Lawani v MIAC
[2013] FCCA 114
•3 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAWANI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 114 |
| Catchwords: MIGRATION – Requirements of regulation 1.26 and 1.23(2) of the Migration Regulations 1994 – obligation under s.359A of the Migration Act 1958 to disclose deficiency in statutory declaration – Tribunal not obliged to inform applicant of nature of deficiency – statutory declaration did not comply with regulation 1.26 – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), rr.1.23, 1.24, 1.25, 1.26, cl.100.221(4) |
| Cases cited: Minister for Immigration & Citizenship v Pham [2008] FCA 320 Mohamed v Minister for Immigration & Citizenship [2007] FCA 1004 Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333 Vukanovic v Minister for Immigration [2004] FMCA 541 |
| Applicant: | JANELYN LAWANI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 972 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing date: | 25 March 2013 |
| Date of Last Submission: | 25 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Australian Legal Advisory Centre |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 7 August 2012 and subsequent amended Applications filed 24 December 2012 and 29 January 2013 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 972 of 2012
| JANELYN LAWANI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 5 July 2012 to affirm a decision of the delegate of the First Respondent to refuse the Applicant a Partner (Migrant) (Class BC) visa. The Applicant seeks a declaration that the decision of the Tribunal is invalid and orders remitting the matter to the Tribunal for determination according to law.
Background
The Applicant is a citizen of the Philippines. On 23 March 2007, she married an Australian citizen in the Philippines and on 30 March 2007, she applied for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa. She was sponsored by her husband.
An issue arose as to the validity of the Applicant’s purported annulment of her prior marriage to a Philippine citizen. She was eventually granted a temporary visa on the basis of her de facto relationship with the visa sponsor, on 26 November 2007.
Between January 2009 and July 2010 there was correspondence between the Department and the Applicant, or her migration agent, concerning her application for a Partner (Migrant) (Class BC) visa. On 2 July 2010 the Department was advised that the relationship between the Applicant and the visa sponsor had broken down due to long term violence towards the Applicant by her former sponsor.[1]
[1] Court Book, page 181.
On 7 July 2010, the Applicant was advised that she had 28 days to provide evidence to the Department of the alleged domestic violence. No response was received to this request.[2]
[2] Court Book, page 181.
On 23 August 2010, the Partner (Migrant) visa was refused by the Delegate on the basis that the relationship with the visa sponsor had ceased and was no longer genuine and continuing.
On 9 September 2010, the Applicant applied to the Tribunal for a review of the Delegate’s decision. On 5 July 2012, the Tribunal affirmed the Delegate’s decision and on 7 August 2012, this application for judicial review was lodged.
The Tribunal’s decision
On 10 May 2012, the Applicant appeared before the Tribunal to give evidence. The hearing had been twice postponed at the request of the Applicant, once in order for her to obtain legal advice and once because she was unwell.
At the hearing the Applicant claimed that the relationship with the sponsor had broken down due to domestic violence and she submitted three statutory declarations in support of her claim – one by herself; one by a psychologist, Mr EDWIN KLEYNHAUS (“Mr Kleynhaus”); and one by a medical practitioner, Dr DAVID BURGIN (“Dr Burgin”).
On 16 May 2012, the Second Respondent wrote to the Applicant inviting her to comment or respond to certain information. She was also invited to provide the following information in writing:
The Statutory Declaration made by a Competent Person, Dr Burgin, does not comply with the Migration Regulations 1994. Please provide a statutory declaration by a competent person which complies with r.1.26 of the Migration Regulations 1994.[3]
[3] Court Book, page 243.
The Applicant had until 22 June 2012 to provide the information. On 20 June 2012 and 22 June 2012, the Applicant wrote to the Tribunal seeking more time to respond to the letter dated 16 May 2012. This was refused by the Tribunal.
The Tribunal did not accept that the Applicant had been legally married to the sponsor, but accepted that she had been in a genuine de facto relationship with him, but that this ceased in May 2009. The Applicant therefore needed to meet the requirements of cl.100.221(4) of Sch.2 of the Migration Regulations 1994 (“the Regulations”). The issue therefore was whether the Applicant had suffered domestic violence, committed by the sponsor, within the meaning of Division 1.5 of the Regulations.
The Tribunal found that the statutory declaration of the Applicant met the requirements of r.1.25(2) of the Regulations and that the statutory declaration of Mr Kleynhaus met the requirements of r.1.26 of the Regulations. The Tribunal found however that Dr Burgin’s declaration did not comply with r.1.26(a)-(f) of the Regulations in that it did not state that, in his opinion relevant domestic violence (within the meaning of r.1.23(2)(b) of the Regulations) had been suffered by the Applicant and it did not set out the evidence on which his opinion was based.[4] As two compliant statutory declarations by competent persons are required by the Regulations, the Tribunal found that the Applicant did not meet the essential criteria for the grant of a Partner (Migrant) (Class BC) visa.
[4] Court Book, pages 258-259.
Grounds
The Applicant filed two amended applications in this matter. The last of these sets out the grounds for review as follows:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.
2. The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act applies.
PARTICULARS
(a)The Tribunal has failed to extend time for the Applicant to make a proper response.
3. The decision of the Tribunal involves errors of law and is thereby a decision that involves jurisdictional error and beyond the jurisdiction of the Tribunal.
PARTICULARS
(a)The Tribunal erred in construing the requirements of Migration (1994) Regulations (Cth) reg 1.24(1)(b) by finding that the statutory declaration of Dr Burgin of 9 May 2012 did not contain the matters required by reg 1.26(a) to (g).
(b)The Tribunal erred in construing reg 1.26(a) to (g) as requiring the opinion to state the ‘impact of the incidents on the applicant’ and beyond what the terms of the regulation provide.
(c)In determining the criterion to be satisfied at time of decision the the [sic] Tribunal applied a version of reg 1.23 of the Migration Regulations that had been repealed and replaced by Statutory Rule 2009 no 273 on 9 November 2009.
4. In making its decision the Tribunal either erred in law, or failed to follow procedures required by law, or both, and its decision is thereby affected by jurisdictional error and beyond its jurisdiction.
PARTICULARS
(a)The finding of the Tribunal that the statutory declaration of Dr Burgin did not address the maters [sic] required by reg 1.26 was unreasonable and not responsive to what he wrote in the statutory declaration.[5]
[5] Amended Application, filed 29 January 2013.
The written submissions of the Applicant raise three matters:
·Did the Tribunal err by failing in its notice under s.359(2) of the Migrations Act 1958 (“the Act”) – the letter of 16 May 2012 – to inform the unrepresented Applicant why the statutory declaration of Dr Burgin did not comply with the Regulations?
·Did the Tribunal err in construing the concept of family violence in paragraph 52 of its reasons and require the Applicant to prove family violence other than as that term is applied in the Regulations?
·Did the Tribunal err by applying an out-of-date version of the relevant Regulations?
At the hearing the Applicant abandoned the grounds that the Tribunal had failed to extend time for the Applicant to make a proper response and the ground that the Tribunal had applied a version of r.1.23 of the Regulations that had been repealed and replaced by Statutory Rule 2009, number 273, on 9 November 2009.
The Applicant submits that to the extent that the Tribunal, in seeking information, was acting under s.359(2) of the Act it was under a duty to clarify what information it was seeking. The request did not inform the Applicant as to what aspect of Dr Burgin’s report did not comply. The fact that the Applicant was unrepresented highlights the need for the request to specify what information needed to be provided.
Failure to comply with the provisions of s.359(2) of the Act is a jurisdictional error as it denies the Applicant the opportunity of a real hearing.
The Applicant referred to the decision in Minister for Immigration and Citizenship v Pham[6] and to the Court’s conclusion that the information which is required to be disclosed pursuant to s.359A of the Act does not include the thought processes of the Tribunal. As a consequence in that case the thought processes of the Tribunal as to whether there were deficiencies in the statutory declaration was not information which need to be disclosed under s.359A of the Act.[7] The Applicant distinguished that case on the basis that in the present proceedings the Tribunal had chosen to disclose its thought processes, indeed its conclusion, that the statutory declaration of Dr Burgin did not comply with r.1.26 of the Regulations. Having done so it was obliged to disclose the basis on which it formed that view if the Applicant was to be given a real opportunity to respond.
[6] Minister for Immigration & Citizenship v Pham [2008] FCA 320.
[7] Minister for Immigration & Citizenship v Pham [2008] FCA 320 at [88].
The Applicant further submits that in finding that the statutory declaration of Dr Burgin did not satisfy the Regulations it found that the statutory declaration did not “fulfil his obligation to give details of the physical, emotional impact and state of mind of the applicant.”[8] The Tribunal also found:
Dr Burgin draws no conclusions as to whether the applicant was the victim of family/domestic violence and how he arrived at that conclusion.[9]
[8] Court Book, page 258 at paragraph 52.
[9] Court Book, page 258 at paragraph 52.
The Applicant submits that on a fair reading of Dr Burgin’s statutory declaration he had complied with r.123(2)(b) and r.126. In particular:
·He named the person who had suffered the domestic violence – the Applicant;
·He identified the person who in his opinion had committed the relevant domestic violence – her husband;
·He set out his evidence on which this was based – his description of the physical evidence and the conclusion that her injuries were consistent with the stated cause;
·The fact that the violence caused her to fear for or be apprehensive about her personal well-being and safety can be inferred from the fact that he notes “she had been referred by her solicitor” and in relation to her visit in July 2010, “she stated that she had been separated from heer [sic] hussband [sic] since 2009.”[10]
[10] Court Book, page 210.
The Applicant referred to several paragraphs from the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Ejueyitsi (“Ejueyitsi”).[11] In particular, the Applicant referred to paragraph [26] where the Court referred to the statement of Ryan J in Meroka v Minister for Immigration & Multicultural Affairs (“Meroka”)[12] that a statement of opinion might be conveyed by implication and paragraph [27] where the Court refers to the submission of Mr Horan, at first instance, that a statutory declaration should be read fairly and not scrutinized over-zealously with a view to detecting some inadequacy of expression.
[11] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89.
[12] Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251.
The Applicant submitted that the statutory declaration in this matter, was on the standard form provided for by the Regulations, consistent with the situation in Meroka, and the comments of Dr Burgin should be read in that context. In particular, the fact that the Applicant was referred by her solicitor and the fact that she separated from her husband in 2009, both noted by Dr Burgin, give support to a conclusion that the domestic violence caused her to fear for or be apprehensive about her personal well-being or safety.
The First Respondent submits the decision of the Tribunal on whether to proceed under s.359(2) of the Act is a discretionary one. The Tribunal only received the statutory declarations on the day of the hearing and was unable to consider the substance of the statutory declarations at the hearing. It was for the Applicant to provide statutory declarations that deal with the matters detailed in r.1.26 of the Regulations in order to meet the requirements of r.1.23(1A) of the Regulations. It was open to the Tribunal to reject the application once it was apparent that one of the statutory declarations was not compliant with r.1.26 of the Regulations. Instead the Tribunal invited the Applicant to correct the non-compliance and submit a statutory declaration that was compliant.
The Tribunal has no obligation to inform an applicant that a declaration does not comply with the Regulations.[13]
[13] Minister for Immigration & Citizenship v Pham [2008] FCA 320; Mardini v Minister for Immigration and Migration and Indigenous Affairs [2006] FCA 488; Vukanovic v Minister for Immigration [2004] FMCA 541; Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333.
The Respondent referred to paragraphs [35] to [39] of the decision of Bennett J in Mardini v Minister for Immigration, Migration and Indigenous Affairs[14] and to her Honour’s conclusion that informing an applicant that a statutory declaration is defective is not ‘information’ for the purpose of s.359A of the Act.
[14] Mardini v Minister for Immigration and Migration and Indigenous Affairs [2006] FCA 488.
The Respondent also referred to the matter of Serfonteyn & Others v Minister for Immigration,[15] a judgment of Phipps FM. In that case the Tribunal had written to the Applicant asking for documentary evidence to substantiate a claim of domestic violence. A police report and a statement were provided, but they did not meet the requirements of the Regulations. The letter sent to the applicant referred only to “documentary evidence to substantiate the claims made at the hearing of domestic violence.”[16]
[15] Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333.
[16] Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333 at [21].
His Honour concluded:
To say that this letter misled the applicants is to say that the tribunal should have advised the applicants that the documentary evidence needed was statutory declarations complying with the requirements of division 1.5 of the regulations. This is going well beyond what could be required of the Tribunal under the rules of natural justice. This would be giving legal advice which must be well beyond what is required of the Tribunal. The need for statutory declarations meeting the requirements of the regulations is a matter of law. That the requirements of the regulations applicable to a particular visa must be complied with is not something that the Tribunal is obliged to point out to an applicant.[17]
[17] Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333 at [22].
Similarly in Vukanovic v Minister for Immigration,[18] the letter sent to the applicant stated “you have claimed domestic violence, but you have not submitted prescribed evidence of domestic violence which meets the requirements of the domestic violence provisions.”[19]
[18] Vukanovic v Minister for Immigration [2004] FMCA 541.
[19] Vukanovic v Minister for Immigration [2004] FMCA 541 at [15].
Connolly FM accepted that the Tribunal in saying “the material you provided is deficient” was not saying what those deficiencies were.[20] His Honour nevertheless concluded:
It is clear to my mind that natural justice in these circumstances can not be said to require the Tribunal to explain the effect of the regulation and the defects in the applicant’s case. Accordingly, I am satisfied in all the circumstances that there has been procedural fairness and that there is no breach of natural justice.[21]
[20] Vukanovic v Minister for Immigration [2004] FMCA 541 at [24].
[21] Vukanovic v Minister for Immigration [2004] FMCA 541 at [27].
The First Respondent further submits that the Minister’s statutory duty to consider the existence of relevant domestic violence is enlivened only if an application for a visa includes a non-judicially determined claim of domestic violence (r.1.23(1B) of the Regulations).
An application is taken to include such a claim if the applicant seeks to establish that she has suffered domestic violence and has presented evidence in accordance with r.1.24 of the Regulations. In order to enliven the statutory duty under r.1.23 (1B) the alleged victim must present evidence in accordance with r.1.24 of the Regulations. Regulation 1.24(1)(b) of the Regulations stipulates that a person must submit a statutory declaration of the alleged victim made under r.1.25 of the Regulations and two statutory declarations from competent persons with different qualifications made under r.1.26 of the Regulations.
The First Respondent refers to three decisions in relation to the requirements of r.1.26 of the Regulations.
The requirements of a statutory declaration made pursuant to r.1.26 of the Regulations were considered by the Full Federal Court in Ejueyitsi,[22] where the Court said:
It is not sufficient for the competent person to state that the victim’s presentation is consistent with the claim of domestic violence; Du at [18]. Nor is it sufficient to state that the alleged victim may have, or appears to have, suffered domestic violence; Alin at [12]. Similarly it is not sufficient for the competent person merely to recite the possession of an opinion that the alleged victim has suffered domestic violence; Meroka at [32]. Ultimately the regulation requires that the competent person must state that in his or her opinion, "relevant domestic violence ... has been suffered". It must be apparent from the declaration that the competent person attributes the same meaning to "domestic violence" as reg 1.23(2)(b) although, in our view, it is not necessary for the declarant to refer to that definition.[23]
[22] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89.
[23] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 at [34].
Further, as Bennett J, said in Mohamed v Minister for Immigration & Citizenship:[24]
Regulation 1.21 is a definition for the purposes of Div 1.5 of the Regulations, which relates to domestic violence. The effect of Div 1.5 is to institute a mechanical form of proof of domestic violence, a serious allegation, which absolves an applicant from the need to prove domestic violence in the ordinary course. It is therefore appropriate that every element of that mode of proof be satisfied (Cakmak v Minister for Immigration & Multicultural Affairs [2005] FCA 503 at [40] per Gray J, not the subject of comment on dismissal of the appeal in Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCAFC 257; (2003) 135 FCR 183).[25]
[24] Mohamed v Minister for Immigration & Citizenship [2007] FCA 1004.
[25] Mohamed v Minister for Immigration & Citizenship [2007] FCA 1004 at [15].
Similarly, Wilcox J stated in Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs[26] that:
…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.[27]
[26] Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279.
[27] Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [40].
To the same effect in Cakmak v Minister for Immigration & Multicultural Affairs,[28] Gray J said:
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.[29]
[28] Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503.
[29] Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 at [40].
The statutory declaration of Dr Burgin was not on the correct form. The form used only applied to applications made on or after 15 October 2007. In this case the application was made on 30 March 2007. Further, Dr Burgin did not ‘answer’ parts 11 and 12 of the form, but instead inserted a statement.
The declarant was required to state that, in his opinion, relevant domestic violence, within the meaning of r.1.23(2)(b) of the Regulations, has been suffered by the Applicant. Relevant domestic violence requires that the alleged victim fear for, or be apprehensive about their personal well-being or safety.
The fact is, the declarant had not drawn such a conclusion. While Dr Burgin opined in his declaration that the Applicant’s injuries as presented on 12 May 2009 were consistent with the claimed assault, this was not sufficient.
Regulation 1.26 of the Regulations describes the mandatory requirements of a statutory declaration under that regulation. What a statutory declaration must state if it is to meet the requirements of r.1.23 of the Regulations, includes:
(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 the 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 the relevant domestic violence; and
(f)must set out the evidence on which the competent person’s opinion is based.[30]
[30] Migration Regulations 1994, r.1.23.
First, Dr Burgin’s declaration does not state that relevant domestic violence has been suffered by the person, rather it records what the Applicant said about having been assaulted by her husband, describes a small abrasion on her lip, multiple scratches on her chest, and two bruises on her right thigh, and concludes that “in my opinion … her injuries were consistent with the stated cause.”[31] That patently does not state that in the opinion of the declarant, relevant domestic violence has been suffered by the Applicant, which is the mandated requirement.
[31] Court Book, page 210.
Second, Dr Burgin’s declaration does not moreover set out the evidence on which an opinion of relevant domestic violence is based. ‘Relevant domestic violence’ is a reference to violence that causes a person to “fear for or to be apprehensive about, the alleged victim’s personal well-being or safety.”[32] That the Applicant’s injuries were consistent with an assault does not set out evidence of an opinion of ‘relevant domestic violence.’ It simply sets out details of injuries which in the declarant’s opinion were consistent with an assault.
[32] Migration Regulations 1994, r.1.23(2)(b).
Based on its findings about Dr Burgin’s declaration, it was open to the Tribunal to find that the Applicant had not provided evidence in accordance with the requirements of r.1.24(1)(b) of the Regulations and to not be satisfied that the requirements of r.1.23(1A)(b)(ii) of the Regulations were met.
Conclusions
The Applicant in this matter raises two issues which she submits should cause the Court to find that the Tribunal made jurisdictional errors in its decision to affirm the rejection of her application for a Partner (Migrant) (Class BC) visa by the delegate of the Minister.
The first of these relates to the obligation imposed on the Tribunal by s.359(2) of the Act. Section 359 of the Act is a general provision dealing with the ability of the Tribunal to “get any information that it considers relevant.” Section 359(2) of the Act empowers the Tribunal to invite a person to give such information.
The Tribunal received the statutory declarations required by r.1.24 of the Regulations on the day of the hearing.[33] In paragraph [33] of its decision, the Tribunal records the following:
The Tribunal commented that it had not thoroughly read the statutory declarations she had given to the Tribunal immediately before the hearing and it was unable to say whether they complied with the Regulations. The applicant confirmed that she relied on these declarations for her allegations of domestic violence.[34]
[33] Court Book, page 253 at paragraph 20.
[34] Court Book, page 255 at paragraph 33.
It is clear that the Tribunal was not obliged to point out to the Applicant the need to comply with the Regulations.
In Minister for Immigration & Citizenship v Pham,[35] the applicant had provided a number of statutory declarations to the Department which dealt with her claims in relation to domestic violence. Prior to the hearing her solicitors had written to the Tribunal seeking advice on whether the statutory declarations met the prescribed requirements. The Tribunal did not respond to the letter and made no reference to the statutory declarations being deficient at the hearing, nor was the issue raised in a letter sent under s.359A of the Act to the applicant following the hearing. The Tribunal subsequently found that one of the statutory declarations did not comply with the requirements of r.1.26 of the Regulations.
[35] Minister for Immigration & Citizenship v Pham [2008] FCA 320.
On appeal it was contended that if the Tribunal intended to rely upon the deficiencies in the statutory declarations it should have informed the applicant and provided her with an opportunity to remedy those defects.
The Court disagreed. His Honour, Siopis J, at paragraphs [51] to [54] of his judgment deals with this issue. In particular at paragraph [52] the Court referred to the decision of the High Court of Australia in SZBEL[36] which had approved the observations of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd:[37]
In SZBEL the High Court at 161-162, at [29] approved the following observations of the Full Court of the Federal Court (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[38]
[36] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] HCA 63.
[37] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[1994] FCA 1074; (1994) 49 FCR 576.
[38] Minister for Immigration & Citizenship v Pham [2008] FCA 320 at [52].
Siopis J made two observations which are relevant in these proceedings. First, that it was ‘apparent’ from the terms of the Regulations that an issue before the decision-maker would be whether the statutory declaration complied with the Regulations, and second, that the Regulations described in detail the requirements for a qualifying statutory declaration. His Honour concluded that there was no requirement on the Tribunal to provide an advisory opinion on the statutory declarations prior to the hearing or to advise the applicant of the deficiencies in the statutory declarations during the hearing or afterwards under the provisions of s.359A of the Act.
The Applicant accepts that the Tribunal was not obliged to advise the Applicant that the statutory declaration of Dr Burgin did not comply with the Regulations but having chosen to do so, the Tribunal was obliged to provide details of why the Tribunal did not consider it to comply.
In my view the decision to advise the Applicant that she should provide a statutory declaration that complied with the Regulations did not oblige the Tribunal to specify what was necessary to meet that requirement.
This is consistent with the view expressed by Phipps FM in Serfonteyn & Others v Minister for Immigration.[39] In that case the Tribunal in a s.359 letter had invited the applicant to submit ‘documentary evidence to substantiate the claims made at the hearing of domestic violence’. It did not advise the applicant that what was required was statutory declarations complying with the requirements of Division 1.5 of the Regulations. His Honour commented:
This is going well beyond what could be required of the Tribunal under the rules of natural justice. … The need for statutory declarations meeting the requirements of the regulations is a matter of law. That the requirements of the regulations applicable to a particular visa must be complied with is not something that the Tribunal is obliged to point out to an applicant.[40]
[39] Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333.
[40] Serfonteyn & Others v Minister for Immigration & Others [2004] FMCA 333 at [22].
I turn now to the issue of whether the Tribunal erred in finding that the statutory declaration of Dr Burgin failed to comply with the requirement of the Regulations.
In Ejueyitsi,[41] the Full Court dealt at some length with what was required for a statutory declaration to be compliant with r.1.26 of the Regulations.
[41] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89.
The purpose of r.1.26 of the Regulations is to provide evidence to support the criteria in sch.2, cl.100.221(4) of the Regulations, specifically that the applicant would meet the requirements of sub-cl.(2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased because the applicant (in this case) has suffered domestic violence (in this case) committed by the sponsoring spouse.
The relevant regulation dealing with when a person is taken to have suffered domestic violence is r.1.23 of the Regulations. The version of the regulation which applied to this matter provided, relevantly:
When is a person taken to have suffered or committed domestic violence?
1.23(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
...
(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;
....
(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.[42]
[42] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 at page 97.
Regulation 1.26 of the Regulations provides:
Statutory declaration by competent person
1.26 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.[43]
[43] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 at page 98.
At paragraphs [24] to [26] the Court in Ejueyitsi dealt with some of the key cases which had considered the requirements of r.1.26 of the Regulations:
In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183, the Full Court referred to the requirement in reg 1.23(1)(g) that the alleged victim of domestic violence (or another person on his or her behalf) must present evidence of domestic violence in accordance with reg 1.24. The Court said that the correct question for the Tribunal to ask itself was whether the evidence called for by the regulations had been presented. If it has not, then the domestic violence is not "taken" to have occurred and the exception does not apply. The Court placed some stress on the fact that reg 1.26 is very specific in its requirement for the competent person to "state" that in his or her opinion relevant domestic violence has been suffered.
In Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [18] Mathews J emphasised the need for an expression of opinion and observed that it was not sufficient for a competent person "simply to note the consistency between a person’s presentation and their account of domestic violence". It was necessary for that person to "express an opinion in very specific terms ... as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person". Her Honour added that this required the competent person to assess the alleged victim’s state of mind as well as to form an opinion as to whether past acts of violence have occurred.
Sundberg J agreed with Mathews J’s observations in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 at [13]. In that case there was a live issue (which does not arise here) as to whether the conduct of which the visa applicant complained was domestic violence, as that term is defined in the regulations. His Honour also observed that the declarations in Alin did not contain the necessary expression of opinion and distinguished the circumstances before him from those considered by Ryan J in Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251. In Meroka, Ryan J arguably took a more flexible approach to the requirement in reg 1.26 that the competent person state his or her opinion when he said at [34] that a statement of opinion might be conveyed by implication.[44]
[44] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 at [24] to [26].
The Court went on to reconcile the apparent differences between the decisions in Alin v Minister for Immigration & Multicultural Affairs[45] and Meroka[46] and concluded:
It is common to all of these cases that for a declaration to conform to reg 1.26, it must be clear from the declaration itself that the declarant is expressing his or her opinion that the visa applicant has suffered domestic violence within the meaning ascribed to that term in reg 1.23(2)(b), namely,
... 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.
34 It is not sufficient for the competent person to state that the victim’s presentation is consistent with the claim of domestic violence; Du at [18]. Nor is it sufficient to state that the alleged victim may have, or appears to have, suffered domestic violence; Alin at [12]. Similarly it is not sufficient for the competent person merely to recite the possession of an opinion that the alleged victim has suffered domestic violence; Meroka at [32]. Ultimately the regulation requires that the competent person must state that in his or her opinion, "relevant domestic violence ... has been suffered". It must be apparent from the declaration that the competent person attributes the same meaning to "domestic violence" as reg 1.23(2)(b) although, in our view, it is not necessary for the declarant to refer to that definition.[47]
[45] Alin v Minister for Immigration & Multicultural Affairs[2002] FCA 979.
[46] Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251.
[47] Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 at [33] to [34].
The statutory declaration of Dr Burgin is at pages 206 to 211 of the Court Book. The essential parts are on page 210. The notes read as follows:
I have seen [the Applicant] on two occasions for treatment …
The first occasion was 12/5/209 [sic].
She had been referred by her solicitor.
She stated that she had been assaulted by her husband on 9/5/2012 [sic]
She stated that he had slapped her face, pulled her hair, scratched her chest and had kicked her on the legs and buttocks
On examination she had a small abrasion on the inside of left lower lip. She had multiple scratches on the chest
She had two bruises 3cmx3cm on the right thigh.
She required no treatment.
It is my opinion that her injuries were consistent witth [sic] the stated cause.
The second occasion was 20/7/2010
She complained of sleep disorder.
She stated that she had been separated from heer [sic] hussband [sic] since 2009.
A trial of Deptran was commenced.
She did not return for review.[48]
[48] Court Book, page 210.
The comments of Dr Burgin appear to be a reproduction of his clinical notes. He makes no attempt to relate those notes to the questions asked in question 11 or 12 which set out the essential elements of the requirements of r.1.26 of the Regulations in establishing that relevant domestic violence within the meaning of r.1.23 of the Regulations has occurred. It is not clear if Dr Burgin had the explanatory material provided with the form. It is apparent that the first page of the statutory declaration was typed for him. He has had written his name and occupation in the parts provided, annexed a letter headed ‘To Whom It May Concern’ and signed the declaration.
In Mohamed v Minister for Immigration & Citizenship[49] Bennett J placed emphasis on the importance of the statutory declarations provided given the nature of the statutory scheme:
Regulation 1.21 is a definition for the purposes of Div 1.5 of the Regulations, which relates to domestic violence. The effect of Div 1.5 is to institute a mechanical form of proof of domestic violence, a serious allegation, which absolves an applicant from the need to prove domestic violence in the ordinary course. It is therefore appropriate that every element of that mode of proof be satisfied.[50]
[49] Mohamed v Minister for Immigration & Citizenship [2007] FCA 1004.
[50] Mohamed v Minister for Immigration & Citizenship [2007] FCA 1004 at [15].
In this case I cannot accept that it can be inferred from Dr Burgin’s clinical notes that in his opinion the Applicant had suffered relevant domestic violence, that is violence which caused her to fear for or be apprehensive about her personal well-being and safety.
At its highest Dr Burgin’s notes indicate that the Applicant presented with physical injuries, she told him that she had just been assaulted by her husband and “her injuries were consistent with the stated cause.”[51]
[51] Court Book, page 210.
I am satisfied that the Tribunal was not in error when it concluded that the contents of the statutory declaration failed to meet the requirements of r.1.26 of the Regulations.
For these reasons the application must be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 3 May 2013
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