Keylen v Minister for Immigration
[2006] FMCA 372
•20 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEYLEN v MINISTER FOR IMMIGRATION | [2006] FMCA 372 |
| MIGRATION – Spouse visa – domestic violence –tribunal did not consider emotional or psychological violence – whether failure to consider relevant ground – whether independent reason for finding of no domestic violence– whether statutory declarations competent persons show domestic violence. |
| Migration Act 1958 (Cth) Migration Regulations Act 1994 (Cth) |
| Cakmak v Minister for Immigration & Multicultural & Indigenous Fairness [2003] FCAFC 257 Sok v Minister for Immigration & Multicultural & Indigenous Fairness [2005] FCAFC 56 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097 Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 |
| Applicant: | IRYNA KEYLEN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1150 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 21 February 2006 |
| Last Submission: | Nil |
| Delivered at: | Melbourne |
| Delivered on: | 20 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
There be an order in the nature of certiorari to quash the decision of the Tribunal made on 4 May 2004.
There be an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the Minister to refuse a spouse visa sought by the applicant.
The respondent pay the applicant’s costs fixed at $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1150 of 2005
| IRYNA KEYLEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of the Ukraine, has been refused a permanent partner visa. She was granted a provisional partner visa on 24 August 1999 on the basis of her spousal relationship with the sponsor. The sponsor is an Australian citizen who was born in Russia.
The relationship has ended and the applicant claims that she suffered domestic violence committed by the sponsor. Domestic violence is defined in r.1.23(2)(b) of the Migration Regulation Acts 1994 (Cth) as 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 Migration Review Tribunal affirmed the decision not to grant the permanent visa, at least one basis being that the applicant relied on emotional violence or psychological violence as constituting the domestic violence. The Tribunal followed the judgment of the Full Federal Court in Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257 which held that violence does not encompass emotional and psychological violence as the subject of the regulations, in the absence of the application, or threat of application, of physical force.
Since the Tribunal's decision, a differently constituted Full Federal Court decided that the term domestic violence as used in r.1.23(2)(b) does encompass psychological or emotional violence (Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56).
The issue in this application is whether the extended interpretation of domestic violence contained in Sok might have made a difference to the Tribunal's decision. The first respondent argues that the reliance on Cakmak does not affect the Tribunal's decision.
The first respondent argues that the Tribunal found that the statutory declarations relied on by the applicant did not show that the applicant suffered domestic violence, and that that finding is not affected by the Tribunal's reliance on Cakmak. The first respondent argues further that the Tribunal found that the statutory declarations do not show that the applicant or her daughter feared or were apprehensive about their personal well-being or safety, and that is an independent ground to the finding about domestic violence. The first respondent argues that the Tribunal was correct in this finding because the statutory declarations do not indicate that the violence against the applicant caused fear or apprehension about her well-being or safety.
Marriage history
The sponsor and the applicant were married in the Ukraine on
29 October 1998. The sponsor had been in the United States of America prior to the marriage and returned there after the marriage. The applicant migrated to Australia in October 1999. The sponsor returned to Australia in September 1999. He remained in Australia for about four months and then returned to the United States of America at the beginning of 2000. The sponsor sent the applicant flowers, e-mails and letters, and telephoned her quite regularly after returning to the United States of America. He left her with a debit card.
From June 2000 she lost contact with him and he stopped the use of the debit card. The applicant tried contacting the sponsor's parents but they did not return her calls.
Evidence of domestic violence
Regulations 1.23 and 1.24 set out the requirements for evidence of domestic violence. They require a statutory declaration by the alleged victim and statutory declarations by two competent persons. The applicant relied on three statutory declarations from competent persons, two by psychologists and one by a medical practitioner.
Regulation 1.26 requires that a statutory declaration by a competent person must state that in the competent person's opinion, relevant domestic violence has been suffered, name the person who, in the competent person's opinion, has suffered domestic violence and has committed the relevant domestic violence, and must set out the evidence on which the competent person's opinion is based. The Tribunal's task is to decide whether the statutory declarations meet the requirements of the regulations. The Tribunal's task is not to decide for itself whether there has been domestic violence.
The Tribunal's decision
The Tribunal referred to each of the statutory declarations. It said that the word "violence" is not defined in the regulations other than to include the threat of violence. The Tribunal referred to r.1.23(2)(b) which provides that domestic violence is violence which causes the alleged victim to fear for or to be apprehensive about the alleged victim's personal well-being or safety. It said it had regard to the judgment of the Full Federal Court in Cakmak and quoted paragraphs 61 to 67 of the judgment.
The Tribunal said:
The statutory declaration of the review applicant indicates that she and the sponsor were happy while they cohabited in Australia, that the sponsor was in regular contact after departing alone for America, and that communications abruptly ended in June 2000. The statutory declarations of the competent persons do not indicate that relevant domestic violence has occurred within the meaning of paragraphs 1.23(2)(b).i.e. of violence against the review applicant or secondary applicant or against their property causing fear or apprehension about the victim's personal well-being or safety. What the review applicant and the competent persons have referred to is the effect on the review applicant and her daughter of the cessation of the relationship with the sponsor.
The tribunal accepts that the review applicant and the secondary applicant have been affected emotionally by the cessation of the relationship between the review applicant and the sponsor. However the statutory declarations submitted do not evidence that the applicants have suffered relevant domestic violence or that the sponsor has committed relevant domestic violence. The statutory declarations do not satisfy Regulations 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26.
Discussion
Because the Tribunal's decision was before the decision in Sok, the Tribunal did not consider whether the statutory declarations showed emotional or psychological violence amounting to domestic violence as described by regulation 1.23(2)(b). That can amount to jurisdictional error, as described in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323, of identifying a wrong issue in a way that affects the exercise of power (Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097, [28, 29], Sundberg J).
In Theunissen, Sundberg J. found there were independent reasons for the Tribunal's finding other than that the domestic violence did not meet the description in Cakmak. Therefore, the Tribunal's reliance on Cakmak did not affect the exercise of its power. It had exercised its power properly on other bases.
The first respondent argues that the Tribunal found that the statutory declarations showed that the applicant and her daughter had been affected emotionally by the cessation of the relationship, but they did not demonstrate that the applicant or her daughter had suffered domestic violence or that they feared or were apprehensive about their personal well-being or safety.
The first respondent supports this argument by saying that an analysis of the statutory declarations show that they do not describe fear or apprehension by the applicant or her daughter and so do not contain the requisite statement of opinion that the applicant has suffered domestic violence within the meaning of paragraph 1.23(2)(b) of the regulations.
The applicant submitted the following documents to the Department in support of her visa application:
a)a Form 1040 statutory declaration dated 26 November 2001 by Mr Edwin Kleynhans, Psychologist. A report was attached to the declaration;
b)a Form 1040 statutory declaration dated for the December 2001 by Dr Vasily Lebedev, Medical Practitioner;
c)a Form 1040 statutory declaration dated 18 February 2002 by Mr Boris Goloub, Psychologist; and
d)a Form 1040 statutory declaration dated 24 May 2002 by the applicant.
For the Tribunal hearing, the applicant provided the following:
a)another statutory declaration (in the form of a report) by Dr Goloub;
b)a report dated 14 April 2004 by Mr Kleynhans;
c)a single page report dated 23 February 2004 by Dr Lebedev.
The first respondent's argument refers to various extracts from the statutory declarations to attempt to demonstrate that the statutory declarations do not satisfy the requirements of the regulations. In particular, to support the argument that the statutory declarations do not say that the applicant feared for, or was apprehensive about her well being or safety.
The requirements for proof of domestic violence set out in the regulations has been described as a mechanical mode of proof where every element of the mechanical mode of proof must been satisfied. At first instance in Cakmak, Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 503, Gray J. said 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 statutory declarations must not only state that domestic violence has occurred, but also give an assessment of the state of mind of the victim. Matthews J. in Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 said at [18[-[19]:
18 The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person.
19 This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here.
The statutory declarations all state that the applicant has suffered domestic violence. The question is whether they state the necessary opinion about the applicant’s state of mind, that is, an opinion that she feared for or was apprehensive about her personal well-being or safety.
The requisite statement of opinion may be conveyed by implication having regard to the way in which the form directs the attention of the competent person to the definition of "domestic violence" in paragraph 1.23(2)(b) (Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 at [44], Ryan J.).
There are statements in the statutory declarations which could be interpreted as the expression of an opinion that the applicant feared for or was apprehensive about her personal well-being or safety. Mr Kleynhans, in his first report, says, under the heading "Diagnosis":
When David stopped all contacts with her during June 2000 she became very confused about this relationship, as he did the opposite to what he portrayed to be, that is the compassionate person who respected other people's wishes and needs. Iryna feels socially deprived, abandoned and isolated and for her it was worst than physical violence. With her first husband, she had hell as he was physical towards her and used to bash her; in this situation she knew what to expect, but with David, not responding at all, is like giving her the death sentence. She became apprehensive about this relationship as per the outcome of the anxiety test she completed. Her confusion and trauma led to severe depression and anxiety.
This, combined with the statements in the pro forma statutory declaration, might be interpreted as meeting the requirements for a statement of opinion that the applicant suffered domestic violence that caused her to fear for or to be apprehensive about her personal well-being or safety.
In his statutory declaration declared 23 February 2004, Dr Goloub states:
According to Ms Kaylen, although prior to the marriage she was happy for her daughter being communicative and open to the others, now she feels terrified thinking that there is a possibility that someone like Iryna’s violent father and first husband or Mr Kaylen, who has ruthlessly destroyed Iryna’s beliefs and hopes, can take advantage of her daughter resembling the mothers kismet. It gives Iryna additional anxiety, which affects relationships with her 16-year-old daughter. Ms Keylen becomes irritable and suspicious about daughter's friends.
This too might be interpreted as meeting the requirements for a statement of opinion that the applicant suffered domestic violence that caused her to fear for or be apprehensive about her personal well-being or safety.
That the statutory declarations might be interpreted as containing a statement of opinion that the applicant has suffered domestic violence that caused her to fear for or be apprehensive about her personal well-being or safety is not obvious. However, the Tribunal is the fact finding body and so the Tribunal determines whether the statutory declarations meet the requirements of the regulations, not a Court.
The first respondent submits that the Tribunal has already made this finding independently of its reliance on Cakmak. The Tribunal does say that what the review applicant and the competent persons have referred to is the effect on the review applicant and her daughter of the cessation of the relationship with the sponsor. The applicant argues that the cessation of the relationship and the circumstance in which it occurred amounts to emotional or psychological violence. The Tribunal, because it relied on Cakmak, did not consider whether the effect on the review applicant and her daughter of the cessation of the relationship could amount to emotional or psychological violence, and so violence within the meaning of the regulations. Consequently, there has been a failure to consider a relevant basis for the applicant's claim, and so jurisdictional error.
The first respondent filed a Notice of Objection to Competency. The objection is that the application for judicial review was filed outside the 28 day time limit imposed by s.477(1) of the Migration Act. The Tribunal's decision was delivered on 4 May 2004. The application for review was filed 15 September 2005.
The first respondent's submissions acknowledge that if there has been jurisdictional error, the Tribunal's decision is not a privative clause decision and the time limit does not apply.
The delay in this case is not so great that relief should be refused on discretionary grounds.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date:
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