McGuire v Minister for Immigration
[2004] FMCA 1014
•22 December 2004
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
Meroka v Minister for Immigration (2002) 117 FCR 251
Cakmak v Minister for Immigration [2003] FCAFC 257
Du v Minister for Immigration [2000] FCA 1115
Kozel v Minister for Immigration [2004] FCA 658
Ibrahim v Minister for Immigration [2002] FCA 1279
Abebe v Commonwealth (1999) 197 CLR 510
A-G (NSW) v Quin (1990) 170 CLR 1
NAHI v Minister for Immigration [2004] FCAGC 10
Wu v Minister for Immigration [2003] FCA 1249
Sheik v Minister for Immigration [2004] FMCA 621
Vukanovic v Minister for Immigration [2004] FMCA 541
| 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 save sufficient monies to place a deposit on a house in Sydney. He came back to Australia and to Bundeena in October 2001 when he proposed to Ms Jacques and they were married on 12 January 2002.
The marriage was not a success. Ms Jacques left Mr McGuire in May 2002 whilst he remained in the matrimonial home. This property had been rented to him by his mother-in-law.
In between August and September 2002 there were problems with Mr McGuire’s continued presence in the property. These were described in detail in Mr McGuire’s statutory declaration at [CB 150] – [CB 168]. On 22 September 2002 Mr McGuire moved out of the premises and into those of Ms Judeth Materna. Problems continued with his spouse and her family and friends. These included mysterious telephone calls and complaints to his employers. Mr McGuire deposed to being extremely concerned for his safety and health, that he was suffering at work and could not do his work properly. Mr McGuire attended upon a doctor and upon a psychologist.
On 30 May 2002 Mr McGuire had been granted a temporary partner visa (UK 820) based upon his relationship with Ms Jacques who acted as nominator. On 30 August 2002 Ms Jacques, the nominating spouse, advised the Department of Immigration and Multicultural & Indigenous Affairs of the withdrawal of her sponsorship. This information was relayed to Mr McGuire on 3 September 2002. Mr McGuire was given an opportunity to respond, which he did on 3 October 2002. He advised the relevant officer by telephone that he would withdraw his application as he did not believe that he had further reason to stay in Australia. However, he did not make that view known formally and the delegate considered the status of his visa without any further information. The delegate concluded that Mr McGuire did not meet the regulations subclass 801.221(2)(b) because at the time of making a decision he was no longer being nominated by his Australian citizen spouse. The delegate considered whether Mr McGuire was entitled to consideration under any other subclass that was relevant such as subclass 801.221(3), 801.221(4), 801.221(5), 801.221(6) or 801.221(8) and refused the application for a Class BS (Partner- Residence) visa.
On 31 October 2002 Mr McGuire applied for a review of the delegate’s decision by the Migration Review Tribunal. At this stage he was represented. Mr McGuire claimed that he was entitled to a visa (class BS) under subclass 801.221(6) which is in the following form:
801.221
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the nominating spouse has ceased; and
(c )either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the nominating spouse of the applicant or both of them; has suffered domestic violence committed by the nominating spouse;
(ii) …
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 person
1.26A 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.”
The second statutory declaration was provided by Judeth Materna. It is accepted by the respondent that although the Tribunal appeared to have some doubts as to whether or not Ms Materna was a competent person for the purposes of the regulations, it proceeded as if she was and no argument is made that she was not. In regard to her statutory declaration the Tribunal said at [CB 194] – [CB 195]:
“Ms Materna states that “throughout the relationship Michelle was prone to pronounced emotional outbursts which Paul McGuire would have found threatening, distressing and intimidating. Michelle’s supporters were also threatening towards Paul McGuire.” The Tribunal is not satisfied she has expressed, implicitly or expressly, and opinion that relevant domestic violence has been suffered. Ms Materna refers to “emotional outbursts”, not to any acts of violence that may have caused the visa applicant to fear for his life. Further she states that the visa applicant “would” have found the nominator’s emotional outburst as threatening not that he “did” in fact find them threatening.”
Finally the Tribunal considered the statutory declaration provided by Dr Andre F Gentel. In this regard the Tribunal commented at [CB 195] at [48]:
“The Tribunal has considered the statutory declaration provided by Dr Andre F Gentel. The Tribunal is not satisfied that the statutory declaration from Dr Gentel meets the requirements of regulations 1.26. Dr Gentel does not provide an opinion based on evidence that relevant domestic violence has been suffered by the visa applicant. Regulation 1.26(f) imposes a requirement that the statutory must set out the evidence on which the competent person’s opinion is based. Dr Gentel refers to “patient was under considerable stress when he reported domestic violence. He has psychological problems resulting from stress.” The Doctor does not clearly state whether the visa applicant’s psychological problems and stress are directly related to any domestic violence that he may have suffered. Dr Gentel does not state in his opinion on the evidence presented to him that the visa applicant has suffered domestic violence. The definition of domestic violence within paragraph 1.23(2)(b) refers to ‘violence … that causes the alleged victim … to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety’. Dr Gentel only refers to the visa applicant being “under considerable stress”, but does not state an opinion that the stress was caused by domestic violence. Further the Tribunal notes that Dr Gentel signed his statutory declaration on 2 July 2003 and it was witnessed on 3 July 2003.”
The applicant accepts that if I find that the Tribunal has not erred in relation to its views as to the criticism of Ms Materna and there are no other jurisdictional errors in relation to it then the applicant has failed to comply with regulation 1.24(2) and the application is incompetent. On the other hand, if I accept that there is no jurisdictional error in regard to the criticism of Ms Materna’s affidavit then I must find jurisdictional error in the case of the decision upon both of the Doctors’ statutory declarations in order for the applicant to successfully obtain a review of the decision of the Tribunal.
In order to consider the Tribunal’s findings and whether or not they constitute jurisdictional error one must turn to the relevant case law. A number of these cases are listed at [CB 189] as having been taken into account by the Tribunal. Three of those cases are of particular importance, those being Meroka v Minister for Immigration (2002) 117 FCR 251, Cakmak v Minister for Immigration [2003] FCAFC 257; Du v Minister for Immigration [2000] FCA 1115. I have also considered Kozel v Minister for Immigration [2004] FCA 658. There are a number of principles which can be found in those cases. Firstly, Ryan J in Meroka at [34] said:
“I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence is suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of “domestic violence” in reg 1.23(2)(b). The implication arises in the context of that direction from the insertion in the respective spaces provided of the name and date of the victim and the full name of the person believed to have perpetrated the domestic violence.”
However in Cakmak the nature of the violence was considered and the full court at [62] indicated:
“There must be “violence”, or the “threat of violence”, involving the application, or threat of application, of force such that the alleged victim has cause to fear for, or be apprehensive about, his or her well-being or personal safety.”
These comments were applied by Ryan J in Kozel.
In Cakmak the Full Bench considered the question of who was required to be the instigator of the domestic violence. At [69] and [70] the Court said:
“69. Even if one approaches the appeal on the conceded basis of the width of the word “violence” and the phrase “domestic violence”, there must still be violence committed or perpetrated by the spouse of the alleged victim.
70. Here, apart from the incident in December with the throwing of a can of drink and the scratching, all the various words and deeds of unpleasantness of which Mr Cakmak complains in his statutory declarations were committed by Mrs Cakmak’s family members. There was nothing to suggest on the evidence that these were done “by or on behalf of” Mrs Cakmak, even if the regulations are to be construed as extending to violence committed by or on behalf of the spouse who is described as the perpetrator. We think the regulations are directed to acts of the spouse. The meanings of “commit” and “perpetrate” direct one to the personal act of the spouse of the victim. This accords with the tended subject matter of the regulations: the infliction or threat of infliction of violence on a spouse or family member in a domestic context.”
The Courts have also commented upon the composition of the statutory declaration. In Du at [18] – [19] her Honour said:
“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 the relevant domestic violence as defined in regulation 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 declaration of Dr Kamel was the first one dealt with by the Tribunal. His comments have been set out at [10] of these reasons. The first question to be answered in form 1040 is as follows:
“Give the following details about the people who have experienced (or in your professional opinion you believe have experienced) domestic violence.
Name - Date of Birth - Relationship to the Applicant.”
Dr Kamel has completed this form by providing the name of the applicant Mr McGuire although she has added some words that he told her.
The second question is to “give the full name of the person who committed (or who you believe committed) the violence”. And this has been answered with the name of the spouse. The third question required the deponent to “Briefly describe the nature of the violence experienced (please refer to the definition of domestic violence on the front of this form)”. The act of domestic violence described by the doctor is the report by the applicant that he had to ring the police one night after being abused physically by his wife. The Tribunal commented that it did not consider that this description was adequate to enable Dr Kamel’s declaration to form the basis of an opinion that the relevant domestic violence had been suffered. This form of words might have sufficed if the response to question 7 “Briefly describe the evidence on which you base your professional opinion that the people named in question one have experienced domestic violence” had been extensively completed. For example “Mr X presented this morning with a black eye which he claimed had been given to him in a dispute with his wife.” But absent such evidence the statement appears to me to be lacking. The response to question 7 was criticised by the Tribunal who inferred that the doctor was unable to offer an opinion. Dr Kamel responded by saying:
“Unfortunately I did not attend the situation at that time as Mr McGuire used to see another GP at the time.
Certainly it is not responsive to a request for evidence. It tends to indicate that this particular deponent had no such evidence. As Merkel J said in Meroka at [32] and repeated in Kozel at [11]:
“Regulation 1.26(f) imposes the additional requirement that each statutory declaration must set out the evidence on which the competent person’s opinion is based. The only purpose which can be imputed to the drafter who inserted that requirement is to provide an opportunity for objective examination of the evidence on which the opinion was based.”
It is my view that Dr Kamel fails to provide such evidence and therefore it was impossible for the Tribunal to objectively examine it. I am satisfied that the Tribunal was correct in rejecting the statutory declaration of Dr Kamel.
The Tribunal then went on to consider the statutory declaration of Judeth Materna. Ms Materna identified the person who had experienced domestic violence as the applicant and the perpetrator as his spouse. The Tribunal cavils with the use by the deponent in response to the question numbered 3 on the form of the words, “which Paul McGuire would have found distressing and threatening and intimidating”. The Tribunal claimed that it was not satisfied that she had thereby expressed, implicitly or expressly, an opinion that the relevant domestic violence had been suffered. In my view the Tribunal is not correct in this statement. The Tribunal is implying a conditional or subjunctive element to the use of the word “would” when it seems to me that what the deponent is really doing is expressing what is her view of what the applicant experienced. Once again it is appropriate to look at the answer to question 7 to see what the evidence is upon which she bases her professional opinion. That evidence is claimed to have been personal observation of both parties. She claims that it is her opinion that domestic violence occurred before, during and continued after the breakdown of the marriage. I believe that as such it satisfies the requirements and the criticism of the Tribunal that the declaration refers to emotional outbursts not to any acts of violence cannot be sustained when the document is looked at as a whole. Furthermore and importantly if it is suggested that the error identified is one within jurisdiction, I accept the submission made by Mr Levingston on behalf of his client that the importation by the Tribunal of the words “not to any acts of violence that may have caused the visa applicant to fear for his life” (emphasis added) imports a requirement that is simply not within the regulations. I am satisfied that the Tribunal fell into jurisdictional error by attempting to import such a requirement and that therefore the Tribunal’s decision upon this declaration cannot stand.
The respondent argues at paragraph [11] of her submissions that:
“Even if contrary to the findings of the Tribunal, any one of the statutory declarations from a “competent person” did meet regulation 1.26, the applicant still would have failed in his application - as he needed two such declarations. … It follows that jurisdictional error would need to be found in the rejection (for the purposes of regulation 1.26) of at least two of those statutory declarations before it could be concluded that the decision of the Tribunal could have been affected by the said error. Thus, if, contrary to the respondent’s submission, there is any jurisdictional error at all, the application should be dismissed on discretionary grounds unless the error was such that it vitiated the Tribunal’s conclusion regulation 1.26 was not met with respect to at least two of the said declarations.”
I think that this analysis is correct and requires me to consider the declaration of Dr Gentel before deciding whether or not the matter should be referred back to the Tribunal. Dr Gentel identifies the applicant as the person who has experienced domestic violence, the spouse as the perpetrator and then states in answer to question 3 “On 1 June 2002 Paul McGuire reported to me that he has been experiencing domestic violence.” His response to question 7 is “The patient was under considerable stress when he reported domestic violence. He had psychological problems resulting from stress.” The Tribunal finds that Dr Gentel does not provide an opinion based on evidence that relevant domestic violence has been suffered and criticises the doctor for not clearly stating whether the visa applicant’s psychological problems and stress are directly related to any domestic violence that he may have suffered. The Tribunal argues that the doctor does not provide confirmation that the violence caused the alleged victim to fear for or be apprehensive about his personal well being or safety. Finally the Tribunal makes a comment regarding the fact that the statutory declaration was signed on 2 July and witnessed on 3 July.
The respondent supported the view of the Tribunal about the unsatisfactory nature of the status of this statutory declaration by reference to Ibrahim v Minister for Immigration [2002] FCA 1279 where Wilcox J made it clear a declaration that merely repeats the applicant’s claim that domestic violence has been suffered does not comply with the requirements of the regulation. That is what the statement made in paragraph 3 seems to do. But paragraph 3 must be looked at in light of paragraph 7. The Tribunal’s reading of the response to that question is that it relates to the sequelae of the alleged violence, namely, stress. There is an alternative way of looking at the response to the question. That is to say it constitutes the doctor’s evidence for accepting the report referred to in response to question 3 that when the applicant was providing the doctor with the history of domestic violence he was under considerable stress. This is the type of evidence considered by the Federal Court in Kozel at [20] where the relevant doctor referred to an interview with the applicant in which “Mr Kozel was noticeable distressed when recalling the incidence of the violence”.
Although I believe that this is the better reading of the statutory declaration I am no more entitled to substitute my own views of how it should be read for those of the Tribunal than the Tribunal is able to substitute its views of the existence or otherwise of the domestic violence for those of the deponents. A possibly mistaken reading of the statutory declaration does not constitute jurisdictional error. It is a mistake of fact which the courts have consistently held to be errors within jurisdiction and not to be reviewable: Abebe v Commonwealth (1999) 197 CLR 510 at [37]; A-G (NSW) v Quin (1990) 170 CLR 1 at 35-36; NAHI v Minister for Immigration [2004] FCAGC 10 at [10]; Wu v Minister for Immigration [2003] FCA 1249 at [28].
In relation to the declaration made by Dr Gentel, the Tribunal noted that Dr Gentel signed the document on 2 July and it was witnessed on 3 July. The applicant submits that this notation does not constitute a finding by the Tribunal that the statutory declaration does not meet the requirements of regulations 1.24 and 1.26 for the reason that the signature of the deponent and the signature of the witnesses are dated differently. The applicant argues that it is an observation which the Tribunal could have taken further by pursuing a separate line of inquiry if it had been minded to follow it. In my view the Tribunal should not have accepted the statutory declaration on this basis: Sheik v Minister for Immigration [2004] FMCA 621 per McInnis FM; Vukanovic v Minister for Immigration [2004] FMCA 541.
But the Tribunal appears to have accepted the validity of the declaration. The question now becomes how to deal with that mistake of law. This Court can only review a mistake of law if it constitutes a jurisdictional error. Otherwise the mistake will be one contained within a privative clause decision. If the mistake is found to be a jurisdictional error then the effect would surely, and paradoxically, be that I would have to grant the relief sought in general by the applicant unless it could be successfully argued that there would be no utility in such a result. I am of the view that the error of the Tribunal is a jurisdictional error because it goes to the heart of the matters to be considered by the Tribunal. The Tribunal has a duty to determine whether or not the applicant has complied with the requirements of the regulations in providing the correct number of valid statutory declarations. If a statutory declaration is invalid, and has been treated by the Tribunal as being valid then the effect is fundamental to the applicant’s case. He no longer has the correct number of valid statutory declarations and without that number the Tribunal has no jurisdiction to make a decision favourable to the applicant.
The more difficult question is one of utility and the exercise of discretion. In this case the applicant provided two statutory declarations from doctors, although only one was needed. The finding that one of these statutory declarations was invalid would still leave the other statutory declaration available for consideration by the Tribunal. The Tribunal has made a determination on that declaration and has concluded, for reasons that I do not believe are reviewable, that the statutory declaration does not do what it is supposed to have done. Returning this matter back to the Tribunal for reconsideration would not be necessary in order to have had the respondent’s application properly considered. That has occurred by consideration of the declarations of Ms Materna and Dr Kamel. Only one of those declarations is infected with jurisdictional error. I would therefore not exercise my discretion in favour of the applicant in these circumstances.
I am unable to provide the review the applicant seeks. The application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 22 December 2004
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