McGuire v Minister for Immigration - [2004] FMCA 1014

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McGUIRE v MINISTER FOR IMMIGRATION

[2004] FMCA 1014

MIGRATION – Review of RRT decision – where applicant is a citizen of the United Kingdom – where applicant applied for a Class BS (Partner- Resident) visa – where following the break down of the applicant’s marriage his Australian wife withdrew her sponsorship – where applicant claims to have been the victim of domestic violence – where applicant provided two statutory declarations from doctors, where only one was required, as well as one further declaration – where Tribunal found the declarations to be invalid – whether the declarations set out evidence on which the competent person’s opinion is based – whether the Tribunal fell into jurisdictional error in considering whether the applicant was in fear of his life – where one of the declarations was signed and witnessed on separate dates – where the Tribunal should have rejected the declaration on this basis – whether the court should exercise its discretion to quash the Tribunal decision.

Migration Regulations 1994, Reg. 1.21, 1.24, 1.25, 1.26, 820.221
Federal Magistrates Court Rules 2001

Applicant:

PAUL KENNETH McGUIRE

Respondent:

MINISTER FOR IMMIGRATION & MULTICUTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1517 of 2003

Delivered on:

22 December 2004

Delivered at:

Sydney

Hearing date:

10 December 2004

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a)of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1517 of 2003

PAUL KENNETH McGUIRE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICUTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Paul Kenneth McGuire is a British subject. He arrived in Australia on

4 December 1998 at which time he was approximately 48 years of age. A lengthy marriage and a de facto relationship of some 10 years had broken down. Shortly after his arrival he found himself in Bundeena where he obtained rental accommodation. Through the agency of his landlord he met Michelle Jacques. He returned to England at the end of 1998 but on 26 February 2000 he came again to Australia and began a relationship with Ms Jacques. In about June 2000 the couple made a firm decision to marry but did not set a date. Mr McGuire returned to England to work and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 1014
Decision Date: 22 December 2004

CaseChat Overview and Summary

In the Federal Circuit Court, the case of McGuire v Minister for Immigration involved the applicant, Mr McGuire, seeking to overturn a decision of the Migration Review Tribunal (MRT) that had dismissed his application for a visa under the domestic violence provisions. The dispute centred on the adequacy of the statutory declarations submitted in support of Mr McGuire’s application. The MRT had found that three statutory declarations provided by Dr Nahla Kamel, a general practitioner, did not meet the requirements stipulated in the relevant regulations. Specifically, the Tribunal was not satisfied that Dr Kamel had provided an opinion that relevant domestic violence had occurred, nor had she given an assessment of Mr McGuire’s state of mind. The Tribunal also noted that Dr Kamel had stated she was unable to offer an opinion as Mr McGuire had been seeing another GP at the time.

The legal issues before the Court were whether the statutory declarations complied with the Migration Regulations, particularly Regulation 1.26, and whether the Tribunal had erred in law in its assessment of these declarations. The Court considered whether the statutory declarations provided by Dr Kamel met the requirements of being made by a competent person, setting out the basis of the claim, stating an opinion on the relevant domestic violence, naming the person who suffered and the person who committed the violence, and detailing the evidence upon which the opinion was based. The Court needed to determine if the Tribunal’s findings that the declarations did not meet these requirements were correct and if the Tribunal had applied the correct legal principles.

The Court found that the Tribunal had correctly interpreted and applied the relevant regulations. The statutory declarations by Dr Kamel did not meet the statutory requirements as they failed to provide an opinion on the relevant domestic violence, assess the state of mind of Mr McGuire, or detail the evidence upon which Dr Kamel based her opinion. The Court concluded that the Tribunal's decision was not in error and affirmed the dismissal of Mr McGuire’s application. The Court also ordered that Mr McGuire pay the respondent’s costs of the application.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a)of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Regulations 1.25 and regulation 1.26 prescribe the information that must be included in the statutory declarations. A “competent person” is defined in regulation 1.21. The statutory declarations must be provided by persons with different qualifications (sub regulation 1.24(2)). Statutory declarations by competent persons must meet the requirements of regulation 1.26 which is in the following form:Regulation 1.26. Statutory declaration by competent person1.26A 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. A form known as form 1040 is provided for persons completing the statutory declarations. The forms are accompanied by explanatory material which should be given to the deponents. Mr McGuire submitted his own statutory declaration and in addition three statutory declarations in support of his application. I have already referred to his own statutory declaration and that is not a matter in issue in these proceedings. It is the three supporting declarations that were found to be wanting by the MRT. The first statutory declaration was sworn by Dr Nahla Kamel GP. In regard to that statutory declaration the Tribunal said at [CB 194] at [46]:The Tribunal has considered the statutory declaration by Dr Nahla Kamel GP. The Tribunal is satisfied that Dr Kamel is a competent person as she is a registered medical practitioner. Dr Kamel declared that the visa applicant told her that he was abused physically and mentally by his wife and her family (mother). In relation to the nature of the violence experienced, Dr Kamel states “Mr McGuire said that he had to ring the police one night after being abused physically by his wife.” Where Dr Kamel is asked to briefly describe the evidence on which she based her professional opinion that the visa applicant has experienced domestic violence, Dr Kamal writes, “unfortunately I didn’t attend the situation at that time as Mr McGuire used to see another GP at the time”. The Tribunal is not satisfied that Dr Kamel has stated an opinion that relevant domestic violence has occurred, nor has she provided an assessment of the state of mind of the visa applicant. Dr Kamel in the Tribunal’s view has stated she is not able to offer an opinion because the visa applicant was not her patient at the time but was seeing a different GP. Nor, in the Tribunal’s view, is there evidence or a description of violence in Dr Kamel’s declaration that is capable of affording a basis for an opinion that relevant domestic violence has been suffered by the applicant. The Tribunal is therefore not satisfied that the statutory declaration from Dr Kamel meets the requirements of regulation 1.26.”