FEDERAL COURT OF AUSTRALIA
Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482
MIGRATION - Application for spouse visa where marital relationship has ceased - Applicant claiming in reliance on statutory declarations of competent persons to be taken to have suffered domestic violence - Extent to which declarations conclusive of the requisite opinions - Whether Tribunal can make its own assessment of the sufficiency of the evidence described by the competent persons - Whether requisite opinion can be implied by statements in Standard Form 1040 - Whether evidence supported opinion that applicant feared for, or was apprehensive about, his safety or well-being - Whether fear for, or apprehensiveness about psychological well-being sufficient.
Migration Act 1958 (Cth) s 65(1)
Migration Regulations 1994, Regs 1.21, 1.23. 1.24. 1.26; Sch 2 cl 801.221(6).
Malik v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 290
Doan v Minister for Immigration & Multicultural Affairs [2000] FCA 909
Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115
Thi Lan Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Commissioner of Taxation v Emmakell Pty Ltd (1990) 22 FCR 157
SIMEON MEROKA -v - MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 733 of 2000
RYAN J
19 APRIL 2002
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 733 of 2000 |
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BETWEEN: |
SIMEON MEROKA Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS:
1. THAT the decision of the Migration Review Tribunal of 30 August 2000 be set aside.
2. THAT the application for review of the decision of the delegate of the respondent Minister be remitted to the Tribunal to be heard and determined according to law.
3. THAT the respondent pay the applicant’s costs of the application to this Court, such costs to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 733 of 2000 |
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BETWEEN: |
Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 30 August 2000 to affirm a decision of a delegate of the respondent, the Minister For Immigration and Multicultural Affairs, refusing to grant the applicant a spouse visa or, more particularly, a General (Residence) (Class AS) Subclass 801 visa.
2 The criteria for a spouse visa are to be found in Clause 801 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) made pursuant to the Migration Act 1958 (“the Act”). Paragraph 801.221(6) of the Regulations relevantly provides as follows:-
(6) An applicant meets the requirements of this subclause if:-
(a) the applicant is a holder of a Subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) except that the relationship between the applicant and the nominating spouse has ceased; and
(c) either or both of the following circumstances applies:
(i) either or both of the following:-
(A) the applicant;
(B) a dependent child of the nominating spouse or the applicant or of both of them;
has suffered domestic violence committed by the nominating spouse;
(ii) …... ... ... ...”
3 Division 1.5 of the Regulations contains the following special evidentiary provisions in relation to domestic violence;
“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 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
... ... ... ... ...
violence includes a threat of violence.”
4 Sub-regulation 1.21(2) provides;
“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 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.”
5 Sub-regulation 1.23 erects what has been called in argument a “deeming mechanism” by providing;
“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
... ... ... ... ...
(g) if the alleged victim is a person referred to in subregulation (2) – the alleged victim or another person on the alleged victim’s behalf presents evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant domestic violence; and
(ii) the alleged perpetrator has committed that relevant domestic violence.
(2) In paragraph (1)(g):
(a) the persons referred to are the following:-
(i) a spouse of the alleged perpetrator;
... ... ...
(b) a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim , or a member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety.
1.24 Evidence
(1) The evidence referred to in paragraph 1.23(1)(g) is:
(a) 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.
... ... ... ... ...
1.26Statutory declaration by competent person
A statutory declaration made 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 purpose 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.”
Background
6 The applicant, a citizen of Kenya, arrived in Australia on 1 July 1993 holding a Student (Class TU) visa, Subclass 560. He married an Australian citizen on 6 September 1997. On 17 February 1998, he lodged an application with the Department of Immigration and Multicultural Affairs (“the Department”) for permanent residence on the basis of his marriage to an Australian citizen. His wife acted as nominator for the purposes of his application. On 8 May 1998 he was granted a temporary Subclass 820 (Spouse) visa.
7 His marriage subsequently broke down on a date undisclosed by the evidence (but before 25 October 1999), and as a consequence, his wife withdrew her nomination. On 29 February 2000 the delegate interviewed the applicant about his status and explained the criteria for the grant of a spouse visa.
8 On 1 March 2000, the day following the applicant’s interview by the delegate, the applicant wrote to the Department and claimed for the first time that he had been a victim of domestic violence at the hands of his former spouse. In this letter he alleged that he had suffered from emotional abuse by his wife resulting from mood swings brought about by her dependence on drugs. He further alleged that she had verbally abused him by calling him names, physically assaulted him on two occasions, made derogatory remarks about him in front of other people and prohibited him from inviting guests to their home.
9 On 14 March 2000, a delegate of the respondent refused the application for permanent residence, essentially on the ground that the nominator had withdrawn her nomination. The delegate did not accept the applicant’s claims that he had been subjected to domestic violence, because those claims were not substantiated and had not been made during the interview.
10 On 7 April 2000 the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant gave evidence at a Tribunal hearing on 12 July 2000. On 30 August 2000, the Tribunal, constituted by member Hodgkinson, affirmed the delegate’s decision.
11 In its summary of what had happened at the hearing on 12 July 2000, the Tribunal in its reasons observed;
“16. The Tribunal noted that the events he had described did not sound so serious as to constitute domestic violence under the regulations and sounded more like nagging. The visa applicant described the nominator's conduct as hitting him twice putting him down, taking the telephone of the hook, asking him to choose other friends and not to take wine and not to go out. He stated that her drug problem and mood swings were not nagging and he was scared that she would do something physically to him and that she might kill him. She had also made threats to have him deported.”
“17. The Tribunal noted that nothing in the statutory declarations he had provided indicated that he was in fear of his life. The visa applicant stated that he had not told the social worker that he was afraid for his life.
18. The Tribunal noted to the visa applicant's migration agent that the statutory declarations provided did not appear to describe relevant domestic violence as prescribed in the regulations. The migration agent submitted that the statutory declarations provided were legally adequate to found a claim of domestic violence and that the interpretation of domestic violence in Malik v Minister for Immigration & Multicultural Affairs [2000] FCA 562 was obiter dicta and unnecessarily narrowed the definition of domestic violence away from belittling conduct. The Tribunal noted that the seriousness of the conduct constituting domestic violence under the regulations appeared to be emphasised in Doan v Minister for Immigration & Multicultural Affairs [2000] FCA 909. The Tribunal allowed the migration agent time to make further written submissions.”
13 The Tribunal did not accept that the applicant had suffered domestic violence, and decided that, as his marriage had ended, the applicant could not otherwise satisfy the relevant criteria. Concurrently, the Tribunal found that the three statutory declarations submitted by the applicant (one personally and two from ‘competent persons’) did not comply with the requirements of Div 1.5 of the Regulations and, as a consequence, the visa applicant was not taken to have suffered domestic violence under Reg 1.23.
14 Notwithstanding its findings as to the statutory declarations, the Tribunal then proceeded to consider whether the applicant had nevertheless suffered domestic violence so as to come within par 801.221(6)(c) of the Regulations.
15 The Tribunal ultimately found that the applicant’s claims were not credible, and concluded that it was not satisfied that the applicant himself genuinely feared for his personal safety. Consequently, the Tribunal was not satisfied that the applicant had been the subject of domestic violence committed by the nominating spouse so as to satisfy par 801.221(6)(c). As the ground afforded by that paragraph was regarded by the Tribunal as the only one available to the applicant to bring himself within Part 801, it held that the criteria for the grant of a Subclass 801 visa were not satisfied.
Grounds of Review
16 It was recited in par 10 of the applicant’s contentions of fact and law dated 21 December 2000 that they addressed only ground 5 of his amended application. Ground 5 is in these terms;
“[t]he decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found within s 475(1)(e) of the Migration Act.”
17 The following particulars are appended to ground 5;
“5.1 The MRT exercised its discretion in considering whether the applicant had suffered from domestic violence when no such discretion exists in the Migration Regulations (see reg 1.23(g); “is taken .....”)
5.2 Pursuant to Regulation 1.23(1)(a) and (b) the applicant (the alleged victim) is taken to have suffered domestic violence, and the other person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim, if the applicant presents evidence in accordance with Regulation 1.24.
5.3 The applicant presented evidence in accordance with Regulation 1.24, namely his own statutory declaration, as required by Regulation 1.25, and statutory declarations from two competent persons, as required by Regulation 1.26.
5.4 The MRT erred in its decision that the statutory declarations provided by the two competent persons failed to comply with the necessary requirements of Division 1.5.
5.5 Each statutory declaration was completed on the Form 1040, prescribed for that purpose by the Department Immigration and Multicultural Affairs.
5.6 Each statutory declaration complied with the requirements of Regulation 1.26, in particular paragraph (c) to (f).
5.7 The MRT erred in not applying the deeming provision “is taken to” in Regulation 1.23(1)(a) and (b), read in conjunction with Regulation 1.26(g).
5.8 The MRT erred in going behind the statutory declarations of the applicant and the competent persons and proceeding to decide the matter on its own assessment of whether domestic violence had occurred.
5.9 In its reasoning process the MRT misapplied the decisions of Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562 and Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909, in that each of these decisions related to cases where statutory declarations had not been provided by either the applicant, or any competent persons.”
Reasoning
18 In support of ground 5, it was contended on behalf of the applicant that the Tribunal had erred in concluding that the two statutory declarations relied on as having been made by competent persons did not satisfy the requirements of Reg 1.26. The first of those statutory declarations was by Vesna Sainovic who claimed to be a registered nurse performing duties in an intensive care unit. Her declaration was made on a pro forma document headed “Statutory Declaration under the Domestic Violence Provision of the Migration Regulations - Form 1040.” In the space headed “Give the following details about the people who have experienced (or in your professional opinion you believe have experienced) domestic violence”, the declarant had inserted the applicant’s full name and date of birth. As the full name of the person who had committed, or was believed to have committed, the violence, Ms Sainovic inserted “Suzanne Maree Donato”, the maiden name of the applicant’s spouse.
19 The next section of Form 1040 was headed;
“Briefly describe the nature of the violence experienced. (Please refer to the definition of domestic violence at the front of this form).”
20 The front of the form included a heading “What is Domestic Violence?” under which appeared the definition contained in Reg 1.23(2)(b), namely;
“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.”
21 In the space allowed by Form 1040 for briefly describing, in answer to Question 3, the nature of the violence experienced, Ms Sainovic wrote;
“I have know Mr Meroka for the past 6 years. A gentleman who is responsible, loving & caring to both his friends & family. I have seen Mr Meroka in past 3 yrs ↑sing social isolation, feeling of distrust, ↓sing selfworthiness, & a continuous position that offered little or no chance of victory or success. Example continuously being harassed, constantly being yelled at & derogative statements given - eg. you black bastard “your lucky to have married me, social isolation - turning phone off unable to speak to colleagues, work employed or university lecturers, removing items, time restrictions example given hours documented on a white board → placing hours if he was late would be questioned where have you been were you talking to women etc. monitoring where about requiring to explain himself every minute of the day. continuously questioning do you need that, no you don’t Mr Meroka state he mostly feared her screaming & other comments → get out of the kitchen, I’ll cook, I’m not eating that, did you have TV in Kenya - your watching this, ... you will attend there function, I will tell you who is suitable for you to speak to, your job - open the car doors, working a double shift “Mr Meroka states he was made to drive her home even though he was tired, as stated its your job.”
22 Question 7 provides the last space on Form 1040 for a declarant to express an opinion in his or her own words and is headed;
“Briefly describe the evidence on which you base your professional opinion that the people named in question 1 have experienced domestic violence.”
Under that heading, in parenthesis, is the injunction noted at [19] above;
“(Please refer to the definition of domestic violence on the front of this form).”
In the space below the heading just quoted, Ms Sainovic wrote;
“In my opinion this gentleman has been verbally & emotionally abused. There has been a pattern of behaviour toward Mr Simeon Meroka whereby self development & sense of worth has been questioned also excessive or unreasonable demands that placed expectation of Mr S. Meroka beyond his capacity & constant criticizing, insulting, rejecting behaviour.”
23 The second declaration from a “competent person” relied on by the applicant was also on a standard Form 1040 and was by Ndungi Wa Mungai, a social worker and member of the Australian Association of Social Workers. In answer to Question 3 that declarant said;
“I have known Mr Meroka from the time he arrived in Australia in 1993 as a member of the Kenyan community. I have been aware of the complaints he had against Suzane but I don’t have first hand experience as she did not encourage his friends to visit. The DV issues in regard to Mr Meroka are primarily psychological. Being isolated from his community and being made to feel inadequate. This was done by denying him to visit or have his friends visit. Negative comments that Mr Meroka reported her making were calculated to hurt his feelings as a male and as a member of a racial group.
My opinion is that Mr Meroka has suffered psychologically and the abuse has led to the break up of the relationship.”
24 In answer to Question 7 Mr Wa Mungai declared;
“Even before the relationship finally broke down Mr Meroka had complained of the psychological put downs. At first he assumed it was just differences in culture and it would go away as they got to know each other better. In the end it has proved to be more than a passing phase. He talked to members of his community about it and that is how I knew about it.”
“Division 1.5 of the Regulations is clear in its requirements of evidence sufficient to show that domestic violence is to be taken to have been suffered by a visa applicant such that he or she comes within paragraph 801.221(6)(c) of the regulations. In the Tribunal's view, not only must a statutory declaration provided under regulation 1.26 be completed by a competent person as defined in regulation 1.21, it must also 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 set out the evidence on which the competent person's opinion is based.”
26 After an additional reference to the judgment of Matthews J in Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115, the Tribunal continued, at [38];
“It is insufficient for a competent person merely to state that in their opinion domestic violence has been experienced; the alleged conduct must come within the meaning of relevant domestic violence as defined in paragraph 1.23(2)(b). That is, a reference to relevant domestic violence is a reference to violence against the alleged victim or the victim's property that causes the victim to fear for, or to be apprehensive about, the victim's personal well-being or safety. This definition in turn has been further defined by the courts. The Tribunal does not accept that Wilcox J's interpretation of the definition is obiter dicta and should not be followed. The Court's guidance on the definition is carefully reasoned and appears to be central to the court's decision.
39. The visa applicant has submitted a number of statutory declarations as detailed in the evidence section of this decision. The Tribunal considers that neither of the statutory declarations provided by competent persons complies with the requirement that the competent person express the opinion that the visa applicant has suffered relevant domestic violence. The activity described by Mr Mungai indicates that the nominator had engaged in behaviour which hurt the visa applicant's feelings as a male and as a member of a racial group. He stated that the visa applicant had suffered psychologically and the abuse had led to the break up of the relationship. Despite the fact that this contradicts the evidence given by the visa applicant at the hearing, the Tribunal considers that it does not indicate that in Mr Mungai's opinion the nominator's behaviour towards the applicant had the effect of causing apprehension or fear. The Tribunal does not consider that this statutory declaration states that in the competent person's opinion, relevant domestic violence within the meaning of paragraph 1.23(2)(b) has been suffered by the visa applicant.
40. The statutory declaration by Ms Sainovic stated that the visa applicant had experienced increasing social isolation, feelings of distrust and lowered self worth. Ms Sainovic stated that the visa applicant feared the nominator's screaming. Ms Sainovic stated her opinion as that the visa applicant had been verbally and emotionally abused and that the nominator had engaged in criticising, insulting and rejecting behaviour.”
“In Malik Wilcox J held that, for the purpose of the Migration Regulations, conduct which has had the effect of causing diminution of a person's feeling of well being does not come within the definition of domestic violence, however the Tribunal does not read this finding to mean that his Honour excluded non-physical violence from the definition. Wilcox J went on to explain that for conduct to come within the definition of domestic violence there must be conduct, of one party towards the other which has the consequence of causing fear or apprehension.”
“However the Tribunal is not satisfied that the opinion stated by Ms Sainovic describes relevant domestic violence. The visa applicant's migration agent has submitted that the competent persons who provided statutory declarations in this case have stated that it is their opinion that the applicant suffered domestic violence but have also stated that by using that term they are referring to violence against the applicant which caused him to fear for, or be apprehensive about his well being or safety as set out in the regulations. However, as discussed above this is not the case. "Relevant domestic violence" is defined in the legislation and there is no doubt that when the conduct described fits within that definition and the evidence presented complies with the stipulations of Division 1.5 domestic violence is taken to have occurred. However the Tribunal is not satisfied that evidence in accordance with regulation 1.26 is in existence. Therefore the Tribunal finds that these statutory declarations do not comply with the requirements of Division 1.5 of the Regulations and in consequence the visa applicant is not taken to have suffered domestic violence under regulation 1.23. Therefore the Tribunal is required to inquire further as to whether, despite the absence of evidence which deems domestic violence to have occurred nevertheless the visa applicant can be found to have suffered domestic violence so as to come within the provisions of paragraph 801.221(6)(c).”
29 The Tribunal, after finding that it was not obliged to conclude that the applicant was to be taken to have suffered domestic violence, went on to explain that, on its own view of the facts, it was not satisfied;
“that the nominator's conduct towards the visa applicant had the consequence of causing fear or apprehension about the visa applicant's personal well-being or safety, nor was it of such seriousness to constitute domestic violence as interpreted in the judgments of the Federal Court cited above. Therefore the Tribunal is not satisfied that the visa applicant has suffered domestic violence committed by the nominator and the Tribunal finds that the visa applicant does not satisfy paragraph 801.221(6)(c).”
30 It is useful to assist in gleaning the context in which Wilcox J’s views were expressed, to set out the whole of the relevant part of his Honour’s reasons in Malik;
“Regulation 1.24 requires that the relevant evidence be in the form of a statutory declaration. This requirement was not satisfied in the present case, as the Tribunal member noted. However, the Tribunal member did not allow the case to go off on that basis. The Tribunal said:
“The Applicant has provided reports from a psychiatrist and psychologist and gave evidence in the hearing as to what he claimed was the emotional domestic violence he suffered at the hands of his former spouse. However, the Tribunal finds nothing in his evidence or the reports that would, even if it where [sic] in the form of a statutory declaration, lead the Tribunal to find that the Applicant had suffered domestic violence, apprehended or otherwise.”
Mr Newman, solicitor for the applicant, argues the Tribunal misinterpreted the words “domestic violence”, as used in the regulations, and this was an error of law infecting the Tribunal's decision. He points out there was evidence before the Tribunal of emotional and psychological sequelae to the marriage break up and says this must be attributable to the decision of the wife to terminate the marriage. He argues that “domestic violence” does not necessarily require physical assault; it is sufficient there be psychological violence, if this has an emotional or psychological consequence.
Mr Allatt, solicitor for the Minister, accepts that the concept of domestic violence does not necessarily involve physical assault. Psychological violence, such as belittling, intimidating, or frightening, may be sufficient. However, he argues that, for there to be domestic violence, there must be hostile conduct by one person towards another.
It seems to me Mr Allatt is correct. This is the way in which the term “domestic violence” is used in the regulations. The term is not defined. Probably the drafter primarily had in mind physical violence, but the word “physical” is not used. So it is reasonable to accept that the term may cover cases where the damage suffered by an applicant is not physical. Nonetheless, it is important to note that the description in reg 1.23(2)(b) refers to "violence against the alleged victim" that causes the alleged victim to fear for, or be apprehensive about, the victim's personal well being or safety. Regulation 1.23(g) talks about the “perpetrator” of violence. In other words, “domestic violence” is conduct against the victim, usually a course of conduct, that causes the victim to have fear or apprehension about her or his personal well-being or safety. It is not sufficient that there be conduct which has had the effect of causing diminution of a person’s feeling of well being. There must be conduct, of one party towards the other, which has the consequence of causing fear or apprehension.
In the present case there is no suggestion of the wife having engaged in a course of conduct of intimidation, belittling, frightening or similar conduct towards the husband. There seem to have been some matrimonial differences, and then a break up of the marriage in the context of an accusation about bigamy. There is no suggestion of the applicant having been caused to suffer fear or apprehension.
The Tribunal was prepared to accept that Mr Malik was upset, and emotionally and psychologically affected by the break up of his marriage, but it took the view this was not enough to constitute “domestic violence” within the meaning of the regulation. This conclusion was open to the Tribunal. It involved no error of law.”
31 By contrast, there was, in the declarations in the present case, a strong suggestion of “the wife having engaged in a course of conduct of ... ... ... belittling ... ... ... towards the husband.” Counsel for the applicant therefore contended that the requirement of the Regulations that there be statutory declarations by the applicant himself and two competent persons had been satisfied, thereby precluding any further inquiry into the alleged domestic violence by the Tribunal itself.
32 In my view, it is not sufficient for an applicant to adduce statutory declarations from two “competent persons” each of which recites the possession of an opinion that relevant domestic violence has been suffered by the applicant. Regulation 1.26(f) imposes the additional requirement that each statutory declaration must set out the evidence on which the competent person’s opinion is based. The only purpose which can be imputed to the drafter who inserted that requirement is to provide an opportunity for objective examination of the evidence on which the opinion was based. Thus, if the competent person, in purporting to comply with Reg 1.26(f) were to refer to “evidence” which was quite unrelated to whether relevant domestic violence had been suffered by the applicant, the alleged victim could not be “taken” pursuant to Reg 1.23 to have suffered domestic violence.
33 That is not to say that the Minister (or the Tribunal) can substitute for that of the “competent person”, his or its own opinion of whether domestic violence has been suffered. Operation can be denied to Reg 1.23 only if the description of the nature of the violence experienced or the evidence set out by the competent person is incapable, as a matter of law, of affording a basis for an opinion that relevant domestic violence has been suffered by an applicant and has been committed by the person identified by the competent person as the perpetrator.
35 However, as already noted, the statement of opinion by a competent person will not cause the applicant to be taken to have suffered domestic violence if the description of the nature of the violence, or the evidence on which the express or implied statement of opinion is said to be based, reveals that the competent person misconceived what the definition required for the formation of the requisite opinion. An examination of the forms completed by the competent persons in this case does not lead unequivocally to the conclusion that either of them misconceived what is involved in the concept of domestic violence.
36 Ms Sainovic’s description of the nature of the violence which she believed to have been experienced by the applicant recounts first what may be called symptoms such as increasing social isolation and decreasing “self-worthiness”. However, she then recites continual harassment, screamed verbal abuse, interruptions and restrictions of and interference with, social communication as well as unreasonable demands on the applicant to explain his movements or account for his whereabouts. It is an irresistible inference that Ms Sainovic attributed all of those detrimental actions to the applicant’s wife. Ms Sainovic’s description of the evidence on which her professional opinion was based was a largely repetitive summary of the verbal and emotional abuse which she had described earlier. However, the latter description did go further in one respect by indicating that the treatment to which Mr Meroka had been subjected by his wife had placed on him “expectation(s) ... ... ... beyond his capacity.”
37 Mr Wa Mungai made clear that his description of the “domestic violence” suffered by the applicant had been derived from the applicant himself and that the detriment to the applicant had been “primarily psychological.” Although his description is less graphic than that of Ms Sainovic, it does convey a pattern of verbal abuse which inflicted psychological damage on the applicant. Mr Wa Mungai’s description of the “evidence” for his opinion reinforces the conclusion that it was based on hearsay from the applicant. However, that does not invalidate the declaration for the purposes of the scheme erected by the Regulations. The description of competent persons in Reg 1.21(1) and the reference in Reg 1.21(2) to persons in managerial or responsible positions in a women’s refuge or a crisis and counselling service makes it almost axiomatic that a “competent person” will rarely, if ever, have firsthand knowledge of the conduct said to constitute the domestic violence as to which his or her opinion is being furnished. Similarly Reg 1.24(1)(a) permits the deeming provisions to be invoked in reliance on a statutory declaration from one competent person together with;
“(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;”
Of its nature such a record will almost invariably consist of hearsay statements by the alleged victim and possibly other persons in the same interest.
38 It is also true that Mr Wa Mungai’s description conveys no more about the adverse affects on the applicant of the verbal abuse than that they would have endured as long as the marriage subsisted and that they had thereby brought about the breakdown of the relationship. However, that limitation on the extent to which the evidentiary basis for Mr Wa Mungai’s opinion was described does not necessarily entail that his declaration was incapable of serving the purpose indicated in Regs 1.23, 1.24 and 1.26. The evident purpose of those Regulations is to facilitate the processing of applications for a General Residence Subclass 801 visa by persons who are the holders of Subclass 820 visas and whose marriages have come to an end through the death of the nominating spouse [Reg 801.221(5)] or as a result of domestic violence for which the nominating spouse was responsible [Reg 801.221(6)]. The second of those alternative causes, of course, comprehends the definition of “relevant domestic violence” in Reg 1.23(2)(b) as “violence against the alleged victim or his or her property that causes the alleged victim ... ... ... to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety.”
39 Mr P R D Gray of Counsel who appeared in this Court for the respondent Minister did not, in any significant respect, contest the analysis which I have just undertaken of the relevant Regulations. However, he pointed out that the decision-maker (the delegate of the Minister or the Tribunal) must decide whether an applicant has activated the “deeming machinery”. That was said to be the consequence of s 65(1) of the Act which provides;
After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
40 The scope left by the “deeming machinery” for the making of a decision by the decision-maker included, Mr Gray submitted, whether the two competent persons had each expressed a “real”, and not merely a formal, opinion that the applicant had suffered relevant domestic violence. Accordingly, if it was open to the Tribunal, in the light of the statutory declarations, to conclude that either of them did not evince the requisite real opinion, the Court could not interfere with the decision.
42 Regrettably, the Tribunal’s statement of its reasons for that conclusion is more than a little elliptical. It seems to be contained in just the following four sentences from the extract quoted at [28] above;
“However the Tribunal is not satisfied that the opinion stated by Ms Sainovic describes relevant domestic violence. ... ... ... ... ... “Relevant domestic violence” is defined in the legislation and there is no doubt that when the conduct described fits within that definition and the evidence presented complies with the stipulations of Division 1.5 domestic violence is taken to have occurred. However the Tribunal is not satisfied that evidence in accordance with regulation 1.26 is in existence. Therefore the Tribunal finds that these statutory declarations do not comply with the requirements of Division 1.5 of the Regulations and in consequence the visa applicant is not taken to have suffered domestic violence under regulation 1.23.”
43 Mr Gray sought to support the conclusion encapsulated in those sentences by submitting that a fair reading of each of their statutory declarations revealed that Ms Sainovic and Mr Wa Mungai thought that the concept of relevant domestic violence required something less than a fear or apprehensiveness by the applicant for or about his psychological well-being or safety. It was said that the only reference to fear by Ms Sainovic was in the context of what she had been told by the applicant, ie “Mr Meroka state he mostly feared her screaming & other comments → get out of the kitchen, I’ll cook, I’m not eating that, did you have TV in Kenya - your watching this, ... you will attend there function, I will tell you who is suitable for you to speak to, your job - open the car doors, working a double shift.”
44 It is true that in Thi Lan Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115, Mathews J emphasised the need for the declarations of competent persons to contain a statement of opinion, not a mere recitation of what the competent person had been told by the alleged victim. However, one of the declarations in Du was laconic in the extreme. It was by a medical practitioner and stated only;
“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).”
45 As to that statement, her Honour said “No opinion of Dr Tran’s can possibly be implied from this statement.”
46 The second declaration in Du was by a registered psychologist and was summarised by Mathews J in these terms, at [11] - [13];
“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.
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.”
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.”
47 Although her Honour held that the clear deficiency in the declaration of the medical practitioner resolved the case against the applicant, she went on, obiter, to hold that the Tribunal’s findings in relation to both statutory declarations had been correct saying, at [18] - [19];
“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.
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.”
48 However, it appears that neither of the declarations considered in Du was in the standard Form 1040 so that the implication discussed at [34] of these reasons did not arise in that case. Moreover, even with the benefit of those implications, the declaration of Dr Tran in that case would have been incapable of complying with the relevant Regulations. By contrast, in the present case, each of the competent persons devoted a considerable part of the space afforded by Form 1040 to describing matters which must have impinged on what Mathews J in Du called “the state of mind of the alleged victim.” Nevertheless, Counsel for the Minister contended that a mere reference to feelings of isolation or hurt feelings was not enough to imply an opinion that the applicant had the requisite fear or apprehension. Mr Gray acknowledged that Mr Wa Mungai had squarely expressed the opinion that the applicant had “suffered psychologically” but contended that, by confining his opinion in that way, he had negatived the fear or apprehension which Reg 1.23(2)(b) makes an essential element of relevant domestic violence.
49 I am not persuaded that the analysis of the declarations of the competent persons which the respondent imputed to the Tribunal in this case is correct. To assess whether an opinion has been expressed that an alleged victim has been caused “to fear for, or be apprehensive about” something requires an understanding of the object of the presumptive fear or apprehensiveness. However, at the end of the passage from its reasons quoted at [27] above, the Tribunal stopped short of expressing any such understanding. It confined itself to noting that, in Malik, Wilcox J explained that “there must be conduct, of one party towards the other which has the consequence of causing fear or apprehension. That paraphrase of Wilcox J’s reasoning omits to spell out that the fear or apprehensiveness must be about the victim’s safety or well-being. In the context in which the Tribunal was speaking, the competent person’s opinion must be that the victim had been caused to fear for, or be apprehensive about, his or her psychological safety or well-being. In my view, the preferable inference from their declarations is that each of Ms Sainovic and Mr Wa Mungai was of the opinion that the applicant had been fearful or apprehensive in that sense. Ms Sainovic asserted that he had been subjected to a systematic and constant “pattern” of verbal and emotional abuse which “he mostly feared”. Mr Wa Mungai noted that the “calculated” psychological attacks by the applicant’s wife had proved, according to the applicant, “to be more than a passing phase”, and concluded “that Mr Meroka has suffered psychologically and the abuse has led to the break up of the relationship.” In the absence of any other suggested reason for the breakdown of the marriage, it is difficult to resist the inference that both Ms Sainovic and Mr Wa Mungai considered that the applicant had escaped from it because he feared for his psychological well-being if it were to continue.
50 After a careful reading and re-reading of the Tribunal’s reasons, I have been unable to dispel the impression that it declined to accept the declarations of Ms Sainovic and Mr Wa Mungai as activating the deeming mechanism in Reg 1.23(1), not because they failed to “state” the requisite opinions, but because the evidence on which those opinions were based did not, in the Tribunal’s view, establish relevant domestic violence as defined. The Tribunal, I think, went beyond asking itself whether that evidence was capable, as a matter of law, of supporting an opinion that relevant domestic violence had been committed.
51 I am fortified in this conclusion by the fact that the Tribunal recorded in [18] of its reasons quoted at [12] above that it had noted for the benefit of the migration agent who had appeared for the applicant before the Tribunal that “the seriousness of the conduct constituting domestic violence appeared to be emphasised in Doan v Minister for Immigration and Multicultural Affairs.” That suggests to my mind that the Tribunal thought it open to it to decide for itself whether the conduct recounted in the statutory declarations was sufficiently serious to constitute domestic violence as defined. However, Lindgren J in Doan at [17] observed only that;
“It clearly appears from the nature of paras (c) to (f) of subreg 1.23(1) above and from para (b) of subreg 1.23(2) that domestic violence is intended to signify violence of a certain level of seriousness.”
52 There was no suggestion in Doan that the applicant had furnished any statutory declarations by competent persons. In my view, Lindgren J clearly left open the view, which I take, that one way of proving violence of the requisite level of seriousness is by appropriate declarations from competent persons as defined. His Honour’s remarks to that effect were at [22] where he said;
“It is not in dispute that Mr Doan did not comply with the requirements set out above. I have set the provisions out at some length in order to emphasise the concern of the Regulations to ensure that a visa applicant should not enjoy the benefit of the subject exception to the general requirement that there be a genuine and continuing married relationship at the time of the decision unless the domestic violence directed against the visa applicant by the spouse be sufficiently serious and be clearly proved, by appropriate means, to have occurred.” (emphasis added)
53 In the second place, it appears from the passage from [43] of its reasons quoted at [28] above that the Tribunal considered it to be necessary for it to be “satisfied” that the opinions of the competent persons were based on adequate evidence, and not merely for the evidence to be capable in law of supporting those opinions. Had the Tribunal been deciding only that the statutory declarations did not “state” the holding of opinions which were open on the evidence adduced in them, it is likely, I consider, that it would have afforded the applicant an opportunity of furnishing amended declarations from the competent persons.
54 I have been conscious, in undertaking this necessarily detailed dissection of the Tribunal’s reasons, of the injunction of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, where it was said in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ, at 272;
“... ... ... a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker [Pozzolanic (1993) 43 FCR 280 at 287]. The Court continued [Pozzolanic (1993) 43 FCR 280 at 287]: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
However, this is not a case where the Tribunal was called upon to apply a particular statutory test to facts which it was required to find. Rather, the Tribunal had to decide, as a matter of law, whether a condition had been satisfied which entrusted to the competent persons a conclusive finding of the relevant facts. An inquiry into the correctness of a decision of that kind does not turn on the language used by the decision-maker. In such a context, therefore, the Court is not bound to accord the decision under review the benevolence mandated in Wu Shan Liang. Indeed, as noted at [41] above, Counsel for the Minister conceded that, if the Court were to conclude, as I have done, that the Tribunal had essayed its own opinion of whether relevant domestic violence was disclosed by the evidence recounted in the statutory declarations, as distinct from whether such an opinion was open on that evidence, the matter must be remitted to the Tribunal.
Conclusion
55 For the reasons which I have endeavoured to explain, I have concluded that the Tribunal erred in deciding that the declarations of the competent persons did not comply with Reg 1.26 so as to achieve, through Reg 1.24, the result provided for in Reg 1.23. It might be thought that this conclusion compels the grant of a visa of the requisite class so as to make remitter to the Tribunal unnecessary; see eg Commissioner of Taxation v Emmakell Pty Ltd (1990) 22 FCR 157 at 165-166. However, the Court was not invited to take that approach and, in case there are other facts open to be found which would prevent the attainment of the satisfaction indicated in s 65(1)(a) of the Act, I shall remit the matter to the Tribunal to be heard and determined according to law. The respondent must pay the applicant’s costs of the application for review.
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I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 19 April 2002
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Counsel for the Applicant: |
Mr G Gilbert |
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Solicitor for the Applicant: |
Erskine Rodan & Associates |
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Counsel for the Respondent: |
Mr P Gray |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
23 February 2001 |
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Date of Judgment: |
19 April 2002 |
