Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503

FEDERAL COURT OF AUSTRALIA

MIGRATION – partner visa – relationship between applicant and sponsoring spouse had ceased – task of Migration Review Tribunal to determine whether applicant had suffered domestic violence committed by sponsoring spouse – mode of proof of domestic violence – statutory declarations of competent persons – whether open to tribunal to disregard statutory declarations because source of information on which they were based was applicant – whether open to tribunal to determine whether statutory declarations established conduct sufficiently serious on part of sponsoring spouse to amount to domestic violence – single episode of physical violence – reliance by competent persons on threats and verbal abuse by sponsoring spouse and members of her family – manner of dealing with mechanical modes of proof

Migration Regulations 1994 (Cth) regs 1.15A, 1.21, 1.22, 1.23, 1.24, 1.26, item 100.221, Sch 2

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

Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 followed

FIKRI CAKMAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1173 of 2001

GRAY J

22 MAY 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1173 of 2001

BETWEEN:	FIKRI CAKMAK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	22 MAY 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1173 of 2001

BETWEEN:

FIKRI CAKMAK

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	GRAY J
DATE:	22 MAY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

1 This application seeks the exercise of the Court’s jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) with respect to a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, “the Minister”) to refuse to grant to the applicant a visa of the type known as a Partner (Migrant) (Class BC) visa, subclass 100.

2 On 10 February 1999, the applicant applied for a Spouse (Provisional) (Class UF) visa, subclass 309 and for a Partner (Migrant) (Class BC) visa, subclass 100, on the basis of his marriage to Nuray Fatma Cakmak (“the sponsor”). The couple arrived in Australia on 25 April 1999. On 15 May 2000, a delegate of the Minister refused to grant the subclass 100 visa, following information submitted by the sponsor that the marriage had ended. The applicant applied to the Tribunal, which affirmed the decision on 27 February 2001. The applicant then sought judicial review of that decision of the Tribunal by applying to the Court. On 2 May 2001, the Court set aside the Tribunal’s decision by consent and remitted the matter to the Tribunal for rehearing.

3 On 27 July 2001, the Tribunal, differently constituted, reheard the applicant’s application for review of the delegate’s decision. On 13 August 2001, the applicant made a further written submission to the Tribunal. On 9 October 2001, the Tribunal published its written decision and reasons for decision. It affirmed the decision to refuse the grant of a subclass 100 visa. It is this second decision of the Tribunal that is the subject of this proceeding. The applicant seeks to quash that decision and to have the matter remitted to the Tribunal, differently constituted, for determination according to law.

The legislation

4 The criteria to be satisfied at the time of a decision to grant a subclass 100 visa are set out in Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”), made pursuant to the Migration Act 1958 (Cth) (“the Migration Act”). Ordinarily, an applicant must already be the holder of a subclass 309 visa. The purpose of having two visas is apparently to test whether the relationship on which the subclass 309 visa was granted is continuing at the time when a decision is made on the application for a subclass 100 visa. Item 100.221(1) provides that a criterion to be satisfied at the time of decision is that the applicant meet the requirements of subcll (2), (3), (4) or (4A). Of these, only subcll (2) and (4) are relevant to the present case. They provided at the relevant time as follows:

“(2) The applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 309 (Spouse (Provisional))
visa; and

(b) the applicant is the spouse of the sponsoring spouse; and

...

(4) The applicant meets the requirements of this subclause if:

(a)       the applicant first entered Australia as the holder of a Subclass 309
            (Spouse (Provisional)) visa and continues to be the holder of that
            visa; and

(b)       the applicant would meet the requirements of subclause (2) except
            that the relationship between the applicant and the sponsoring spouse
            has ceased; and

(c) after the applicant first entered Australia as the holder of that visa
— either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a member of the family unit of the sponsoring spouse or
of the applicant or of both of them;

has suffered domestic violence committed by the sponsoring
spouse”.

5 Regulation 1.15A of the Migration Regulations contains a substantial definition of the word “spouse”. So far as is relevant to the present proceeding, that definition is as follows:

“(1) For the purposes of these Regulations, a person is the spouse of
another person if the 2 persons are:

(a) in a married relationship, as described in subregulation (1A);
or

(b) in a de facto relationship, as described in subregulation (2).

(1A) Persons are in a married relationship if:

(a) they are married to each other under a marriage that is
recognised as valid for the purposes of the Act; and

(b) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as
husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and
continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent
basis.”

6 Division 1.5 of the Migration Regulations contains special provisions relating to domestic violence. It is necessary to set out the relevant provisions of that division:

“1.21 Interpretation

(1) In this Division:

competent person means:

(a) in relation to domestic violence committed against an adult:

                        (i)         a person registered as a medical practitioner under a
                                    law of a State or Territory providing for the registration
                                    of medical practitioners; or

                        (ii)        a person registered as a psychologist under a law of a
                                    State or Territory providing for the registration of
                                    psychologists; or

(iii) a person who:

(A) is a registered nurse within the meaning of
section 3 of the Health Insurance Act 1973; and

(B) is performing the duties of a registered nurse;
or

(iv) a person who:

                                    (A)       is a member of the Australian Association of
                                                Social Workers or is recognised by that
                                                Association as a person who is eligible to be
                                                a member of that Association; and

(B) is performing the duties of a social worker;
or

(v) a person who is a court counsellor under the Family
Law Act 1975; or

(vi) a person holding a position of a kind described in
subregulation (2);

...

statutory declaration means a statutory declaration under the
Statutory Declarations Act 1959.

violence includes a threat of violence.

(2) The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:

(a) manager or coordinator of:

(i) a women’s refuge; or

(ii) a crisis and counselling service that specialises in 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.

1.22 References to person having suffered or committed domestic violence

(1)       A reference in these Regulations to a person having suffered domestic
            violence is a reference to a person being taken, under regulation 1.23,
            to have suffered domestic violence.

(2)       A reference in these Regulations to a person having committed
            domestic violence in relation to a person is a reference to a person
            being taken, under regulation 1.23, to have committed domestic
            violence in relation to that person.

1.23 When is a person taken to have suffered or committed domestic
violence?

(1) For the purposes of these Regulations:

(a) a person (the alleged victim) is taken to have suffered
domestic violence; and

(b) another person (the alleged perpetrator) is taken to have
committed domestic violence in relation to the alleged victim;

if:

            (c)        on the application of the alleged victim, a court has granted
                        an injunction under paragraph 114 (1) (a), (b) or (c) of the
                        Family Law Act 1975 against the alleged perpetrator; or

            (d)        a court has made an order under a law of a State or Territory
                        against the alleged perpetrator for the protection of the
                        alleged victim from violence and, unless the alleged victim had,
                        before 1 January 1998, claimed to Immigration to have
                        suffered domestic violence committed by the alleged
                        perpetrator, that order was made after the court had given the
                        alleged perpetrator an opportunity to be heard, or otherwise
                        to make submissions to the court, in relation to the matter; or

            (e)        a court has convicted the alleged perpetrator of, or has
                        recorded a finding of guilt against the alleged perpetrator in
                        respect of, an offence of violence against the alleged victim; or

            (f)        the alleged victim and the alleged perpetrator have made a
                        joint undertaking to a court in relation to proceedings in which
                        an allegation is before the court that the alleged perpetrator
                        has committed an act of violence against the alleged victim; or

            (g)        if the alleged victim is a person referred to in subregulation (2)
            — the alleged victim or another person on the alleged victim’s
            behalf presents evidence in accordance with regulation 1.24
            that:

(i) the alleged victim has suffered relevant domestic
violence; and

(ii) the alleged perpetrator has committed that relevant
domestic violence.

(2) In paragraph (1) (g):

(a) the persons referred to are the following:

(i) a spouse of the alleged perpetrator;

(ii) a dependent child of:

(A) the alleged perpetrator; or

(B) the spouse of the alleged perpetrator; or

(D) a person in an interdependent relationship with
the alleged perpetrator;

                        (iii)       a member of the family unit of a spouse of the alleged
                                    perpetrator (being a member of the family unit who has
                                    made a combined application for a visa with the
                                    spouse);

(iv) a person who is in an interdependent relationship with
the alleged perpetrator; and

            (b)        a reference to relevant domestic violence is a reference to
                        violence against the alleged victim or his or her property that
                        causes the alleged victim, or a member of the alleged victim’s
                        family, to fear for, or to be apprehensive about, the alleged
                        victim’s personal well-being or safety.

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.

...

1.26 Statutory declaration by competent person

A statutory declaration under this regulation:

(a) must be made by a competent person; and

(b) must set out the basis of the competent person’s claim to be a
competent person for the purposes of this Division; and

            (c)        must state that, in the competent person’s opinion, relevant
                        domestic violence (within the meaning of paragraph 1.23
                        (2) (b)) has been suffered by a person; and

(d) must name the person who, in the opinion of the competent
person, has suffered that relevant domestic violence; and

(e) must name the person who, in the opinion of the competent
person, committed that relevant domestic violence; and

(f) must set out the evidence on which the competent person’s
opinion is based.”

The facts

7 The Tribunal found that the sponsor travelled to Turkey on 18 December 1998 and married the applicant there on 5 January 1999. After the grant of the subclass 309 visa to the applicant, the couple came to Australia together.

8 As early as 8 December 1999, in a statutory declaration, the sponsor gave an account of the marriage accusing the applicant of numerous assaults and frequent verbal abuse. The assaults included: punching in the face; strangling her while she was driving; stabbing her in the right leg with a knife; and punching her in the stomach, while holding her hair, and then throwing her to the floor. In addition, the sponsor alleged that the applicant: restricted her movements and her contact with other people; before the couple came to Australia, withheld her passport from her to prevent her leaving him and returning to Australia; restricted her contact with family and friends after the couple went to live in their own accommodation in Australia; and chased her in a car after she had left home on foot. On 2 December 1999, the sponsor attended the Broadmeadows Police Station and was seen to have injuries to her face, including swollen lips and nose and redness of the face.

9 On 8 December 1999, the sponsor visited the Department of Immigration and Multicultural Affairs (“the Department”) and advised that she and the applicant had separated. They lived separately for about thirteen days. A discussion was held at the sponsor’s parents’ house, attended by relatives of both the applicant and the sponsor. The applicant is alleged to have apologised to those present about his behaviour towards the sponsor. On 17 December 1999, the sponsor advised the Department that she and the applicant were again living together. She subsequently alleged that, after about a week, she was again subjected to domestic violence. On 2 March 2000, she telephoned the Department to advise that she and the applicant were experiencing difficulties. On the following day she advised the Department that their relationship was over and she was living at her family’s home. The sponsor’s allegations that the applicant had treated her violently were supported by medical reports and by the fact that an intervention order was made against the applicant in the Magistrates Court at Preston on 6 April 2000. The applicant said he agreed to the intervention order but did not admit the allegations made as he was unrepresented and realised there was no point in challenging it as the relationship was over. He claimed that he was afraid of the sponsor’s family, as they had behaved violently towards him.

10 The applicant submitted a number of statutory declarations in support of his claim that he had been subjected to domestic violence by the sponsor. The Department made available a form, designated as form 1040, for the purpose of making a statutory declaration under the domestic violence provisions of the Migration Regulations. The form included a series of numbered instructions or questions, followed by spaces in which the declarant was expected to fill in the relevant information. Particular reference should be made to instructions 3 and 7, which were as follows:

“3 Briefly describe the nature of the violence experienced

(Please refer to the definition of domestic violence on the front of this
form)

...

7          Briefly describe the evidence on which you base your professional
            opinion that the people named in question 1 have experienced
            domestic violence

(Please refer to the definition of domestic violence on the front of this
form)”.

The definition quoted on the front of the form was that contained in reg 1.23(2)(b) of the Migration Regulations.

11 One of the statutory declarations was made by Hanife Guducu, a psychologist, on 9 May 2000. In response to instruction 3 on the form 1040, Ms Guducu said:

“As stated by my client (Fikri Cakmak) he was physically abused by his wife – by scratches to his chest. She continued to verbally abuse him since the initial physical abuse in Dec of 1999. He has no supports in autralia [sic].”

12 In response to instruction 7, Ms Guducu declared:

“Mr Fikri cakmak [sic] has been consistent with his accounts of physical and verbal abuse by his wife. He appears to be affected. In my opinion suffers [sic] from trauma directly related to the abuse and has symptoms of depression.”

13 Another declaration was from Birsen Sozer, a social worker, who made her declaration on 12 October 2000. In response to instruction 3, Ms Sozer said:

“Fikri Cakmak appears to have experienced both physical and psychological/verbal abuse during his marriage to his wife, Nuray Cakmak. Mr Cakmak appears to have suffered from constant verbal abuse (insults,
threats and degrading comments) from his wife. I believe this abuse appears to have had a detrimental impact on his wellbeing.”

14 In response to instruction 7, Ms Sozer said:

“Fikri Cakmak has discussed both the physical and psychological/verbal abuse he has experienced during his marriage. He has described some of the physical symptoms (ie headaches, lack of appetite, insomnia) he has experienced. He has presented as sad and often tearful, anxious and often embarassed [sic] to talk about his experiences. He appears to lack confidence and has low self esteem. I believe all of these factors may be a direct result of both the physical and psychological abuse he has suffered during his marriage.”

15 A medical practitioner, Dr Halil Munir, made a similar declaration on 6 October 2000. In response to instruction 3, Dr Munir said:

“Since coming to Australia his wife, he was consistently abused by his wife and her family verbally and physically. He was humiliated and threatened to be sent back to Turkey if he did not obey his wife on all issues. These contributed to his anxiety/depression symptoms.”

16 In response to instruction 7, Dr Munir said:

“I felt that Mr Cakmak was truthful as he was consistent in his history to me, to his psychologist and to the social worker involved in his case. His symptoms of anxiety/depression were consistent with the history of verbal/physical abuse.”

17 Each of these three declarants made a second statutory declaration, which was also placed before the Tribunal as part of the applicant’s case. Each of those declarations was also on the form 1040. In her second statutory declaration, Ms Guducu said in response to instruction 3:

“Please refer to previous statutory declaration dated 9/5/00.”

18 In response to instruction 7, Ms Guducu said:

“I refer to my previous statutory declaration 9/5/00, and in order to avoid any doubt I confirm the contents and in my opinion Mr Fikri Cakmak has been a victim of domestic violence. The violence he has suffered in my opinion has caused him to be concerned for and fearful for his own personal well being and safety.”

19 Ms Sozer’s second statutory declaration also invited the reader to refer to her previous statutory declaration in response to instruction 3. In response to instruction 7, she said:

“I refer to my previous statutory declaration dated 12/10/00. In order to avoid any doubt, I confirm that I continue to be of the opinion that Mr Cakmak has suffered domestic violence which has resulted in him being fearful of his physical and emotional wellbeing and safety.”

20 Dr Munir declared, in answer to instruction 3:

“Verbal and physical abuse by wife since coming to Australia. Threatened to be sent back to Turkey and humiliated.”

21 In response to instruction 7, Dr Munir said:

“PLEASE REFER TO MY PREVIOUS STATUTORY DECLARATION DATED 6/10/2000.

FURTHER CONSULTATION WITH MR F. CAKMAK, I CONFIRMED THAT IN MY OPINION, MR CAKMAK IS SUFFERING FROM ANXIETY/DEPRESSION SYMPTOMS SECONDARY TO HIS MARRIAGE BREAKDOWN AND TO THE VERBAL/PHYSICAL ABUSE. HE HAS BEEN A VICTIM OF DOMESTIC VIOLENCE AND THIS HAS CAUSED HIM TO BE CONCERNED FOR HIS WELL BEING AND SAFETY.”

22 The Tribunal also had before it a statutory declaration, also on the form 1040, of Serpil Ozalp, who described herself as a “welfare worker”. She described herself as performing the duties of a social worker for the Australian Turkish Association. In response to instruction 3, Ms Ozalp said:

“Since he became a client of our Agency, Fikri Cakmak has several times stated that during his relationship with his wife Nuray Cakmak, he has been the victim of domestic violence and that his psychological and physical well being have been threatened by his wife and her relatives, whose constant humiliation, insult, verbal and physical abuse led him to the situation of depression.”

23 In response to instruction 7, Ms Ozalp said:

“I believe he has been the victim of domestic violence, consistent of [sic] psychological and physical abuse. On his first visit, he had visible scratch marks on his face and chest. He was suffering from depression and appeared traumatized. He was nervous, anxious, unable to think clearly and focus on his future, agitated, tearfull [sic] and was also having difficulty expressing himself verbally.”

24 By letter dated 21 September 2000, the Tribunal wrote to the applicant, asking for further information regarding the qualifications of Ms Ozalp as a competent person. The applicant did not provide such further information to the Tribunal.

The Tribunal’s reasons

25 The Tribunal found that the relationship between the applicant and the sponsor had ceased and the requirements of reg 1.15A were not satisfied, so that the applicant did not satisfy subcl 100.221(2) in Sch 2 to the Migration Regulations. It then proceeded to consider whether the applicant had suffered domestic violence committed by the sponsor. It discussed in some detail the effect of regs 1.23 and 1.24, saying that:

“The effect of regulation 1.23 is that a person is taken to have suffered domestic violence if that person presents evidence in accordance with regulation 1.24. The Tribunal is not within power to examine the circumstances that led to the events that are said to constitute domestic violence. The Tribunal’s assessment in the present case is therefore limited to whether the statutory declarations were made by ‘competent persons’ as defined, and whether the statutory declarations conform to the requirements prescribed by the regulations.”

26 The Tribunal first examined in detail a statutory declaration made by the applicant on 25 May 2000. This referred to an incident, said by the applicant to have occurred towards the end of December 1999, in which he said that the sponsor had thrown a can of Coca Cola at him and scratched his face and chest. The applicant stated that, after the sponsor had gone to her parents’ house for a few days, the couple went back to their own house and lived contentedly for a time.

27 The Tribunal took the view that the applicant’s evidence about the incident was contradicted by evidence from a physician who saw the applicant in connection with that incident on 5 December 1999. It noted the applicant’s claim that physical violence was confined to one incident and that he and the sponsor lived together contentedly for three months from shortly after the date of the incident until March 2000. This raised in the Tribunal’s mind the question whether the alleged domestic violence was sufficiently serious to exempt the applicant from meeting the usual requirements of the class of visa he had applied for. The Tribunal noted that the applicant did not make a claim of domestic violence until after the sponsor had withdrawn her sponsorship. It noted the extensive evidence, including the intervention order made on 6 April 2000, claiming that the applicant had perpetrated domestic violence against the sponsor, which it found contradicted the statements made in his statutory declaration. Although it could not take this evidence into account in considering whether domestic violence had been committed against the applicant, it took the view that the applicant had put his credibility in contention. It found that his evidence could not be relied upon. It expressed reservations about whether his claim that he was concerned for and fearful for his own personal wellbeing and safety was true. It found that the allegations of domestic violence made by the applicant were not of such seriousness as to constitute domestic violence sufficient to warrant an exemption from the general requirement that there be a genuine and continuing marriage relationship at the time of decision.

28 The Tribunal then turned its attention to the statutory declarations of Ms Guducu, Ms Sozer and Dr Munir. It found each of them to be a “competent person” within the meaning of reg 1.21(1)(a).

29 With respect to the two statutory declarations of Ms Guducu, the Tribunal pointed out that the evidence on which her opinion was based depended on the consistency of the applicant’s own account over the sessions when he was seen by Ms Guducu. The Tribunal considered this to be less than consistency between a person’s presentation and their account of domestic violence. The Tribunal referred to the fact that Ms Guducu had seen the applicant on four occasions in May 2000, nearly six months after the alleged incident. Accordingly, the Tribunal found that the evidence on which Ms Guducu’s opinion was based did not meet the requirements of reg 1.26.

30 With respect to Ms Sozer’s opinion, the Tribunal found that it was based on self-report by the applicant and that the attribution of physical symptoms to the domestic abuse was not warranted by the evidence available to the social worker. Again, the Tribunal pointed out that mere consistency was not sufficient, because the reported account may be equally consistent with another event. The Tribunal found that the evidence on which Ms Sozer’s opinion was based did not meet the requirements of reg 1.26.

31 The Tribunal made a similar finding with respect to Dr Munir’s opinion. It pointed out that this opinion was based upon Dr Munir’s “feeling” that the applicant was truthful and on the consistency between the applicant’s story, his report of anxiety/depression and a history of abuse. The Tribunal pointed out that Dr Munir had seen the applicant about six months after the alleged incident. It again made the point that the observation of consistency was not sufficient when the reported account may be equally consistent with another event. It noted a similarity between the symptoms reported by Dr Munir and those noted six months earlier by another medical practitioner, in which the applicant had said he was worried about going back to Turkey and complained of insomnia.

32 The Tribunal then made a finding that Serpil Ozalp did not have the qualifications necessary to make her a “competent person” within the meaning of reg 1.21(1). It then expressed two reasons for finding that the applicant had not suffered domestic violence committed by the sponsor within the meaning of subcl 100.221(4)(c) in the second schedule to the Migration Regulations. The Tribunal said:

“All three ‘competent persons’ who provided statutory declarations based their opinions on the evidence of self-report and ‘consistency’ of the account by the visa applicant, and all three provided supplementary declarations to the effect that the violence alleged by the visa applicant is such that it had the consequence of causing fear or apprehension about the visa applicant’s personal well-being or safety. On the basis of the reasoning set out above ... the Tribunal finds that the evidence on which the ‘competent persons’ opinions are based do not meet the requirements of regulation 1.26. ... The Tribunal is not satisfied that the visa applicant has established that any domestic violence he may have experienced is sufficiently serious, or clearly proved by the appropriate means, for the purpose. In reaching its findings the Tribunal has not taken into account the evidence provided by the sponsor.”

The applicant’s case

33 In his application to the Court, the applicant raised several grounds of jurisdictional error. In essence, these were particularised as the suggestion that the Tribunal was bound by reg 1.23(1)(a) and (b), read in conjunction with reg 1.23(g), to find that the applicant had suffered domestic violence at the hands of the sponsor. This was because the applicant had complied with reg 1.25 by submitting his own statutory declaration, and with reg 1.26 by submitting statutory declarations of three competent persons to the effect that he had suffered domestic violence in accordance with the definition in reg 1.23(2)(b). Accordingly, the applicant was to be “taken”, ie deemed, to have suffered domestic violence. It was not open to the Tribunal to go behind the applicant’s statutory declarations and make its own assessment of the credit of the applicant, by comparing his evidence with other evidence. Nor did it have power to go behind the statutory declarations of the competent persons and conclude that they did not meet the requirements of reg 1.26. In addition, the applicant contended that the Tribunal had wrongly failed to take into account relevant material in that it rejected the statutory declaration of Serpil Ozalp. Accordingly, it was said that the Tribunal had asked itself the wrong question or identified the wrong issue, and had thereby made an error of law going to jurisdiction.

The effect of the deeming provision

34 In its reasons for decision, the Tribunal referred to Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 at [18], where Mathews J said:

“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.”

35 In Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482, decided after the Tribunal’s decision in the present case, Ryan J also grappled with the relevant provisions of the Migration Regulations. At [32] – [35], his Honour said:

“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.

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.

I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence has been suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of ‘domestic violence’ in Reg 1.23(2)(b). The implication arises in the context of that direction from the insertion in the respective spaces provided of the name and date of birth of the victim and the full name of the person believed to have perpetrated the domestic violence.

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.”

36 In Meroka, Ryan J held that the Tribunal had declined to accept the declarations of two competent persons 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. His Honour held that the Tribunal 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. His Honour set aside the Tribunal’s decision in that case and ordered that the matter be reheard.

37 In the present case, both parties placed considerable reliance on what Ryan J said in Meroka. Neither counsel contended that anything that his Honour said was wrong.

38 The relevant provisions of the Migration Regulations recognise that it would be unjust to refuse to grant a subclass 100 visa to a person whose marriage or other relationship had come to an end if the person has been the victim of violence at the hands of his or her spouse or partner. To alleviate the difficulties faced by the victims of domestic violence in giving accounts of that violence, which are often exacerbated by behavioural norms that depend on culture and tradition, the regulations have provided for a specific method of proof of domestic violence. No doubt, at the heart of the scheme provided by the Migration Regulations, is the assumption that the competent persons who make statutory declarations will be those whom the victim consults in the immediate aftermath of an episode or episodes of violence. In such cases, the declarant will often be able to observe signs and symptoms of the violence and to form an opinion as to whether those signs and symptoms are consistent with the account given by the alleged victim. It was no doubt for this reason that Mathews J in Du spoke of consistency between a person’s presentation and their account of domestic violence or its occurrence.

39 The problem, however, is that the regulations are not in terms limited to cases in which the competent person has been consulted shortly after the occurrence of an incident alleged to constitute all or part of the domestic violence. As occurred in the present case, each of the competent persons might be consulted at some considerable time after the occurrence of any relevant incident. As Ryan J recognised in Meroka at [37], a competent person will rarely, if ever, have first-hand knowledge of the conduct said to constitute the domestic violence as to which his or her opinion is being furnished. In most, if not all, cases, the source of information on which the competent person must act in forming the requisite opinion will be the alleged victim. For this reason, there is a considerable level of responsibility attaching to the making of a statutory declaration by a competent person, to enquire as to the details of the allegations and to exercise professional judgment as to whether what the alleged victim says can be accepted as an account of events satisfying the definition of domestic violence. It is for this reason that reg 1.26(f) requires that the declaration of a competent person describe briefly the evidence on which the competent person’s opinion is based.

40 The traditions underlying our legal system have embedded in them a considerable suspicion of mechanical modes of proof. The relatively rare instances in which a finding of the truth of a serious allegation cannot be made because of the requirements of rules of corroboration quite rightly fuel this suspicion. Australian law contains no rule that the evidence of two women is required to equal the evidence of one man, a rule sometimes said to be a feature of some other legal systems. Mechanical modes of proof are regarded as capable of producing injustice. They also undermine the confidence normally reposed in the fact-finding abilities of courts. The effect of reg 1.23 of the Migration Regulations is to institute a mechanical mode of proof. The regulation requires that a finding in respect of a serious allegation must be made if the right mechanism is adopted to prove that allegation. In such circumstances, it is appropriate to be vigilant to ensure that every element of the mechanical mode of proof has been satisfied.

41 The Tribunal appears to have acted on the basis that it was not proper for any of the competent persons to rely on the applicant’s account of the sponsor’s actions towards him. This is implicit in the Tribunal’s criticism of each of the declarants for relying only on the consistency of the applicant’s accounts of what had occurred. As I have said, the relevant regulations require that the competent person rely on an account given by the alleged victim, so the statutory declarations cannot be regarded as failing to comply on this ground. The Tribunal was in error in rejecting them for this reason.

42 It may therefore be that the first reason on which the Tribunal rejected the applicant’s case was not open to it. As I have said, however, the Tribunal gave two reasons. The second was that the applicant had not proved, by appropriate means, violence that was sufficiently serious to satisfy the definition of domestic violence. In my view, it was open to the Tribunal to reach this conclusion.

43 The only episode of violence alleged by the applicant in his own statutory declaration, and referred to in part by Ms Guducu in hers, was an occasion when the sponsor allegedly threw the contents of a can of soft drink in his face and scratched him over his face and chest. There is no mention in the applicant’s statutory declaration of verbal abuse by the sponsor, only by members of her family. Ms Guducu referred to physical abuse by scratches to the applicant’s chest and to continued verbal abuse since that time, without specifying its nature or quality. Ms Sozer referred to both physical and psychological/verbal abuse experienced by the applicant during his marriage. She referred to “constant verbal abuse (insults, threats and degrading comments) from his wife”. She did not detail the nature of any physical or psychological abuse, or the identity of the person alleged to have inflicted it. Dr Munir referred to the applicant being “constantly abused by his wife and her family verbally and physically” and being “humiliated and threatened to be sent back to Turkey if he did not obey his wife on all issues.” No description of any physical abuse was given. No attempt was made to distinguish between abuse by members of the sponsor’s family and by the sponsor herself.

44 It was open to the Tribunal to take the view that a single episode of physical violence, which at its highest resulted in the humiliation of being splashed in the face with soft drink and physical injury amounting to scratches on the face and chest, was not of itself sufficiently serious to amount to domestic violence satisfying the definition. The Tribunal was, of course, obliged to take into account the extent of any threats or humiliating comments made by the sponsor that might have contributed to the requisite state of mind of the applicant. The problem was that the applicant did not allege them in his statutory declaration. There were variations in the descriptions of them between the three competent persons. As a result, the Tribunal could not have made a clear finding on the evidence as to the nature of threats or humiliating comments by the sponsor herself, as distinct from members of her family, or as to the separate effect on the applicant’s state of mind of anything said by the sponsor. In the words of Ryan J in Meroka at [32], both Ms Sozer and Dr Munir had referred to “‘evidence’ which was quite unrelated to whether relevant domestic violence had been suffered by the applicant”. Only Ms Sozer’s statutory declaration was confined to verbal abuse from the sponsor. A single statutory declaration of a competent person could not satisfy the requirement of reg 1.24(1)(b) that there be two such declarations.

45 In the circumstances, it was open to the Tribunal to be satisfied that, even in conjunction with the single episode of violence, no allegation had been made of conduct sufficiently serious to amount to domestic violence in accordance with the definition.

46 There was no substance in the submission on behalf of the applicant that the Tribunal had wrongly ignored the statutory declaration of Serpil Ozalp. The Tribunal was correct in holding that “welfare worker” was not a qualification satisfying the definition of “competent person” in reg 1.21. There was nothing in the statutory declaration itself to indicate either that Ms Ozalp had any of the qualifications referred to in reg 1.21(1)(a)(i) – (v), or that the Australian Turkish Association was a women’s refuge or a crisis and counselling service that specialised in domestic violence, within the meaning of reg 1.21(2). The Tribunal could not therefore take into account the contents of the statutory declaration as part of the mechanical process of establishing that the sponsor had committed domestic violence in relation to the applicant. To the extent to which the declaration could be viewed on its own, it suffered from the same vice as the declarations of Ms Guducu and Ms Sozer, in that it failed to distinguish between what had been done by the sponsor and what had been done by her relatives. Nor did it corroborate evidence of the applicant in relation to threats or verbal abuse because, as I have said, he gave none. To the extent to which Ms Ozalp corroborated the applicant’s evidence as to the scratching incident, even assuming that this single incident of physical violence had occurred, as the Tribunal appeared to do, it was open to the Tribunal to find that there was nothing serious enough to amount to domestic violence for the purposes of the relevant criterion.

Conclusion

47 The Tribunal’s decision was supported by two independent reasons. Although the Tribunal was in error in relation to one of them, its decision was wholly justified by the other. Accordingly, it cannot be said that the decision was affected by error. It is unnecessary to consider whether the error amounted to jurisdictional error, sufficient to take the case outside s 474 of the Migration Act. The application must be dismissed. Applying the usual rule that costs follow the event, the applicant should be ordered to pay the respondent’s costs of the proceeding.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 22 May 2003

Counsel for the Applicant:	G Gilbert

Solicitor for the Applicant:	Erskine Rodan & Associates

Counsel for the Respondent:	PRD Gray

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	8 November 2002

Date of Judgment:	22 May 2003

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