said there was not a complaint about the interpreter services at the Centrelink interview which was advanced as a basis to question the validity of that process and resulting report. Rather, it was an explanation dealing with the discrete issue which was the subject of the Tribunal’s question, namely the telephone-throwing incident.
That the applicant was not complaining more generally about the Centrelink interpreter is consistent with the fact that at no other point in the proceedings was the quality of interpreter services at the Centrelink interview raised as a matter of concern. By its s.359A letter dated 31 August 2006 (CB 86-88) the Tribunal put to the applicant elements of the Centrelink expert’s report for his comment. His solicitors respondent by their letter of 27 September 2006 (CB 89-90) but no reference is made in that letter to language problems even though the applicant told the Court that he had told his solicitor of his problems with the interpreter. Certainly the applicant’s solicitor requested that the applicant be afforded the opportunity to cross-examine the expert but there was nothing contained in the solicitor’s letter which would suggest that translation difficulties were the basis of that request. Rather, given the contents of the remainder of the letter, it seems likely that the request was based on a proposed challenge to the expert’s opinion.
It is also significant that in the applicant’s “request for hearing” form (CB 102-103) he asks for oral evidence to be taken from the Centrelink expert but did not, as invited by the form, include a brief description of the nature of any evidence he wished the Tribunal to obtain.
Notwithstanding what the applicant said in his evidence, the original and corrected transcripts are clear enough and they were in no way contradicted by documentary evidence: the applicant did not put the Tribunal on notice that he had difficulty in making himself generally understood to the Centrelink expert. Consequently, he gave the Tribunal no cause to doubt the accuracy of the report or the fairness of the procedure by which it was obtained.
But even if he had, and even accepting that the translation was poor and the interpreter departed early leaving the applicant to use his less than perfect English to communicate with the expert, there is no basis on which to conclude that the expert’s report was adversely affected by this. In cross-examination the applicant was taken to the Centrelink report and invited to identify anything which was wrong with it. Although he did not re-read that report in the witness box, he said that it had been previously interpreted to him by friends. In response to a question by counsel for the first respondent, the applicant said that he did not know what was in the report and could not say what was wrong with it. This failure to identify any errors in the Centrelink report is not insignificant given what appears at the first page of the report at point 6 (CB 187) where it states “(interpreter present but not required to interpret)”. Clearly then, the Centrelink expert believed that there were no language difficulties and if it was the applicant’s assertion that there had been, it was for him to demonstrate this. But he has not done so. There is nothing in the expert’s report indicative of communication problems and it should be noted that in his visa application form 47SP (CB 8-22) the applicant stated at page numbered 7 (CB 10) that his main languages were “Turkish/English” and that his level of proficiency was “Functional” and “Better than functional”.
For these reasons, even were it to have been found that the Tribunal had failed to consider a submission by the applicant that the Centrelink expert’s report was deficient or defective because of communication difficulties during the interview, it has not been demonstrated in these proceedings that there were, in fact, such difficulties. The applicant said in his evidence to the Court that he believed the expert had been confused because there had been language difficulties but other than what is identified in Ms Cunningham’s affidavit it has not been identified what the confusion was, if there was any, nor what errors the expert made in comprehending what the applicant was telling her, if in fact she made any.
Consequently, no jurisdictional error has been demonstrated in respect of these elements of the application.
The applicant also submits that he was denied natural justice. This assertion is not particularised in the application although in his affidavit sworn 30 January 2007 the applicant says that he was not given natural justice “Because of bad interpreting my meaning was not understood”. This was confirmed by the applicant on the first hearing day when he advised the Court that the natural justice ground in his application referred to the interpreter issue and to nothing else.
For the reasons given in relation to the first asserted ground of review, this ground, too, is not made out.

Conclusion

For the above reasons jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date: 10 August 2007