FEDERAL COURT OF AUSTRALIA

Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115

THI LAN DU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 571 OF 2000

MATHEWS J

2 AUGUST 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant Thi Lan Du seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 May 2000 which affirmed a decision of the respondent's delegate refusing to grant the applicant a spouse visa. The issues involved in this case are in a relatively small compass and I shall confine my description of the background to matters which are presently relevant.

2                     The applicant is a Vietnamese national who arrived in Australia using a student visa on 29 September 1994.  On 30 June 1995 she married an Australian citizen, Wayne Fotheringham, who was described by the Tribunal in its decision as “the nominator”.  On 5 July 1995 she applied for a spouse visa.  This was refused by the Minister's delegate whose decision was upheld by MIRO.

3                     The applicant then sought review by the Tribunal. By the time the matter came for decision by the Tribunal the marriage between the applicant and Mr Fotheringham had broken down and Mr Fotheringham could not be located. 

4                     One of the criteria to be satisfied by the applicant for a spouse visa is that, at the time of decision, the applicant and the nominator remain living together in a genuine and committed relationship.  This requirement was clearly unmeetable by the applicant when the Tribunal gave its decision.

5                     An exception to this criterion is provided in the Migration Regulations 1994 (“the Regulations”) if the visa applicant has suffered domestic violence committed by the nominating spouse.  In order to prove this matter, reg 1.23, as relevant here, requires the applicant to present evidence in accordance with reg 1.24 that the alleged victim (here the applicant) has suffered “relevant domestic violence” and, secondly, that the nominating husband has committed that violence. “Relevant domestic violence” is defined in reg 1.23 as:

“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.”

6                     Regulation 1.24 requires, as relevant here, that the evidence of domestic violence consist of a statutory declaration of the alleged victim and two statutory declarations under reg 1.26, being declarations by competent persons.  A registered medical practitioner and a registered psychologist are included as competent persons under this regulation. 

7                     The applicant in this case lodged three statutory declarations with the Tribunal in purported compliance with reg 1.24.  There is no difficulty about her own statutory declaration, which clearly complied with reg 1.25.  But there is a real issue as to the adequacy of the statutory declarations from the two competent persons.  These are the declarations of Martha Knox, dated 10 December 1999 and of Dr Din Hoa Tran which appears to be undated.  Both of these were competent persons: Dr Tran is a medical practitioner and Ms Knox a registered psychologist.  It is the content of their statutory declarations which the Tribunal found did not meet the requirements of reg 1.26.

8                     The primary basis for the Tribunal's adverse findings in this matter was that neither of the statutory declarations met the requirements of paras (c) to (f) of reg 1.26.  These provide as follows:

“A statutory declaration under this regulation:

(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.”

9                     The Tribunal found that neither of the statutory declarations met these requirements.  In particular, neither of them stated that in the deponent's opinion relevant domestic violence had been suffered by the applicant.  This finding was challenged in the application to this Court, although in the hearing today the challenge is less forcefully maintained than it appeared to be in the applicant's written submissions.

10                  In order to explore this aspect of the applicant’s case, it is necessary to turn to the relevant statutory declarations.  That of Dr Tran is very brief indeed.  It says simply:

“THI LAN DU attended our surgery at Campsie on 21/2/97 with multiple bruises which were allegedly caused by domestic violence (assaulted by husband).”

11                  The statutory declaration of Ms Knox annexes her report dated 10 December 1999 following a clinical interview with the applicant on 7 December 1999.  It is a lengthy report which sets out the applicant's background and the difficulties she encountered in her marriage with Mr Fotheringham.  The applicant described to Ms Knox two acts of apparent domestic violence perpetrated by her husband.  The first was the one which led to her visit to Dr Tran in February 1999.  Mr Fotheringham returned home shortly after this alleged assault and apologised to the applicant.  They resumed cohabitation until June 1998 when she described a further assault as having taken place.  Mr Fotheringham left immediately after this incident and the applicant has not seen him since.  She has been unable to locate him.  She did not seek medical treatment after this second assault.

12                  Ms Knox's report under the heading “Summary and Recommendations” contained the following passage:

“She certainly expressed sentiments and a psychological condition that was consistent with an individual who has suffered from domestic violence and a marital breakdown.”

13                  Ms Knox went on to make observations about some features of the relationship between the applicant and Mr Fotheringham which she said might act as a fuel for domestic violence. 

14                  The Tribunal found that neither of these statutory declarations complied with reg 1.26 in that neither stated the deponent's opinion that domestic violence had occurred.  Ms Knox's statement that the applicant's presentation was “consistent” with an individual who had suffered from domestic violence and a marital breakdown was not sufficient, the Tribunal found, for this purpose.  Nor did Dr Tran's very brief statement relating to bruises “allegedly” caused by domestic violence state any opinion at all.

15                  The application to this Court was based upon the proposition that the Tribunal's findings as to the inadequacy of these statutory declarations constituted an error of law under s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”).  The applicant's written submissions concentrated on the statement in Ms Knox's report as to the consistency between the applicant's presentation and a background of domestic violence and marital breakdown.  The applicant urged that the context in which reg 1.26(c) appears is significant, and made the following submission:

“A person who makes a statutory declaration for the purpose of reg 1.26 is unlikely to have seen the act of domestic violence in respect of which an opinion is required.  In these circumstances, it is sufficient for compliance with reg 1.26(c), if the competent person expresses the opinion that the evidence presented by the applicant is consistent with the applicant's claims that he or she has suffered domestic violence or that the competent person believes the applicant's claims that he or she has suffered domestic violence.”

16                  The applicant's case is stronger in relation to Ms Knox's statutory declaration than it is in relation to Dr Tran's. For although there may be some semblance of an argument that Ms Knox impliedly expressed an opinion that domestic violence had occurred, this could not be said of Dr Tran's very brief statement that the applicant had "multiple bruises which were allegedly caused by domestic violence".  No opinion of Dr Tran's can possibly be implied from this statement.  Yet the applicant needs to produce two statutory declarations from competent persons in order to comply with reg 1.26.

17                  It would be sufficient to resolve this aspect of the case simply to find that the Tribunal was not in error in relation to Dr Tran's statutory definition and therefore in relation to its finding that the applicant failed to comply with the requirement of the Regulations relating to the proof of domestic violence.  But I think I should go further and express my view - for it is my view - that the Tribunal's findings in relation to both statutory declarations were correct.

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.

20                  Accordingly the Tribunal was not in error in finding that the applicant had failed to meet the requirement of the Regulations and in affirming the delegate's refusal to grant her a visa.

21                  Three further matters have been raised on the application.  The first two can be dealt with briefly.  The third became the focus of oral submissions during the course of the hearing today.  The first matter is this.  The respondent has pointed out that in any event Dr Tran's statutory declaration was made under the New South Wales Oaths Act 1900 and therefore does not comply with reg 1.21 which defines a statutory declaration for the purpose of the relevant Regulations as “a statutory declaration under the Statutory Declarations Act 1959.”

22                  The respondent says that this provides a further basis for finding that the evidence produced by the applicant did not comply with the Regulations.

23                  This matter was not raised before the Tribunal.  In the light of my earlier findings it is unnecessary to deal with it here.  Dr Tran's statutory declaration does not in any event comply with the Regulations and there is little point in discussing this additional challenge to it. 

24                  This is sufficient to dispose of the second further matter raised by the applicant.  For the applicant was prepared to argue, in response to the respondent's reliance on reg 1.21, that that regulation, insofar as it requires that a statutory declaration be under the Statutory Declarations Act, is invalid as being inconsistent with s 353(2)(a) of the Act.  That section provides that, the Tribunal, in reviewing a decision, “is not bound by technicalities, legal forms or rules of evidence”.

25                  As I have made no finding as to the non-compliance of Dr Tran's statutory declaration with reg 1.21, it is unnecessary to deal with the applicant's challenge to the validity of that regulation.  As Mr Leeming, who appears for the respondent, points out, the Court will not normally deal with invalidity issues unless they are directly raised on the material before it. This is clearly not the case here.

26                  The final matter relied upon by the applicant which has assumed particular significance during the hearing today, is that the Tribunal failed to comply with s 360(1) of the Act.  That subsection establishes procedures which the Tribunal is bound to follow in appropriate situations.  A failure to do so will constitute a ground of review under s 476(1)(a) of the Act.  Section 360(1) provides as follows:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

27                  This submission arises by virtue of the sequence of events leading to the Tribunal's decision.  On 9 November 1999 the Tribunal wrote to the applicant, pursuant to s 359 of the Act, inviting her to provide the following information:

“▪ A statutory declaration stating that you have suffered domestic violence and that the nominator, your spouse, was the perpetrator of that violence; and

▪ A statutory declaration by a competent person, who could be a medical practitioner, a psychologist, a member of the Australian Association of Social Workers, a registered nurse or Court counsellor from the Family Court; and

▪ A copy of a police record of an assault on you allegedly committed by the alleged perpetrator; or

▪ A statutory declaration by yourself; and

▪ Two statutory declarations from competent persons as listed above.”

28                  The applicant was told that this information needed to be received by 14 December 1999.

29                  On 14 December 1999 a migration agent, acting on behalf of the applicant, wrote to the Tribunal saying that he was assisting Ms Du in the collection of information that the Tribunal required in its letter.  It was this letter which forwarded to the Tribunal the statutory declaration of the applicant and the two statutory declarations of Dr Tran and Ms Knox.  There was also a report from another clinical psychologist, but as this was not in statutory declaration form it was not a matter which the Tribunal took into account under the regulations.

30                  The letter went on:

“Ms Du would like to submit that she is prepared to appear before the Tribunal to provide any further comment or explanation that the Tribunal would request her to give.”

31                  It is likely that at some time before 23 March 2000 an invitation was sent to the applicant under s 360 of the Act, for the applicant appeared before the Tribunal on that date in order to give evidence.  There is no copy of such an invitation in the papers before me.  I am prepared to assume for present purposes that it did not contain any reference to the defects in the applicant's affidavits which ultimately led to the rejection of her application.  Nor would it appear that the Tribunal pointed out these defects to the applicant when she appeared before it and gave evidence on 23 March 2000.  Some six weeks or so later, on 10 May 2000, the Tribunal gave its decision in which it affirmed the delegate's decision because of the inadequacy of the documentary material presented on behalf of the applicant.

32                  The applicant's submission is that s 360 requires that the Tribunal alert the applicant either in the invitation to attend or at the hearing itself, to the issues arising in relation to the decision under review.  In this case the applicant should have been alerted, Mr Zipser submits on her behalf, to the defects in the documentary evidence which had been presented on her behalf some months earlier.

33                  It is useful to look at how the Court has interpreted s 425 of the Act, as it is in identical terms to s 360, the only difference being that it refers to a different tribunal. In this regard I have been referred to the judgment of the Full Court (Tamberlin, Sackville and Katz JJ) in Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339 (“Cho”) which related to s 425 of the Act.  (Both ss 360 and 425 have since been amended, as I shall discuss shortly.).  At the time of Cho, both sections were in the following form:

“425[or 360](1) Where section 424[or 359] does not apply, the Tribunal:

(a)   must give the applicant an opportunity to appear before it to give evidence; and

(b)   may obtain such other evidence as it considers necessary.

     (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.”

34                  An issue arose in Cho as to whether the Tribunal was under an obligation to inform an applicant who appeared and gave evidence before it as to the basis upon which the Tribunal proposed to make an adverse finding.  The Court found that it was not.  The majority judgment was given by Tamberlin and Katz JJ.  Their Honours said:

“We do not consider that there is any special significance in the reference to the word ‘genuine’ which would expand the content of s 425 beyond the ordinary and natural meaning of the language used.  According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence.  Obviously if there is no real opportunity given then the section has not been complied with.  This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence.  It should also be noted that the above quoted observations of Lindgren J support the proposition that a failure to comply with s 425(1)(a) may amount to a failure to observe a ‘procedure’ within the meaning of s 476(1)(a) of the Act, although the objectives expressed in s 420 do not.”(para [33])

35                  Later their Honours referred to the joint reasons for judgment in Abebe v Commonwealth (1999) 162 ALR 1 of Gummow and Hayne JJ.  In particular they emphasised the following passage:

“It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.” (para [39])

36                  Their Honours went on to deal with that issue as follows:

“In that case the RRT decision was attacked on grounds of a breach of procedural fairness.  This claim was rejected.  If the general requirements of procedural fairness did not require the decision-maker to raise the above matters with the applicant then it might be said that a fortiori neither do the more limited requirements presented by s 425.” (para [40])

37                  Sackville J also took a restricted view of the requirement under s 425.  He made the following observation:

“These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement.  Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised.  If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a).  If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).” (para [69])

38                  As already mentioned, ss 425 and 360 have been amended since Cho.  Both sections now require that the Tribunal invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The addition of the highlighted words might arguably be taken as imposing upon the Tribunal an obligation to raise with applicants any concerns held by the Tribunal about their evidence in relation to the decision under review, thus giving them an opportunity to meet those concerns.  But it is not necessary to reach a concluded view on this matter, as the present case does not fall within this category.  The flaws in the applicant’s case here were not such as were capable of being rectified by any evidence or answers given by the applicant to the Tribunal. To put it another way, the defect in her case did not relate to a matter which was rectifiable at a Tribunal hearing. 

39                  In my view no requirement can be read into s 360 that the Tribunal should notify applicants of defects in the documentary material provided in support of their application. Accordingly, there has been no failure by the Tribunal to observe procedures required by the Act.  The sequence of events which took place here would, absent s 476(2), have raised a serious natural justice issue.  But that is not a ground of review to this Court.

40                  The applicant's grounds of review have not been made out, with the result that the application must be dismissed.

41                  I dismiss the application.  The applicant is to pay the respondent's costs.

Associate:

Dated:              9 August 2000