VUKANOVIC v Minister for Immigration
[2004] FMCA 541
•14 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VUKANOVIC v MINISTER FOR IMMIGRATION | [2004] FMCA 541 |
| MIGRATION – Appeal from Migration Review Tribunal – natural justice – procedural fairness – insufficiency of statutory declarations – domestic violence. |
Judiciary Act 1903 (Cth), ss.39B, 44
Migration Act 1958 (Cth), ss.359A, 474
Migration Regulations 1994 (Cth), rr. 1.21, 1.22, 1.23, 1.24, 1.25, 1.26, 100.122
Statutory Declarations Act 1959 (Cth), s.8
Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 503
Commissioner For The Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576
Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279
Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251
Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
| Applicant: | DRAGAN VUKANOVIC |
| Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File No: | MZ 34 OF 2003 |
| Delivered on: | 14 September 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 14 April 2004 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Jones |
| Solicitors for the Applicant: | - |
| Counsel for the Respondent: | Mr S. Donaghue |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
THAT the appeal is dismissed.
THAT costs be fixed in the sum of $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 34 of 2003
| DRAGAN VUKANOVIC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
11 March 2003 seeking judicial review of the decision of the Migration Review Tribunal on 14 February 2003 to affirm the decision of the delegate of the Department of Immigration and Multicultural Affairs to refuse to grant a Partner (Migrant) (Class BC) (sub-class 100 “spouse”) visa.
The history
The applicant is a male citizen of the former Yugoslavia. He lodged his Partner (Migrant ) (Class BC) (sub-class 100) visa application from Yugoslavia on 4 August 2000. His wife, whom he married in Yugoslavia on 4 June 2000, lodged her application to sponsor the applicant on 27 June 2000. His wife (herein “the nominator”) was an Australian citizen, having emigrated in March 1970. The applicant arrived in Australia on 27 May 2001 on a Spouse (Provisional) (Class UF) (sub-class 309) visa. Usually, a visa applicant holding this type of visa would be eligible for consideration as a permanent visa holder two years after the grant of the temporary visa.
In 2001, the nominator raised allegations of domestic violence against the applicant in a statutory declaration. The nominator also stated that she was withdrawing her sponsorship of the applicant; the Ministerial delegate was informed of this decision. An intervention order of two-years’ duration was obtained by the nominator at around the same time.
Approximately one month later, the applicant lodged a Form 1040 statutory declaration (dated 15 August 2001), stating that he had suffered psychological abuse by the nominator on a daily basis. The visa applicant supported his statutory declaration with the following Form 1040 statutory declarations from:
a)Doctor Zovica Bogetic, a medical practitioner, who supported the applicant’s claims of domestic violence; and
b)Doctor Asoka Polonwita, a psychiatrist, who stated that the applicant was suffering from anxiety and depression due to his potential deportation.
On 18 September 2001, the delegate for the Minister for Immigration and Multicultural Affairs refused the application for a partner visa. Specifically, the delegate stated that the statutory declarations from both Doctor Bogetic and Doctor Polonwita did not satisfy the requirements of regulation 1.26(c) of the Migration Regulations 1994 (Cth) (“Migration Regulations”). This regulation states, summarily, that evidence showing a person has suffered domestic violence (pursuant to Division 1.5 of the Migration Regulations) must be supported by affidavits from at least two “competent persons”, who verify that the alleged victim has suffered domestic violence. The delegate explained that the statutory declarations from both doctors did not state that, in their professional opinion, the applicant had suffered domestic violence. Consequently, the applicant did not meet the requirements of the visa sub-class. The applicant sought review of the delegate’s decision by the Migration Review Tribunal (“the Tribunal”) on 8 October 2001.
In the decision made by the Tribunal on 14 February 2003, the Tribunal affirmed the decision of the delegate to refuse to grant the Partner (Migrant) (Class BC) visa. In essence, the Tribunal found that the two statutory declarations provided in support of the application did not satisfy the requirements of regulation 1.24. Consequently, the Tribunal was unable to find that the applicant had suffered domestic violence as alleged at the hands of the nominator.
On 13 March 2003, the applicant lodged an application in this Court, being MZ 234 of 2003, pursuant to sections 39B and 44 of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal had erred in finding that the applicant was not entitled to the visa. An amended application was filed on behalf of the applicant on 30 October 2003. The applicant claimed, summarily, that:
a)the Tribunal failed to accord natural justice to the applicant by not bringing the critical factors on which the matter was likely to turn, to the applicant’s attention; and
b)the Tribunal failed to comply with the obligations under section 359A of the Migration Act 1958 (Cth) (“the Migration Act”), by constructively failing to exercise its jurisdiction in that it was affected by an error of law.
In the applicant’s contentions of fact and law, filed on 30 October 2003, the applicant argued that:
a)“During the hearing the Tribunal did not draw to the applicant’s attention the fact that the Statutory Declarations were not declared before a prescribed person as defined under section 8 of the Statutory Declarations Act 1969” (paragraph 13);
b)the Tribunal failed to draw the applicant’s attention to the deficiencies of the statutory declarations relied upon;
c)section 359A of the Migration Act required the Tribunal to give particulars of information to the applicant, which it failed to do; and
d)the Tribunal failed to accord natural justice or procedural fairness to the applicant, and “failure to accord procedural fairness constitutes jurisdiction error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82”.
The applicant’s arguments were rebutted in the respondent’s contentions of fact and law, filed on 12 December 2003. The respondent argued that:
a)The authorities, both at primary and appellate level, unanimously establish that, even absent s 474, “information” for the purposes of s 359A does not comprehend the thought processes or process of reasoning of, relevantly, the MRT [the Tribunal] and indeed there is no authority at all for any contrary proposition (paragraph 35); and
b)there is no obligation at common law upon a decision maker to identify perceived deficiencies or weaknesses in the material provided by a visa applicant (paragraph 38).
The law
Section 359A of the Migration Act provides as follows:
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Sub-clause 100.221(4)(c)(i) provides as follows:
(4) The applicant meets the requirements of this subclause if:
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) — either or both of the following circumstances applies:
i) either or both of the following:
(A) the applicant;
(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse;
Regulation 1.21 to regulation 1.26 provides as follows:
REG 1.21 Interpretation
(1) In this Division:
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.
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 sub regulation (1) are:
(a) manager or coordinator of:
(i) a women's refuge; or
(ii) a crisis and counselling service that specialises in domestic 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 domestic violence; that has a collective decision-making structure; and
(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.
REG 1.22 References to person having suffered or committed domestic violence
(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.
REG 1.23 When is a person taken to have suffered or committed domestic violence?
(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:
(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 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; or
(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;
(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 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.
REG 1.24 Evidence
(1) The evidence referred to in paragraph 1.23 (1) (g) 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 on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; 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.
REG 1.25 Statutory declaration by alleged victim etc
(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 who alleges that he or she is the victim of relevant domestic 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 domestic violence.
(3) A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic 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 domestic violence; and
(e) set out the evidence on which the allegation is based.
REG 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.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Conclusions and findings
The first ground on which the applicant challenges the validity of the Tribunal’s determination is that the Tribunal failed to exercise its jurisdiction under section 359A of the Migration Act. The applicant was invited to comment on information by letter dated 19 May 2002 pursuant to section 359A following the decision dated the 18 April 2001 and the application for review on 2 October 2001. The letter said in part as follows:
You have claimed domestic violence but you have not submitted prescribed evidence of domestic violence which meets the requirements of the domestic violence provisions (Casebook “CB” 60)
The applicant claims that this did not particularise in any way how the evidence was deficient. In response to the Tribunal’s letter, the applicant submitted a statutory declaration made by him together with two statutory declarations from same competent persons, Dr Bagevic and Dr Polonwita containing the expression of an opinion from them that the applicant had suffered domestic violence.
The applicant further claims that during the hearing the Tribunal did not draw the applicant’s attention to the fact that the statutory declarations were not declared before a prescribed person as described under section 8 of the Statutory Declarations Act 1959 (Cth). Similarly, it was not pointed out that the competent persons who had signed the statutory declarations did not fall within regulation 1.24 in that they had the same qualification.
The applicant does not dispute or take issue with those findings or deficiencies but contends that in reaching its decision and in the conduct of proceedings, the Tribunal failed to accord the applicant procedural fairness and natural justice. The applicant submits that section 359A of the Migration Act enacts or is a statutory expression of an important principle of natural justice. In Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140 at [12] and [101] the Court held that:
12 I am also of the view that the failure to comply with s 359A is a jurisdictional error. If s 359A can be regarded as a statutory expression of the content of the rules of procedural fairness in the particular circumstance, as Merkel J (with whom the other two members of the Court expressed agreement) said of s 424A in Al Shamry at [39] - [40], there is little difficulty. Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24 is authority for the proposition that a denial of procedural fairness is a jurisdictional error. A purported decision tainted by such an error cannot be regarded as a decision made "under this Act", within the definition of "privative clause decision" in s 474(2) of the Migration Act. The purported decision will not receive the protection of s 474 and will ground an application for relief pursuant to s 75(v) of the Constitution, that being the relief this Court may grant pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act").
101 As explained above, s 359A(1) enacts an important aspect of the rules of natural justice, albeit in a somewhat more restricted form. For example, the rules of natural justice require disclosure of adverse information that could, rather than would, be prejudicial: see Kanda v Government of the Federation of Malaya [1962] AC 322 at 337 and Kioa v West (1985) 159 CLR 550 at 603, 629, 634. The observations to which I have referred in Aala, Miah and Plaintiff S 157/2002; the more restricted form of s 359A(1); its mandatory nature and its central importance in ensuring a fair review by the Tribunal; afford strong reasons for not construing s 474 as manifesting a legislative intent that a decision made in contravention of the requirements of s 359A(1) is validated by s 474. The above matters have led me to conclude that s 474 does not manifest a legislative intent that a decision made without compliance with s 359A(1), irrespective of how unfair that may have been, is nonetheless a valid decision.
I was also referred to the High Court decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327 at [22] which quotes from Commissioner For The Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576 at 591:
where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. Accordingly the applicant contends that the Tribunal was required to advise the applicant as to the particular deficiencies that existed in the statutory declarations if not by letter then certainly during the proceedings that followed before the Tribunal and before the Tribunal made its decision.
It is clear from sub-clause 100.221, in sub-section (3) that the applicant is entitled to a visa if the applicant has suffered domestic violence by the sponsoring spouse. The effect of regulations 1.22, 1.23, 1.24 and 1.26 is that the Tribunal has no role in deciding for itself whether the evidence established that he had suffered domestic violence. The only question for the Tribunal was whether or not evidence had been provided in accordance with this regulatory regime. The regime creates what the Court has described as a mechanical mode of proof.
In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 503 a decision based on the same regulatory regime, Gray J at paragraph [39] said:
In most, if not all, cases, the source of information on which the competent person must act in forming the requisite opinion will be the alleged victim. For this reason, there is a considerable level of responsibility attaching to the making of a statutory declaration by a competent person, to enquire as to the details of the allegations and to exercise professional judgment as to whether what the alleged victim says can be accepted as an account of events satisfying the definition of domestic violence. It is for this reason that reg 1.26(f) requires that the declaration of a competent person describe briefly the evidence on which the competent person's opinion is based.
40 The traditions underlying our legal system have embedded in them a considerable suspicion of mechanical modes of proof. The relatively rare instances in which a finding of the truth of a serious allegation cannot be made because of the requirements of rules of corroboration quite rightly fuel this suspicion. Australian law contains no rule that the evidence of two women is required to equal the evidence of one man, a rule sometimes said to be a feature of some other legal systems. Mechanical modes of proof are regarded as capable of producing injustice. They also undermine the confidence normally reposed in the fact-finding abilities of courts. The effect of reg 1.23 of the Migration Regulations is to institute a mechanical mode of proof. The regulation requires that a finding in respect of a serious allegation must be made if the right mechanism is adopted to prove that allegation. In such circumstances, it is appropriate to be vigilant to ensure that every element of the mechanical mode of proof has been satisfied.
In the present case, there have been two separate elements of the mechanical mode of proof that were not satisfied.
The importance of the strict adherence to the regulatory regime is further emphasised by Ryan J in Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251 at [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 requirements 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.
And in Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 at [40] per Wilcox J:
40 The regulatory regime is a triumph of form over substance. Paragraph 801.221(6) creates an exception to the general rule that an application for a subclass 801 visa must continue to be supported by the applicant's spouse. It does so, no doubt, on the humanitarian ground that it would further victimise a victim of domestic violence if a breakdown of the spousal relationship, which may be the result of, or associated with, the domestic violence, thereby disqualified the victim from obtaining the visa to which she or he would otherwise have been entitled. However, although the relevant exception is expressed in para 801.221(6)(c) by reference to a factual situation ("has suffered domestic violence committed by the nominating spouse"), Division 1.5 of the Regulations precludes the visa decision-maker investigating the facts. If the appropriate statutory declarations are provided by the visa applicant, domestic violence "is taken" to have been suffered by the visa applicant at the hands of the nominating spouse, even if the opinions stated in the statutory declarations lack any discernible cogency. If the visa applicant fails to obtain appropriate statutory declarations, by the required two competent persons, the visa application has to be refused. This is so even if the decision-maker is totally satisfied that the applicant has suffered domestic violence at the hands of his or her spouse.
Again I repeat that in this case the two statutory declarations were relied upon in circumstances where the application was made pursuant to a statutory regime. The Tribunal in saying “the material you provided is deficient” was not saying what those deficiencies were and yet was saying more was required by section 359A or natural justice. There was nothing pointed out by the applicant that showed an active misleading by the Tribunal which would constitute a breach of natural justice.
The Full Court of the Federal Court in Commissioner For The Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576 at 592 says with respect to the exercise of statutory power and the requirement for procedural fairness:
It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
In this instance, it is very clear that what is required is apparent from its nature or the terms of the statute under which it is made. Indeed the words on the standard form of the statutory declaration used under the domestic violence provisions and completed by Dr Bagevic and Dr Polonwita, is as follows:
A statutory declaration from the applicant and two statutory declarations from any of a range of “competent persons” stating that in their opinion the applicant has suffered from domestic violence. The declaration will be required to come from different occupation groups of “competent persons”. (CB 71 and 74)
It is clear to my mind that natural justice in these circumstances can not be said to require the Tribunal to explain the effect of the regulation and the defects in the applicant’s case. Accordingly, I am satisfied in all the circumstances that there has been procedural fairness and that there is no breach of natural justice.
The respondent further contended that to succeed the applicant would have had to establish physical violence not just emotional abuse and that there was nothing in the material to support that. Whilst I find some attraction to this argument it is not in the circumstances necessary for me to determine that point.
In the circumstances, the appeal is dismissed with costs fixed in the sum of $6,500.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 14 September 2004
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