FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 762

IMMIGRATION - battered wife - refugee status considered and approved by sympathetic delegate - whether decision to grant visa made - after discussions with supervisor delegate requested case be taken from her - matter referred to a second delegate who determined not to grant the visa - decision allegedly made under dictation - second delegate allegedly functus officio - alleged error of law in considering domestic violence under the Convention

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

Minister for Immigration & Multicultural Affairs v Kurtovic (1990) 21 FCR 193, distinguished

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) FCA 247, distinguished

Chan v Minister for Immigration & Multicultural Affairs (1989) 169 CLR 379, considered

Acts Interpretation Act (Cth) 1901, ss 15AA, 33(1), 34AB(6)

Migration Act (Cth) 1958, ss 31, 31(1), 31(2), 31(3), 36(1), 36(2), 47, 47(1), 47(2), 54(1), 56, 57, 63, 65(1), 66(1), 109, 116, 117, 417, 476(1)(e), 496(1), 496(3), 497(1), 497(3), 498(1), 501

Migration Regulations (Cth), Sch 2 reg 866.22

Convention Relating to the Status of Refugees 1951

Protocol Relating to the Status of Refugees 1973

Pearce & Geddes Statutory Interpretation in Australia, 4^th ed Butterworths, Sydney, 1996

ANJILA DEVI SINGH & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 586 OF 1998

MADGWICK J

SYDNEY

8 JUNE 1999

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  No order is made as to costs.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     To describe this case as unfortunate is to understate the matter. 

2                     Ms Anjila Devi Singh is a battered Fijian wife and Abishek Singh is her young son ("the applicants").  Ms Singh suffered cruel and degrading treatment at the hands of her husband over the course of several years in Fiji.  The police and other authorities there failed to provide her with adequate protection, in part at least, because her husband's family were friendly with local police.  It was also suggested that the failure of the authorities to intervene may be attributed to a species of male chauvinism:  it is possible that, as has not infrequently been the case in Australia, the predominantly male Fijian authorities undervalued the vindication of the applicants' rights to have the criminal law enforced in the domestic context.  Ultimately Ms Singh fled, with her son, to live apart from her husband elsewhere in Fiji.

3                     After their separation, Ms Singh's husband kidnapped their son and brought him to Australia.  Ms Singh followed them here and invoked Australia's governmental and judicial processes to assist her.  Thereby she succeeded in both being reunited with her son and having her husband deported back to Fiji.  Following these events the applicants sought protection visas.

Succour offered and then denied

4                     The respondent Minister delegated his relevant powers under s 47 of the Migration Act (Cth) 1958 ("the Act"), to consider and then grant or refuse visa applications, to departmental officers employed at a certain service level.  One such officer, who for reasons that will become apparent it is appropriate to refer to as "C", was first assigned the task of dealing with the applications in question.  C considered the extensive documentary materials submitted by the applicants' legal advisors.  C is a woman, unfortunate enough to have experienced domestic violence herself, who adopted a compassionate approach to the applicants' case.  In an internal departmental document headed "Protection Visa Decision Record" dated 18 March 1997, C summarised her understanding of the claim and concluded on an official pro forma document:

"PART C         ASSESSMENT OF SPECIFIC CLAIMS…

8.                  I find that Anjila Devi SINGH has a real chance of Convention based persecution if returned to Fiji and that her fear of persecution for Convention related reasons on return is consequently well-founded.

PART D           CONCLUSION - PROTECTION OBLIGATIONS IDENTIFIED

9.                  I find that Anjila Devi SINGH is a person to whom Australia has protection obligations under the Refugees Convention."

5                     Thereupon, C wrote to Ms Singh advising her that, "[y]our application has reached a stage that you and members of your family unit should now proceed to satisfy medical and public interest requirements."  The letter continued, indicating how medical examinations, police checks and other routine inquiries could be arranged.  It concluded:

"How a Protection Visa may be granted

When you and your son have completed the requirements mentioned above and you have received all the results and clearances, please send [the] documents to me …

Your status while your Protection Visa application is processed

Your Bridging Visa will allow you to remain lawfully in Australia until 28 days after a decision is made on your application.

The Bridging Visas granted to your son will also be valid until 28 days after a decision is made on his application.

When the processing of your application is completed, you will be notified in writing of the decision.

If you have any enquiries concerning the processing of your application for a Protection Visa, you may contact me on…

Keep this letter in case you need to produce it for any Government purpose."

Also on 18 March 1997, the applicants' legal advisor was told by a representative of the respondent that the applicant was "approved" as having refugee status.  The applicants' legal advisor naturally passed on the good news to her client.

6                     In February 1997, the respondent Minister had publicly repeated earlier criticisms of Tribunal members for "going off on a frolic of their own" by allowing women to stay in Australia for fear of being bashed by their husbands.  The Minister said that persons accepted on such grounds kept out bona fide refugees who may have been languishing in overseas camps for long periods.  In his report of this, a senior and credible journalist stated: "the Government's broader concern is that it could be swamped by domestic violence claims".

7                     By 25 March 1997 the scent of things to come may have been in the wind.  C added to the applicant's file a note further explaining her approach to the matter:  "as I perhaps did not make my reasoning clear enough in the decision record".  Soon after this, the respondent's departmental State Manager informed C's immediate superior ("the supervisor") that C's assessment of the applicants' cases raised "quality assurance issues".  The memorandum continued:

I am aware that while no final decision has been made on this case, i.e. not all Mig Regs met, an assessment of claims has been undertaken by [C].  I have serious concerns regarding the quality and logic of her assessment as I feel her decision making falls outside the Convention.  She has assessed claims which clearly fall outside the Convention, bringing into question whether or not the applicant should be granted protection (?)

I also have concerns regarding the emotive and subjective nature of [C]'s wording (in the assessment).  Could you please:

(i)                 examine [C]'s assessment…

(ii)               confirm with Legal Aid [i.e. the applicant's legal adviser] that no final decision has been made - the letter [from C extracted above] does not indicate this, but we need to reaffirm the stage of processing we're at, i.e. assessment only, no decision as yet.

(iii)             Pls discuss the case/assessment with [C], as part of your usual quality assurance process.  In particular her decision making thought process, the emotive/subjective components, and most importantly her reasoning in line with the Convention."

8                     On 27 March 1997 C's supervisor spoke to the applicants' legal advisor who advised the supervisor that the applicants had completed their medical examinations.  The supervisor responded by stating that "the decision had not been made", the "medical letter" had been "sent in error", and was "not a grant letter", and that the case did not "fall within Convention grounds".  The supervisor then spoke to C.  The former's record of that conversation was:

"I confirmed that there was no Convention ground in this application.  Discussion about women as a social group - agreed that women did not constitute a 'social group' for the purposes of the Convention.  [C] stated she believed the applicant was in danger in Fiji from husband.  I stated that if this was case, it was nonetheless not Convention-related and she was not a refugee on that basis.  Discussed possibility of RRT appeal and humanitarian assessment; albeit not in Minister's guidelines.  [C] asked that case be taken away from her as she felt strongly for the applicant and situation applicant was in and did not want to now refuse.  I counselled her on using her own experiences in her decision-making…  I stated as she did not now want to deal with this case I would re-allocate it to another office to assess/make a decision.  Asked [C] to send any queries from solicitors to me."

9                     On 10 April 1997 another delegate of the respondent completed a second "Protection Visa Decision Record", in identical format to the document previously completed by C on 18 March 1997.  Among other things the second delegate expressed the views that there was no cognisable social group to which the applicant had belonged and that any harm that the applicant might suffer on her return to Fiji would not be "for reasons of" membership of any such group.  This officer concluded:

"PART D      CONCLUSION - PROTECTION OBLIGATIONS NOT IDENTIFIED

4.1                                I find that Anjila Devi SINGH … does not have a fear of persecution for a Convention reason…

PART E        DECISION ON PROTECTION VISA APPLICATION

5.1                                I am satisfied that Anjila Devi SINGH is not a person to whom Australia has protection obligations under the Refugees Convention and therefore does not meet a prescribed criterion under clause 866.221 of the Migration Regulations for the grant of a Protection Visa.  I am therefore refusing the grant of a Protection Visa to her."

10                  A formal letter dated 10 April 1997 was subsequently sent to the applicants, advising them that their applications had been refused.  The "decision record", completed by the second delegate, giving the reasons for the refusal, was attached.  The applicants' case challenges the authority of the second delegate to make this determination.

The legislative framework

11                  There is a class of visas known as protection visas:  see ss 36(1), 31(1) and 31(2) of the Act.  According to s 36(2), one criterion for such a visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1973 ("the Convention"):  s 36(2).  However, under s 31(3), the Migration Regulations ("the Regulations") may prescribe other criteria, and they do so.  Regulation 2.03 provides that, for the purposes of s 31(3) of the Act, the prescribed criteria for the grant of a visa of a particular class are:

"(a)     the primary criteria set out in a relevant Part of Schedule 2; or

(b)               if [such a relevant Part] sets out secondary criteria, those secondary criteria"

12                  Schedule 2 of the Regulations, under the heading "Subclass 866 - Protection", and the subheading "866.2 - Primary Criteria" provides:

"866.22           Criteria to be satisfied at time of decision [emphasis added]

866.221                      The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention

…

866.222                      The applicant has undergone a medical examination carried out by a commonwealthmedical officer.

…

866.225                      The applicant satisfies [certain public interest criteria - these relate to considerations of the protection of the Australian domestic peace, Australian national security and possible prejudice to Australia's foreign relations].

866.226                      The Minister is satisfied that the grant of the visa is in the national interest".

13                  Section 47(1) obliges the Minister to consider a valid visa application (which those in question were).  Section 47(2) provides that the "requirement to consider an application for a visa continues until [among other matters], the Minister grants or refuses to grant the visa" [emphasis added].

14                  Powers conferred by or under the Act are to be exercised in accordance with any applicable regulations under the Act:  s 498(1).

15                  Under subdivision AB of Division 3 of the Act, entitled "Code of procedure for dealing fairly, efficiently and quickly with visa applications", s 54(1) provides that the Minister must "have regard to all the information in the application" [emphasis added].  Section 56 enables the Minister to obtain further information in considering an application and s 57 provides that adverse information about an applicant be given to the applicant, with an invitation to comment on it, before a decision is made:  see also s 63.

16                  Section 65(1) provides that:

"After considering a valid application for a visa, the Minister:

(a)               if satisfied that:

(i)                 [any] health criteria for it … have been satisfied; and

(ii)               the other criteria for it prescribed by this Act or the regulations have been satisfied; and

            … [other preconditions apply]

            is to grant the visa; or

(b)               if not so satisfied, is to refuse to grant the visa [emphasis added]."

17                  Section 66(1) requires that the Minister notify the applicant "in the prescribed way" when the Minister grants or refuses to grant a visa.

18                  As to delegation, s 496(1) provides that the Minister may delegate to a person any of the Minister's powers under the Act.  Under s 496(3), in relation to visas that have a health criterion, the Minister may delegate to one person the power to consider and decide whether that criterion is satisfied and delegate to another person "the power to consider and decide all other aspects of the application".  Section 497(1) provides that, if the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, "except the taking of a decision in each case whether or not a visa should be granted".  According to s497(3) there is to be no implication that a delegate is required personally to perform all "administrative and clerical tasks connected with the exercise of the power".

19                  Under s 33(1) of the Acts Interpretation Act (Cth) 1901, unless the contrary intention appears, a power conferred by an Act may be exercisable from time to time as occasion requires.  Further, according to s 34AB(6) the authority of a statutory delegate ought not be interpreted to include the authority to further sub-delegate the power or function in question.

The applicants' response and the RRT decision

20                  The applicants' legal advisors sought a review of the decision refusing to grant a Protection Visa notified to Ms Singh by the Department's letter "dated 18.4.97" before the Refugee Review Tribunal ("the RRT") (although the letter seems actually to have been dated 10 April 1997).  A written submission in support of the application for review was made on 3 February 1998.  However, later the applicants' legal advisers evidently conceived that there was a case to be made that the first delegate had made a decision that the applicant was a refugee and that the respondent was bound to honour that decision.  It was then submitted to the RRT that "the purported refusal decision is void and voidable" because (a) the second delegate was precluded by the doctrine of functus officio from reconsidering the matter, (b) the purported second decision was improperly made at the direction of another officer, and (c) the second delegate's decision was in breach of ss 56 and 57 of the Act (these sections require adverse information to be given to an applicant).  The application for review was not withdrawn or discontinued.

21                  The RRT held that as an application for review of a decision to refuse a Protection Visa had been made to it, the RRT had jurisdiction to determine the matter.  The RRT considered that the terms of the Act foreclosed a "functus officio" argument, and that the applicants were not refugees to whom Australia owed protection under the Convention.

22                  In this Court the applicants made several submissions.  Principally it was submitted that "the respondent and/or his delegates became functus officio as to whether the applicant came within the treaty obligations after the first delegate had made her findings".  Further, it was submitted that the decision was made pursuant to improper pressure.  And finally it was argued that the RRT's decision involved an error of law in determining that the applicants were not refugees.  It is convenient first to state my conclusions about the course of events.

Improper pressure

23                  Delegates of the Minister have a statutory duty to give effect to their own opinions and it would be wrong for another officer to seek to dictate a decision contrary to the conscience of the delegate charged with the consideration of a particular case.  It is the "personal satisfaction" of the decision-maker as to the relevant criteria that is in issue:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281per Brennan CJ, Toohey, McHugh and Gummow JJ.  However, in a government department, it is likely that other officers may come to hear of the drift of opinion of a delegate.  There can be no objection to others offering advice and help to a delegate whose opinion about a particular matter is still developing (subject, of course, to any obligation to disclose information to the applicant).  It is important that the "correct or preferable" decision be reached at first instance, if that can be secured. 

24                  However, in this case it appears that C's supervisor went beyond merely providing advice.  For a delegate's senior officer to speak to the delegate about a particular case in such a way that the senior officer can report "I confirmed that there was no Convention ground in this application" (emphasis supplied) invites the conclusion, especially absent denial, that C was indeed put in a position where she was being dictated to.  Had she not asked to be relieved of the case, an ultimate decision by her conforming to her supervisors wishes, and against her own, would very likely have been legally objectionable.

25                  But, on the evidence before the Tribunal, C did ask that the case be "taken away" from her, because she "did not want to now refuse".  This seems to recognise the legal and factual realities that no final decision to grant or refuse a visa had been made and that the matter was reconsidered afresh by the second delegate.

26                  There is no evidence to suggest that the second delegate's decision was made under dictation.

Functus officio

27                  In Minister for Immigration and Multicultural Affairs v Kurtovic (1990)21 FCR 193 at 211, Gummow J said:

“But in any given case, a discretionary power reposed by statute in the decision maker may, on a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so, not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in question.”

28                  It seems to me that whether "the making of the statements or representations in question" is to be treated as a "substantive exercise of the power" is also a matter depending upon interpretation of the statute conferring the power.  Therefore, before considering the applicability of the doctrine of "spent statutory power" it must be established that a substantive decision was taken by the first delegate.

29                  It is proper, in interpreting the Act to have regard to its subject matter.  Decisions regarding refugee status frequently need to be made on scanty information which is difficult to check.  Distressed and genuine applicants may in desperation tell lies to help themselves or otherwise act against their own interests.  Fraudulent claimants may go to great lengths to lend verisimilitude to their claims.  When the facts are clear, minds may often differ on whether the Convention's criteria have been met.  To add to the distress of an applicant in a matter concerning "human fate" (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407, per Toohey J) by first indicating that there is every prospect of success, and then dashing the hopes so raised by a change of bureaucratic heart is a severe thing.  Unless the Act speaks clearly to the contrary, Parliament might well be thought in relation to such subject matter to have wished not to countenance such a result, while desiring that new information, as distinct from changed decision-making opinion, should be able to be considered right up to the point of a final decision actually to grant or refuse the visa.

30                  It is to be noticed that the relevant function that the Minister or delegate performs is to form a determination as to whether he or she is satisfied that the relevant criteria for the grant of the visa have themselves been satisfied:  s 65(1).  If the delegate is so satisfied the visa must be granted:  s 65(1)(a); if not, a grant must be refused:  s 65(1)(b). 

31                  The criteria are to be satisfied at the time of the decision:  see Regulation 866.22 (and c.f. 866.21).  It would follow that the state of satisfaction of a delegate's mind may change up to that point.  That conclusion is reinforced by s 47, which continues the requirement that the Minister consider the application until the point of actual grant or refusal of the visa.  This conclusion is not denied if s 47 is regarded only as speaking in aid of applicants.  The conclusion rests also on s 31 and the Regulations authorised by that section to which I have referred.  Thus, Parliament seems to have resolved the policy issues in favour of enabling reconsideration by the delegate of the state of his or her satisfaction as to the various criteria, including that of refugee status, until the final promulgation of a formal decision.  The competing considerations suggested by the subject matter do not, in my opinion, clearly enough point in a contrary direction to enable a purposive approach that would lead to a different conclusion being adopted in the face of the plain words of the legislation (c.f. s 15AA of the Acts Interpretation Act 1901 and Pearce and Geddes Statutory Interpretation in Australia 4^th ed Butterworths, Sydney 1996 pp 26-28.

32                  The powers reposed in the Minister to cancel visas (ss 109 and 116, c.f. ss 117 and 501) or to reconsider a matter favourably to an applicant even after an adverse RRT decision (s 417) are not at odds with such a view.  The Act manifests great concern that the correct or preferable decision is reached and finality is often sacrificed to that end.

33                  I conclude that there was no legal impediment to the events that occurred which resulted in the decision, adverse to the applicant, made by the second delegate.  I express this view on the doubtful assumption that, had I found any such legal impediment, this Court would have the power to do anything about it.  I may add that I have sought to discover some doctrine other than that relating to spent statutory power that might avail the applicant.  My own researches and imagination have not led to anything that I consider could properly assist her.

Domestic violence and the Convention

34                  Further, it was argued that the RRT erred in law in misunderstanding the Convention or in misapplying it to the facts under s 476(1)(e) of the Act.  The first delegate, C, had taken the view that the applicant was a member of a "particular social group" because she was "a woman, a wife and a victim of domestic violence/wife bashing".  The persecution of her by her husband was "for reasons of" her membership of such a group because that delegate:

"considered that she was being bashed by her husband because she was his wife and his culture has in the past, and still now to some extent deems it acceptable for a man to bash his wife."

As to her inability to obtain protection from the Fijian authorities C wrote:

"It could be argued that [comments apparently made by the then Prime Minister to the effect that a man might pass time by kicking his wife as a football, amounted to] state sanction of violence against women, although of course Fiji is taking steps towards changing this attitude and does have laws and infrastructure in place for women to avail themselves of… In this instance I considered that the pathology of Ms Singh's husband, and his connections to the police and the legal system meant that she was unable to avail herself of state protection… she repeatedly sought police intervention … and even legal action, and yet she was never given protection from her husband's violence and was forced to reconcile with him".

35                  The second delegate, on the other hand, thought that the applicant was not relevantly a member of a cognisable social group, but that, in any case,

"it could not be argued that any harm the applicant may incur on return would be for reasons of membership of such a group… Any harm the applicant may incur from her husband would be as a consequence of the fact that she was in a relationship with this violent person and because of the dynamics of that relationship, not because she was a member of a particular social group."

36                  The case submitted to the RRT (before its jurisdiction was later impugned) was that the particular social group consisted of

"members of the family of [Ms Singh's husband]… 'family' [should] be understood in the extended family sense in accordance with Fijian Indian cultural norms.  The fact that Ms Singh has now divorced her husband does not mean that she is no longer regarded as a member of the Singh family particularly as she is the mother of [her former husband's] only child."

37                  The RRT accepted that the applicant is "a member of a number of social groups, including her husband's family and/or her blood family", but held that the applicant foundered on the rocks of the requirement that the persecution be "for reasons of" such membership:

"In the present case, by the Applicant's own account, the Applicant's husband is a generally violent man.  The focus of that violence, in addition to herself, has been men, women, authorities, members of his own family and those of his wife's… This leads me to find that the Applicant's violent actions are indiscriminate or ‘unreasoned antipathy’ and that those closest to him are at greatest risk because of that closeness and individual perceived actions or faults rather than because of their membership of any group."

38                  If there is any error in this conclusion, it is in my view, an error which would have tended to assist the applicant before the RRT.  The RRT may have been too ready to assume that, if the facts had established that it was only members of his own family who were victims of the husband's violence, then this suffering was "for reasons of" their membership of that family.  It would be an unusual violent husband who assaulted members of his family because of their status as family members rather than because of the  quality and incidents of his individual relationship with the particular family member.  There are, of course, other cases where membership of a family does conceivably furnish that of persecution - one could imagine a regicide revolutionary regime persecuting distant members of the erstwhile royal family "for reasons of" such family membership.  If that is right, one must then ask whether there is any other "particular social group" of which the applicant's membership furnishes a substantial reason for her persecutory ill-treatment by her husband.  There seems to be none.

39                  There is a second possibility, faintly touched on by the first delegate, of direct State persecution by a tacit policy of closing the official door to women complaining of domestic abuse.  This claim was not agitated before the RRT and, in this case, there is scant evidence of it.  In fact, to the contrary, it appears that steps are being taken by the authorities in Fiji to make such complainants more welcome.  In any case, there may be difficulties about fitting such a claim within the "social group" category of refugees.  What is the group?  Are women at large a "particular" social group?  (Are men?)  Is the discriminatory State practice "for reasons of" membership of such a group?  Such discrimination is not necessarily against women as such:  a complaining son might receive similar short shrift; a woman complaining of extra-familial violence may not.  Is the group then persons who are not heads of families?  Do such persons amount to a cognisable social group?  Or does the state's recalcitrance exist, perhaps, for reasons of a sense of threat felt by those (men) in authority to their patriarchal (or at least paternalist) "hegemony", when complaints about heads of family are aired in public?  If so, then there would appear to me to be problems in looking to membership of any group as an effective cause of the State persecution.  Can the matter then be viewed as one of State persecution for reasons of the (perceived) political opinion of the complainant?  In such a situation, is there really a "political opinion" involved, even allowing for a broad interpretation of that phrase?  There may be senses in which "the personal is political" and the cultural is too.  But are they the senses in which the term "political opinion" was used in the Convention?  I express no view about these matters.  There are regimes in which women are treated very badly by Australian or, one might think, any civilised standards.  Any difficulty that a woman who flees one of them to come here might face in being accorded refugee status can be dealt with when it arises.  It is enough to conclude that, in the circumstances, there was insufficient evidence of actual State persecution for any reason to impose an obligation on the RRT to consider this matter - c.f. Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.

Conclusion

40                  It appears to me that no legal error is apparent in the approach of the RRT.  It follows, regrettably, that this application must be dismissed.  The circumstances hardly make it right, however, to order costs in favour of the respondent, and I will make no order as to costs.

41                  I cannot leave this case without commending it for the personal attention of the Minister under s 417. The decision is of course the Minister's own and I accept that I am likely not to have a full grasp of the policy complexities in this difficult area of administration.  Further, I make these observations with a keen respect for the proper respective provinces of the court and of the Minister. 

42                  The applicant's documentation of her case has been uncommonly impressive.  There is no question of her engaging in any subterfuge.  She was truly a beaten wife, and now has well founded fears of further severe harassment from her ex-husband should she be obliged to return to Fiji.  Her father and other family members live in Australia.  Her five year old son now has, for the first time, as the applicant puts it, "a safe and stable living environment for him to grow up in".  Both the child and his mother were, as might be expected, in a grievous emotional condition apparently with frank implications for their physical health.  Both have greatly improved since coming here.  The applicant is an intelligent person and a productive worker.  Australian authorities originally came to their aid in ways of which, it would seem, Australians can be proud.  A kind-hearted officer, with personal experience of domestic violence, acting in good faith, led the applicant to believe, in effect, that she would be given permanent refuge here from her tormentor.  The effect of the application of the law, as it seems to me, is to dash those hopes and endanger the well being of this child and his mother, unless the Minister feels able to exercise his powers to avoid that result.  Much suffering is apt to be engendered by domestic violence.  While, of course, it is regrettably prevalent throughout the world, this case has particular and unusual features.

Associate:

Dated:              8 June 1999