SAFATLI v Minister for Immigration
[2009] FMCA 1191
•15 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAFATLI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1191 |
| MIGRATION – Migration Review Tribunal – partner visa – domestic violence – statutory declarations by competent persons – whether complied with statutory requirements – whether bias. |
| Migration Act 1958 (Cth), s.360 Migration Regulations 1994, regs 1.21(1)(a), 1.23, 1.24, 1.26 Health Professions Registration Act 2005 (Vic.) |
| Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94 Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251 |
| Applicant: | HAFEZ SAFATLI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 938 of 2009 |
| Judgment of: | Riley FM |
| Hearing date: | 23 November 2009 |
| Date of Last Submission: | 23 November 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Guy Gilbert |
| Solicitors for the Applicant: | FCG Legal Pty Ltd |
| Counsel for the Respondents: | Warren S. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 24 July 2009 and amended on 9 October 2009 is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 938 of 2009
| HAFEZ SAFATLI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of the decision of the Migration Review Tribunal. The applicant was granted a temporary partner visa on 27 October 2006. On 29 October 2007, the applicant’s wife withdrew her sponsorship, saying the applicant had left the marital home on 9 October 2007. The applicant claimed that his relationship had broken down due to domestic violence perpetrated by the wife against the applicant. The applicant sought to prove that he had been the victim of domestic violence by lodging statutory declarations. The delegate and the Tribunal considered that the statutory declarations lodged by the applicant did not comply with the Migration Regulations 1994.
Ground 1
The first ground of review in the amended application filed on
9 October 2009 is:
The Tribunal erred in finding that statutory declarations of
Dr Samir Ibrahim and Dr Lester Walton and Mr. Ian Joblin did not satisfy Migration Regulations 1.23 to 1.26 because they did not set out the basis of the declarants’ competence. In doing so, the Tribunal failed to take into account relevant facts, took into account irrelevant considerations and asked itself the wrong question.
Particulars
Statutory declaration of Dr Ibrahim dated 11 July 2008.
Statutory declaration of Dr Lester Walton dated 12 March 2008.
Statutory declaration of Mr Ian Joblin dated 23 March 2009.
The Tribunal found that the statutory declarations of Dr Ibrahim and Dr Walton and Mr. Joblin were not declarations of competent persons made under regs 1.26 because they did not set out details of registration as medical practitioners or as a psychologist.
· The Tribunal failed to take into account that Dr Ibrahim: described himself as F.R.A.N.Z.C.P on the first page of his statutory declaration;
· described himself as a registered medical practitioner in his answer to Q.10; and
· completed a statutory declaration that could only completed by a competent person.
The Tribunal failed to take into account that Dr Lester Walton:
· described himself as a “Dr”;
· described himself as a “Consultant Psychiatrist”;
· described himself as a F.R.A.N.Z.C.P; and
· completed a statutory declaration that could only completed by a competent person.
The Tribunal failed to take into account that Mr. Joblin
· described himself as a “forensic psychologist”
· provided his APS registration number
· completed a statutory declaration that could only completed by a competent person.
Regulations 1.23 and 1.24 of the regulations relevantly provide that a person may prove domestic violence by lodging, among other things, two statutory declarations under reg. 1.26, provided that they are made by persons who do not fall within the one paragraph of the definition of competent persons. Regulation 1.21(1)(a) of the regulations provides that, for the purposes of Division 1.5, “competent person” means, relevantly:
i. a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners;
ii. a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists ….
Regulation 1.26 of the regulations relevantly provides that a statutory declaration under that 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.
The applicant in the present case sought to rely on statutory declarations made by Dr Walton, Dr Ibrahim and Mr Joblin. Dr Walton and Dr Ibrahim were said to be medical practitioners and Mr Joblin was said to be a psychologist. Accordingly, Dr Walton and Dr Ibrahim fell within the same paragraph of the definition of competent person. Accordingly, it was necessary for the applicant’s case that the statutory declaration made by Mr Joblin met the statutory requirements, but it would suffice if, in addition, either the statutory declaration of
Dr Walton or the statutory declaration of Dr Ibrahim met the statutory requirements.
Mr Joblin completed a statutory declaration on a form 1040. In the section headed, “Details of the person making the statutory declaration”, Mr Joblin described himself as a “Forensic Psychologist”. In the section which directed persons in certain categories to complete certain parts of the form, Mr Joblin ticked a box indicating that he was a competent person.
Question 10 on the form is as follows:
What occupational group of competent persons do you belong to?
(Competent persons are prescribed in the Migration Regulations, as outlined on page 3 of the guidelines on the front of this form.)
Please attach to this form evidence that you meet the prescribed definition of a competent person (eg evidence that you are a member of the Australian Association of Social Workers; evidence that you are a registered nurse and that you are currently employed as a registered nurse.)
Mr Joblin’s response to that question was:
Forensic Psychologist – APS Registration Number 596 from June 1977
The Tribunal said at paragraphs 88 to 90 of its reasons for decision that:
88. … The statutory declaration sets out the basis of [Mr Joblin’s] claim to be a competent person for the purposes of Division 1.5. In particular, it states the registration number and authority and shows at what date Dr Ian Joblin was a ‘Forensic Psychologist’.
89.However, no objective evidence was provided to show that he is a person registered as a Psychologist under a law of a State or Territory providing for the registration of Psychologists. …
90.The Tribunal finds that the statutory declaration of Dr Ian Joblin does not meet the requirement to demonstrate that he is a person registered as a psychologist under a law of a State or Territory providing for the registration of Psychologists.
I do not consider that it was necessary for Mr Joblin to provide objective evidence that he is a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists. The request in the form for the competent person to attach evidence showing that he or she meets the definition of competent persons goes beyond the requirements of the regulations. It is enough that the competent person states, in his or her statutory declaration, the basis of his or her claim to be a competent person.
That could be done by stating in the statutory declaration, for example, “I am a psychologist registered as a psychologist under a law of the State of Victoria providing for the registration of psychologists.” A similar formulation appears to have been considered acceptable in the Full Federal Court’s decision in Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94 at [15], albeit in relation to the somewhat different requirements for social workers. Alternatively, the competent person could state, in answer to question 10 on the form, “psychologist registered under the Health Professions Registration Act 2005 (Vic.)”
However, Mr Joblin did not say, in terms, either of those things. He said he had an APS registration number. I understand APS in this context to mean the Australian Psychological Society.
The applicant’s counsel said from the bar table that one needed to be registered as a psychologist under a law of a State or Territory to be registered with the APS. The first respondent’s counsel said from the bar table that he had checked the APS website and that had shown that people who were not registered as psychologists under a law of a State or Territory providing for the registration of psychologists could be eligible for membership of the APS.
One way or another, there was no admissible evidence before this court that having an APS registration number necessarily means that a person is registered as a psychologist under a law of a State or Territory providing for the registration of psychologists. It also appears that there was no such evidence before the Tribunal.
The applicant argued that the fact that Mr Joblin had ticked the box indicating that he was a competent person should be taken as a declaration that he was a competent person and that this was enough to satisfy the regulations. I do not accept that submission. The regulations clearly require any person who claims to be a competent person to state the basis for the claim.
In all the circumstances, I can only conclude that Mr Joblin did not state the basis of his claim to be a competent person. Accordingly, his statutory declaration did not meet the requirements of the regulations. The Tribunal was correct to deal with the matter on that basis.[1]
[1] I mention in passing that, historically, in Victoria at least, it is well known that many people have held themselves out to be psychologists when they have had no formal training and have no qualifications in the area.
That being so, it can make no difference whether the statutory declaration made by either Dr Walton or Dr Ibrahim met the requirements of the regulations. The application must be dismissed. For completeness, however, I will deal with grounds 2 and 4 in relation to Mr Joblin’s statutory declaration.
Ground 2
The second ground of review in the amended application filed on
9 October 2009 is:
The Tribunal erred in going beyond asking itself whether the evidence in each competent person’s declarations was capable of supporting that competent person’s opinion that relevant domestic violence had been committed for the purposes of Migration Regulation 1.26. In doing so, the Tribunal failed to take into account relevant facts, took into account irrelevant considerations and asked itself the wrong question.
Particulars
Statutory declaration of Dr Ibrahim dated 11 July 2008.
Statutory declaration of Dr Walton dated 12 March 2008.
Statutory declaration of Mr Ian Joblin dated 23 March 2009.
The Tribunal found that Dr Ibrahim, Dr Walton and Mr. Joblin had not stated explicitly or to the effect that they had formed the opinion that the applicant had been the victim of relevant domestic violence.
On the evidence in the three statutory declarations, the Tribunal should have been satisfied that the competent person had stated that the applicant had suffered relevant domestic violence.
Instead, the Tribunal went beyond the task required and looked at the reasoning of the experts, rather than their conclusions.
Regulation 1.26(c) provides that a statutory declaration under that regulation:
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 ….
Regulation 1.23(2)(b) provides that:
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 be apprehensive about, the alleged victim’s personal well-being or safety.
It was held in Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251 that where a statutory declaration was provided on the standard form, which contained a statement of the definition of relevant domestic violence, an opinion that a person had suffered domestic violence incorporated by implication an opinion that the person had suffered relevant domestic violence. The statutory declarations in the present case were made on the standard form.
Mr Joblin said in his statutory declaration that the applicant reported problems to him including:
a)the applicant’s wife would turn up the volume on the television or slam doors or windows when he was trying to sleep;
b)the applicant’s wife would not visit the applicant’s brother;
c)the applicant’s wife would only participate in sexual activity if he complied with all her wishes;
d)the applicant’s wife would say that the applicant had to do what she wanted or:
i)she would have him returned to Lebanon; or
ii)she would call the police and say the applicant had physically assaulted her;
e)the applicant’s wife boasted to her friends that she could make the applicant do what she wanted.
Mr Joblin said in his statutory declaration that the applicant presented very well and there was no evidence of any profound or chronic psychological abnormality. Mr Joblin said that the applicant was obviously somewhat distressed over the problems he had had with his wife. Distress in relation to marital problems is obviously not synonymous with fear or apprehension about one’s personal well-being or safety.
Mr Joblin said that the applicant acknowledged that his difficulties with his wife had impacted on his psychological state to the point where he avoided going home. That was a statement of the applicant’s opinion rather than Mr Joblin’s.
Mr Joblin said that the difficulties relating to the applicant’s marriage had “caused significant issues at the time”. Mr Joblin did not state what those issues were. Mr Joblin said that, “The psychological state he demonstrated during his marriage did not become chronic and should not, therefore, recur.” Mr Joblin did not state what the applicant’s psychological state was during the marriage, except perhaps when he stated that the applicant was acquiescent, compliant and weak. That does not amount to an opinion that the applicant suffered relevant domestic violence.
There is nothing in Mr Joblin’s statutory declaration that amounts to an express or implied opinion that the applicant suffered relevant domestic violence perpetrated by his wife. The thrust of Mr Joblin’s statutory declaration seems to be that the applicant is free of any psychological problems and that he would contribute usefully to Australian society. Accordingly, Mr Joblin’s statutory declaration does not contain the opinion required to meet the requirements of the regulations.
Ground 3
The third ground of review is:
The Tribunal erred in concluding that the Dr Ibrahim and Dr Walton had not applied the correct test for ‘domestic violence’. In doing so, the Tribunal failed to take into account relevant facts and asked itself the wrong question.
Particulars
Statutory declaration of Dr Ibrahim dated 11 July 2008.
Statutory declaration of Dr Walton dated 12 March 2008.
Form 1040, “Statutory declaration relation to domestic violence” to be used for visa applications lodged before 15 October 2007.
The Tribunal failed to take into account that Dr Ibrahim and Dr Walton provided opinions on the relevant question by completing a form which had the relevant test set out in it..
In view of my conclusions about Mr Joblin’s statutory declaration, it is unnecessary to consider this ground.
Ground 4
The fourth ground of review is:
The Tribunal acted in breach of s.360 of the Migration Act and/or took into account irrelevant considerations and/or conducted itself in a way that created a reasonable apprehension of bias.
Particulars
The Tribunal questioned the applicant at the hearing about the factual foundation for his claim to have suffered relevant domestic violence
Paragraph 42 of the Tribunal’s reasons for decision shows that the Tribunal did question the applicant about whether he was in fear of his wife. The applicant eventually said, when asked whether his wife had hit him, that she had waved a knife at him in the kitchen and said she could kill him. The applicant acknowledged that he had not made this claim to any of the competent persons who had made statutory declarations on his behalf.
The Tribunal said at paragraph 47 of its reasons for decision that:
The Tribunal advised the agent that it did not accept that the visa applicant was in any fear of his wife, and it did not accept that he was threatened with a knife by his wife.
The applicant argued that, having made a strong adverse finding following an impermissible enquiry, a fair-minded lay observer would reasonably conclude that the Tribunal did not approach its task with an open mind, but was predisposed to find fault with the statutory declarations. The applicant conceded that the bias ground would not overcome the technical difficulty addressed in ground 1, if the court considered that to be fatal to the application.
I consider that the bias ground does not overcome the difficulty identified under ground 2 either. Mr Joblin did not expressly or impliedly give an opinion that the applicant had suffered relevant domestic violence. Whether one might reasonably apprehend that the Tribunal was biased would not alter that situation.
Having said that, it must be emphasised that, where an applicant relies on the statutory declarations of competent persons, it is not the Tribunal’s task to decide for itself whether a person has suffered relevant domestic violence. The Tribunal’s task is simply to assess whether the statutory declarations satisfy the requirements of the regulations. By unnecessarily embarking on an examination of the underlying issues, and by stating its conclusions in relation to at least some of them, the Tribunal virtually invited a claim of apprehended bias.
However, it is not entirely clear at what point in the proceedings the Tribunal made the comment set out at paragraph 47 of its reasons for decision, but it appears to have been at the end of the hearing. The Tribunal apparently had the statutory declarations prior to the hearing. It was entitled to consider them and to form a preliminary view about them. At the end of the hearing, if the Tribunal had delivered an oral decision, as courts frequently do, that would not have been an indication of bias. If the Tribunal had made up its mind at the end of the hearing, but deferred delivering reasons, it would not necessarily lead to a reasonable apprehension of bias for the Tribunal to say what some of its findings would be. In the absence of a transcript showing the point at which the Tribunal made the impugned comment, I am not persuaded that the circumstances of this case give rise to a reasonable apprehension of bias.
I do not consider that the Tribunal breached s.360 of the Migration Act 1958. The Tribunal gave a hearing, as it was obliged to do. The fact that the tribunal delved into issues that it should not have enquired into does not alter that situation.
I do not consider that the Tribunal, in making its findings about Mr Joblin’s statutory declaration, took into account irrelevant considerations. The deficiencies in Mr Joblin’s statutory declaration were not affected by the Tribunal questioning the applicant about his experiences.
Conclusion
For these reasons, the application must be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 15 December 2009
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