Kailey v Minister for Immigration
[2005] FMCA 1044
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAILEY v MINISTER FOR IMMIGRATION | [2005] FMCA 1044 |
| MIGRATION – Review of Migration Review Tribunal decision – permanent spousal visa – relationship breakdown – allegation of domestic violence – statutory declarations as evidence of alleged violence – definition of domestic violence – mechanical mode of proof – no jurisdictional error – application dismissed with costs. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474 Migration Regulations 1994 (Cth), Division 1.5 |
| Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 503 Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257 (21 November 2003) Du v Minister for Immigration and Multicultural Affairs [2000] FCA 115 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 (11 April 2005) |
| Applicant: | SUKHIBIR SINGH KAILEY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1099 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 8 June 2005 |
| Date of Last Submission: | 8 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 29 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Lancey |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondent: | Mr C. Horan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1099 of 2004
| SUKHIBIR SINGH KAILEY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
23 August 2004 seeking judicial review of the decision of the Migration Review Tribunal on 28 July 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a General (Residence) (Class AS) visa.
The history
The applicant is a male citizen of Sri Lanka. He came to Australia on 14 November 1996 on a student visa. The applicant lodged an application for a General (Residence) (Class AS) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on 8 December 1998.
On 12 August 2003, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the General (Residence) (Class AS) visa. The applicant applied for review of that decision by the Migration Review Tribunal (“the Tribunal”) on 18 August 2003.
The basis of the application for a permanent spousal visa was the applicant’s marriage to an Australian citizen, Ms Devi (“the nominator”). In 2001 the applicant submitted evidence that the relationship was genuine and continuing. In 2002 the applicant’s migration agent wrote to the Department claiming that the applicant had suffered domestic violence committed by the nominator; this claim was supported by statutory declarations by the applicant himself, from a psychologist and a medical doctor. By the time of the Tribunal’s decision, the applicant and the nominator were no longer in a spousal relationship and no longer shared any financial commitments.
In the decision made by the Tribunal on 28 July 2004, the Tribunal affirmed the decision of the delegate not to grant the General (Residence) (Class AS) visa. The Tribunal found that the applicant did not meet the essential criteria for the grant of a General (Residence) (Class AS) visa, as required by the Migration Regulations 1994 (Cth) (“the Regulations”). Specifically, the Tribunal found that:
a)the relationship between the applicant and the nominator had ceased;
b)the contents of the statutory declarations submitted by the applicant did not indicate that the applicant had suffered domestic violence within the meaning and requirements of the Regulations;
c)the statutory declarations did not meet the evidentiary requirements of the Regulations; and
d)the applicant had not satisfied the burden to show that he had suffered domestic violence committed by the nominator.
On 23 August 2004, the applicant lodged an application in this Court, being MLG 1099 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal had exceeded its jurisdiction, committed a jurisdictional error or failed to exercise its jurisdiction. Summarily, the applicant claimed that:
a)in respect to the statutory declaration of the applicant, the Tribunal erred in its approach by asking itself whether the alleged domestic violence was ‘serious’, rather than the sole question for the Tribunal of whether the applicant felt fear or apprehension by reason of violence or threat of violence;
b)the Tribunal misconstrued the term “domestic violence”;
c)the Tribunal applied the incorrect test as to what amounts to “domestic violence” as stated by the Full Court of the Federal Court of Australia in Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257 (21 November 2003) (“the Full Court decision of Cakmak”), which has since been overtaken by the Full Court (differently constituted) decision in Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 (11 April 2005) (“Sok”); and
d)the Tribunal erred in finding that the statutory declarations of the psychologist and the medical doctor did not meet the evidentiary requirements of the Regulations.
The respondent’s contentions of fact and law, which were filed on
31 May 2005, rebutted the applicant’s contentions, arguing that:
a)it was open to the Tribunal to find that the evidence contained in the statutory declarations relied upon by the applicant did not meet the evidentiary requirements of the Regulations;
b)the Tribunal’s findings in respect to the sufficiency of the evidence contained in the statutory declarations were findings of fact, and therefore not reviewable;
c)the Tribunal asked itself the correct questions in its assessment of the statutory declarations; and
d)any reliance by the Tribunal on the Full Court decision of Cakmak did not affect the Tribunal’s decision.
The law
Division 1.5 of the Migration Regulations 1994, which concerns claims by visa applicants of domestic violence, provides as follows:
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) in relation to domestic violence committed against a child:
(i) a person referred to in paragraph (a); or
(ii) an officer of the child welfare or child protection authorities of a State or Territory.
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.
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) A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in relation to that person.
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) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; 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) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse; or
(D) a person in an interdependent relationship with the alleged perpetrator;
(iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);
(iv) a person who is in an interdependent relationship with the alleged perpetrator; and
(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.
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.
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) if the alleged perpetrator is in an interdependent relationship with a person — that person.
(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.
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.
1.27 Statutory declaration not admissible in evidence
A statutory declaration made under regulation 1.25 or 1.26 is not admissible in evidence before a court or tribunal other than in a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act 1958 (Cth) does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 (“Yusef”).
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Conclusions and findings
With respect to the applicant’s statutory declaration of 23 April 2002, the Tribunal made the following findings:
a)at Courtbook (“CB”) 113, paragraph 44, the declaration was open to the interpretation that the applicant’s stress and anxiety was caused by the prospect of an unsuccessful visa application;
b)at CB 113, paragraph 44, the Tribunal also finds that in the statutory declaration evidence of the visa applicant, there is reference to “a single episode of physical violence [that] was not, of itself, sufficiently serious to amount to domestic violence satisfying the definition”; and
c)at CB 114, paragraph 46, the declaration evidence did not state that the applicant was in fear for, or apprehensive about, his physical safety and therefore did not allege that the applicant was the victim of “relevant domestic violence”.
In relation to the first two of these findings, the Tribunal referred to the discussion in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 503 (“Cakmak at first instance”) per Gray J and Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 per Gyles, Conti and Alsop JJ (“the Full Court decision in Cakmak”). In Cakmak at first instance, Gray J held at [44]:
44 It was open to the Tribunal to take the view that a single episode of physical violence, which at its highest resulted in the humiliation of being splashed in the face with soft drink and physical injury amounting to scratches on the face and chest, was not of itself sufficiently serious to amount to domestic violence satisfying the definition.
On appeal, the Full Court of the Federal Court of Australia expressed the view that the concept of “relevant domestic violence” within the meaning of Division 1.5 of the Regulations did not extend to “emotional” or “psychological” violence or harm. The Full Court held that “violence” must involve the application (or threat of application) of physical force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety.
Then, earlier this year, in Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 (11 April 2005), a differently constituted Full Court of the Federal Court (Branson, Marshall and Hely JJ) held that the view expressed by the Full Court in Cabmak as to the meaning to be attributed to the word “violence” in regulation 1.23(2)(b) was obiter. In paragraph 32 of the decision, Branson J stated:
I take the view that their Honours were clearly wrong in concluding that the expression ‘domestic violence’ is not a term of art in contemporary Australia.
In paragraph 25 of the same judgment, Her Honour said:
I further agree with Marshall J that it is significant that a person may be taken to have suffered domestic violence under regulation 1.23(1)(c) of the Regulations notwithstanding that he or she did not suffer physical violence.
Her Honour further stated at paragraph 26:
Inherent in the notion of ‘violence’, whether physical or non-physical, is an element of vehemence or severity.
The Tribunal in this matter clearly acknowledged that there was an “incident of physicality” in the applicant’s account of events of the 6 August 2002. At CB 112, paragraph 41, the applicant claimed that the nominator had pushed and punched him on the shoulder, and had thrown various household items at him. However, the Tribunal found that this incident was, not of itself, significantly serious to amount to domestic violence within the meaning of the Regulations.
I am satisfied that it was open to the Tribunal to find that the events of the 6 August 2002 were not sufficiently serious to amount to domestic violence. In doing so, the Tribunal followed the approach taken by Gray J in Cabmak at first instance. While I am clearly bound by the Full Court in Sok, in its disapproval of the obiter comments of the Full Court decision in Cabmak, I agree with the submissions of Counsel for the respondent that it did not contemplate that any psychological, emotional or other non-physical harm will necessarily constitute “domestic violence”.
I further agree with the contentions of the respondent that it was open to the Tribunal to find that the argument between the applicant and the nominator did not amount to “domestic violence” within the meaning of the Regulations.
I am also satisfied that it was open to the Tribunal to find that the telephone call from the nominator on the 9 August 2002, to the extent that the applicant’s distress and anxiety were caused by it, did not fall into the category of “relevant domestic violence”. In any event the Tribunal found that the statutory declaration did not meet the requirements of regulation 1.25 in that it does not indicate what the applicant was in fear of. It does not state that he was in fear of his personal well-being or safety.
Further it is possible, from what is stated in the declaration, that the applicant’s fear and anxiety was caused by the telephone conversation with the nominator, in which she told him she no longer wanted to stay with him. The distress and anxiety the applicant claims is not particularly specified and it is open to the interpretation that the applicant’s distress was caused by the prospect of an unsuccessful visa application (CB 113).
Finally, the Tribunal is entitled to insist upon compliance with the Regulations and assess whether the statutory declarations do that. In doing so its finding as to what the evidence means is a question of fact for the Tribunal. It is not for this Court to engage in a merits review with respect to these finding unless it can be satisfied that those findings were not open to the Tribunal. Gray J, in Cabmak at first instance, observed 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.
The Tribunal’s finding that the applicant’s statutory declaration did not meet the requirements of the Regulations is a finding of fact that was open on the material before it. This finding, in my view, was not affected by, nor does it give rise to, any jurisdictional error.
In determining that the applicant’s statutory declaration does not meet the requirements of the Regulations that is, in effect, the end of the matter. For the applicant to succeed he would need to establish that there was jurisdictional error in relation to all three declarations, because a finding that any one of the declarations does not meet the requirements of the Regulations means that the mechanical mode of proof has not been satisfied.
Regulation 1.23 requires that a competent person must state, in “very specific terms”, whether the relevant domestic violence, as defined in regulation 1.23, has been suffered by a person. This involves the opinion that not only past acts of violence have occurred but also an assessment of the state of mind of the victim (see Du v Minister for Immigration and Multicultural Affairs [2000] FCA 115 at [18] – [19]).
In setting out the evidence on which his opinion was based, Mr Kleynhans states “the applicant was suffering from symptoms of post traumatic stress disorder, depression and severe anxiety”. This is not sufficient to enable an objective examination of the evidence on which the opinion is based and accordingly it was open to the Tribunal to make the finding that it did (CB 114, paragraph 47).
The Tribunal also found that the second statutory declaration of
14 October 2002 was insufficient to satisfy regulation 1.26. The Tribunal found at CB 114, paragraph 50:
The psychologist is clear that what caused the visa applicant to be fearful of his personal safety was not the events of 6 August 2002 but the “news” of 9 August 2002. The Tribunal is not satisfied that telephone calls come within the definition of domestic violence in this case. The apparent threats made by the nominator which appear to have been the source of distress and anxiety for the visa applicant are those pertaining to her withdrawal of support for his application for permanent residence.
This construction of the statutory declaration was open to the Tribunal and was based on a finding which is not reviewable by this Court:
The Tribunal made similar findings with respect to the first statutory declaration by Dr. Rao; that is, the declaration did not describe the evidence on which his professional opinion was based. The finding was open to the Tribunal on the material.
Finally, the Tribunal found that the second statutory declaration by Dr. Rao disclosed that it was the nominator’s threats of non-support of the applicant that were said to have affected the applicant’s mental condition and that such threats did not constitute “domestic violence” (CB 115, paragraphs 56 and 57).
In all the circumstances, I am satisfied that the Tribunal’s findings that none of the three statutory declarations complied with the Regulations were open to it and its decision did not disclose any jurisdictional error. Accordingly, the application is dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 29 July 2005
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