Mohamed v Minister for Immigration
[2007] FMCA 30
•25 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOHAMED v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 30 |
| MIGRATION – Show cause application by applicant – Partner (Migrant) visa – marital relationship not existing at time of hearing – only basis for granting visa is proof of domestic violence – failure to provide statutory declaration on prescribed form – Tribunal correct to reject domestic violence basis for visa – show cause application dismissed. |
| Migration Act 1958 Migration Regulations 1994 Statutory Declarations Act 1959 |
| Wang v MIMIA [2003] FMCA 135 Morgan v MIMIA [1999] FCA 1059 Singh v MIMIA [2003] FMCA 186 Alin v MIMIA [2002] FCA 979 Ibrahim v MIMIA [2002] FCA 1279 DU v MIMIA [2000] FCA 1115 |
| Applicant: | WAGDY GALAL MAHMOUD MOHAMED |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1547 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 5 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Ms Riley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to read, Minister for Immigration and Multicultural Affairs
The amended application filed on 24 March 2006 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1547 of 2005
| WAGDY GALAL MAHMOUD MOHAMED |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 24 March 2006 the applicant applied for an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act1958 (the Act). The proceeding relates to the refusal of the first respondent’s delegate and the Tribunal’s upholding of that refusal to grant a Partner (Migrant) visa to the applicant based on domestic violence grounds. The amended application set out three grounds.
The first respondent conceded that the Tribunal committed jurisdictional error in respect of two of those grounds. However, the first respondent takes issue in respect of the remaining ground concerning whether the Tribunal erred in not finding there was domestic violence because the applicant had failed to provide a statutory declaration in a prescribed form. Notwithstanding the concessions made by the first respondent, should the Tribunal not have made an error going to jurisdiction in relation to its finding on domestic violence, then the Tribunal’s decision will stand and the amended application must be dismissed. This is because it is conceded that the marital relationship at the time of the Tribunal hearing was not subsisting and the only basis for the granting of a Partner (Migrant) visa was if domestic violence could be proved in accordance with the requirements set out in the Migration Regulations 1994 (the Regulations). The first respondent’s concession has narrowed the issue for determination by me to one that can be properly called “extremely narrow and technical”.
The threshold issue revolves around the Regulations’ requirements for proof of domestic violence. In this case, the extremely narrow and technical basis for the Tribunal refusing such a visa was because it could not make a finding of domestic violence as the applicant had failed to provide a statutory declaration in the prescribed form as required by the Regulations.
Background
The applicant is a 37 year old male national of Egypt who applied for and was granted on 1 August 2002 a Partner (Provisional) visa. At the same time he also applied for a Partner (Migrant) visa.
The applicant arrived in Australia on 17 March 2003. However, a letter to the first respondent dated 19 March 2004 from the applicant’s sponsor informed that the relationship between the applicant and the sponsor had broken down. The first respondent wrote to the applicant on 22 March 2004 informing him that the Department was in receipt of information that the relationship on which his application for permanent residence on spouse grounds was based was no longer continuing. He was informed, however, that he could nevertheless proceed with his spouse visa application on certain grounds; in particular, the domestic violence ground. That letter further outlined the types of documents needed to make out the domestic violence ground including:
“two statutory declarations (Form 1040) from any of the prescribed range of “competent persons”…accompanied by a statutory declaration (Form 1040) by the applicant…”
The Form 1040 referred to is a proforma statutory declaration under the Statutory Declarations Act1959.
The applicant provided various documents under cover of a letter dated 26 April 2004 from Ms Fodia Andreou of the Migration Resource Centre, North-West Region. Ms Andreou described herself as a senior social worker and a migration agent. Under cover of a letter dated 28 May 2004, Ms Andreou sent to the first respondent, relevantly, a statutory declaration made by herself on a Form 1040 and a statutory declaration made by the applicant which was not, significantly, on a Form 1040.
On 27 July 2004, Ms Andreou sent the first respondent a note which said:
“Please find enclosed Form 1040 as requested.”
The note enclosed a statutory declaration on a Form 1040 made by Dr Lamia Elias on 26 July 2004, which said:
“Please see attached report”.
The delegate of the first respondent refused the application on the basis that the statutory declarations provided by the applicant did not satisfy the Regulations in various respects despite the use of Form 1040.
Following the delegate’s refusal of his visa application, the applicant applied to the Tribunal. After applying to the Tribunal, the applicant appointed a new migration agent. The new agent submitted the following further documents to the Tribunal:
a)a statutory declaration on Form 1040 made by Dr Elias on 25 May 2005; and
b)a statutory declaration on Form 1040 made by Ms Fodia Andreou on 30 May 2005.
A hearing was held before the Tribunal on 31 May 2005. The Tribunal noted that a revised statutory declaration had been provided by each of the competent persons which were generally in compliance with the Regulations, save for that of Ms Andreou. There was, however, no revised statutory declaration made by the applicant. Under cover of a letter dated 9 June 2005, the applicant’s migration agent sent to the Tribunal a statutory declaration made by the applicant on 7 June 2005. However, once again, it was not on a Form 1040.
The Tribunal’s decision
The Tribunal did not accept that the applicant had a genuine spousal relationship. As indicated earlier, this aspect of the Tribunal’s finding was conceded by the first respondent as violated by jurisdictional error. Notwithstanding the Tribunal’s finding in respect of the genuineness of the spousal relationship, which was in itself sufficient from the Tribunal’s perspective to have disposed of the application, the Tribunal nonetheless went on to consider whether the domestic violence ground was made out. In doing so, the Tribunal enlivened this aspect for this Court’s determination as to whether or not the Tribunal had also erred in rejecting the ground of domestic violence. If it had not, it then follows that despite the concession made by the first respondent concerning errors by the Tribunal on the issue of a genuine spousal relationship, the applicant would not be successful ultimately as the Tribunal determined that there was no basis for it to find the applicant was the victim of domestic violence.
The Tribunal noted at [58] that the applicant’s statutory declaration made on 7 June 2005 was not made under the Statutory Declarations Act1959. The Tribunal accepted that the statutory declaration made by Dr Elias on 25 May 2005 satisfied the requirements of the Regulations. The Tribunal did not accept the statutory declaration made by Ms Andreou on 30 May 2005 as technically satisfying the Regulations.
The Domestic Violence Provisions
Division 1.5 of the Regulations contains special provisions relating to domestic violence. Those provisions include a definition of “statutory declaration”. That definition is:
“Statutory Declaration means a statutory declaration under the Statutory Declaration Act 1959.”
Relevantly, for the purposes of this decision, Regulation 1.24 states:
1.24Evidence
(1) the evidence referred to in paragraph 1.23(1)(g) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i)a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii)a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory;
(b)a statutory declaration under regulation 1.25, together with two statutory declarations under regulation 1.26.
1.25Statutory Declaration by Alleged Victim etc
(1)A statutory declaration under this regulation must be made by:
(a)the spouse of the alleged perpetrator;
(b)if the alleged perpetrator is in an interdependent with a person - that person.
(2)A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of 1.23 (2)(b)) must:
(a)set out the allegations; and
(b)name the person alleged to have committed the relevant domestic violence.
1.26 Statutory Declaration by a Competent Person.
(1) 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;
(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.
The applicant contended that significance should be given to the meaning of section 7 of the Statutory Declarations Act1959.
That section states:
“Where, in a law of the Commonwealth or of a Territory (whether past or made before or after the commencement of this Act), a reference is made to a statutory declaration, the reference includes a reference to a statutory declaration made under this Act, unless the contrary intention appears in that law.”
Also of significance is section 8 of that Act which states:
“A statutory declaration made under this Act must:
(a) be in the prescribed form; and
(b) be made before a prescribed person.”
Contentions
The applicant contended that while Regulation 1.21(1) states that “statutory declaration” means a statutory declaration under the Statutory Declarations Act1959, s.7 of that Act provides, as set out above, a reference to a statutory declaration made under that Act, unless the contrary intention appears. The applicant contended that such a definition was plainly inclusive. It was the contention of the applicant that the use of the term “statutory declaration” in the Regulations (a regulation and thus the law of the Commonwealth) is not confined only to declarations made under the Act but may encompass declarations duly sworn in compliance with other Acts of Parliament, such as those sworn by the applicant in the present case. It was contended that it is sufficiently broad in definition to encompass a statutory declaration made in Victoria pursuant to Victorian legislation which was intended to be used in a proceeding arising under Commonwealth legislation. The applicant argued that had it been the intention of Parliament to confine the scope of the Statutory Declarations Act it would have been an easy matter to state that the term means a statutory declaration made under the Commonwealth Act. The fact that s.7 was framed in the way it was, is a clear pointer, it was contended, to the interpretation which the applicant places on Regulation 1.21; namely that a statutory declaration made under any other Act save for the Statutory Declarations Act1959, so long as it deposed to the matters which the relevant Regulations required, was a valid statutory declaration for the purposes of the Act.
The response of the first respondent is simple in its thrust and import. The language is clear. The definition of “statutory declaration” contained in Regulation 1.21 clearly spells out the nature of the statutory declaration to be made; namely one under the Statutory Declarations Act1959. The first respondent contends that when reference is made to s 8 of the Statutory Declarations Act1959, it is clear that the statutory declaration must be in the prescribed form.
The first respondent further contends, with which contention I agree, that s 7 of the Statutory Declaration Act means that if a Commonwealth law refers to a “statutory declaration” it would include a statutory declaration under the Statutory Declarations Act1959 unless the contrary intention appears. Absent the definition in Regulation 1.21 that:
Statutory declaration means a statutory declaration under the Statutory Declarations Act 1959
s.7 of the Statutory Declarations Act 1959 would mean that a declaration under the Statutory Declarations Act1959 would suffice for the purposes of Division 1.5 of the Regulations. However, the definition of “statutory declaration” in Regulation 1.21 limits the meaning of the words “statutory declaration” in Division 1.5 of the Regulations to a statutory declaration under the Statutory Declarations Act1959. The first respondent contends further that a statutory declaration under the Statutory Declarations Act1959 is a declaration made in accordance with s.8 of that Act. As stated earlier, s.8 makes it mandatory for the use of a prescribed form.
Contrary to the contention of the applicant, s.7 of the Statutory Declarations Act1959 does not make s.8 of that Act meaningless. Section 7 simply means that if a Commonwealth law refers to a statutory declaration that does not contain a definition of "statutory declaration", or otherwise explain what is meant by the reference to a "statutory declaration", then a statutory declaration made in accordance with s.8 of the Statutory Declarations Act1959 would suffice.
In support of the first respondent’s contention she relied upon a number of authorities. The first is the case of Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279, in which Wilcox J noted that it is not for the Tribunal, the delegate or the Court to assess whether a person has suffered domestic violence. His Honour noted that the Tribunal may not conclude that domestic violence has occurred if the statutory declarations do not satisfy the statutory requirements. His Honour said at [40]:
“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.”
Again, in DU v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1115, Mathews J at [18-19] said that:
“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.”
His Honour, Sunberg J, in Alin v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 979 at [13] agreed with the above passage from DU. His Honour said at [12] that the statutory declaration in Alin did not satisfy the Regulations because they made:
“no reference to the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal wellbeing or safety.”
In Morgan v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 1059, Hill J dealt with a case relevantly identical to the present matter in that the applicant in that case had failed to make his own statutory declaration under the Statutory Declarations Act1959. His Honour said at [11]:
“It is in these circumstances unfortunate that I have no alternative but to find for the Minister on the extremely narrow and technical basis that the declaration which was prepared on his behalf and which he made available to the Tribunal was not made under the Commonwealth Statutory Declarations Act, but rather under the New South Wales Oaths Act.”
I also note that Morgan has been followed by Hartnett FM in two matters, Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 186, and Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 135.
Conclusion
The Regulations spell out a statutorily mandated procedure for the production of evidence in support of a Partner (Migrant) visa based upon an allegation of domestic violence in circumstances where the relationship is not subsisting at the time of the determination of an entitlement to that visa. In my view, it is clear that the Regulations provided for the statutory declaration to be in the prescribed form, as set out in the Statutory Declarations Act1959. The applicant in respect of his own statutory declaration failed to comply with that statutorily mandated provision, with the end result the Tribunal lacked the authority to grant the visa sought by the applicant.
The significant concessions made by the first respondent in relation to the other grounds of the application, should they have been the only basis for the Tribunal’s decision, would have entitled the applicant to the orders he seeks. However, the issue of whether there was compliance with a requirement of the Regulations concerning the form of the statutory declaration presented by the applicant militates against his success in this proceeding.
For the reasons set out above, I am of the view that the Tribunal did not commit an error in respect of the Tribunal’s finding concerning the requirement for the applicant to have filed a statutory declaration in the prescribed form under the Statutory Declarations Act1959.
Consequently, the application falls on this issue and it should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Marlene Dixon
Date: 25 January 2007
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