SZMYG v Minister for Immigration and Anor (No.2)
[2009] FMCA 503
•25 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYG v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 503 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – claims of family violence – whether Division 1.5 of the Migration Regulations applies to such claims considered. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R, 424A Migration Regulations 1994 (Cth) |
| Sok v Minister for Immigration (2008) 249 ALR 651 SZMYG v Minister for Immigration & Anor [2009] FMCA 52 |
| Applicant: | SZMYG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3019 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 26 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3019 of 2008
| SZMYG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 October 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from written submissions filed on behalf of the Minister on 20 May 2009.
The applicant is a 38 year old citizen of China.[1] She arrived in Australia on 13 February 2008.[2] On 27 March 2008 she lodged an application for a protection (Class XA) visa.[3] In that application she claimed to have a well-founded fear of persecution in China on the basis of her practice of Falun Gong.[4]
[1] court book (“CB”) at 13-14.
[2] CB at 15.
[3] CB at 1-31.
[4] CB at 27-29.
On 8 June 2008 she attended an interview with the delegate.[5]
[5] CB at 40-41.
On 25 June 2008 the delegate rejected the application on the basis that she was not satisfied that the applicant had substantiated a claim of a well-founded fear of persecution.[6]
[6] CB at 54-55.
On 24 July 2008 the applicant sought review by the Tribunal.[7] The applicant attended a hearing before the Tribunal on 10 September 2008.[8] At the hearing, for the first time, the applicant raised claims that her husband had abused her by beating and torturing her.[9]
[7] CB at 58-61.
[8] CB at 88 at [24].
[9] CB at 89 at [29] and [31].
Following that hearing on 11 September 2008 the Tribunal sent a s.424A letter to the applicant.[10] On 5 October 2008 the applicant replied.[11]
[10] CB at 75-77.
[11] CB at 78.
As observed above, on 28 October 2008 the Tribunal affirmed the delegate’s decision.
The Tribunal’s decision
The Tribunal ultimately rejected the applicant’s claims on the basis that it did not accept any of those claims, and considered that all aspects of the applicant’s evidence were untruthful.[12]
[12] CB at 95 at [55].
In reaching those conclusions, the Tribunal considered the claims raised for the first time at the hearing in relation to allegations of domestic violence, and in relation to China’s one child policy.[13]
These proceedings
[13] CB at 97 at [61].
These present proceedings were commenced by application filed on 20 November 2008.
The Court held a show cause hearing in relation to the application on 16 February 2009, leading to a judgment on that date, see: SZMYG v Minister for Immigration & Anor [2009] FMCA 52. In that judgment the Court rejected the grounds of review contained in the application, as well as additional grounds raised orally at the hearing. The Court did however order that pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) the Minister show cause why relief should not be granted in relation to the issues of:
a)whether Division 1.5 of the Migration Regulations 1994 has any application to protection visa applications;
b)if so, whether a breach of the procedures set out in that Division constitutes jurisdictional error; and
c)if so, whether the Tribunal did fall into error.
The evidence and submissions
I have before me the same evidence as was before the Court at the interlocutory hearing. Only the Minister filed written submissions in response to the show cause order. Those submissions are to the effect that Division 1.5 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) has no application to claims of family violence made in support of an application for a protection visa. That is said to be because the prescribed procedure for dealing with claims of family violence that have not been judicially determined is only enlivened if the applicant seeks to satisfy a prescribed criterion of a visa class that the applicant (or some other person mentioned in the criterion) has suffered family violence.
Division 1.5 of the Migration Regulations
Division 1.5 of the Migration Regulations is in the following terms:
Regulation 1.21
(1) In this Division:
“competent person" means:
(a)in relation to family 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 family consultant 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 family 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.
"independent expert" means a person who:
(a) is suitably qualified to make independent assessments of non‑judicially determined claims of family 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 family violence.
"non-judicially determined claim of family violence" has the meaning given by subregulation 1.23 (1A).
"relevant family violence" has the meaning given by paragraph 1.23 (2) (b).
"statutory declaration" means a statutory declaration under the Statutory Declarations Act 1959 .
"violence" includes a threat of violence.
(2)The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:
(a) manager or coordinator of:
(i) a women's refuge; or
(ii) a crisis and counselling service that specialises in family violence; or
(b) a position with:
(i) decision‑making responsibility for:
(A) a women's refuge; or
(B) a crisis and counselling service that specialises in family violence;
that has a collective decision‑making structure; and
(ii) responsibility for matters concerning family violence within the operations of that refuge or crisis and counselling service.
Regulation 1.22
(1) A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
(2)A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person.
Regulation 1.23
(1) For the purposes of these Regulations:
(a) a person ( the alleged victim ) is taken to have suffered family violence; and
(b) another person ( the alleged perpetrator ) is taken to have committed family violence in relation to the alleged victim;
if:
(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f) the Minister is satisfied, for paragraph (1B) (a), that the alleged victim has suffered relevant family violence; or
(g) the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.
(1A)For these Regulations, an application for a visa is taken to include a non‑judicially determined claim of family violence if:
(a) the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b) either of the following circumstances exists:
(i) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim;
(ii) for an alleged victim who is a person referred to in subregulation (2) -- the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 1.24 that:
(A)the alleged victim has suffered relevant family violence; and
(B) the alleged perpetrator has committed that relevant family violence.
(1B)If an application for a visa includes a non‑judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered relevant family violence (whichever of the circumstances mentioned in paragraph (1A) (b) exists) and:
(a) if satisfied that the alleged victim has suffered relevant family violence -- consider the application on that basis; or
(b)if not satisfied that the alleged victim has suffered relevant family violence -- seek the opinion of an independent expert about whether the alleged victim has suffered relevant family violence.
(1C)The Minister must take an independent expert's opinion on the matter mentioned in paragraph (1B) (b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.
(2) In subparagraph (1A) (b) (ii):
(a) the persons referred to are the following:
(i) a spouse of the alleged perpetrator;
(ii) a dependent child of:
(A) the alleged perpetrator; or
(B) the spouse of the alleged perpetrator; or
(C) both the alleged perpetrator and his or her spouse; or
(D)a person in an interdependent relationship with the alleged perpetrator;
(iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);
(iv) a person who is in an interdependent relationship with the alleged perpetrator; and
(b) a reference to relevant 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.
Regulation 1.24:
(1) The evidence referred to in subparagraph 1.23 (1A) (b) (ii) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii) a copy of a record of an assault, allegedly committed by the alleged perpetrator, on:
(A) the alleged victim; or
(B) a member of the family unit of the alleged victim; or
(C) a member of the family unit of the alleged perpetrator;
that is a record kept by a police service of a State or Territory (other than a statement by the alleged victim or by the person allegedly assaulted); or
(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2)A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a) the same subparagraph of paragraph (a) of the definition of competent person ; or
(b) subparagraph (b) (ii) of that definition.
Regulation 1.25:
(1)A statutory declaration under this regulation must be made by:
(a) the spouse of the alleged perpetrator; or
(b) if the alleged perpetrator is in an interdependent relationship with a person -- that person.
(2) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25 (1) who alleges that he or she is the victim of relevant family violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) set out the allegation; and
(b)name the person alleged to have committed the relevant family violence; and
(c)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
(3) A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25 (1) who alleges that another person is the victim of relevant family violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant family violence; and
(e) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i) name the person whom the conduct of the alleged perpetrator was towards; and
(ii) identify the relationship between the alleged victim and the person whom the conduct was towards; and
(iii) identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and
(f) set out the evidence on which the allegation is based.
Regulation 1.26:
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 family 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 family violence; and
(e) must name the person who, in the opinion of the competent person, committed that relevant family violence; and
(f) if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)must name the person whom the conduct of the alleged perpetrator was towards; and
(ii) must identify the relationship between the alleged victim and the person whom the conduct was towards; and
(g) must set out the evidence on which the competent person's opinion is based.
Regulation 1.27:
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 family 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 .
The first point to note is that regulation 1.22 confines a reference in the Migration Regulations to a person having suffered family violence to a reference to a person being taken, under regulation 1.23, to have suffered family violence. A similar restriction is made in relation to a person having committed family violence. Under regulation 1.23 a person is taken to have suffered or committed family violence where a court has granted an injunction under the Family Law Act 1975 (Cth), where a court has made an order under a law of a state or territory to protect the alleged victim, where a court has convicted the alleged perpetrator, or (importantly), the Minister is satisfied that the alleged victim has suffered relevant family violence or the Minister is required to take as correct an opinion from an independent expert under the requirements of subregulation (1C).
The balance of the Division deals with non-judicially determined claims of family violence bearing on regulation 1.23(1)(f) and (g). The Minister’s submissions centre upon the words of subregulation (1A) which confines a non-judicially determined claim of family violence to circumstances where the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence and the other defined circumstances exist. In short, the Minister submits that it is only where the suffering of family violence is a prescribed criterion for the grant of a visa that the regulations in Division 1.5 are relevantly enlivened. Whether one regards the criteria for a protection visa as coming from s.36 of the Migration Act 1958 (Cth) (“the Migration Act”) (as illuminated by s.91R(1)) or clause 866 of Schedule 2 to the Migration Regulations, the suffering of family violence is not a prescribed criterion for the grant of a protection visa.
Division 1.5 does apply in relation to applications for a sub class 100 spouse visa. That class of visa was considered by the High Court in Sok v Minister for Immigration (2008) 249 ALR 651. The High Court considered Schedule 2, clause 100.221(4)(c)(i)(A) of the Migration Regulations which provided that the applicant would be entitled to a permanent visa if the applicant first entered Australia as the holder of a relevant temporary visa and the applicant suffered domestic violence committed by the sponsoring spouse. There is no significance in the use of the term “domestic violence” as that was simply an earlier expression of the words “family violence”.
In the Minister’s submission, the only circumstances in which an application for a visa can be taken to include a non-judicially reviewable claim of family violence are when the criteria provided for in regulation 1.23(1A) are met. This is borne out by the words in parentheses in regulation 1.23(1B), making plain that one of the circumstances in paragraph (1A)(b) must be met for an application to be taken to include a non-judicially reviewable claim of family violence.
I accept the Minister’s submission. It is an odd result that a person claiming family violence in relation to an application for a permanent spouse visa has the benefit of a rigorous procedural regime for the examination of those claims while a person claiming a protection visa on the same basis does not enjoy the benefit of that regime. If, for example, Mr Sok in the proceedings before the High Court, had made a sur place claim for a protection visa based upon his allegations of domestic violence (perhaps claiming to be a member of a particular social group at risk of further harm in Cambodia) there would have been no application of Division 1.5 although the factual claim (in relation to what happened to him in Australia) would have been the same. While that may seem incongruous (and even troubling given the seriousness with which claims of family violence should be regarded) it is for the executive government to determine the procedures that will apply to the consideration of claims in relation to various classes of visas. The procedure in relation to non-judicially determined claims of family violence in Division 1.5 is restricted to circumstances where an applicant is seeking to satisfy a criterion for the grant of a visa that he or she has suffered family violence. While an applicant for a protection visa must satisfy a decision maker that he or she has suffered serious harm, which may include a claim of family violence, that is not sufficient to enliven Division 1.5.
It is unnecessary to deal with the remaining issues raised in the show cause order, though I note the Minister’s concession that, if regulations 1.23(1B) or (1C) applied then a failure by the Tribunal to follow the procedures laid down in those subregulations would constitute jurisdictional error.
I find that the decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2009
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