Newport v Minister for Immigration
[2003] FMCA 348
•22 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEWPORT v MINISTER FOR IMMIGRATION | [2003] FMCA 348 |
| MIGRATION – Review of decision of MRT – spouse visa – where applicant claims to be the victim of domestic violence – where Tribunal has made an admitted error in consideration of the statutory declaration of the applicant – where the Tribunal has rejected the statutory declarations of the ‘competent’ witnesses – whether the findings about these statutory declarations are consistent with authority – whether application should be referred back to the Tribunal – whether there is utility. |
Migration Regulations 1994 1.15A, 1.21, 1.22, 1.23, 1.24, 1.25, 1.26, 820.2, 820.21, 820.221
Meroka v Minister for Immigration [2002] FCA 482
Ibrahim v Minister for Immigration [2002] FCA 1279
Thi Lan Du v Minister for Immigration [2000] FCA 115
Malek v Minister for Immigration (2000) 98 FCR 291
Wangv Minister for Immigration & Multicultural Affairs [2001] FCA 448
| Applicant: | MARK GREGORY NEWPORT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ 110 of 2003 |
| Delivered on: | 22 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 13 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms S Ower |
| Solicitors for the Applicant: | Winters |
Counsel for the Respondent: | Mr K Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court declares the decision of the Migration Review Tribunal dated 28 March 2003 to be void and of no effect.
The Court orders:
(i)That the matter be referred back to Migration Review Tribunal differently constituted to be determined according to law.
(ii)The respondent pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 110 of 2003
| MARK GREGORY NEWPORT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Mark Newport is an Englishman. His mother and sister emigrated to Australia in December 1983 after the breakdown of his parent’s marriage. His remaining brother emigrated to Australia in July 1999 with his family. Mr Newport himself came to Australia on 23 December 1997. He left the country on 4 December 1998 and re-entered under a subclass 686 visitor visa on 6 December 1998. That visa was valid until 6 March 1999. In May 1998 Mr Newport had met Ms Jacqueline Pomery. They decided to marry. They were married in Australia on 28 February 1999. On 5 March 1999 Ms Pomery (now Mrs Newport) nominated her husband for a General (Residence) visa in respect of which the applicant completed a Form 887. This form incorporated an application for a permanent visa, known as a Partner (Residence) (Class BS) visa which normally cannot be granted until two years have elapsed since the lodgment of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK). Neither of these visas was granted to Mr Newport but he held a bridging visa entitling him to remain in the country pending a decision upon the substantive visa.
Mr Newport could normally have expected that the temporary visa part of his application would have been dealt with within the two year period. If the temporary visa had been granted he would have expected that after the expiry of the two year period he would move reasonably speedily towards consideration for the grant of a permanent visa. In his case, for reasons which are not relevant to this decision, matters did not proceed as anticipated and so no temporary visa had been granted by the time Mr Newport’s marriage collapsed in November 1991. The marriage had lasted for two years and nine months.
The Department of Immigration & Multicultural & Indigenous Affairs were advised of the breakdown of Mr Newport’s marriage and at that stage sought to consider his application for a Partner (Temporary) (Class UK) visa. The delegate of the Minister wrote to Mr Newport on 5 February 2002 advising him that his application to remain permanently in Australia had been refused. An assessment report and record of decision were provided to him. This document which is found at [CB 58-63] concluded that Mr Newport, the applicant, no longer remained a spouse of the nominating spouse, because the delegate could not be satisfied that Mr Newport complied with Regulation 1.15A(1A)(b)(B) in that he and his nominator were not living together or not living separately and apart on a permanent basis. At that time no submission had been made by Mr Newport to the delegate that he might have been able to take advantage of the provisions of subclass 820 and in particular 820.221(3)(b)(i)(A) – the domestic violence provision.
Mr Newport was not satisfied with the decision of the delegate and sought review of that decision from the Migration Review Tribunal. For this purpose he sought the assistance of a migration agent and indicated in communications with the Tribunal that he proposed to argue before the Tribunal that he was a person to whom the domestic violence exception applied.
There is set out between [CB 70] and [79] the provisions of subclass 820. I set out below extracts from that subclass which I believe to be relevant:
820.2PRIMARY CRITERIA
[NOTE: The primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.]
820.21Criteria to be satisfied at time of application
820.211(1) The applicant:
(a) is not the holder of a subclass 771
(Transit) visa; and
(b)meets the requirements of subclause (2),
(3), (4), (5), (6) (7), (8), (9).
(2)The applicant meets the requirements of this subclause if:
(a)the applicant is the spouse of a person
who:
(i)is an Australian citizen, an
Australian permanent resident or
eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B)
from being a nominating spouse; and
[820.211(2)(b) was omitted by SR 376 of 94].
(c)the applicant is nominated by that
Australian citizen, Australian permanent
resident or eligible New Zealand citizen;
and…
820.22Criteria to be satisfied at time of decision
820.221(1) In the case of an applicant referred to in subclause 820.211(2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:
(a)continues to meet the requirements of the applicable subclause; or
(b)meets the requirements of subclause (2) or (3).
(3)An applicant meets the requirements of this subclause if:
(a)the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the nominating spouse has ceased; and
(b)either or both of the following circumstances applies:
(i)either or both of the following:
(A)the applicant;…
Division 1.5 of Schedule 1 to the Regulations sets out the criteria with respect to claims of domestic violence. The relevant regulatory provisions that apply at the date of the application were as follows:
Regulation 1.21. Interpretation
1.21. (1) In this Division:
“competent person” means:
(a)in relation to domestic violence committed against an adult:
(i)a person registered as a medical practitioner under a late of a State or Territory providing for the registration of medical practitioners; or
(ii)a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv) a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v)a person who is a court counsellor under the Family Law Act 1975; or
(vi)a person holding a position of a kind described in subregulation (2); or
(b)in relation to domestic violence committed against a child:
(i) a person referred to in paragraph (a); or
(ii)an officer of the child welfare or child protection authorities of a State or Territory;
“statutory declaration”
means a statutory declaration under the Statutory Declarations Act 1959;
“violence”
includes a threat of violence.
(2)The positions referred to in subparagraph (a)(vi) of the definition of “competent person” in subregulation (1) are:
(a) manager or coordinator of:
(i) a women’s refuge; or
(ii)a crisis and counselling service that specialises in domestic violence; or
(b) a position with:
(i) decision-making responsibility for:
(A)a women’s refuge; or
(B)a crisis and counselling service that specialises in domestic violence;
that has a collective decision-making structure; and
(ii)responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.
Regulation 1.22.
References to persons having suffered or committed domestic violence
(1)A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2)A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in relation to that person.
Regulation 1.23.
When is a person taken to have suffered or committed domestic violence?
(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)on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1), (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e)a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; 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;
(ii) a dependent child of:
(A)the alleged perpetrator; or
(B)the spouse of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse; or
(D)a person in an interdependent relationship with the alleged perpetrator;
(iii)a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who had made a combined application for a visa with the spouse);
(iv)a person who is in an interdependent relationship with the alleged perpetrator; and
(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.
Regulation 1.24. Evidence
(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; or
(b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2)A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a)the same subparagraph of paragraph (a) of the definition of “competent person”; or
(b) subparagraph (b) (ii) of that definition.
Regulation 1.25 Statutory declaration by alleged victim, etc.
(1)A statutory declaration under this regulation must be made by:
(a) the spouse of the alleged perpetrator; or
(b) if the alleged perpetrator is in an interdependent relationship 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 paragraph 1.23 (2)(b)) must:
(a) set out the allegation; and
(b)name the person alleged to have committed the relevant domestic violence.
(3)A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2)(b)) must:
(a) name that other person; and
(b) set out the allegation; and
(c)identify the relationship of the maker of the statutory declaration to that other person; and
(d)name the person alleged to have committed the relevant domestic violence; and
(e)set out the evidence on which the allegation is based.
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.
The effect of clause 8.20 in the Regulations is to produce the situation whereby the Tribunal is precluded from giving any merits review to the application where an allegation of domestic violence is involved. The duties of the Tribunal in relation to these matters was articulated by Ryan J in Meroka v Minister for Immigration [2002] FCA 482 at 32-35:
[32] “In my view, it is not sufficient for an applicant to adduce statutory declarations from two “competent persons” each of which recites the possession of an opinion that relevant domestic violence has been suffered by the applicant. 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. This, if the competent person, in purporting to comply with reg 1.26(f) were to refer to “evidence” which was quite unrelated to whether relevant domestic violence had been suffered by the applicant, the alleged victim could not be “taken” pursuant to reg 1.23 to have suffered domestic violence.
[33] That is not to say that the Minister (or the Tribunal) can substitute for that of the “competent person”, his or its own opinion of whether domestic violence has been suffered. Operation can be denied to reg 1.23 only if the description of the nature of the violence experienced or the evidence set out by the competent person is incapable, as a matter of law, of affording a basis for an opinion that relevant domestic violence has been suffered by an applicant and has been committed by the person identified by the competent person as the perpetrator.
[34] I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence has been 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 birth of the victim and the full name of the person believed to have perpetrated the domestic violence.
[35] However, as already noted the statement of opinion by a competent person will not cause the applicant to be taken to have suffered domestic violence if the description of the nature of the violence, or the evidence on which the express or implied statement of opinion is said to be based, reveals that the competent person misconceived what the definition required for the formation of the requisite opinion. An examination of the forms completed by the competent persons in this case does not lead unequivocally to the conclusion that either of them misconceived what is involved in the concept of domestic violence.”
These views of Ryan J were summed up by Wilcox J in Ibrahim v Minister for Immigration [2002] FCA 1279 where at [36] His Honour said:
[36] “It will be apparent that the Tribunal member who determined Mr Ibrahim’s application for review did not misunderstand Meroka. In particular, he appreciated that authority required him to refrain from determining whether or not Mr Ibrahim had suffered domestic violence at the hands of Ms Saleh; his task was only to determine the sufficiency of the statutory declarations supplied by Mr Ibrahim; if there were statutory declarations by two competent people that complied with the requirements of reg 1.26 (and a statutory declaration by Mr Ibrahim under reg 1.25), that was enough.
[37] “I think this is the effect of Meroka and I respectfully agree with Ryan J that this is what is intended by the regulations. …”
Mr Newport provided a Form 1040 statutory declaration on his own behalf and three statutory declarations by persons who he claimed were competent persons as defined by Regulation 1.21(1). One of those persons was a doctor, one was a psychologist and one was a registered nurse. The statutory declaration provided by Newport as the applicant, was required by Regulation 1.25 to have been made by the spouse of the alleged perpetrator and to set out the allegation and name the person alleged to have committed the relevant domestic violence. This is all that is required under Regulation 1.25(1) and (2). Regulation 1.25(3) makes provision for a statutory declaration to be provided by a person who alleges that another person is the victim of domestic violence and requires five matters to be deposed to. There is no dispute between the parties that in paragraph 38 found at [CB 135] the Tribunal wrongly held that the applicant’s statutory declaration failed to meet the regulatory requirements because it did not comply with the requirements set out in Regulation 1.25(3). The statutory declaration did not have to comply with that subsection of the Regulations, it only had to comply with subsections 1 and 2. It is not disputed that it did do this. I am satisfied that the decision of the Tribunal based, as it was, upon a wrong reading of the Regulations was an error that went to its jurisdiction.
The Tribunal then went on to consider the statutory declarations of the competent persons. It examined each in turn. The first declaration was from Marta Lohyn, Psychologist. Her document is found at [CB 108-109]. Like all of the documents it is produced on a form known as Form 1040 created by the Department. The relevant questions, of which there are seven, are as follows:
1Give the following details about the people who have experienced (or in your professional opinion you believe have experienced), domestic violence.
2Full name of the person who committed (or who you believe committed) the violence.
3Briefly describe the nature of the violence experienced. (Please refer to the definition of domestic violence on the front of this form.).
4Are you the applicant or a “competent” person?
5What occupational group do you belong to?
6What is the basis of your claim to be a competent person.
7Briefly describe the evidence upon which you base your professional opinion that the people named in Question 1 have experienced domestic violence. (Please refer to the definition of domestic violence on the front of this form).
Ms Lohyn completed the form. I was informed during the course of the hearing that the form comes complete with a detailed explanatory statement. The statement is not reproduced in the Court Book. I have seen a copy of the document, but because there was no evidence either way as to whether it had been shown to any of the persons who completed the form it was not admitted into evidence. It explains what the statutory declaration is about, it provides notes about domestic violence and notes for competent persons. It sets out the responsibilities of the competent person and suggests that if the person is not experienced in domestic violence matters he or she refer the giving of the statutory declaration to another competent person.
The Tribunal accepted that Ms Lohyn was a competent person but stated:
“In paragraph 7 of Form 1040 Ms Lohyn stated that she based her professional opinion that the visa applicant had experienced domestic violence on the reports of the visa applicant which she particularised. Ms Lohyn’s statutory declaration basically contains a summary of the visa applicant’s reports to her. Following the decision in Du (Thi Lan Du v Minister for Immigration [2000] FCA 115) the Tribunal considers that Ms Lohyn’s statutory declaration fails to meet the requirements of Regulation 1.23 because she has failed to make an assessment of the visa applicant’s “state of mind”.
Question 7 of the form responds to the question put as follows:
“Mr Newport reported the following:
· That Mrs Newport controlled the finances and only gave him enough money for petrol and his phone.
· That Mrs N was warm and loving one minute and then became aggressive and [unreadable] the next. This was a dominant pattern in the marriage.
· That Mrs N frequently threatened to call the Department of Immigration if he did not comply and that Mrs N isolated Mr N from his friends by [copy illegible].”
The extract from Du upon which the Tribunal apparently relied is set out at [CB 31]:
“It is not sufficient compliance in my view, with these regulations for a competent person simply to note the consistence 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 Regulation 1.23 has been suffered by a person. 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.”
This dicta was considered by Ryan J in Meroka (supra). At [34] His Honour said:
“I do not consider that the competent person need to state expressly that in his or her opinion relevant domestic violence has been 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 birth of the victim and the full name of the person believed to have perpetrated the domestic violence.”
Ryan J then goes on to discuss the requirements set out in Du for the declarations of competent persons to contain a statement of opinion, not a mere restatement of what the competent person has been told by the alleged victim. He noted that one of the declarations in Du was “laconic in the extreme” and then went on to discuss the second statement before saying at [48]:
“However, it appears that neither of the declarations considered in Du was in the standard form 1040 so that the implication discussed at [34] of these reasons did not arise in that case. Moreover, even with the benefit of those implications, the declaration of Dr Tran in that case would have been incapable with complying with the relevant regulations. By contrast, in the present case, each of the competent persons devoted a considerable part of the space afforded by form 1040 to describing matters which must have impinged on what Mathews J in Du called “the state of mind of the alleged victim”.”
Mr Ower who appeared for Mr Newport makes two points in relation to the Lohyn statutory declaration. Firstly he states that the combination of the question and answer to question 7 and the question and answer to question 3 provided both a description of the domestic violence experienced and the state of mind made requisite by the decision in Du and previous decisions such as those of Wilcox J in Malek v Minister for Immigration (2000) 98 FCR 291. The second argument put by Mr Ower is that even if I do not find myself that this is the case, the question was not asked by the Tribunal. The Tribunal therefore committed a jurisdictional error by not asking itself the proper question which is whether on a reading of the form as a whole the requirements adumbrated in Du had been complied with. I think that the answer to this latter question is one that I am unable to so find. That is because the Tribunal in its decision at [CB 131] specifically mentions Meroka and in those circumstances I believe the only inference open to me from what has been said about it is that the Tribunal both read and understood the case. It must be taken to have considered the matter in that context. However, I take the view that the responses of the declarant, particularly those to question 3, referring to a behaviour which he describes as “emotionally abusive” does respond positively to the requirements of Regulation 1.26(c).
The second statutory declaration was submitted by Dr GM Williams. The Tribunal accepted that Dr Williams was a competent person. It notes that in paragraph 7 of Form 1040 Dr Williams stated that he based his professional opinion that the visa applicant had experienced domestic violence on the contents of his letter that was attached to Form 1040. The Tribunal’s criticisms of Dr Williams are explained in the following passage:
“Dr Williams stated that he recalled the visa applicant mentioning issues of “alleged manipulation” regarding money matters and alleged threats to telephone immigration unless he complied with her wishes. The Tribunal is concerned that Dr Williams has used the word “alleged” on four occasions in his documents. The use of the word “alleged” undermines the expression of professional opinion in this instance. For this reason the Tribunal is not satisfied that Dr Williams has an opinion of past acts of domestic violence (as defined by Regulation 1.23) as an opinion that past acts of domestic violence (as defined by Regulation 1.23) have occurred and nor has he made an assessment of the visa applicant’s state of mind as required by Regulation 1.26. Upon consideration of the legislation and following the decision in Du the Tribunal considers that Dr William’s statutory declaration fails to meet the requirements of Division 1.5.”
It is perfectly true that Dr Williams has used the word “alleged” on four occasions. But Dr Williams did not experience the violence himself. He was not present when the abusive behaviour occurred. So far as he is concerned, as a medical practitioner, the story of the violence is only an allegation. What the Tribunal is seeking to do is to take that word out of its proper context and make it pejorative. In the context of clear authority to the effect that the Tribunal is not entitled to make up its own mind upon the validity of the applicant’s claims to be the victim of domestic violence, these comments would appear to me to be trespassing onto excluded matters. I am also of the view that the reference to “anxiety and insomnia as a result of alleged manipulation by his wife” referred to by Dr Williams in answer 3 does fulfil the requirements of s.1.26(c) in that it indicates the fear felt by the applicant and the cause.
The third statutory declaration provided by the applicant was from Ms Hilary Evans. Ms Evans described herself in Form 1040 as a registered nurse. In answer to question 3 she states:
“Mark experienced verbal and emotional abuse with constant threatening and provocative behaviour from Jackie resulting in his family and friends fearing for his mental well-being.”
The Tribunal’s view about this statutory declaration is found at [CB 136]. Firstly, the Tribunal says there is no evidence to support the claim that she is a registered nurse. It goes on to say that it doubts whether Ms Evans was performing the duties of a registered nurse when the visa applicant consulted her as required by Regulation 1.21(a)(iii) on her admission that she was a friend of the visa applicant. However, it goes on to say:
“Notwithstanding its doubts about Ms Evans’ competency and her relationship with the visa applicant, it proceeds to make determinations with respect to her statutory declaration.”
I am satisfied, over the arguments of the respondent, that the Tribunal must be taken to have accepted Ms Evans as a competent person. The Tribunal does not specifically reject her as such in [42] and goes on to deal with her statutory declaration as if she was such a person. At paragraph 43 the Tribunal says:
“In paragraph 3 of Ms Evans’ statutory declaration she stated that the visa applicant experienced verbal and emotional abuse from the nominator ‘resulting in his family and friends fearing for his mental well-being.’ The Tribunal notes that the definition of domestic violence in Regulation 1.23 includes a reference to domestic violence that causes the alleged victim or ‘a member of the alleged victim’s family’ to fear for the alleged victim’s personal well-being or safety. The Tribunal notes that Division 1.5 does not define ‘family’. However, Ms Evans has not particularised whom she meant by the expression ‘family’ and it is not the role of the Tribunal to speculate about this matter. Accordingly the Tribunal finds that the statutory declaration from Ms Evans fails to meet Regulation 1.23 because she has not stated that the visa applicant was fearful about this personal well-being or safety, rather she declared without particularising that the visa applicant’s ‘family and friends’ had that fear on his behalf. For these reasons the Tribunal finds that Ms Evans’ statutory declaration also fails to meet Division 1.5.”
The relevant part of Regulation 1.23 has already been set out and is found at Regulation 1.23(2)(b). That subsection only mentions the word “family”. There is no definition of “family” in the Regulations.
I find it difficult to understand why the Tribunal should require a competent person to state which members of “the family” she is referring to. That is not required by the Regulation. The person who makes a statutory declaration is taken to know the law. In the absence of any evidence to the contrary, that would seem to put her knowledge of who constitutes “family” for the purposes of the subsection in exactly the same position as that of the Tribunal. I believe the Tribunal has made an error of law in the finding which it made in this regard.
Given the acceptance by the respondent that the Tribunal was wrong in its interpretation of the requirements of the statutory declaration to be given by the applicant and my findings about the validity of the other three statutory declarations, it could be argued that I should make an order requiring Mr Newport to be given a visa. But that was not requested and I do not think it is appropriate. What I will do is to set aside the decision of the Tribunal and refer the matter back to another Tribunal differently constituted to reconsider the matter in the light of the documentation then before it.
The respondent has argued that if I only found in favour of the applicant upon the admitted mistake I should not refer the matter back to the Tribunal because to do so would be of no value. This submission arises out of the condition or status of the current three statutory declarations. Although I have found that those statutory declarations do comply with the regulations I am more than conscious that others may have different views. I would therefore state that if I am wrong about the validity of more than one of the three other statutory declarations then I would still have referred the matter back to the Tribunal. My reason for making this decision is that there is utility in a rehearing. A rehearing by the Tribunal considers the case as at the time of that rehearing. The Full Bench of the Federal Court have made it quite clear in Wangv Minister for Immigration & Multicultural Affairs [2001] FCA 448 that it is not for the courts to attempt to hold Tribunals to parts of decisions previously reached by ordering that cases go back to the Tribunal as previously constituted. Although this was said in the context of findings which were favourable to an applicant it would equally apply in the case of findings unfavourable to an applicant. In a case such as this, where the criticisms by the Tribunal are to the form of the document and not to the documents merits, it would be open to the applicant to file new declarations which clearly comply with the requirements of the regulations. This would have considerable utility for the applicant who would thus be in a very strong position to receive the visa he requests.
As the applicant has been successful in his application I order that the respondent pay his costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM
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