Silva v Minister for Immigration
[2007] FMCA 1955
•23 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SILVA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1955 |
| MIGRATION – Visa – domestic violence – independent expert. |
| Migration Regulations 1994 regs.1.21, 1.23(1)(g), 1.23(2)(b) |
| Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 |
| Applicant: | JOSEPH RASHMI SILVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 282 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 8 August 2007 |
| Date of last submission: | 8 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sabelberg |
| Solicitors for the Applicant: | Frank Sabelberg Lawyers |
| Counsel for the First Respondent: | Mr Palmer |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That a writ of Certiorari issue quashing the decision of the second respondent made on 31 January 2007.
That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.
The Respondent shall pay the costs of the Applicant fixed at $5,000 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 282 of 2007
| JOSEPH RASHMI SILVA |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal of 31 January 2007. The applicant had sought a spouse visa in reliance upon the domestic violence provisions of the visa category.
The applicant's application was refused by the delegate on 10 February 2005. It was first reviewed by the Migration Review Tribunal on 4 January 2006. However, this decision was set aside and the matter remitted by consent on 3 February 2006, as a result of the previous tribunal failing to consider whether or not the expert who provided an opinion was in fact an independent expert within the meaning of reg.1.21 of the Migration Regulations 1994.
The tribunal heard and determined the matter again, providing a decision on 31 January 2007, affirming the decision of the delegate.
The statutory scheme for applications of this type provides for the tribunal to make an initial assessment as to whether or not they accept the claims of domestic violence, and - if they do not - to obtain the advice of an independent expert within the meaning of reg.1.21, which is what occurred in this case. The opinion of the independent expert must accepted by the tribunal member (see reg.1.23(1)(g)). The opinion of the expert in this case is in the following terms:
The alleged victim has not suffered relevant domestic violence (as defined in regulation 1.23(2)(b) of the Migration Regulations 1994) committed by the alleged perpetrator (identified above).
Reasons, referring to evidence this assessment is based upon:
It is considered that Mr Silva had experienced some incidents of domestic violence committed by his wife. However, it was not established that he has fear for his safety and wellbeing as a result of the domestic violence. This is because -
· he has not taken any steps to protect himself, such as avoiding any contact with his wife;
· he was initiating contact with her, on his own, despite previous incidents; and
· he had reconciled with her on several occasions.
This opinion is based upon the evidence available at the time of assessment. If relevant new evidence is submitted before the application is finally determined, this opinion can be reconsidered (use part C of this form).
In the material recounted by the expert before the formal opinion, the expert examines the relationship between the applicant and his former partner and gives a lengthy history of the claimed domestic violence. The history includes seven claimed incidents of domestic violence between July 2004 and 26 November 2004. It is said that there was one occasion when the applicant saw a doctor and two occasions when the police were involved.
The doctor's attendance was on the first occasion. However, the applicant said that he did not tell the doctor what had occurred and that he forgave his wife and they continued living together.
On the second occasion, he had confronted his wife after having seen her in bed with another man the night before, wherein she threatened him and he obtained an interim intervention order. However, that order was discharged at the hearing.
In October of 2004, another incident occurred where she is alleged to have assaulted him as a result of becoming angry during a confrontation about whether she had been seeing other men.
It appears that arguments of this type were the source of a number of incidents thereafter. Ultimately, on 26 November 2004, he visited his wife at her parents' home at a time when she had two male friends with her and they were all drinking and smoking. He was attempting to obtain his car which she was using. He says that she tried to stop him by jumping on the bonnet, and her friends physically assaulted him. Two police from the local police station attended but no charges were laid, and he did not obtain the motor vehicle.
The expert recounts, under the heading ‘Alleged Victim's Fears for Safety and Wellbeing’, that the applicant had said that his wife had made threats to kill him and that he believed that she was capable of carrying out the threat because she had friends who were involved in drugs who would do anything for money. The expert also recounts:
His comment that he has current fears for his safety contradicts with his earlier comments that he is still in contact with his wife now and taking telephone calls from her.
In considering support services provided, the expert says:
Mr Silva had applied twice for an intervention order against his wife, on 19 August 2004 and 14 December 2004, and both applications had been struck out at the hearings. He said he has not made any further applications for an intervention order.
The expert interviewed Mr Silva as part of the process, as well as one of Mr Silva's experts who had provided a statutory declaration as a competent person under reg.1.21. She also considered the second statutory declaration provided by the applicant and a letter from a psychiatrist provided by the applicant.
The grounds of the application are, effectively:
a)that the expert applied the wrong test;
b)that the expert failed to deal with or consider the case presented by the applicant;
c)that the expert was not an ‘independent expert’ within the meaning of the regulations.
Ground (a): That the expert applied the wrong test
In support of ground (a), the applicant in his contentions did not clearly articulate the argument relied upon, beyond an attempted merits review of the opinion of the expert. At the hearing, this was developed into a claim that the expert had confined considerations to events prior to 26 November 2004 - the last incident - and that her reasons therefore did not relate to the current state of mind of the applicant.
In order to deal with this claim, it is first appropriate to consider the meaning of the relevant regulation. Reg.1.23(2)(b) is in the following terms:
1.23 When is a person taken to have suffered or committed family violence?
…
(2) …
(b) a reference to relevant family violence is a reference to conduct, whether actual or threatened, towards:
(i) the alleged victim; or
(ii) a member of the family unit of the alleged victim; or
(iii) a member of the family unit of the alleged perpetrator; or
(iv) the property of the alleged victim; or
(v) the property of a member of the family unit of the alleged victim; or
(vi) the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
The Full Court considered the meaning of this regulation in Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56 where Branson J said:
[24] As mentioned above, Division 1.5 of Part 1 of the Regulations is headed ‘Special provisions relating to domestic violence’. Domestic violence, understood as I think that it must be as a term of art, will ordinarily involve an abuse of power by one of the partners to a domestic relationship. Because of the general understanding in Australia of the nature of domestic violence (see [14]-[16] above), in the context of an Australian regulation concerning domestic violence it might be expected that the noun ‘violence’ would be intended to encompass more than physical violence. This expectation in respect of the use of the noun in regulation 1.23(2)(b) is confirmed, in my view, by the fact that the violence to which regulation 1.23(2)(b) refers is violence that causes, relevantly, the alleged victim to fear for, or be apprehensive about, his or her ‘personal well-being or safety’. While the intended content of the word ‘safety’ in the context may be open to debate, I do not think that it is open to be seriously contested that an individual’s ‘personal well-being’ is generally understood to encompass his or her psychological health. If the violence referred to in regulation 1.23(2)(b) were intended to be limited to physical violence, it may be doubted that the reference to ‘personal well-being’ was necessary; the reference to ‘safety’ would appear to be all that was required.
…
[27] I conclude that the better view of the true meaning of reg 1.23(2)(b) is that the ‘violence’ there referred to is not restricted to physical violence. It seems to me that this conclusion accords with notions of fairness and with what may be assumed to be the policy lying behind reg 1.23(1)(g). Without wishing in any way to diminish the horror of physical violence, it seems unlikely, in my view, that it was intended that while a person who had experienced an act of physical violence at the hands of his or her spouse might be able to bring himself or herself within reg 1.23(1)(g), a person who had suffered the psychological violence of, for example, being compelled by non-physical means to be complicit in the sexual abuse of a child would necessarily fall outside the regulation.
Hely J came to the same conclusion, stating:
[58] The reason for the concession made by the minister’s representatives in these cases does not appear. A possible explanation is that the general topic of ‘domestic violence’ has been the subject of public discussion and research in recent years in a context which treats the notion of ‘domestic violence’ as not confined to actual or threatened physical violence. In the brief delivered by the Commonwealth Government’s Office of the Status of Women (OSW) to Access Economics Pty Ltd in 2004 to estimate the costs of domestic violence to the Australian economy, the definition of domestic violence employed (appearing below) was that which was said to accord with the most common understanding of domestic violence:
2.1 Definition of Domestic Violence
The brief for this study defines domestic violence (DV) as follows.
‘Domestic violence occurs when one partner attempts by physical or psychological means to dominate and control the other. Domestic violence takes a number of forms. The most commonly acknowledged forms of domestic violence are: physical and sexual violence; threats and intimidation; emotional and social abuse; and financial deprivation. Domestic violence can involve a continuum of controlling behaviour and violence, which can occur over a number of years, before and after separation.’
The definition in the OSW project brief accords with the most common definition identified in the studies reviewed by Laing and Bobic (2002).
DV comprises a range of behaviours of differing degrees of severity, duration and outcome.
‘The definitions throughout Australian literature reflect a contemporary recognition that violence, whether defined as domestic or family includes a range of violent behaviours: physical violence, sexual, verbal, psychological and emotional abuse, as well as social isolation and economic or financial abuse’ (Laing and Bobic, p 14).
[59] The OSW definition is consistent with the description of domestic violence agreed to by the Heads of Government at the National Domestic Violence summit held in 1997 according to a communiqué issued on 7 November 1997:
This statement of principles comes from the combined policy and practice experience of governments, services, police, judiciary, researchers and community in dealing with domestic violence over the last two decades. It is an expression of consensus by the Heads of Government of Australia.
Context
Domestic violence is widespread and complex. It is a major issue affecting the social, emotional, physical and financial wellbeing of individuals and families and resulting in significant social and economic costs to the community.
Children often witness domestic violence and are profoundly affected by this experience.
Domestic violence is an abuse of power perpetrated mainly (but not only) by men against women both in a relationship or after separation.
Domestic violence takes a number of forms, both physical and psychological. The commonly acknowledged forms of domestic violence are physical and sexual violence, emotional and social abuse and economic deprivation.
Domestic violence occurs across all groups, cultures and creeds.
Domestic violence often occurs and recurs in a pattern which affects the lives of women, men and children. Violence can continue from one generation to the next.
Principles
· All individuals have the right to be free from violence.
· All forms of domestic violence are unacceptable in any group, culture and creed.
· Many forms of domestic violence are against the law. Acts of domestic violence that constitute a criminal offence must be dealt with as such.
· The safety and wellbeing of those subjected to domestic violence must be the first priority of any response.
Those who commit domestic violence must be held accountable for their behaviour.
The community has a responsibility to work toward the prevention of domestic violence and to demonstrate the unacceptability of all forms of domestic violence.
...
[84] However, the denotation of the expression ‘domestic violence’ is not the critical matter in the resolution of this appeal. The critical matter is the meaning of the words ‘violence against the alleged victim’ in the particular context of reg 1.23(1)(g). If the appellant produces evidence that his spouse has committed violence against him that causes him to be apprehensive about his personal well-being or safety, then he has suffered, and his wife has committed, relevant domestic violence in terms of reg 1.23(1)(g). The consequence is that the appellant is taken to have suffered, and his wife to have committed, domestic violence in terms of regs 1.23(1) and 1.22. When that occurs, the appellant is taken to have suffered, and his wife to have committed domestic violence, whatever may be the ordinary meaning of that term.
[85] ‘Violence’ is an ordinary word. Cakmak decides that in the context of the regulations, ‘violence’ requires the application, or the threat of the application of physical force, because this is the primary sense in which the word is used, and because there are pointers in the regulations to indicate that the primary sense was intended by the drafter.
[86] That is not to say that there are no indicators in the regulations which might be thought to point in a different direction, as, for example the inclusion of psychologists in the range of competent persons, and the inclusion of ‘personal well-being’ of the alleged victim in reg 1.23(2)(b), as well as his or her safety.
[87] The definition is couched in terms of violence (or the threat of violence) against the alleged victim, or his or her property, which suggests that violence is used in its primary sense of physical force. It would have been a simple drafting matter to give the regulation a broader reach. Had the regulation been couched in terms of conduct towards the alleged victim, then it would have encompassed intimidatory threats made to the alleged victim provided they engendered the requisite fear or apprehension in the alleged victim about his or her personal well-being or safety, however, that is not the course which the drafter adopted.
[88] I am not satisfied that the meaning which the Full Court ascribed to ‘violence’ in the relevant regulation is so clearly wrong that I should not follow it. The language of the regulation is ambiguous, and while the construction advanced by the Full Court is not the only available construction, it is at least an available construction which derives some support from some indicators in the regulations. In these circumstances the controversy as to the denotation of the term ‘violence’ should be regarded as settled by the decision in Cakmak.
Whilst Hely J felt constrained to follow the previous decision of the Full Court in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183, it is apparent from his reasons that there are strong reasons for the Full Court reaching the contrary view. Marshall J agreed with Branson J. As a result, the decision of Branson J is a binding authority in this court.
A further consideration that is required in this case is the temporal connection that may be required between the fear or apprehension referred to in the regulation and the act of violence. I note that the regulation does not refer to the act of violence being one that ‘caused’ fear or apprehension but one that ‘causes’ the person ‘to fear for or be apprehensive about their personal wellbeing or safety.’
The fear or apprehension required by the provision is not a fear or apprehension limited to the moment of the event, but an ongoing fear or apprehension. However, that fear may not be present in situations where the victim of domestic violence is not in the proximity of, or in a relationship with, the perpetrator. Having regard to the nature of domestic violence, the section must contemplate a fear or apprehension about the victim's personal wellbeing or safety if in the proximity of, or continuing a relationship with, the perpetrator.
Therefore, the expert was required to consider whether or not the applicant was fearful for, or apprehensive about, his personal wellbeing or safety (as a result of an act of violence) if he were to be in the proximity of, or in a relationship with, his former spouse. The importance of the part of the definition with respect to apprehension is clear if one considers the insidious nature of domestically violent relationships where victims often do not leave the relationship soon after the domestic violence, and even reconcile with a violent spouse after periods of separation. The explanation of such cases does not require that violence be ignored or disbelieved, rather that the events be seen in the context of the disempowerment of the victim.
For the reasons given, the expert was of the view that the applicant had not established that he was fearful for his personal wellbeing or safety, relying upon the various interactions between him and his spouse. However, the expert did not address ‘apprehension’. This omission is considered under the next ground.
Ground (b) - That the expert failed to deal with or consider the case presented by the applicant
Whilst it was argued that the history of reconciliations was irrelevant and should not have been taken into account by the expert, the history of reconciliations is an integral part of the factual matrix in a case such as this and could not be considered irrelevant. However, it is also important to acknowledge that in many cases of domestic violence, partners do reconcile or fail to separate and that this, of itself, is not conclusive of a finding that there is or is not domestic violence being perpetrated. Indeed, this is one of the common aspects of domestically‑violent relationships that makes fact‑finding about issues of domestic violence very difficult in some cases.
Whilst not set out on the expert opinion page of the material from the expert, it is clear that she did have regard to the fact that the applicant still has telephone contact with his wife, even at the time of the interview for the opinion, a time well after the last event that is recounted.
It does not appear to me that it could be said that the relevant material was not provided to the expert; nor that the expert did not have regard to the relevant material that was available.
The domestic violence provisions of the spouse visa rules are an exception to the usual rule that if the matrimonial relationship does not survive for the requisite period then there should not be a spouse visa granted. Not every relationship that ends in arguments and separation can be said to involve domestic violence. If the applicant was not fearful for his wellbeing as a result of the domestic violence but unable to continue in the relationship as the nature of the relationship was otherwise intolerable, it is outside the terms of the regulation.
The difficulty in this case is that the situation is one where it is accepted that there have been a number of incidents of physical violence which one would have thought would cause an ordinary person to be apprehensive about their personal safety or wellbeing in the relationship.
In this case, the expert addressed whether the applicant feared for his safety. She has not addressed ‘apprehension’.
I am mindful of what the High Court said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259:
[31] ... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
It is appropriate to apply the principle to the opinion of the expert in this case. In many cases the reference to safety, without mention of apprehension, may be sufficient. However, it appears that the facts of this case called for consideration of ‘apprehension’, given that there were incidents of actual domestic violence that were accepted by the expert.
In the context of the complex factual matrix of this case, bearing in mind the central role power imbalances play in domestic violence, specific consideration of whether the applicant was ‘apprehensive’ was required. As a result I find that the expert failed to consider the case as put by the applicant. Where the opinion fails to address the matters that were required to be considered it is not an opinion within the meaning of the regulations, and as such reliance upon it by the decision maker amounts to jurisdictional error: see Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115.
I therefore find that this ground is made out.
Ground (c): That the expert was not an independent expert’ within the meaning of the regulations
The definition of ‘independent expert’ is set out in reg.1.21 as follows:
independent expert means a person who:
(a) is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence; and
(b) is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of domestic violence.
The definition provided for in the regulations for ‘competent persons’ to provide statutory declarations is also provided in reg.1.21 in these terms:
competent person means:
(a) in relation to domestic violence committed against an adult:
(i) a person registered as a medical practitioner under a law 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.
I do not accept the proposition that an independent expert, as defined under reg.1.21, must hold at least the qualifications of a competent person, as defined under that regulation. There is no warrant for reading into the definition of ‘independent expert’ the qualifications of a ‘competent person.’
There is no suggestion in this case that the independent expert was not an employee of an organisation nominated by the first respondent in the government gazette. The particular qualifications were described by the tribunal as follows:
69. On 9 October 2006 the Tribunal sought advice from Centrelink on the qualifications and employment status of the person who had provided the expert opinion. On 10 October 2006 the Tribunal was advised by Centrelink that the person who provided the opinion holds a Bachelor of Social Work qualification from Monash University, has 20 years experience as a social work, and was employed as a Senior Social Worker by Centrelink at the time she gave the opinion.
The tribunal considered the question of expertise and made a finding that it was satisfied that the person who gave the opinion was suitably qualified and employed by an organisation that is specified in a gazette notice for the definition for the purpose of making such an assessment (see para.71). On the evidence before the tribunal, this finding was open.
In the circumstances, I find no error on the part of the tribunal on this ground.
As jurisdictional error has been established, it is appropriate to issue writs of certiorari and mandamus.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: Friday, 23 November 2007
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