Pandey v Minister for Immigration
[2005] FMCA 1018
•22 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PANDEY v MINISTER FOR IMMIGRATION | [2005] FMCA 1018 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Partner (Residence) (Class BS) visa – breakdown of marriage – withdrawal of sponsorship – applicant (husband) claim of domestic violence – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), regs 1.22, 1.23, 1.24, 1.25, 1.26
Statutory Declarations Act 1959 (Cth)
Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482
Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | LUMADI PRASAD PANDEY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1973 of 2004 |
| Delivered on: | 22 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Nepalese interpreter.
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1973 of 2004
| LUMADI PRASAD PANDEY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 28 June 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 18 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 24 October 2003 to refuse to grant the applicant a Partner (Residence) (Class BS) visa.
Background
The applicant, Mr Lumadi Prasad Pandey, is a citizen of Nepal who was born on 24 May 1971. He was nominated in connection with a visa application to the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) by Mrs Wendy Pandey (“the sponsor”), an Australian citizen who was born in Kerang, Australia on 4 October 1949. The applicant arrived in Australia on 4 October 2002 as a holder of a prospective spouse (Subclass 300) visa. On 22 April 2003 the applicant lodged a combined application for a Subclass 820/801 (temporary)/(permanent) visa (Court Book pp.1-15) (“CB”). A temporary (Subclass 820) visa was granted on 24 April 2003.
The applicant and the sponsor met in Nepal on 29 December 1999 and their relationship began. The couple applied for a prospective spouse visa and the applicant arrived in Australia on 4 October 2002. The couple were married on 9 March 2003 in Somerville, Victoria. The couple resided together in Hastings, Victoria.
On 20 September 2003 the sponsor formally advised the Department that she wished to withdraw her nomination of the applicant. She stated that the applicant had left her and moved to Sydney. On
7 October 2003 the sponsor wrote again to the Department, reiterating that the relationship with the applicant had ceased. She also submitted an email from the applicant to herself dated 2 October 2003 in which the applicant provided an address in Rockdale, Sydney for himself, advising that any correspondence should be forwarded to this address.
On 15 October 2003 the Department wrote to the applicant advising that it had been informed that the spousal relationship with his sponsor had ceased (CB p.42). The Department also advised that the applicant had twenty-eight days after receipt of the letter to respond. The letter was sent to the Rockdale address provided by the sponsor. On
22 October 2003 the letter was returned to the Department, unopened and marked “left address” (CB p.43). On 24 October 2003 a decision was made to refuse the applicant’s application for a permanent (Class BS) partner visa (CB pp.45-51). The covering letter to the decision which was sent to the applicant noted that his Subclass 820 (spouse) visa would cease on his receipt of the notification (Court Book pp.118-122) (“CB”).
The Tribunal’s findings and reasons
Mr A McInerney of Counsel, appearing for the respondent, prepared the following summary of the Tribunal’s decision:
a)The applicant sought review of the decision made on 24 October 2003 to refuse the application for the permanent (Class BS) partner visa, that is, the subclass 801 visa. The Tribunal set out in its decision the criteria to be satisfied at the time of the decision contained in Regulation 801.22 of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB pp.119-120). For the purposes of the review, the key criteria to be considered was that described in Subclass 801.221(6) of the Regulations. In order to meet the requirements of Subclause 801.221(6) at the time of the decision, the applicant had to show that he would have met the requirements of being in a spousal relationship with the sponsoring spouse except that the relationship had ceased and domestic violence had occurred (CB p.125.6).
b)
On 18 May 2004, the Tribunal held a hearing at which the applicant gave oral evidence. At the Tribunal hearing, the applicant made the claim that he had suffered domestic violence by his sponsoring spouse and he submitted a letter from
Dr Gordon Lee, General Practitioner, Dr Salu Dean, Consulting Psychologist, and a statement by the applicant on a Form 1040 (CB p.122.9).
c)After the Tribunal hearing, the Tribunal sent a letter by facsimile to the applicant through his migration agent confirming that the applicant had one week in which to present further documentation in support of his application (CB p.123.8). On 25 May 2004, the applicant’s migration agent sent a facsimile to the Tribunal which contained updated documentation from Dr Gordon Lee, Dr Salu Dean, and the applicant (CB p.123.9).
d)For the applicant to have met the requirement of subclause 801.221(6), the only issue to be determined was whether domestic violence had occurred. Division 1.5 of the Regulations contained a particular regime relating to domestic violence and its method of proof for the purposes of the Regulations that the Tribunal was bound to apply. Under regulations 1.22 and 1.23 domestic violence was to be taken to have occurred when the requisite evidence prescribed under the Regulations alleging that domestic violence had occurred had been provided to the Tribunal. Regulation 1.24 prescribed that evidence could be provided in the form of a statutory declaration. Regulations 1.25 and 1.26 described the criteria which the statutory declarations had to satisfy. The evidence called for by regulation 1.24 was a statutory declaration by the applicant under regulation 1.25, and a statutory declaration from two competent persons under regulation 1.26.
e)A statutory declaration by a competent person under regulation 1.26 must set out the basis for the claim that the declarant is a competent person (a term defined in Regulation 1.21) and, in addition:
i)must state that, in a competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by a person; and
ii)must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
iii)must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
iv)must set out the evidence on which the competent person’s opinion is based.
f)The definition of a “competent person” provided in regulation 1.21 includes medical practitioners, psychologists, nurses, social workers and court counsellors.
g)In order to satisfy the criteria for the grant of a subclass 801 permanent visa, the applicant had to satisfy the Tribunal that each of the statutory declarations obtained from Dr Gordon Lee, General Practitioner, and Dr Salu Dean, Consulting Psychologist, satisfied the criteria described in regulation 1.26. The Tribunal was not satisfied that the declarations provided by Dr Lee satisfied the criteria described in regulation 1.26 for two reasons.
i)Firstly, that each of the purported statutory declarations provided by Dr Lee was not a statutory declaration for the purposes of the Statutory Declarations Act 1959 (Cth) (CB pp.130.1-130.2).
ii)Secondly, that the declarations did not contain an opinion expressed by Dr Lee that relevant domestic violence had been suffered (regulation 1.26(c)) (CB p.131.5), and failed to set out the evidence on which Dr Lee’s opinion was based, which was not surprising, in circumstances where he had expressed no opinion (CB p.131.7).
h)The adverse finding of fact made by the Tribunal that the statutory declarations provided by Dr Lee did not satisfy regulation 1.26 was the only reasonable finding open to the Tribunal on the material before it. Having made the adverse finding of fact in respect to Dr Lee’s statutory declarations, the only course open to the Tribunal was to affirm the decision under review, and to find that the applicant was not entitled to the grant of a Partner (Residence) (Class BS) visa.
Application for review of the Tribunal’s decision
On 28 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 5 November 2004 the applicant filed an amended application which contained the following grounds and particulars:
1.Decision is Full of Legal Error
Tribunal failed to apply the applicable law in appropriate manner. It interpreted the regulations that are set out in relation to domestic violence in isolation.
Migration regulation requires a tribunal member to come to a conclusion based on & weighting on the information & evidences provided to it. However, the Tribunal failed to do so.
Particulars
Tribunal breached various sections of migration act in discharging its power.
(a)Tribunal did not provide complete account of the hearing & the information recorded in the decision is incorrect & incomplete.
I attended the hearing on 18 May 2004 to give evidences of my claims. The details provided in the record of its decision contain information that did not occur. Tribunal did not explained anything re: the criteria to the visa application as the member has claimed in his record of the decision. Tribunal member offended me at various occasions & did not let me answer the questions as I wanted to. I had provided great deal of details of the specific incidents than it is recoded on the decision. For that reason, I repeatedly requested tribunal to provide tape of the hearing, which I was willing to produce as an evidence of the illegal act of the member. But, Tribunal claims that it was not recorded. I believe that the hearing was recorded but it was deleted for clearly understandable reasons. Moreover, in arriving at its conclusion, Tribunal did not mention and did not take into account of my oral evidences. This is breach of law.
(b)Tribunal’s denial of accepting the competent person’s evidence is against the letter & spirit of the applicable regulation of migration act.
I supplied 4 important pieces of written evidences in support of my claims in addition to my oral evidences.
i)Statutory Declaration by me outlining the domestic violence caused to me by my wife;
ii)Statutory declaration as a competent person from Dr Gordon Lee (medical Doctor) which was signed in front of Mrs Anita Dunn;
iii)Psychological assessment report from Dr Salu Dean in relation to the domestic violence; and
iv)Statutory declaration as a competent person from Dr Salu Dean, a Psychologist, signed in front of Dr GC Sekar
The information provided in the above 4 documents were sufficient enough to come into conclusion that the domestic violence occurred. Member argued in his decision that the statutory declaration from both competent person was not in valid format & did not contains detailed information.
Member’s argument does not carry any weight. I am a general person & almost unknown about Australian legal system & requirements for visa. I was put in complete dark as a sex slave when I was with my wife. After escape from my wife’s custody, I was mentally depressed & unable to make judgment on any of the legal documents. I took the forms to the doctor. Whatever doctor provided to me, I submitted to the Tribunal.
The member at the end of paragraph 83 of its decision has acknowledged, “… it may be that the visa applicant has been let down by his migration agent in this regard …”.
Migration review tribunal should have to consider all the aspects of my claims, mental & physical condition & my psychological state before making its decision. The decision lacks such consideration.
Statutory Declaration provided by Dr Dean as a competent person was in accordance with the required regulation for the following reasons:
i)Dr Dean is a psychologist which fall under the category prescribed to be a competent person
ii)The declaration was witnessed by a medical practitioner which fall under the person eligible to witness the declaration
iii)The declaration together with the assessment report contains conclusion & the basis and evidences of arriving at the conclusion
On 15 May 2004 Dr Dean prepared detailed assessment report about my physical & Psychological state. It is a standard report, according to him, that he normally prepares for his patience. On my request he made statutory declaration on 23.05.2004.
Dr Dean’s statutory declaration outlined from page 104 to 105 should not be looked in isolation. It should be looked together with his assessment report outlined from page 93 to 96 of the green book.
In his report he has summarized my case history & came into conclusion that:
·I was suffering from Generalized Anxiety Disorder (he has provided reasons as to his assessment)
·There was psychological damages
·I was a victim of domestic violence & mental torture from Wendy Pandey
·I was suffering from a great deal of psychological problems and I should be allowed to remain in Australia otherwise I would suffer from further psychological problems
Dr Dean provided brief information on the statutory declaration from assuming a competent officer looking after the case will give due regard to the detailed information provided is the assessment report. However, the tribunal member failed to consider my important document in arriving its decision.
Tribunal’s job was to find facts about my domestic violence claim by considering & weighting all the available evidences provided to it. But it failed to do so. That’s why the member breached the power granted to him by migration act.
2.I was denied fair hearing
Particulars
I was not explained in details about the purpose & procedure of the hearing. Tribunal did not explained the visa criteria to me. The claim made on the record of the decision, page 123 of the green book is completely incorrect.
I was not given enough opportunity to explain the incident in details. I was stopped time to time & I was offended in various ways by the member of the tribunal.
I attempted to acquire the hearing tape, but they repeatedly replied that there was no record of the hearing. I believe that there was a record but the record was deleted or not provided to me for obvious & understandable reasons.
All these are the evidences of unfair hearing.
3. I was denied Natural Justice
Particulars
Tribunal member completely relied upon the form of the evidences I provided than the substance of the documents & incidents. I was a person with severe depression from my wife’s activities & behavior. The medical report provided to it is evidence of my claim. The tribunal’s job was to establish whether I suffered from domestic violence or not. Tribunal did not reject my claim that I was victim of domestic violence at the hearing nor it contradicts my claims at any other occasions.
Tribunal had sufficient information to establish I was victim of domestic violence. Even the tribunal acknowledged towards the end of the paragraph 83 of its own record of decision that, “it may be that the visa applicant has been let down by his migration agent in this regard …”.
Given tribunal’s such suspicion & the psychologist report of my depression & mental stress, tribunal should have to pay due regard before making such important decision.
I came to Australia living behind all of my family member, my job & selling out all of my assets. I have left with nothing now. I accepted living with my wife as a sex slave after arriving in Australia. However, I waited up until, she physically assaulted me. After such assault it was not possible to live with her any more. So I left her. After that I was left with nothing. After that my visa was cancelled. Those were sufficient to develop mental depression & stress. After having knowledge of such incidents, Tribunal’s decision based merely on the form of the document provided is against my right to natural justice. (Errors included)
The law
In the Tribunal’s decision under the heading of “Legislation and Policy” the relevant provisions of the Regulations are produced in full (CB pp.119-121). For the purpose of review, the key criteria to be considered is that described in subclass 801.221(6) of the Regulations as follows:
Regulation 801.221(6) provides:
(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) or (2A) except that the relationship between the applicant and the sponsoring 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 sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
(ii) the applicant:
(A)has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring spouse:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Submissions
The applicant appeared self represented with the aid of a Nepali interpreter. He attended a directions hearing on 30 September 2004 and consented to Short Minutes of Order at that time requiring him to file and serve an amended application together with any evidence upon which he proposed to rely at the hearing. This order was complied with and an amended application was filed on 5 November 2004. However, the order to file and serve any written submissions prior to the hearing was not complied with.
The applicant made oral submissions during the hearing which contained a number of allegations that the Tribunal hearing was unfair in that it was not conducted in the proper format, the applicant was not told of the existence of certain documents and he considered the Tribunal member’s behaviour was unfavourable towards him. These allegations were not supported in any way by the presentation of evidence or suggestions as to the manner in which this behaviour was expressed toward the applicant. The applicant also claimed that he had sought a copy of the hearing tape but this was unavailable. When asked whether he had received formal advice from the Tribunal regarding the unavailability of the hearing tape, this was not responded to and the status and circumstances of the tape remained unclear.
Mr A McInerney of Counsel, appearing for the respondent, filed written submissions prior to the hearing and assisted the Court with details of submissions. The respondent’s solicitors filed and served a Court Book 25 August 2004 which contained the Tribunal’s decision and the relevant supporting documents.
Reasons
Counsel for the respondent noted that the applicant had tendered an email which purported to be an email from the applicant’s spouse. It was dated 16 January 2005 and was a document that has come into existence since the Tribunal’s hearing. Counsel submitted that it was not material which could have been put before the Tribunal and was therefore irrelevant to any consideration to which the Tribunal had to make. In any event, it was not a document prescribed within the relevant regulatory regime. It was submitted by Counsel that the document shed no light on any issue of domestic violence even if one were to have regard to domestic violence from a lay person’s perspective rather than that which was prescribed under the relevant Regulations. Counsel contended that the only evidence before the Court as to what occurred before the Tribunal was that contained in the Tribunal’s decision. The applicant made a complaint as to the lack of a tape of what occurred before the Tribunal. It was submitted that it was always open to the applicant, regardless of any issue as to a tape, to put evidence in the form of an affidavit as to what in fact occurred before the Tribunal and he had not done so. As to what occurred at the Tribunal hearing, Counsel directed the Court to paragraphs [26]-[29] of the Tribunal’s decision (CB p.123).
When the Tribunal was addressing the relevant questions, the qualification that dictated the process was that the Tribunal was not determining that domestic violence had in fact occurred but was limiting itself to an examination of the evidence that appeared on the face of the statutory declarations to determine whether the contents complied with the Regulations. This requirement was affirmed by the Federal Court in the matter of Meroka v Minister for Immigration & Multicultural Affairs. In that decision the Court clearly stated that it is not the role of the Tribunal to assess the credibility of the claims of domestic violence that have been made by the applicant. The role of making an assessment as to the truth or otherwise of the claim has been entrusted, through the operation of regulation 1.23, to competent persons.
Division 1.5 of the Regulations contain the special provisions relating to domestic violence. If the requirements of Division 1.5 of the Regulations are satisfied the applicant is taken to have suffered domestic violence. In Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs per Gyles, Conti and Allsop JJ at [49]:
“The correct question for the Tribunal to ask itself here is: Has there been presented the evidence called for by regs 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26?”
Then following at [50]:
“Thus, when the Tribunal is examining the statutory declarations of the alleged victim, it must ask itself the following questions:
(a) Is the statutory declaration made by the spouse of the alleged perpetrator?
(b)Does it set out the allegations of "relevant domestic violence"?
(c)Does it name the person alleged to have committed the "relevant domestic violence"?
(d)Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her, or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for or be apprehensive about the alleged victim's personal well-being or safety?”
In Cakmak, their Honours at [51]-[54] set out the method as to how the task to determine whether the contents of a statutory declaration complied with the Regulations was to be undertaken:
“We think it deflects attention from that proper expression of the task set for the Tribunal (or the Minister or delegate) to say that it is a question of law as to whether the evidence is capable of amounting to the required evidence. The differences between questions of law, fact and mixed fact and law can be difficult to rationalise: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394-98, Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305, 319-322 (per Windeyer J), Lombardo v Federal Commission of Taxation (1979) 40 FLR 208, 210-12, Nizich v Federal Commissioner of Taxation (1991) 91 ATC 4,747, 4752 and Commissioner of Taxation v Roberts (1992) 37 FCR 246, 251-52.
The Tribunal has a statutory declaration of the alleged victim. It must assess whether that is the presentation of the requisite evidence. The Tribunal does not find what underlying conduct in fact occurred by weighing the statutory declaration against the surrounding evidence. It reads and assesses whether the evidence presented to it satisfies the description called for in the delegated legislation. The extent to which that task is one of fact, one of law or one of mixed fact and law need not, for present purposes, be explored exhaustively. It suffices to refer to what was said by Gleeson CJ, Gummow J and Callinan J in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450-52, esp [24] to [28].
If a Tribunal concluded that the evidence presented did or did not satisfy the statutory description and the contrary view was the only one open, that can be characterised as an error of law: Vetter at [24] and [27], Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, 128, Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, 155, 160-61.
That does not mean, however, that where (as here) the words of the legislation are ordinary English words capable of being understood and applied by the Tribunal without resort to any process of statutory interpretation and legal reasoning, a view that the statutory declaration satisfies or does not satisfy the terms of the legislation may not be factual: Vetter, Hope v Bathurst City Council (1980) 144 CLR 1, Collector of Customs v Agfa-Gevaert Ltd 394-98, BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs [2003] FCAFC 61 at [30], NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 512, Federal Commissioner of Taxation v Broken Hill South Limited 155, Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (2001) 75 ALJR 542 at [35]. There may be room for debate between different readers of a declaration whether its contents are a presentation of the evidence that is called for. If that be so, it is not necessarily the case that there is error displayed by the Tribunal in reaching a conclusion which, on the material presented, is open. A difference of view from that of the Tribunal by the reviewing or appellate body may, nevertheless, lead to a conclusion that there has been error, which may be characterised as an error of law or an error of fact, depending on what is involved. However, error of fact or law or not, if the Tribunal has asked itself the correct question the error may well be seen to be one within jurisdiction.” (Emphasis added)
The Tribunal held a hearing on 18 May 2004 at which the applicant gave oral evidence. At the start of the Tribunal hearing the applicant submitted the following documents (CB p.122):
a)
A letter from Dr Salu Dean, Consulting Psychologist, dated
15 May 2004, addressing the applicant’s current mental state and allegations of domestic violence committed by the sponsor against the applicant.
b)
A statement by the applicant, on a Form 1040, signed on
30 March 2004, in which he outlines allegations of domestic violence perpetrated by the former sponsoring spouse.
c)A statement by Dr Gordon Lee, also dated 30 March 2004, addressing the applicant’s mental state and his allegations of domestic violence.
The claims of domestic violence were first raised at the Tribunal hearing with the submission of the various statutory declarations. The Tribunal’s response to the initial documents was recorded in the Tribunal’s decision at [26] as follows:
“As the allegations of domestic violence were raised for the very first time at the Tribunal hearing, the Tribunal took some time to consider the written documentation submitted. The Tribunal informed the visa applicant that, on a preliminary review of the documentation, the Tribunal had concerns about the evidence meeting the prescribed criteria in the Regulations. The Tribunal read out and explained the criteria to the visa applicant. Although the visa applicant initially informed the Tribunal that he was happy to rely upon the documents presented, after being informed in more detail about the role of the Tribunal and the Tribunal’s concerns about the documentation, he eventually requested 1 week in which to put in further documentation supporting his claims.” (CB p.123)
The applicant explained to the Tribunal the circumstances of obtaining the statutory declarations at relatively short notice after arriving in Sydney and discussing the issue with his migration agent, Mr Bimal Bhattarai. Based on this explanation, the Tribunal wrote to the applicant through his migration agent confirming that the applicant had one week in which to present further documentation to support his claim of domestic violence and explaining that it was unsatisfied with the nature of the initial documents submitted by the applicant. On 25 May 2004 the migration agent sent a facsimile to the Tribunal containing updated documentation including (CB pp.99-110):
a)A Form 1040 signed by Dr Gordon Lee on 25 May 2004
b)A Form 1040 signed by Dr Salu Dean dated 23 May 2004
c)A statutory declaration by the applicant concerning his claims of domestic violence signed on 25 May 2004
It was on these replacement documents that the Tribunal carried out its consideration which was reported under the heading “Analysis” together with the material contained in the Department and Tribunal files as well as the evidence given to it at the hearing.
To satisfy the criteria described in Regulation 1.26 in order to be eligible for the grant of a subclass 801 permanent visa, the applicant had to satisfy the Tribunal that each of the statutory declarations obtained from Dr Gordon Lee, General Practitioner, and Dr Salu Dean, Consultant Psychologist, met that requirement. Although the Tribunal was only assessing the second set of statutory declarations, identified above, the Tribunal was not satisfied that either of the declarations provided by Dr Lee satisfied the criteria prescribed by Regulation 1.26 for two reasons:
a)Neither of the purported statutory declarations provided by Dr Lee were statutory declarations for the purposes of the Statutory Declaration Act 1959 (Cth):
“On 30 March 2004, Dr Gordon Lee signed a Form 1040 in which he addresses the visa applicant’s allegations of domestic violence. This statement was witnessed before Mr Lumadi Pandey, the visa applicant. Consequently, the document does not meet the definition of a Statutory Declaration contained in the Statutory Declarations Act 1959 as there is no evidence that it has been signed before a ‘prescribed person’ as required by paragraph 8(b) of the Statutory Declarations Act 1959.
On 25 May 2004, Dr Gordon Lee signed another Form 1040, this time before Ms Anita Dunn. Again, there is no indication as to whether Ms Dunn is a ‘prescribed person’ for the purposes of the Statutory Declarations Act 1959. Consequently, the Tribunal finds that this declaration is not a statutory declaration for the purposes of the Migration Regulations.” (CB p.130)
b)The declarations did not contain an opinion expressed by Dr Lee that relevant domestic violence had been suffered (required by Regulation 1.26(c) and failed to set out evidence on which Dr Lee’s opinion was based, being that he expressed no opinion:
“Under the section titled ‘What conclusions have you reached’, Dr Lee states (emphasis in capital letters appear in the original statement):
NO CONCLUSIONS CAN BE REACHED.
The Form 1040 signed on 30 March 2004 uses almost identical language to reach the conclusion. Indeed, the conclusion is even briefer: the sole term ‘none’ appears under the heading ‘what conclusions have you reached?’ (CB p.130)
The Tribunal carried out a detailed analysis of the requirements of Regulation 1.26 and referred to relevant authority in its analysis. The statutory declarations provided by Dr Lee did not satisfy Regulation 1.26 and that was the only finding open to the Tribunal to make on the material before it. The consequence of that finding was that applicant did not satisfy the requirements of the Regulations and was not entitled to the grant of a Partner (Residence) (Class BS) visa. The Tribunal summarised its finding in its decision at [84] as follows:
“As the Full Court in Cakmak has emphasised, the task for the Tribunal is to ask itself whether there has been presented the evidence called for by regulations 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26. It cannot independently make any subjective assessment or judgment about the domestic violence, as Division 1.5 is exhaustive on such matters. Consequently, where there has been a failure to meet the requirements of regulation 1.26, as in this case, domestic violence is not deemed to have occurred.” (CB p.134)
The applicant filed an amended application which contained a number of details of the material that he put before the Tribunal in respect of various aspects of his claim of domestic violence. He made claims that the Tribunal did not take into account his detailed explanation of the circumstances of his situation in his marriage to the sponsor. The substantial part of these pleadings sought a merits review of the applicant’s case which would require this Court to enter into a merits review. Clearly a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]. A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of an earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could be made in the circumstances.
A merits review provides a complete rehearsal of all issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence.
The Tribunal was not satisfied with the initial statutory declarations provided in support of the applicant’s case and granted the applicant the opportunity to provide new replacement documentation. These replacement documents were tendered on the correct form (Form 1040) which had been prepared by the Department for the purposes of making statutory declarations detailing domestic violence as regulated by the provisions of the Regulations. Each of the requirements of the declaration is set out on the pre-printed form which contain an explanation as to what is required in each section of the form and a reference in the accompanying explanatory notes. The conclusions reached by Dr Lee were consistent on both forms and did not appear to be omissions or oversights regarding the requirements of the Regulations because they were not brought to the doctor’s attention. The doctor’s approach to this particular aspect of the statutory declaration was consistent on both forms.
Conclusion
The applicant in these proceedings has failed to identify any ground of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any error in its decision-making process or the procedures that the Tribunal has followed. As there is no evidence of jurisdictional error, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 July 2005
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