Isse v Minister for Immigration
[2006] FMCA 253
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ISSE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 253 |
| MIGRATION – Partner (residence) visa – Migration Review Tribunal – whether jurisdictional error – whether denial of natural justice – domestic violence – whether wrong issue identified – whether Tribunal entitled to make findings of fact rather than determine if statutory requirements satisfied – whether error in failure to rely upon statutory declaration declared according to Victorian law – decision quashed. |
| Migration Regulations 1994 Migration Act 1958, ss.28, 31, 31(3), 65, 359A Commonwealth Statutory Declarations Act 1959, s.7 |
| Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1279 Abebe v Commonwealth (1999) 162 ALR 1 Minister for Immigration and Multicultural and Indigenous Affairs v Landers (2003) FCA 1485 Mohammed v Minister for Immigration and Multicultural Affairs (2000) FCA 277 |
| Applicant: | MOHAMUD FARAH ISSE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 299 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr G.M. Hughan |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Mr W.S. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 2 February 2004.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent shall pay the Applicant’s costs.
Liberty to apply is granted to parties in relation to the issue of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 299 of 2004
| MOHAMUD FARAH ISSE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application seeking judicial review of a decision by the Migration Review Tribunal (the Tribunal) dated 2 February 2004. The Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant a partner (residence) (class BS) visa to the applicant.
The applicant is a national of Somalia born on 20 September 1965. He applied for a partner visa on 16 November 2000. The delegate's decision to refuse to grant the visa was made on 22 August 2003.
By way of background it is noted that the applicant arrived in Australia on 7 August 2000 on a prospective spouse visa. That visa was granted on the basis of the applicant's intended marriage to his sponsor, Shukri Guleid Mohamud (the nominator). The nominator, an Australian citizen, was born in Somalia on 25 May 1999. The applicant claimed that he had met the nominator in Egypt in 1993 and they married in Melbourne on 14 October 2000.
The department of the first respondent assessed the applicant and the nominator as being in a spousal relationship as provided under regulation 1.15A of the Migration Regulations 1994 (the Regulations) and a subclass 820 (spouse) visa was granted on 17 November 2000. That visa expired on the date of refusal of the permanent subclass 801 visa. Since that time the applicant has held a bridging visa granted on the basis of that application.
On 29 November 2002, just over two years after the grant of the subclass 820 visa, a delegate of the first respondent wrote to the applicant seeking evidence from him as to his relationship in order that consideration could be given to the application for a permanent subclass 801 visa.
On 13 December 2002 the applicant responded, advising the delegate that the relationship had ended as the nominator had travelled to Canada and was not contactable (court book page 46). The nominator had in fact left Australia on 6 December 2000.
On 3 February 2003 the applicant's solicitor/migration agent advised the delegate that the applicant's relationship had ended due to "domestic violence" (court book page 37). In support of that claim, statutory declarations were submitted from the following:
· The applicant, dated 6 January 2003 (court book 38-39).
· A psychologist, dated 7 January 2003 (court book 40-41).
· A social worker, dated 22 January 2003 (court book 42-43).
As indicated earlier, a delegate of the first respondent refused the applicant's application on 22 August 2003 and then application for review of that decision was made to the Tribunal on 8 September 2003.
On 10 November 2003 the Tribunal was provided with a report of a psychologist dated 6 August 2003 in relation to the applicant. On 26 November 2003 a hearing was conducted by the Tribunal at which the applicant gave evidence. On 27 November 2003 the Tribunal provided the applicant with particulars of information pursuant to s.359A of the Migration Act 1958 (the Act) and invited comments thereon. On 10 December 2003 the applicant provided a statutory declaration to the Tribunal "clarifying when his domestic violence situation started".
As indicated earlier, the Tribunal affirmed the delegate's decision on 2 February 2004 and found the applicant was not entitled to the grant of a partner (residence) (class BS) visa.
Relevant legislation
Section 29 of the Act provides for the granting of visas by the respondent to non-citizens to (inter alia) remain in Australia. Section 31 provides for prescribed classes of visas.
Regulation 2.01 of the regulations provides that for the purposes of s.31, the prescribed classes of visas are set out in schedule 1. Regulation 2.02 provides for the various subclasses of visas. Regulation 2.03 provides that for the purposes of s.31(3) of the Act, the prescribed criteria for the grant to a person of a visa are as set out in the relevant part of schedule 2. Section 65 provides that where the first respondent is satisfied that the relevant criteria for a particular class of visa is satisfied then the first respondent is to grant the visa, and if not so satisfied, to refuse to grant the visa.
The criteria for the grant of a subclass 801 visa are set out in part 801 of schedule 2 to the regulations.
Relevantly, the applicant was required at the time of the decision to meet the requirements of clause 801.221 which provides as follows:
“801.221 (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8)”
In this case the applicant sought to meet the relevant requirements by meeting the requirement specifically of clause 801.221(6) which provides as follows:
“(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 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) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.”
Division 1.5 of the regulations comprises regulations 1.21-1.27. It is headed "Special provisions relating to domestic violence" and contains a particular regime relating to domestic violence and its method of proof for the purpose of the regulations. Regulation 1.22 in division 1.5 provides that for the purpose of the regulations, persons having suffered or committed domestic violence are persons who have been taken, in accordance with regulation 1.23, to have suffered or committed domestic violence.
Regulation 1.23(1)(g) requires a person, "the alleged victim", to present evidence in accordance with regulation 1.24 that she or he has suffered "relevant domestic violence" and another person, "the alleged perpetrator" has committed that "relevant domestic violence".
The definition of "relevant domestic violence" in relation 1.23(2)(b) is:
... 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 wellbeing or safety.
Regulations 1.23 and 1.24 require the provision of a statutory declaration by the alleged victim, setting out amongst other things the allegation of relevant domestic violence. In this instance the applicant sought to comply with the regulations by filing two statutory declarations.
The Tribunal decision
The Tribunal determined that the statutory declarations sought to be relied upon by the applicant did not satisfy the regulations and accordingly decided the applicant could not satisfy clause 802.221(6) of the regulations.
It is noted that in its findings the Tribunal concluded that at the time of application the visa applicant was validly nominated by an Australian citizen.
During the course of its findings it noted that the applicant had advised the department that the nominator had left the relationship when she departed Australia on 6 December 2000, some eight weeks after the marriage and three weeks after the temporary spouse visa had been granted.
The Tribunal in its findings referred to the relevant regulations and noted that:
“ … If evidence in the appropriate form is not provided, a finding that the applicant has been a victim of domestic violence is not open to the Tribunal, as it is not the role of the Tribunal to assess the credibility of claims of domestic violence have been made by the applicant (Meroka v Minister for Immigration and Multicultural Affairs [2002] FAC 482).” (sic)
To understand the adverse findings of the Tribunal it is useful to set out the following relevant paragraphs from its decision:
“31. The review applicant gave evidence at the hearing on 26 November 2003 that the violence began about three weeks after the marriage on 14 October 2000, and not three months as described in the statutory declaration of 6 January 2003. After the hearing the Tribunal wrote to the review applicant inviting him to comment on information that the nominator departed Australia before the domestic violence first occurred as alleged in his statutory declaration of 6 January 2003. The review applicant then submitted a further statutory declaration dated 26 November 2003, in which he claimed that he was mistaken in the earlier document and that the domestic violence commenced three weeks after the marriage, not three months as earlier stated.
36. The review applicant’s statutory declaration of 6 January 2003 describes events which can not have occurred at the time nominated in that declaration. That is, whether or not the review applicant was actually subjected to violence and abuse from the nominator at some time during the marriage, as claimed by him, it is not possible that any of those events occurred at the time when they are claimed in that declaration to have occurred. As noted by the delegate, and acknowledged by the review applicant at his hearing, the nominator departed Australia about one month before the first incident of domestic violence as claimed in the review applicant’s statutory declaration of 6 January 2003. The Tribunal finds, therefore, that the review applicant’s statutory declaration on Form 1040 dated 6 January 2003 is not capable of amounting to evidence under regulation 1.25 that he suffered violence or the threat of violence that caused him to fear for or be apprehensive about his personal wellbeing or safety.
37. The Tribunal advised the review applicant of the anomaly in his earlier statutory declaration at his hearing and again in writing, and invited him to comment. He attempted to address the anomaly in a further statutory declaration of 8 December 2003.”
In relation to the acceptance of the applicant's second declaration declared on 8 December 2003, the Tribunal stated the following:
“38. Regulation 1.21 provides that, in relation to the special provisions relating to domestic violence, a statutory declaration means a statutory declaration under the Statutory Declarations Act 1959, which is an Act of the Commonwealth Parliament. The review applicant’s statutory declaration of 8 December 2003, however, was made under an Act of the Victorian Parliament. The Tribunal finds, therefore, that the review applicant’s declaration of 8 December 2003 is not a statutory declaration under the domestic violence provisions, and does not amend the review applicant’s earlier declaration made on Form 1040. The Tribunal did not advise the review applicant that his statutory declaration of 8 December 2003 was deficient.”
Those findings then ultimately led to a crucial finding of the Tribunal, set out in the following paragraph:
“41. Having found that the review applicant’s statutory declaration of 6 January 2003 does not set out the allegation of domestic violence as required by regulation 1.25, and that the statutory declaration of 8 December 2003 is not a statutory declaration under the domestic violence provisions, the Tribunal has no alternative but to find that the evidence before it does not satisfy the requirements of regulation 1.25.
42. The review applicant has not provided a record of assault, as described in regulation 1.24. Therefore, even assuming that the statutory declarations by the psychologist and the social worker comply with the regulations relating to declarations by competent persons, the review applicant has not submitted sufficient evidence of domestic violence as required by regulation 1.24. The Tribunal finds, therefore, that there is insufficient evidence before it that the review applicant is a victim of domestic violence under the regulations, and he does not satisfy clause 801.221(6). As the relationship between the review applicant and the nominator has ended, the review applicant is unable to satisfy clause 801.221 at the time of decision.
43. Having determined that the review applicant does not satisfy an essential criterion for the grant of the visa, the Tribunal need not consider the remaining criteria.”
The grounds of the application
The applicant has relied upon a further amended application dated 26 April 2005 which includes the following six grounds:
1. In affirming the decision of a delegate of the respondent not to grant the applicant a Partner (Residence) (Class BS) visa, subclass 801, the Migration Review Tribunal (the Tribunal) erred in law, such error of law amounting to a jurisdictional error in addressing the wrong issue to be decided.
PARTICULARS
(a) The Tribunal wrongly addressed itself to the question of whether the evidence provided by the applicant that he had suffered domestic violence committed by the nominator satisfied the Tribunal that such domestic violence had in fact occurred.
(b) The Tribunal did not address itself to the question of whether the evidence provided by the applicant that he had suffered domestic violence committed by the nominator was sufficient to satisfy the Tribunal that such domestic violence was thereby taken to have occurred.
(c) Accordingly the Tribunal failed to exercise the jurisdiction given to it to review the decision of the delegate not to grant the applicant's visa application.
2. The Tribunal erred in law, such error of law amounting to a jurisdictional error, in concluding that the applicant's statutory declaration dated 6 January 2003 did not set out an allegation of domestic violence as required by regulation 1.25 of the Migration Regulations 1994.
3. The Tribunal failed to accord natural justice to the applicant and thereby erred in law, such error of law amounting to a jurisdictional error.
PARTICULARS
(a) The Tribunal failed to bring to the attention of the applicant the critical issues upon which it was to decide the applicant's application for review; ie, that his statutory declaration dated 6 January 2003 did not set out the allegation of domestic violence as required by regulation 1.25 and that his statutory declaration dated 8 December 2003 was not a statutory declaration for the purpose of the domestic violence provisions of the Regulations.
(b) The conduct of the Tribunal gave rise to a legitimate expectation on the part of the applicant that the Tribunal would take account of the information provided to it by the applicant on 8 December 2003, but the Tribunal refused to consider such information.
(c) The Tribunal’s refusal to consider such information arose from its error in mis-apprehending the nature of the information provided to it.
4. The Tribunal failed to comply with section 359A of the Migration Act 1958 and thereby erred in law, such error of law amounting to a jurisdictional error.
PARTICULARS
(a) The Tribunal failed to give to the applicant particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review; ie, that his statutory declaration dated 6 January 2003 did not set out the allegation of domestic violence as required by regulation 1.25.
(b) The Tribunal failed to give to the applicant particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review; ie, that his statutory declaration dated 8 December 2003 was not a statutory declaration for the purpose of the domestic violence provisions of the Regulations.
(c) The Tribunal gave to the applicant particulars of information that it wrongly stated would be the reason or part of the reason for affirming the decision under review.
5. The Tribunal erred in law in concluding that it could not take account of the contents of the applicant's statutory declaration dated 8 December 2003 and thereby failed to exercise the jurisdiction given to it to determine the applicant's application for review.
6. The Tribunal erred in law, such error of law amounting to a jurisdictional error, in failing to accord procedural fairness to the applicant.
PARTICULARS
(a) On 27 November 2003 the Tribunal wrote to the applicant pursuant to section 359A of the Act, inviting him to comment on certain information.
(b) In that letter the Tribunal, pursuant to sub-sections 359B(1) and (2), specified that the applicant's "written comments should be provided within 28 calendar days".
(c) In that letter the Tribunal further stated that if the applicant did "make comments, the Tribunal will consider your comments carefully".
(d) The applicant responded to the Tribunal's letter in writing on 8 December 2003 by letter from the applicant's migration agent at that time, enclosing a statutory declaration dated 7 December 2003.
(e) Contrary to its letter of 27 November 2003, the Tribunal refused to consider the applicant's written comments.”
Submissions
Grounds 1 and 2
The applicant submitted that the Tribunal erred in the exercise of its discretion by addressing the wrong issue that it had to decide.
Specific reference was made to the Tribunal's findings concerning the first statutory declaration and that it was not capable of amounting to evidence under regulation 1.25 given it described events which could not have occurred at the time nominated in the declaration. It was submitted that the Tribunal's findings demonstrate that it considered the question it had to decide was whether the applicant had in fact suffered domestic violence at the time he alleged, and it was suggested this approach was wrong.
Instead, it was submitted, the Tribunal was required to determine whether the applicant met the domestic violence exception set out in subclause 801.221(6) of the regulations. That requires the Tribunal to determine whether the provisions contained in division 1.5 of the regulations are met. Those provisions set out the circumstances in which the alleged victim is taken to have suffered domestic violence and an alleged perpetrator is taken to have committed domestic violence.
In support of the submissions the applicant referred to the decision of Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 at [48] as follows:
“48 It is necessary to have regard to the text of the regulations. That is where one finds the task of the Tribunal, that is, its authority or "jurisdiction". The Tribunal must conclude that the alleged victim has suffered domestic violence in certain circumstances where this is "taken" to have occurred: reg 1.23. Those circumstances are where the alleged victim (or someone on his or her behalf) presents evidence in accordance with reg 1.24 that the alleged victim has suffered violence or the threat of violence against him or her, or his or her property, that causes the alleged victim or a member of his or her family to fear for, or be apprehensive about, the alleged victim's personal well-being or safety.”
Reference was made to paragraph 50 of the decision of the court in Cakmak and it was submitted that the Tribunal is required to ask itself a number of questions when considering the statutory declaration of an alleged victim of domestic violence, summarised as follows:
(a)Is the statutory declaration made by the spouse of the alleged perpetrator?
(b)Does it set out the allegations of "relevant domestic violence"?
(c)Does it name the person alleged to have committed the "relevant domestic violence"?
(d)Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her, or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for, or be apprehensive about, the alleged victim's personal wellbeing or safety?
It is noted in the submissions of the applicant that the Tribunal had correctly set out the question in its decision. However, after setting out the question it was submitted that in its next paragraph the Tribunal failed to ask and answer those questions. Instead the Tribunal addressed the question of whether the applicant had suffered domestic violence committed by the nominating spouse at the time that he stated in his first declaration. Due to the fact that the sponsor was not in Australia that time, the Tribunal then concluded that the statutory declaration of 6 January 2003 was not capable of amounting to evidence under regulation 1.25 that the applicant suffered violence that caused him to fear for his wellbeing or safety.
To understand the context of submissions made in relation to the first two grounds, in simple terms it is noted that the applicant claims that a reference to the violence occurring three months after the marriage should have been three weeks and an attempt was made to correct that both at the Tribunal hearing, where reference was made in the Tribunal's decision to the events occurring "about 20 days after the marriage", and to the second statutory declaration which refers to the events occurring in the "first three weeks of our marriage".
In any event, it was submitted, the task of the Tribunal was not to determine whether domestic violence did or did not occur at any particular time but rather to have regard to the regulations that establish that domestic violence is taken to have occurred in certain circumstances. As I understood the submissions, it was suggested that regulation 1.23 is a mechanical mode of proof of domestic violence and a finding of domestic violence should be made if the right mechanism is adopted to prove the allegation of domestic violence.
The four questions posed by the Full Court in Cakmak, it was submitted, should be answered affirmatively in this case. The Tribunal, it was submitted, sought to undermine the contents of the statutory declaration by referring to the evidence that those allegations were not correct at least as to time because the sponsor was not in Australia when the applicant alleged initially that domestic violence had occurred.
It was submitted this was not the issue; but rather the Tribunal should have found that the applicant satisfied regulation 1.25. In conjunction with other evidence including the statutory declarations of two competent persons, the evidence presented to the Tribunal should have led the Tribunal to conclude that the applicant had suffered domestic violence and that the domestic violence exception was met. Accordingly the visa should have been granted. It was submitted that the only reason that did not occur was that the Tribunal failed to address the correct issues to be determined. That failure amounted to an error of law sufficient to constitute a jurisdictional error.
In brief terms, the submissions made for and on behalf of the applicant were that it is not the task to for the Tribunal to determine whether the domestic violence actually occurred on the date and in the circumstances alleged but rather to determine the adequacy of the documentation as required by the regulations.
During the course of submissions I noted what might be regarded as a degree of artificiality in relation to the process claimed to be the appropriate process by the applicant's representative. Counsel submitted that any artificiality is brought into existence by the regulations which provide for the Tribunal to be satisfied that there has been compliance with the provision of the material rather than analysing whether the domestic violence actually occurred as alleged on a particular date.
Reliance was placed upon the decision of the Federal Court in Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1279 where at [39 and 40], Wilcox J states the following:
“39 In relation to the second point, if the Minister or Tribunal is not entitled to act on his or its own opinion as to whether the visa applicant has suffered domestic violence, it obviously has no right to reject the competent person's opinion on the basis that it is inherently improbable. It would not matter even if the Minister or Tribunal had credible evidence that the spouse was not present at the time of the alleged violence.
40 The regulatory regime is a triumph of form over substance. Paragraph 801.221(6) creates an exception to the general rule that an application for a subclass 801 visa must continue to be supported by the applicant's spouse. It does so, no doubt, on the humanitarian ground that it would further victimise a victim of domestic violence if a breakdown of the spousal relationship, which may be the result of, or associated with, the domestic violence, thereby disqualified the victim from obtaining the visa to which she or he would otherwise have been entitled. However, although the relevant exception is expressed in para 801.221(6)(c) by reference to a factual situation ("has suffered domestic violence committed by the nominating spouse"), Division 1.5 of the Regulations precludes the visa decision-maker investigating the facts. If the appropriate statutory declarations are provided by the visa applicant, domestic violence "is taken" to have been suffered by the visa applicant at the hands of the nominating spouse, even if the opinions stated in the statutory declarations lack any discernible cogency. If the visa applicant fails to obtain appropriate statutory declarations, by the required two competent persons, the visa application has to be refused. This is so even if the decision-maker is totally satisfied that the applicant has suffered domestic violence at the hands of his or her spouse.”
It was noted during the course of the submission that some degree of corroboration of the applicant's declarations is required by virtue of the declarations of two competent persons certifying that in their opinion domestic violence has occurred in a particular case.
The first respondent submitted the Tribunal did not fail to address the correct question. The applicant was only to be taken to have suffered domestic violence and the nominator was only to be taken to have committed domestic violence if the requirements of regulation 1.23(1) were met and, in this case, relevantly, 1.23(1)(g) and by incorporation regulation 1.24. The regulations require the applicant, it was submitted, to present evidence that he as the alleged victim "has suffered relevant domestic violence" and that the nominator as the alleged perpetrator "has committed the relevant domestic violence". The Tribunal, it was submitted, was then required to assess whether there has been a presentation of such evidence.
The first respondent also made reference to the Federal Court decision in Cakmak at [50 – 52] where the court states the following:
“50 Thus, when the Tribunal is examining the statutory declarations of the alleged victim, it must ask itself the following questions:
(a) Is the statutory declaration made by the spouse of the alleged perpetrator?
(b) Does it set out the allegations of "relevant domestic violence"?
(c) Does it name the person alleged to have committed the "relevant domestic violence"?
(d) Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her, or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for or be apprehensive about the alleged victim's personal well-being or safety?
51 We think it deflects attention from that proper expression of the task set for the Tribunal (or the Minister or delegate) to say that it is a question of law as to whether the evidence is capable of amounting to the required evidence. The differences between questions of law, fact and mixed fact and law can be difficult to rationalise: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394-98, Australian Iron & Steel Pty Ltd v Luna (1969)123 CLR 305, 319-322 (per Windeyer J), Lombardo v Federal Commission of Taxation (1979) 40 FLR 208, 210-12, Nizich v Federal Commissioner of Taxation (1991) 91 ATC 4,747, 4752 and Commissioner of Taxation v Roberts (1992) 37 FCR 246, 251-52.
52 The Tribunal has a statutory declaration of the alleged victim. It must assess whether that is the presentation of the requisite evidence. The Tribunal does not find what underlying conduct in fact occurred by weighing the statutory declaration against the surrounding evidence. It reads and assesses whether the evidence presented to it satisfies the description called for in the delegated legislation. The extent to which that task is one of fact, one of law or one of mixed fact and law need not, for present purposes, be explored exhaustively. It suffices to refer to what was said by Gleeson CJ, Gummow J and Callinan J in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450-52, esp [24] to [28].”
It was submitted that in determining the issue, and in particular the issue required to be determined pursuant to regulation 1.23(1)(g)(ii), whether the nominator has committed the relevant domestic violence, the Tribunal took into account the fact that the applicant's spouse was not in Australia at the time the applicant declared that he had suffered the relevant domestic violence. It was submitted that the temporal issue was relevant to whether the nominator "has committed the relevant domestic violence".
As the nominator was not in Australia at the relevant time, the statutory declaration could not amount to a presentation of the required evidence and, as the Tribunal found “…is not capable of amounting to evidence under regulation 1.25 that he suffered violence or the threat of violence that caused him to fear for or be apprehensive about his personal wellbeing or safety" (Court Book p.93 at[36]).
It was submitted by the first respondent that the decision of Wilcox J in Ibrahim and in particular paragraph 39 of the judgment set out earlier in this decision was referring to a situation where there is a dispute about whether the relevant domestic violence had occurred or not occurred. In the present case it was submitted there is no doubt about the claim that the relevant domestic violence has occurred and the issue is rather whether the nominator could have committed the relevant domestic violence, bearing in mind the evidence which is not in dispute that she left the jurisdiction on 6 December, some seven and a half weeks after the marriage and prior to the domestic violence that the applicant referred to in his first statutory declaration.
Reasoning
In my view the submissions made for and on behalf of the applicant in support of grounds 1 and 2 are correct. The process undertaken by the Tribunal seems to go beyond the required questions asked, as set out by the Federal Court in Cakmak. Effectively, the Tribunal, by seeking to pursue as a factual inquiry the question of whether the alleged domestic violence on the date as initially alleged could have occurred, must necessarily embark upon, at the very least, a fact-finding mission to determine whether the perpetrator was then in Australia.
Having done that, it has by virtue of reliance on that fact-finding mission and superficial analysis of the facts determined that it was impossible for the domestic violence to have occurred. It has then reached what could only be described as a significant and fatal conclusion to the application, namely that the domestic violence could not have occurred on a particular date, having found as a matter of fact that the alleged perpetrator was not in the country. Of course in this instance a correction was made, as referred to earlier in the material, concerning the period being within three weeks rather than three months or within 20 days of the date of marriage.
By embarking upon a fact-finding mission rather than simply accepting that the appropriate declarations and corroborative material by way of two further declarations had been presented, I am satisfied the Tribunal has fallen into error.
I am further satisfied that an error of this kind, in failing to comply with the requirement to consider the questions raised by Cakmak is a sufficient basis upon which this court can conclude that there has been jurisdictional error.
I otherwise accept and apply the decision of the Wilcox J in Ibrahim and the passage referred to earlier in this judgment. In one sense it may be regarded as a regulatory regime being a triumph of form over substance, however the compliance with the provision of a corroborative declaration in my view complies with the regulatory regime. I accept that the regulations preclude the Tribunal from becoming a decision-maker investigating the facts and that domestic violence is taken to have been suffered by the visa applicant at the hands of the nominating spouse even if on the face of it the dates when the violence was said to have occurred could not have occurred due to the absence of the perpetrator, as found by the Tribunal in its finding of fact.
Hence, the grounds having been made out, it follows that the orders sought by the applicant should be made. In the present case I shall consider briefly the other grounds in the event that I am incorrect in the assessment of grounds 1 and 2.
Ground 3
It was submitted by the applicant that the Tribunal took the view that the applicant's statutory declaration of 6 January 2003 was inadequate and did not set out the allegation of domestic violence as required by regulation 1.25 and that the declaration dated 8 December 2003 was not a statutory declaration for the purpose of the domestic violence provisions of the regulations.
It was submitted this was a critical factor upon which the application for review was to be decided but that the Tribunal never informed the applicant of that issue. Although it was conceded the Tribunal did refer the applicant and the advisers to the information that the nominator was not in Australia at the time of the alleged domestic violence both at the hearing and subsequently, it was submitted that that information was not critical to the Tribunal's function.
In that sense it seems to me, having made the finding I referred to earlier in relation to the first two grounds, that in one sense this further ground need not be relied upon by the applicant.
Nevertheless, as I understand the submissions of the applicant, it is claimed that the applicant was denied procedural fairness because the Tribunal misled the applicant by referring to the information about the nominator's absence from Australia at the time of the domestic violence, when the critical issue ultimately became the question of the adequacy of the applicant's statutory declaration.
The first respondent submitted that the applicant was not misled as he was made aware of the issue as to the deficiency in the statutory declaration of 6 January 2003. That inadequacy was first brought to his attention in the decision of the delegate, in fact the delegate relied upon that in his decision. It was submitted the applicant's solicitor and migration agent specifically acknowledged the issue when seeking Tribunal review. It was further raised with the applicant at the Tribunal hearing and thereafter in advice provided to the applicant pursuant to s.359A of the Act which included the invitation to comment. Indeed a further statutory declaration was made clarifying when the domestic situation started.
It was submitted in this case, and I accept, that it is clear that the adequacy of the statutory declaration was brought to the applicant's attention so that he could deal with it and that he did attempt to do so by submitting a further declaration.
It is not necessary to further consider this issue as I am satisfied that in this instance there has not been a denial of procedural fairness as claimed and this ground should fail.
Ground 4
In support of this ground the applicant's submissions rely upon the arguments advanced in relation to ground 3. For similar reasons, in my view this ground cannot be successful as I am satisfied there has not been a failure by the Tribunal to comply with s.359A of the Act. Section 359A of the Act, as submitted by the respondent, does not require the Tribunal to advise an applicant of deficiencies in the material provided (see Abebe v Commonwealth (1999) 162 ALR 1; Minister for Immigration and Multicultural and Indigenous Affairs v Landers (2003) FCA 1485).
I accept, as submitted by the first respondent, that in this case the information was no more than a qualitative assessment of the material provided by the applicant (see Mohammed v Minister for Immigration and Multicultural Affairs (2000) FCA 277 per Emmett J at [16] and [17]).
Ground 5
In this case it is clear the Tribunal took the view that it had to ignore the statutory declaration of the applicant dated 8 December 2003 because it was not a "Commonwealth statutory declaration". It was submitted that that view was wrong as there is nothing in s.359A or 359C of the Act which require that the comments made in response to an invitation must be made in the form of a Commonwealth statutory declaration.
It was further submitted that in any event, s.7 of the Commonwealth Statutory Declarations Act 1959 provides that:
Where, in a law of the Commonwealth ... a reference is made to a statutory declaration, the reference includes a reference to a statutory declaration made under this act, under the contrary intention appears.
It was submitted that definition is inclusive and it was submitted the reference to "Commonwealth statutory declaration" in regulation 1.21 is sufficiently broad to encompass a statutory declaration made in Victoria pursuant to Victorian legislation, intended to be used in a proceeding arising under Commonwealth legislation.
It was submitted that to impose a requirement that the applicant had to submit a strictly "Commonwealth statutory declaration" only in response to the invitation under s.359A (without informing the applicant that is what the Tribunal required) would be to extend the mechanical nature of the domestic violence provisions of the regulations to a point which "defies commonsense and fairness".
It was submitted for and on behalf of the first respondent that a statutory declaration for the purpose of division 1.5 "means a statutory declaration under the Statutory Declarations Act 1959".
In my view the first respondent's submission concerning what is meant by "a statutory declaration" for the purpose of division 1.5 is correct. However, I further find that in this instance the response and/or comment provided by the applicant pursuant to the invitation issued under s.359A is not required to be in a form which would otherwise comply with the requirements of Division 1.5; that is, I accept the submission made for and on behalf of the applicant that in this instance, although the declaration was a declaration made under the relevant Victorian legislation, it is not defective given that it is by way of response to the invitation made and/or issued pursuant to s.359A of the Act rather than being a declaration submitted in compliance with and/or for the purpose of Division 1.5.
Had it been simply a declaration submitted for the purpose of division 1.5 then I would otherwise have accepted the submissions made for and on behalf of the first respondent.
Given that finding, it is my concluded view that ground 5 is established and the failure of the Tribunal to rely upon the further declaration for the reasons it gave constitutes jurisdictional error.
Ground 6
I do not regard it as necessary to further consider this ground having regard to my findings that earlier grounds 1, 2 and 5 have been made out. However, having regard to my finding in relation to ground 5, it would follow that I have concluded that ss.359A and 359C of the Act do not require comments made in response to an invitation to be made in the form of a Commonwealth statutory declaration, and hence it could be reasonably be expected that the comments made in response to that invitation would have been properly considered by the Tribunal.
Conclusion
For the reasons given, it follows that the decision under review should be quashed and appropriate orders made.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 24 February 2006
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