IDRIS v Minister for Immigration
[2005] FMCA 1503
•14 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IDRIS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1503 |
| MIGRATION – Review of decision of Migration Review Tribunal – application dismissed – Spouse (Migrant) (Class BC) visa – Regulation 1.26 of the Migration Regulations 1994 not satisfied. |
| Judiciary Act1903 (Cth) Migration Act 1958 (Cth) Health Insurance Act 1973 Family Law Act 1975 Statutory Declarations Act 1959 Migration Regulations 1994 |
| Cakmak v Minister for Immigration & Multicultural Affairs (2003) FCA 503 Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FLR 251 Do v Minister for Immigration & Multicultural Affairs (2000) FCA 1115 |
| Applicant: | HAYAT IDRIS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 664 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 29 April 2005 |
| Further Submissions Received: | From respondent on 20 May 2005; From applicant on 8 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms MacDonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The Migration Review Tribunal be joined as the second-named respondent in the proceedings.
The application is dismissed.
The applicant pay the costs of the first-named respondent, fixed in the sum of $7,000.
Certify for Counsel.
Liberty to apply as to costs order within 3 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 664 of 2004
| HAYAT IDRIS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Reasons
On 11 March 2004 the applicant filed an application pursuant to s.39B of the Judiciary Act1903 (Cth) and section 475A of the Migration Act 1958 (Cth) (the Act). The grounds as set out in that application were in essence that the Migration Review Tribunal (the Tribunal) constructively failed to exercise its jurisdiction.
On 24 May 2004 the first respondent (the respondent) filed a notice of objection to competency which it subsequently withdrew. On 31 May 2004 Justice Crennan transferred the proceedings from the Federal Court of Australia to this Court. On 17 November 2004 the applicant filed an amended application. The grounds of that application were as follows:-
1.In affirming the decision of a delegate of the respondent not to grant the applicant a Spouse (Migrant) (Class BC) visa, the Tribunal constructively failed to exercise its jurisdiction or fell into jurisdictional error in making the decision in that the Tribunal erred in interpreting the applicable law.
PARTICULARS
(i)The Tribunal failed to properly construe whether the relationship was “genuine and continuing”.
(ii)The Tribunal wrongly construed the meaning of “spousal relationship”.
(iii)The Tribunal failed to property construe the capacity of a “competent person”.
(iv)The Tribunal erred in interpreting the requirements of the Migration Act 1958 and the Migration Regulations 1994, and in particular Regulation 1.26, as requiring that a statutory declaration by a “competent person” deposing to an opinion that a person has suffered relevant domestic violence:
a. must be based on the competent person’s own observations of the person claiming to have suffered domestic violence; or
b. must be based on the competent person’s own assessment of the state of mind of the person claiming to have suffered domestic violence.
2. The Tribunal fell into jurisdictional error in making the decision in that the Tribunal failed to take account of relevant material or considerations.
PARTICULARS
The Tribunal failed to have regard to any of the Statutory Declarations of Ms Beswarick dated 29 September 2003 and 25 November 2003 when one or both of those Declarations satisfied the requirements of Regulations 1.26 of the Migration Regulations 1994.
Background
The applicant is a national of Somalia. She entered Australia on
16 June 2000 having been granted a temporary visa – a Spouse (Provisional) (Class UF) sub-class 309 visa – on the 22 October 1999. The applicant had also applied for a permanent Spouse (Migrant) (Class BC) visa sub-class 100. That visa application was refused by a delegate of the respondent on the basis that the applicant was not the sponsor’s spouse. The applicant then applied to the Migration Review Tribunal to review that decision. On 3 February 2004 the Tribunal affirmed the decision under review finding the applicant not entitled to the grant of a Spouse (Migrant) (Class BC) Visa.
The Tribunal decision
The Tribunal conducted a hearing on 6 November 2003 at which the applicant, Ms El Hagg and Ms Samia Baho gave evidence. The Tribunal had before it a number of documents including statutory declarations by the applicant; a statutory declaration by Pamela Copperwaite, psychologist; a statutory declaration by Sandie Beswarick and a letter dated 29 October 2003 from the sponsor stating that his relationship with the applicant began deteriorating in March 2003 and that the parties had lived apart from that date with an Islamic divorce being granted in the applicant’s absence on 2 August 2003.
On 25 November 2003 and following the hearing, the Tribunal received a second statutory declaration made by Ms Beswarick.
The Tribunal noted that the applicant had satisfied the criteria to be met by an applicant at the time of applicant – thus the grant of the temporary sub-class 309 visa. However the question for the Tribunal was a consideration of clause 100.221 of Schedule 2 of the Migration Regulations 1994 (the Regulations) which required that at the time of decision the applicant must demonstrate that the spousal relationship was genuine and continuing. If the relationship between the applicant and sponsoring spouse had ceased (as it had) because the applicant had allegedly suffered domestic violence committed by the sponsor then the question became were the requirements of Regulations 1.23, 1.24, 1.25 and 1.26 met on the evidence provided to the Tribunal and having regard to the definition of terms as found in Regulation 1.21.
The Regulations
The Migration Regulations 1994 Schedule 2 sub-clause 100.221(4)(c)(i) provide relevantly as follows:
(4)The applicant meets the requirements of this subclause if:
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) – either or both of the following circumstances applies:
i)either or both of the following:
(A) the applicant;
(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them; has suffered domestic violence committed by the sponsoring spouse;
REG 1.21 Interpretation
(1)In this Division:
competent person means:
(a)in relation to domestic violence committed against an adult:
(i)a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii)a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)a person who:
(A) is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B) is performing the duties of a registered nurse; or
(iv)a person who:
(A) is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B) is performing the duties of a social worker; or
(v)a person who is a court counsellor under the Family Law Act 1975; or
(vi)a person holding a position of a kind described in subregulation (2); or
(b)…
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
(2)The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i)a women's refuge; or
(ii)a crisis and counselling service that specialises in domestic violence; or
(b)a position with:
(i)decision-making responsibility for:
(A) a women's refuge; or
(B) a crisis and counselling service that specialises in domestic violence; that has a collective decision-making structure; and
(ii)responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.
REG 1.22 References to person having suffered or committed domestic violence
(1)A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2)…
REG 1.23 When is a person taken to have suffered or committed domestic violence?
(1) For the purposes of these Regulations:
(a)a person (the alleged victim) is taken to have suffered domestic violence; and
(b)another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim; if:
(c)… or
(d)… or
(e)… or
(f)…or
(g)if the alleged victim is a person referred to in subregulation (2) — the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:
(i)the alleged victim has suffered relevant domestic violence; and
(ii)the alleged perpetrator has committed that relevant domestic violence.
(2)In paragraph (1) (g):
(a)the persons referred to are the following:
(i)a spouse of the alleged perpetrator;
(ii)…
(iii)…
(iv)…
(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.
REG 1.24 Evidence
(1)The evidence referred to in paragraph 1.23 (1) (g) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i)a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii)a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or
(b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2)A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a)the same subparagraph of paragraph (a) of the definition of competent person; or
(b)subparagraph (b) (ii) of that definition.
REG 1.25 Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by:
(a)the spouse of the alleged perpetrator; or
(b) …
(2)A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a)set out the allegation; and
(b)name the person alleged to have committed the relevant domestic violence.
(3)A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a)name that other person; and
(b)set out the allegation; and
(c)identify the relationship of the maker of the statutory declaration to that other person; and
(d)name the person alleged to have committed the relevant domestic violence; and
(e)set out the evidence on which the allegation is based.
REG 1.26 Statutory declaration by competent person
A statutory declaration under this regulation:
(a)must be made by a competent person; and
(b)must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and
(c)must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and
(d)must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
(e)must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
(f)must set out the evidence on which the competent person's opinion is based.
The Tribunal accepted that the statutory declarations sworn by the applicant and Ms Copperwaite (the psychologist) complied with the Regulations but found that the applicant had not provided a statutory declarations by a second competent person and had therefore failed to provide sufficient evidence to satisfy Regulation 1.24 and thereby Clause 100.221(4) of Schedule 2 of the Regulations.
The issue for the Tribunal was whether the statutory declarations of
Ms Beswarick, dated 29 September 2003 and 25 November 2003 did or did not satisfy Regulation 1.26 of the Regulations because the opinion of Ms Beswarick, as a competent person, was not based upon her own direct observation of the alleged victim whom she had not personally met. The Tribunal found that neither of Ms Beswarick’s statutory declarations met the requirements of Regulation 1.26 because they were not an expression of her own opinion but an adoption of the opinion of Ms El Hagg and reliance on an assumption that an assessment had been made by an un-named domestic violence worker at a women’s refuge. The Tribunal found the statutory declaration of Ms Baho was not by a “competent person” and the applicant did not proceed to challenge that finding.
As a consequence of the Tribunal’s finding with respect to the statutory declaration of Ms Beswarick it determined the applicant failed to satisfy clause 100.221 at the time of the decision.
Consideration
Ms Beswarick did not speak with the applicant. Her opinion was based on notes made by Ms El Hagg, on her conversation with Ms El Hagg and on an assumption that the applicant was assessed as a victim of domestic violence by the Women’s Liberation Halfway House.
The applicant argued that Ms Beswarick’s statutory declaration did comply with the requirements of the Regulations specifically Regulation 1.26(f) and that it was not necessary that the competent person must form an opinion that a person has suffered relevant domestic violence by personal observation of the alleged victim and personal assessment of the state of mind of the alleged victim. The applicant argued that in the Tribunal finding personal observation and assessment by the competent person to be necessary, the Tribunal misinterpreted the relevant law. Further, that the Tribunal fell into jurisdictional error in failing to have regard to relevant material or considerations, namely the statutory declarations of Ms Beswarick dated 29 September 2003 and 25 November 2003.
The respondent argued that a competent person could not offer an opinion that past acts of violence had occurred, let alone assess the state of mind of the alleged victim, without having even spoken to the alleged victim. The respondent referred to the scheme of the relevant Regulations as explained by Gray J in Cakmak v Minister for Immigration & Multicultural Affairs (2003) FCA 503 at [38]-[39]:
The relevant provisions of the Migration Regulations recognise that it would be unjust to refuse to grant a subclass 100 visa to a person whose marriage or other relationship had come to an end if the person has been the victim of violence at the hands of his or her spouse or partner. To alleviate the difficulties faced by the victims of domestic violence in giving accounts of that violence, which are often exacerbated by behavioural norms that depend on culture and tradition, the regulations have provided for a specific method of proof of domestic violence. No doubt, at the heart of the scheme provided by the Migration Regulations, is the assumption that the competent persons who make statutory declarations will be those whom the victim consults in the immediate aftermath of an episode or episodes of violence. In such cases, the declarant will often be able to observe signs and symptoms of the violence and to form an opinion as to whether those signs and symptoms are consistent with the account given by the alleged victim. It was no doubt for this reason that Mathews J in Du spoke of consistency between a person's presentation and their account of domestic violence or its occurrence.
The problem, however, is that the regulations are not in terms limited to cases in which the competent person has been consulted shortly after the occurrence of an incident alleged to constitute all or part of the domestic violence. As occurred in the present case, each of the competent persons might be consulted at some considerable time after the occurrence of any relevant incident. As Ryan J recognised in Meroka at [37], a competent person will rarely, if ever, have first-hand knowledge of the conduct said to constitute the domestic violence as to which his or her opinion is being furnished. In most, if not all, cases, the source of information on which the competent person must act in forming the requisite opinion will be the alleged victim. For this reason, there is a considerable level of responsibility attaching to the making of a statutory declaration by a competent person, to enquire as to the details of the allegations and to exercise professional judgment as to whether what the alleged victim says can be accepted as an account of events satisfying the definition of domestic violence. It is for this reason that reg 1.26(f) requires that the declaration of a competent person describe briefly the evidence on which the competent person's opinion is based.
And further at [40]:
The effect of reg. 1.23 of the Migration Regulations is to institute a mechanical mode of proof. The regulation requires that a finding in respect of a serious allegation must be made if the right mechanism is adopted to prove that allegation. In such circumstances, it is appropriate to be vigilant to ensure that every element of the mechanical mode of proof has been satisfied.
Accordingly, the respondent argued that the applicant’s contention that it is enough for a “competent person” to simply accept reports of other persons who have spoken to the alleged victim is antithetical to the responsibility identified by Gray J.
The Tribunal asked itself the right question namely whether
Ms Beswarick’s statutory declarations satisfied the requirements of Regulation 1.26. It determined the answer to that question in the negative. Such a finding was open to the Tribunal on the evidence before it. Ms Beswarick’s statutory declarations did not provide an opinion based upon her own taking of a history from the alleged victim and/or observations of the alleged victim and assessment of that history. Accordingly, I find no jurisdictional error to have been committed by the Tribunal and the application must be dismissed.
The applicant and respondent subsequent to the hearing and with the leave of the Court, addressed the issue of whether Ms Beswarick was in fact a ‘competent person’ as found by the Tribunal. I conclude for the reasons advanced by the respondent in contentions filed 20 May 2005 which I adopt that it was not open to the Tribunal on the evidence before it to find that Ms Beswarick was a “competent person” as although at the time of making her statutory declaration she was a member of the Australian Association of Social Workers, there was not declaration evidence before the Tribunal that she was performing the duties of a social worker. Nor was there evidence before the Tribunal of the satisfaction of Regulation 1.21(2). Furthermore, the basis of
Ms Beswarick’s claim to be a competent person had to be set out in her statutory declaration and it was not. The requirements of Regulation 1.26 are mandatory thus Regulations 1.21 and 1.26 were not satisfied. The Tribunal was required to affirm the decision of the delegate because the Applicant did not meet essential criteria for the grant of a Spouse (Migrant) (Class BC) visa.
The application is dismissed and the applicant shall pay the costs of the respondent which I fix in the sum of $7,000.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 14 October 2005
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