Singh v Minister for Immigration
[2005] FMCA 1250
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION | [2005] FMCA 1250 |
| MIGRATION – Review of decision of Migration Review Tribunal – Spousal Visa application – domestic violence – statutory declarations in support – contents of statutory declarations. MIGRATION – Review of decision of Migration Review Tribunal – breach of principles of procedural fairness – failure to consider additional material – discretion to refuse to grant relief – application bound to fail on issue unrelated to additional material. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), regs 1.22, 1.23, 1.24, 1.25, 1.26, 1.27 |
| Alin v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 979 Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 Cakmak vMinister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 558 (10 December 2004) Du v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1115 Ex parte Applicants S134/2002 [2003] HCA 1 Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 Su v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1409 |
| Applicant: | LAKHWINDER SINGH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1450 of 2003 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 8 December 2004 16 March 2005 |
| Date of Last Submission: | 16 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kissane |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00 – such costs to be paid within 3 months.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1450 of 2003
| LAKHWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to section 39B of the Judiciary Act 1903 with respect to a decision of the Migration Review Tribunal (‘the MRT’) confirming a decision of a delegate of the respondent not to grant the applicant a Partner (Residence)(Class BS) visa. The MRT decision was made on 4 December 2003.
At issue before the MRT was whether or not the applicant was eligible for the grant of a partner visa on the basis of the domestic violence provisions contained in regulations 1.22 and 1.26 of the Migration Regulations 1994. Those regulations are in the following terms:
1.22(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.
1.23(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:
…
(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;
…
(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.
1.24[Evidence] (1) The evidence referred to in paragraph 1.23 (1) (g) is:
(a) …
(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.
In this case the issues primarily concern the appropriate interpretation to be given to the Regulations in light of the statutory declarations that were provided by the applicant.
1.26[Statutory declaration by competent person] A statutory declaration under this regulation:
(a) must be made by a competent person; and
(b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; 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.
In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 the Full Court considered the meaning of violence under the regulations saying:
61 In some contexts in ordinary usage, the notion of "violent" as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone's behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. It is the plainest use of language, we think, that to "commit" or "perpetrate" violence or the threat of violence involves the act, or threat of, application of physical force. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little by way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling, expressions of contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement.
62 However, belittling, lowering self esteem, "emotional violence" or "psychological violence" and such behaviour as surrogates or synonyms for violence is, we think, to broaden the scope of the regulations beyond their words. There must be "violence", or the "threat of violence", involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety.
63 This is not a body of regulations about marriage breakdown, matrimonial cruelty or psychological or emotional harm. The difficulties sometimes expressed as to the presumptive method of proof by the regulations (Wilcox J said it was a triumph of form over substance), to a significant degree, arise consequent upon the impermissibly broad scope given to the notion of violence. If the visa must be granted if a psychologist and a social worker express views that a client has been belittled, humiliated, rejected and insulted such that emotional violence has been done to him or her and that he or she fears for his or her emotional or psychological well-being, such criticisms have force. If, however, one recognises that the regulations were directed to the social problem of violence, that is the application, or threat of application, of force by a spouse to the other or a family member, and one recognises the difficulties of proof of those kinds of allegation that can exist, one can see the aim of the provisions. The sworn evidence of responsible professionals who could give an opinion, whether, from the viewing of contemporaneous evidence or indicia or not, that there has been violence or the threat of violence committed or perpetrated to cause the relevant fear or apprehension, was seen as a satisfactory surrogate for what might be intractably difficult fact finding in the absence of court orders already dealing with the allegations.
64 As we have said, "violence" is an ordinary word and "domestic violence" is an ordinary concept. Each normally includes the exercise of physical force. There are a number of pointers in the regulations themselves to indicate that this primary sense was intended by the drafter. …
65 Reference also needs to be made to the structure of the regulations and their purpose. These regulations are obviously framed with a view to having as much objective certainty and as little room for subjective judgment as possible. This is difficult enough even when violence in the ordinary sense, and the threat of violence in the ordinary sense, is the criterion. If the criterion involves a kind of constructive violence, all manner of difficulties emerge, as illustrated by this case and by other cases to which we have been referred, particularly Meroka, and which are, as we have said, a significant underlying reason for some of the criticisms of the system made by Wilcox J in Ibrahim at [40] and [41]. In cases which do not involve physical violence to person or property, or a threat of such, the concession on behalf of the Minister means that there will always be a subjective judgment as to whether the conduct which is alleged is sufficient to reach the threshold of being domestic violence as required, unless that concept is regarded as devoid of all content.
66 The concession is also contrary to the opinion of Lindgren J in Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909 at [41], which predated Malik.
67 None of the above is intended to limit the types of facts which might permit a conclusion that violence or the threat of violence (in the sense to which we have referred) was committed or perpetrated. Belittlement and expressed contempt may have their place in the creation of a climate of fear. But we reject the extension of "violence" to encompass "emotional" and "psychological" violence as the subject of these regulations, in the absence of the application, or threat of application, of physical force.
Special leave to appeal was refused by the High Court: Cakmak vMinister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 558 (10 December 2004).
Admissibility of statutory declarations
A preliminary point arises as a result of regulation 1.27 of the Migration Regulations. This regulation provides as follows:
1.27 [Statutory declaration or statement not admissible in evidence] A statutory declaration made under regulation 1.25 or 1.26, or an opinion of an independent expert mentioned in paragraph 1.23 (1b) (b), is not admissible in evidence before a court or tribunal otherwise than in:
(a)an application for judicial review or merits review of a decision to refuse to grant a visa the application for which included the non-judicially determined claim of domestic violence to which the statutory declaration or opinion relates; or
(b)a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959 .
Whilst the provisions of the Migration Act which require the transmission of the relevant file and documents to the MRT would clearly override the effect of this regulation for the purpose of the MRT hearing, there are no corresponding provisions for the purpose of judicial review proceedings. There is, therefore, nothing in the Migration Act or Regulations to override the clear prohibition in regulation 1.27 to the admission of the statutory declarations in evidence before me.
If the regulation is correct it results in the court being left in a position of being unable to properly fulfil its functions under the constitution with respect to judicial review proceedings. I considered this matter and adopted the course of issuing a prerogative writ of certiorari in order to remove the proceedings from the MRT into this court, so as to then be able to determine whether or not a writ of mandamus ought to issue requiring the MRT to consider the matter again. It appears to me that the writ of certiorari has the effect of placing the proceedings before the MRT in this court, and as such regulation 1.27 would no longer prohibit the court reviewing the relevant statutory declarations.
Jurisdictional error
The evidence before the court is that the applicant provided a statutory declaration by himself dated 8 October 2003 and a statutory declaration by Chandralekha Krishnamurthi also made on 8 October 2003 to the MRT. It is apparent from a review of the court book and the decision that the MRT did not consider the terms of these affidavits. The applicant says in his affidavit that he delivered the statutory declarations to the MRT. His Migration Agent swears to the fact that he prepared a covering letter for the declarations, which he provided to the applicant for delivery to the MRT.
An officer of the Department swore an affidavit to the effect that a search of the Departmental offices failed to locate the material, and generally as to the procedures in the office.
Ultimately, I accept that the documents were forwarded to the MRT but not considered by them. This shows a jurisdictional error, in that potentially important documents (in this case statutory declarations relevant under the regulations) were not considered by the MRT.
A denial of procedural fairness made in excess of jurisdiction is a matter which gives rise to a right to judicial review: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57. However, the remedy remains a discretionary one, as stated by the High Court in Aala’s case.
Discretion to provide relief
The applicant submits that the remedy is discretionary referring to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 and Ex parte Applicants S134/2002 [2003] HCA 1 at paragraph 90. I must determine whether it was impossible for the applicant to succeed before the MRT, if it had considered the further statutory declarations
The MRT found that the statutory declaration by Mr Kleynhans, psychologist did not fulfil the requirements of the regulations. At paragraph 26 the MRT said:
26.The visa applicant submitted a statutory declaration Form 1040, dated 4 January 2002 from Edwin (“Eddy”) Kleynhans, psychologist, who stated that the visa applicant had been the victim of domestic violence at the hands of the nominator (D1 f.80-81). An additional report dated 1 July 2002 from Edwin (“Eddy”) Kleynhans, psychologist, was submitted stating that the applicant had suffered from domestic violence (D1 f.86-92). In the report Mr Kleynhans stated that the applicant suffered psychologically because of a failed marriage to an Australia citizen. However, he did not state that the applicant was in any way fearful of his personal safety or that any form of violence had occurred. This does not meet the requirements of the Regulations.
27.In support of this statutory declaration a further statutory declaration Form 1040 dated 23 April 2002 from Chandralekha Krishnamurthi, general practitioner, was submitted, where she claimed that the visa applicant was the victim of domestic violence at the hands of the nominator (D1 f.62-63). He also submitted a report dated 2 October 2002 from Dr Chandralekha Krishnamurthi, stating that the visa applicant was suffering anxiety-depressive disorder as a result of psychological trauma and abuse (D1 f.94-96, 98-100). In her own assessment. For this reason it too does not meet the requirements of the regulations. Irrespective of the Regulations as two Competent Person Declarations are required.
In Su v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1409 Madgwick J explained the discretion as follows:
31 The discretion to grant relief pursuant to s 481(1) is a discretion that must be exercised judicially. Prima facie where an applicant can show that there has been an error of law in a decision, he or she is entitled to be granted relief unless it can be shown, by the respondent Minister in this case, that an appropriate reason exists as to why relief should not be granted. Nevertheless, an otherwise reviewable error must be shown to have been what may be termed an operative one in relation to the subject decision. If it is shown that the decision must have been the same, because of legally unassailable grounds relied on by the decision-maker alternative to that or those impugned before the Court, the Court will not intervene. In order for the court to intervene, the error of law alleged to have occurred, "must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ at 384; see also Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 350. Yet, the Court should be careful in the exercise of such a discretion. The Court's discretion to refuse relief should not be granted if it is possible that the final result may be different on a further hearing of the matter: see, for example Santa Sabina College v Minister for Education (1985) 58 ALR 527 per Beaumont J at 540, and Guo v Minister for Immigration & Multicultural Affairs [2000] FCA 146 per O'Loughlin J at paras 21-22.
In Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 Hely J said:
34 If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish `practical injustice' without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61].
In the circumstances it is appropriate that I set out the terms of the various statutory declarations relied upon by the applicant in order to determine whether or not they potentially fulfil the requirements of the regulations in this case.
Material relied upon by the applicant
The relevant statutory declarations relied upon by the applicant were as follows:
a)Statutory declaration of the applicant of 8 October 2003 (the Statutory declaration of the applicant of 7 January 2002 being in the incorrect form).
b)The statutory declarations from Doctor Krishnamurthi of 23 April 2002 and 8 October 2003 together with a report of 2 October 2002.
c)Statutory declaration of Edward Kleynhans of 4 January 2002 together with a report of 1 July 2002.
In order for the applicant to succeed, the statutory declarations of each of the three declarants must be capable of satisfying the regulations.
In Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 Ryan J said:
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. Thus, 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.
It is clear that it is not for the tribunal to assess whether or not an applicant has suffered domestic violence, rather the tribunal must rely upon the statutory declarations: see Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279.
As a result the declarants must comply with the specific and peremptory terms of the regulations, as was stated by Mathews J in Du v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1115:
18 The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person.
19 This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here.
Similarly, in Alin v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 979, Sundberg J concluded that:
12 … The statutory declarations of the medical practitioner and the psychologist do not satisfy reg 1.26. Dr Munir's declaration contains no indication that he was aware of the definition of domestic violence in reg 1.23(2)(b), and makes no reference to the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety. Nor is there any indication that Mr Garcia was aware of the definition of domestic violence and was expressing his opinion by reference to it. In the last line of the report attached to his declaration he merely says that the applicant was subjected to "a series of actions that may indicate that he suffered domestic violence (emphasis added). This is firmed up somewhat in his declaration - "it appears to me" that the applicant was a victim of domestic violence. Mr Garcia makes no reference to the applicant's state of mind. He expresses no opinion on the central part of the definition. Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 is distinguishable. There the competent persons made statutory declarations on forms approved by the Department which incorporated by reference the definition of domestic violence in reg 1.23(2)(b). See pars 34 and 48 of Ryan J's judgment in that case.
In this case the relevant statutory declarations are on the prescribed form that contained the definition of domestic violence. The relevant form 1040 completed by the professionals in this case, and Mr Singh, includes a cover sheet which has instructions on how to complete the form and contains the following passage:
What is domestic violence?
For the purposes of the Migration Regulations, domestic violence means:
‘Violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victims family to be fearful, or to be apprehensive about the alleged victims personal well being or safety.
Violence includes the threat of violence.’
Please refer to this definition when making your statement.
Statutory declaration of the applicant
The respondent concedes that the contents of the statutory declaration of the applicant of 8 October 2003 is as follows (transcribed exactly from the handwritten original):
Hope Medina my spouse stated having altercation with me 8 months after marriage on small issues like coming home late, not spending enough time with her, not taking her out for dinner etc.
It occured two or 3 times only.
Exact dates are not known but occured sometime in Oct 2001 and beginning of Nov 2001.
The most recent domestic violence occurred on 7.11.2001 when I came hom from work. She was heavely intocicated. She was very furious of my coming home late from work like usal and start feighting and througing items on me like cups and glasses and I had a cut on my left hand. She yelled at me and aboused me. also, she thrutened me that she will send me back home. On 8 Nov 2001 when I came home from work, my most of house items were stolen by her. Like fridge, washing machine, laptop, gym and other items.
As a result phyisicaly injured, verbal abouses, stress, los of my property and assets, emotional blackmail and threatening on phone calls.
I felt very much insecure and suffered with depression, lost my intrest in everything. Couldn’t work because of that lost my business. I’m still under medical treatment, to get out of all I been throught.
The respondent concedes that the contents of the statutory declaration of the applicant satisfies reg 1.25.
Statutory declaration of the Dr Krishnamurthi
The statutory declaration of Doctor Krishnamurthi of 23 April 2002 provided as follows:
8 months after his marriage to Hope Medina, Mr Singh began to notice that there were small arguments between them. On 7.11.2001 when he returned home from work he found her heavily intoxicated. There was argument, apparently she yelled and screamed at him and threw glass, cups and plates at him. The next day she left him but took all his expensive goods.
I am a qualified medical practitioner with 20 years of experience with a wide variety of cases. This makes me a competent person.
Examination showed Mr Singh to be depressed. There were some healed scars on the hands which Mr Singh says were caused by flying glass and cutlery. His psychologist states that he suffers from post traumatic stress disorders. He has been subjected to verbal abuse and emotional blackmail. Also he has been robbed of his personal possessions.
The report of Doctor Krishnamurthi of 2 October 2002 was in the following terms:
I saw Mr Singh at his request on 25.03.02 for the first time.
He gave a history that he came from Delhi in India. After completing his schooling there, he came over to Australia to study. He arrived in Melbourne on 24 July 1997 at the age of 17 years and 10 months and took up a course in Information Technology.
Whilst studying he also worked to support himself as most overseas students do.
He met his wife, Hope, when he was still studying in October 2000 through a friend.
His wife is an Australian citizen. Mr Singh is an Indian citizen and an overseas student.
He was lonely and she appeared caring, so after 3 months of friendship they married on 14th January 2001. After marriage she sponsored Mr Singh to remain in Australia on a permanent basis as her husband.
Problems soon began to appear when expectations became larger than reality. They moved into a three bedroom house where the rental was higher and it needed more furnishings. They began to collect electrical goods and bills became higher.
There was financial strain. Only Mr Singh was working. He said he had to work long hours to pay off the bills.
His wife Hope, was also young and wanted more of her husband’s time as well as the comforts of modern living. For reasons unknown to me, she did not seek employment.
Financial strain began to appear as arguments would turn to fights, shoutings and breaking glass.
Besides, Mr Singh also discovered that his wife continued to see her ex-boyfriend and that he was visiting her at Mr Singh’s house whilst Mr Singh was working to pay off the bills. Mr Singh began to lose his happiness, his confidence and his self image. He became depressed and felt she was taking advantage of him.
Then in June 2001, she packed her bags and left without giving him an explanation and went to live with her ex-boyfriend. She also reported to the Immigration Department that they were no longer living together. A week later she returned and apologised for her behaviour. They went to the immigration Department and Mr Singh got his temporary visa.
However their marital problems progressively worsened and he felt she was constantly harassing and nagging him. He felt that he was not as effective in his arguments as she was, and she did not care for what he said. He also felt that he was living in Australia at her mercy, for when she wanted to get her own way, she would threaten him about reporting to the Immigration Department. Her verbal abuse became intolerable and he began to feel very low and depressed.
Apparently one day in November 2001, after another argument, she left Mr Singh for her ex-boyfriend and took with her his computer, fridge, gym, washing machine and electrical goods whilst he was at work.
This caused him excessive amount of stress and distress. Besides leaving him, she also reported to the Immigration Department and withdrew her sponsorship of him.
I saw Mr Singh several months after his separation from his wife, Hope. He was running his own communications business at that time.
He was depressed in appearance and exhibited moderate anxiety during the consultation. He was a slender built man. He said his appetite and sleep were poor He gave a history of weight loss. He suffered from headaches, dizzy spells and stomach camps. He said his concentration and memory was not good. He was insecure not knowing what is going to happen to him and to the business he had started with his cousin.
He came to the interview with his cousin, who has been supportive like a brother during his short and stormy relationship with Hope.
He was also seeing a Psychologist and having counselling. He was on no medications.
Diagnosis:- Anxiety-Depressive disorder as a result of psychological trauma and abuse. As to the question of Domestic Violence – physical violence was not the dominant feature. There were fights and glass throwing at Mr Singh, but there were no physical injuries or scars of any significance.
Emotional and psychological violence perpetrated by his wife Hope, was the predominant feature in this relationship as depicted by verbal abuse, threats to withdraw sponsorship of residency, continuing extra-marital relationship with ex-boyfriend whilst still married to Mr Singh and leaving the entire financial burden on Mr Singh to cope on his own. Also, stealing his belongings and taking them to her ex-boyfriend. These are despicable acts of emotional abuse.
There is a case for domestic violence based on the above facts.
I Chandra Krishnamurthi, am a qualified medical practitioner with 25 years of experience in the medical field, having worked
3 years in hospitals and 22 years in General Practice. I hold the degree of B.Sc, MBBS and am a member of the Australian Medical Association.
My registration number is 17533 and I am registered with the Medical Board of Victoria
With respect to the original statutory declaration and report, the Tribunal concluded that it did not meet the requirements of the regulations as ‘Dr Krishnamurthi relied on Mr K’s report rather than making her own assessment.’ (see para [27] of the decision).
The statutory declaration of Doctor Krishnamurthi of 8 October 2003 provided:
I have known Mr Singh since 35.3.2002. I have seen him 5 times since then. Mr Singh was already separated from his wife and incidents listed below are from history taken from Mr Singh.
On March 2001 after an argument she packed her bags and left home for a week. She also reported to the Immigration Department that they were no longer living together. Then she returned to live with him again.
On 7th November 2001 Mr Singh came home to find his wife intoxicated. After an argument she started yelling and screaming calling him names like idiot and bastard. She started pushing and shoving him, threw glass, plates and cups at him.
On 8th November 2001 when Mr Singh returned from work his wife had left him and had taken all his valuables with her like his laptop, fridge, washing machine and his personal gymn.
He could not contact after that.
I saw Mr Singh about 5 months after the separation. I saw him
5 times. He was depressed and anxious. He had been subjected to some physical violence, verbal abuse and predominantly psychological abuse during his relationship with his wife. Also his valuables and personal property like his gymn and laptop were stolen, his plates, cups and glasses weer wilfully broken and he was subjected to bodily harm by hurling objects. He did have a few healing scars on his hands in March 2002. As such it is my clear opinion that Mr Singh has suffered domestic violence from his wife Hope Medina. [sic]
The latter statutory declaration clearly sets out that it is based upon the declarant’s own opinion, having seen the applicant a number of times. It sets out details of alleged violence that include physical harm, and an evidentiary basis for the opinion held by the declarant. I find that this statutory declaration is capable of satisfying the regulations in these respects.
The respondent says that the statutory declaration does not deal with the element of fear for personal safety and wellbeing. I do not find that this makes the statutory declaration insufficient in the context of this case. The definition of the domestic violence under the regulations is set out in the form. The author states that the applicant has suffered domestic violence, and that the applicant has been the subject of bodily harm. It is implicit that a person the subject of physical assault in the context described would be fearful for the personal safety or wellbeing. The fact that the person providing the statutory declaration has not specifically set out the element of fear does not, in the context of this statutory declaration necessarily make the opinion that domestic violence occurred one outside the terms of the regulations.
Statutory Declaration of Mr Kleynhans
The statutory declaration of Mr Kleynhans and his report were before the tribunal at the time of the hearing. The tribunal concluded:
26.The visa applicant submitted a statutory declaration Form 1040, dated 4 January 20025 from Edwin (“Eddy”) Kleynhans, psychologist, who stated that the visa applicant had been the victim of domestic violence at the hands of the nominator. An additional report dated 1 July 2002 from Edwin (“Eddy”) Kleynhans, psychologist, was submitted stating that the applicant had suffered domestic violence. In the report Mr Kleynhans stated that he applicant suffered psychologically because of a failed marriage to an Australia Citizen. However, he did not state that the applicant was in any way fearful of his personal safety or that any form of violence had occurred. This does not meet the requirements of the Regulations.
The statutory declaration of Mr Kleynhans of 4 January 2002 declares that:
He was subjected to domestic violence at the hands of his estranged wife. It also involved verbal abuse and having him sent back to India. Hope (estranged wife) broke glass and shouted at him during her verbal abuse episodes with him. More information will be submitted shortly.
I am a registered psychologist (Reg No: 1760) in Victoria and have a MA Degree in Clin Dev Psychology. I have worked with troubled families/couples, which included domestic violence.
He suffers from PTSD with severe depression, which are typical of domestic violence. He still feels threatened by her even though they are separated. Lakhwinder also developed intense fears and limits contacts with others, which are also typical of people who suffer from PTSD and domestic violence. Moreover, he fears that he had been abandoned and rejected by his estranged wife. As mentioned under “3” above, more information in an attachment will be submitted shortly.
As the respondent’s counsel pointed out, this statutory declaration recounts no acts of personal violence or attempts to inflict personal violence. The terms of the declaration, viewed alone, indicate that the writer’s view of the meaning of domestic violence was broader than that provided for under the regulations. I am not satisfied that this declaration, on its own, satisfies the regulations.
The report of Mr Kleynhans of 1 July 2002 is as follows:
(1). I am a Registered Psychologist (Registration Number: 1760) with The Victorian Psychologists Registration Board since January 1986. I am a member of The Australian Psychological Society since 1985. Before that, I was a member of The Dutch Psychological Society (The Netherlands). My academic qualification are BA, BA Honours (Psych.) and MA (Clinical Developmental Psych). I have worked as a Psychologist for 18 years. I run my own private practice and had extensive experience working with clients from diverse cultural backgrounds. My clinical practice encompasses such areas as trauma counselling, CISD, substance abuse, phobias, family marital problems, anxiety disorders, mediation, interpersonal conflicts, eating problems, depression, self esteem, motivation consultation with management, time-management and stress management. I have been writing assessment reports for the last 16 year and worked with clients who have had suffered considerable psychological trauma including domestic violence. I also provide a service to clients from VRAS.
(2). Mr Lakhwinder Singh referred himself to me on 24 December 2001. The reason for the referral was that he was suffering psychologically because of a failed marriage to an Australian citizen. The case described in this attachment to declaration concerns domestic violence as defined by Australian Immigration Law. Mr Lakhwinder Singh told me that he was subjected to domestic violence, whilst living with his wife, Mrs Hope Singh (DOB: 27/3/1978), the alleged perpetrator. Mr Lakhwinder Singh is originally from India and came to Australia on 24 July 1997. He comes from a very close family In Delhi, India. He completed Year 12 in India. In 2000 Mr Lakhwinder Singh completed Diploma of Information Technology in Melbourne, and started studying Advanced Diploma of Multimedia, which he did not complete yet and is considering doing it part-time. He worked as a Customer Service Officer from 1998 to 2000, and after this he worked as a Sales Assistant for Optus for about 6 months. Mr Lakhwinder Singh is currently working in his own business in telecommunications-mobile phones, where he worked since April 2001. His estranged wife was not working during their marriage and was looking for employment.
(3). Having assessed this case, I came to the conclusion that Mr Lakhwinder Singh was suffering from psychological trauma because of domestic violence at the hands of his estranged wife, Mrs Hope Singh, the alleged perpetrator. Even though he is no longer living with her, I am of the opinion that he still feels threatened by her. Another purpose of this referral was to assess whether Mr Singh’s mental health became progressively worse since the time he was being abused by his estranged wife. Mr Lakhwinder Singh attended assessment on his own.
(4).Mr Singh looked very fearful, depressed and anxious when he presented for assessment. He was portraying symptoms of a trauma-victim. Hence, my decision to utilise psychological tests to verify my impressions and hypothesis of his suffering as a trauma victim of domestic violence.
(5). Mr. Lakhwinder Singh met his wife through his friend who introduced him to her in October 2000. Mr. Lakhwinder Singh came to Australia as an overseas student in July 1997. In 2000, their common friend decided to introduce them to each other since apparently both of them were free, lonely and looking for partners. After Mr. Lakhwinder Singh and his wife were introduced to each other they decided to go out together as there was somewhat of an attraction. He was attracted to her as she was presenting as a caring woman who shares household responsibilities. They were seeing each other for 3 months and then they got married on 14 of January 2001 in Melbourne. Based on their marriage, she sponsored Mr Singh to remain in Australia on a permanent basis as her husband. They initially rented a 2-bedroom house and later on decided to rent bigger place, and hence moved into a 3-bedroom house.
(6). Mr Lakhwinder Singh informed me that she used to get angry because he was working most of the time and therefore did not spend much time together during the week. He stated that he needed to work most of the time because he was the only one earning income and had to pay for the bills and all other living expenses. Her arguments would often lead to fights involving shouting and breaking glass. All her anger was directed towards him, while he tried to explain to her that he has to work a lot of time to have money to pay for everything. I would suggest that the abuse started then already, even though it was a slow process.
(7). Being married for the first 4 months was good; however, as time progressed, her true colours insidiously came to the fore and she changed her behaviour completely. Mr Singh started to encounter problems in this marriage, which was very insidious in the beginning. He told me that sometime in May she started cheating on him with her ex-boyfriend, which led to a big argument. His stress levels increased as she taunted him continuously. When he talked to her about this indicating that he knew that it was happening she apologised, and they decided to start from the beginning. However, it did not last for a long time, as he found out soon that she was still seeing her ex-boyfriend. When he talked to her about it she told him that she owed money to her ex-boyfriend and therefore her ex-boyfriend called her and came to see her. This traumatic situation with his estranged wife made him very depressed, and he felt that she did not respect him. In June his wife packed some things from the house including all her clothes and went to stay with her ex-boyfriend, left without any explanation for him. She called him next day and said that she left. He was very stressed anxious and depressed, as it was somewhat unexpected. She reported to Immigration Department that they were no longer in relationship, and he got a letter, which asked him to make appointment with Immigration Department and explain what happened. He was very worried about the situation because it seemed like there was not much to explain since she left him without any explanation. Within a week his wife came back, she apologised and they resolved the issues. They had an interview with the Immigration Department and explained everything to them, and after this Mr. Singh got a temporary residence visa. It was all right for a while, however, they still had arguments and fights over the issue of them not spending enough time together. Their marital problems escalated and became progressively worse. He repeatedly tried to explain to her that he needs to work late to earn more money to pay for all expenses, and encouraged her to find employment so that he could work less and then they could spend more time together. Their communication became ineffective and she was no longer listening to what he had to say. She just wanted things her way and was not mindful of his opinion. Instead of communicating with him she was constantly harassing him. They had constant heated discussions about their relationship, which often led to arguments and fights involving her shouting at him and breaking glass. This frightened Mr Singh, as he was not used to this kind of treatment. He was not as effective in verbalising his emotions as Mrs Singh was. Also, he felt threatened as he was living in Australia at her mercy. Mrs. Singh was going to leave about 10 times over the period of their relationship, she packed everything caught taxi and left, then came back the next day or during the week. Mrs Singh became difficult and intolerant. This resulted in him feeling isolated and abandoned, as well as hopeless and helpless. In retrospect, It became clear to him that she was manipulating him for her benefit and to his detriment. Mrs Singh did not show any respect for his personal emotional and physical needs, He told me that she projected all her ill-feelings, frustration, anger and displeasure on him. Mr Singh endeavoured to make the relationship work as he thought he married for the right reasons. As far as he was concerned, he had the ingredients to make the marriage work and be committed permanently. The verbal abuse became too much for him as he noticed his self-esteem slipping to an all time-low. This was reflected by his body language when I saw him. He wanted to get a different perspective on their relationship but it was difficult as he did not know how to please her.
(8) Critical Incident in November 2001. In November 2001 after a huge fight, Mr Singh could not tolerate it anymore and he told his wife that she could do whatever she wanted. She left without any explanation to her ex-boyfriend again, but this time she took not only her clothes but also other things such as a washing machine, a fridge, a laptop computer, and gym. Mr. Singh was shocked one more time, as well as feeling frustrated and very stressed. She called him afterwards and told him that she did not want to do it, but had to do it because they did not spend enough time together. She then also threatened him saying that if they were not together he had to go back to India. She came once to him to explain herself, saying that she did not live with her ex-boyfriend anymore and that she was going overseas. She left for the Philippines for holiday, where her grandmother lived. Apparently, before going overseas she reported to Immigration Department that they were no longer in relationship and withdrew her sponsorship of Mr. Singh, as she no longer wanted him to be associated with her. Mrs. Singh was consistently threatening him with getting the Immigration Officials to evict him from Australia, which led to a fear of abandonment and isolation as far as he was concerned. After a while, he started to lose confidence in himself and started to feel hopeless and helpless. It caused him to become severely depressed and anxious. She left and withdrew her sponsorship, which was the final nail in his coffin: he was devastated by it.
(9) Outcome of Psychological Tests.
Anxiety. Because of the traumatic experiences involving his estranged wife, he started to portray symptoms of PTSD. He showed typical symptoms of a traumatised person (based on PTSD). When we spoke about his trauma experiences with his estranged wife, his PSTD-symptoms were rekindled by it. which caused him mental anguish and pain. His symptoms for PTSD were:
• Physical (eg upset stomach, feeling uncoordinated, chest pain, chills, tremors, profuse sweating, rapid heart beat, increased blood pressure, dizziness, rapid breathing, headaches and sleep disturbance);
• Mental/thinking (e.g. slowed thinking, memory problems seeing the events over and over, difficulty making decisions, disorientation, in terms of place and time, seeing mental pictures of his abusive wife over and over, distressing dreams, confusion, difficulty calculating, memory problems, disorientation in terms of time and place, difficulty concentrating, poor attention span, difficulty in problem solving, etc);
• Emotional (e.g. anxiety, tear, guilt, sadness, grief, depression/sadness, feeling abandoned and isolated, feeling lost, anger, worry about others, wanting to hide, feeling numb, anger, irritability, shocked/startled, etc). Some of these symptoms remained with him and are reflected by the anxiety and depression tests he did. Most of these symptoms reappear regularly and some of them have remained with him since the incident. He still has flashbacks about his experiences with his estranged wife. When I asked him about those experiences during assessment, he became very emotional, and indicating fear by his body language. In fact he scored very high on the anxiety test, which puts him in the severe anxiety level.
Fear. He is extremely fearful as to what is going to happen to him, as he still feels threatened by her. One of the psychological tests used for assessment, indicated that he was very fearful and had fears of being abandoned. The best psychological definition of fear is: “Fear can be defined as a very strong and unpleasant emotion. It is caused by the anticipation or awareness of imminent danger, and is characterised by painful agitation. Fear is often combined with anxiety, a self-generated state of apprehension”. Given this definition, Mr Singh is anticipating an unpleasant and painful agitation for himself should Mrs Singh confront him again. His severe anxiety and depression caused him to have Insomnia. This severe stress led to headaches, difficulty concentrating and extreme irritability. He told me that she constantly lied to him, which made him feel powerless and insecure.
He was very fearful then and was worrying all the time. Mr Singh was suffering from sudden unexpected panic spells of the possibility of having him deported to India. Mr Singh was feeling “uptight’ and had a sense of impending doom. His mind was racing constantly and had frightening daydreams and fantasies. He had a feeling that he was on the verge of losing control and was going crazy. He developed fears of being alone and abandoned and that something terrible was about to happen (i.e. that he was going to be evicted from Australia because she threatened him with it). His anxiety was so high, that he felt tightness or pain in his chest He also experienced discomfort in his stomach, diarrhoea, constipation and restlessness. The high anxiety was making him feel tired, weak and easily exhausted and also aggravated his headaches and pain in the back and neck.
Depression. He suffers from severe depression, which I would diagnose as chronic since his problems started with his estranged wife. He scored very high on the depression test, which puts him in the potentially serious’ category. He feels that he might have been punished and that he is disappointed in himself for having married Mrs Singh. He also feels extremely guilty about it: it was a terrible mistake. He is very lethargic and has to push himself very hard to do anything. His appetite now is not as good as it used to be. Mr Singh feels that his future is hopeless and that he’s failed abysmally, yet again. Mr Singh was setting high standards for himself, and because he could not match these. he started to feel that there were permanent changes in his appearance that made him look unattractive and was hopeless. He also finds it difficult to have the motivation to work as he has become lethargic. His serious depression level continued after his estranged wife left him as she continued to harass him by calling him. I conclude that the psychological tests corroborated the symptoms for PTSD and his severe stress.
(10). He was genuine in this relationship since the time he was going out with her. He told me that he fell in love with her. However, very soon he discovered her true colours: she lied to him and cheated on him, and was making life hell for him. The only person that he had in Australia to support him-was his cousin who was also his business partner. He was giving him face-to-face support that he so desperately needed because of his abusive relationship with Mrs Singh.
(11).Mr Singh is phlegmatic and does not like conflict. When she was abusing him, he did not want to get into physical fights and would only defend himself against her. He cannot tolerate conflict and cannot stand having argument with somebody else. She liked conflict, which drove him virtually insane. Mrs. Singh never spoke well of him, which lowered his self esteem and is currently not feeling good and confident about himself: he’s failed abysmally.
(12). Mr Singh has psychological needs, which were not met during the last few months of being together with his estranged wife. He has the following needs:
- to be with people he loves
- a sense of wanting to belong
- of not wanting to be abandoned
- a strong need for conversation
- to be listened to regarding his problems particularly when he is down.Because Mrs Singh did not satisfy these needs, he became very depressed and anxious.
(13) His traumatic relationship with Mrs Singh has pushed him to a point where he has negative feelings towards her, particularly when she withdrew her sponsorship. She stripped him of his self-respect and integrity. Because of crises and severe depression he is suffering from, he tends to be less conscientious and organised. I observed a person who was not grooming himself, as he felt so worthless. When he left the relationship he had with Mrs Singh, he was still suffering from trauma and stress.
(14). Having subjected Mr Singh to extensive psychological assessment, I believe that he suffered from psychological anguish and pain whilst being and taunted by Mrs Singh. He has been robbed of his self-esteem / and integrity. This in turn, caused a lowering of his self-esteem and the ultimate feeling of fearfulness, hopelessness and depression. It has affected the way he thought about things, decision-making and his work performance, as he believed at one stage that he was hopeless and helpless.
(15). Moreover, I am of the opinion that he suffered from domestic violence to the extent that he is traumatised as reflected by his PTSD-symptoms. They told me that he has taken out a restraining order against his estranged wife. I also believe that he is still suffering from PTSD. The evidence is abundant in the literature on PTSD that this condition can last for a very long time. Also, PTSD will last longer if the stressor has a human element to it. In this case, the human element refers to his abusive wife. This trauma will remain with him for a very long time, which will form the basis for an increase in anxiety and depression when he is faced with personal and interpersonal crises. He told me that he would be very careful next time in choosing a partner; he is not so sure at this stage whether he wants another partner.
(16). I believe that he was at risk when he was living with Mrs Singh. Hence, his mental health deteriorated during the time he had a relationship with Mrs Singh. In fact, he is still suffering even though he is separated from her. Mr Singh will develop long-term chronic psychological disorders if his current stress level continues.
(17). His traumatic experience with his estranged wife, will have a negative effect on his future relationships with partners. As I said, he has become apprehensive and pessimistic about the prospects of meeting the right partner, who will respect him.
This report sets out considerable detail. However, it does little to overcome the difficulties with the statutory declaration. At best, the relevant parts relating to violence are:
They had constant heated discussions about their relationship, which often led to arguments and fights involving her shouting at him and breaking glass. This frightened Mr Singh, as he was not used to this kind of treatment. He was not as effective in verbalising his emotions as Mrs Singh was. Also, he felt threatened as he was living in Australia at her mercy.
…
Fear. He is extremely fearful as to what is going to happen to him, as he still feels threatened bf her. One of the psychological tests used for assessment, indicated that he was very fearful and had fears of being abandoned… He told me that she constantly lied to him, which made him feel powerless and insecure.
…
He told me that he fell in love with her. However, very soon he discovered her true colours: she lied to him and cheated on him, and was making life hell for him. The only person that he had in Australia to support him was his cousin who was also his business partner. He was giving him face-to-face support that he so desperately needed because of his abusive relationship with Mrs Singh.
…
Mr Singh is phlegmatic and does not like conflict. When she was abusing him, he did not want to get into physical fights and would only defend himself against her. He cannot tolerate conflict and cannot stand having argument with somebody else. She liked conflict, which drove him virtually insane.
…
Having subjected Mr Singh to extensive psychological assessment, I believe that he suffered from psychological anguish and pain whilst being and taunted by Mrs Singh. He has been robbed of his self-esteem / and integrity.
The whole tenor of the report is related to emotional abuse and the broader definition of domestic violence that was distinguished by the Full Court in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257. I am not satisfied that the Tribunal has erred in concluding that the statutory declaration and report to not satisfy the regulations.
Conclusions
In this case the applicant has established that relevant material provided by him to the tribunal was not considered before making a decision. That material related to his evidence and the evidence of Dr Krishnamurthi. The result of the material is that there would have been sufficient material to potentially satisfy the tribunal with respect to the requirements for statutory declarations as to domestic violence (within the meaning of the regulations) with respect to the applicant and Dr Krishnamurthi.
However, in order for the applicant to have succeeded before the Tribunal he was required to provide statutory declarations of two ‘competent persons’ under the regulations: see reg 1.24(1)(b). The only other ‘competent person’ whose statutory declaration the applicant could rely upon was Mr Kleynhans. The statutory declaration by Mr Kleynhans did not satisfy the requirements of the regulations. As a result the application was bound to fail before the Tribunal, even if the additional material were taken into account. In these circumstances it is appropriate for the court to exercise its discretion not to grant relief to the applicant.
The application is therefore dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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