FEDERAL COURT OF AUSTRALIA

Kozel v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 658

MIGRATION – judicial review - application for spouse visa – whether applicant suffered domestic violence – applicant required to file statutory declarations from ‘competent persons’ – whether statutory declarations complied with subreg 1.26 – whether statutory declarations contained opinion that relevant domestic violence had occurred - whether statutory declarations set out evidence upon which opinion was based – whether the Tribunal’s decision was a privative clause decision – whether Tribunal’s decision affected by jurisdictional error.

STATUTORY INTERPRETATION – principles of statutory interpretation – practical implications considered in interpreting Regulations.

Migration Act 1958 (Cth) s 474

Migration Regulations 1994 (Cth) rr 1.22, 1.23, 1.24, 1.25, 1.26, and Schedule 2 subclass 100.221(4)

Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316

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

Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCAFC 257

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

Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180

Ibrahim v  Minister for Immigration & Multicultural Affairs [2002] FCA 1279

Meroka v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 482

Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259

Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 1

SDAH v Minister for Immigration & Multicultural Affairs [2003] FCAFC 49

SDAV v Minister for Immigration & Multicultural Affairs [2003] FCAFC 129

IGOR KOZEL  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 361 of 2003

RYAN J

26 MAY 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The decision of the Tribunal made on 2 May 2003 be set aside and the matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law. 

2.                  The respondent pay the applicant’s 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.

REASONS FOR JUDGMENT

Introduction

1                     The applicant has applied for an order of review of a decision of the Migration Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent Minister to refuse the applicant’s application for a Partner (Migrant) (Class BC) visa subclass 100 (spouse) (“Spouse visa”).

Background facts

2                     On 10 June 1999, the applicant, a Russian national, applied for a Partner (Class UF) (Temporary) visa subclass 309 (“Temporary visa”) and the Spouse visa.  On 24 May 2000, the applicant was granted the Temporary visa on the basis of his marriage to Anna Kozel, an Australian citizen.  The applicant came to Australia on 13 June 2000. 

3                     In the normal course of events, the applicant would have been eligible for the grant of a Spouse visa two years after the grant of the Temporary visa (see Schedule 2, subclass 100.2 of the Migration Regulations 1994 (“Regulations”)).  However, on 22 May 2002, a delegate of the respondent Minister refused the application for the Spouse visa on the ground that the delegate was not satisfied that the applicant was the ‘spouse’ of Ms Kozel.  This conclusion was reached after officers of the Department of Immigration, Multicultural and Indigenous Affairs had visited the home of the applicant and Ms Kozel.  Consequently, the Temporary visa expired upon notification of the delegate’s decision.

4                     On 17 June 2002, the applicant applied to the Tribunal for a review of the delegate’s decision.  The applicant conceded that his relationship with Ms Kozel had broken down. However, he contended that he had suffered domestic violence committed by Ms Kozel.  On 2 May 2003, the Tribunal affirmed the delegate’s decision (‘Tribunal’s decision’).  The applicant has applied for orders that the Tribunal’s decision be quashed and that the matter be remitted to the Tribunal differently constituted to determine the application according to law.  The applicant has submitted that the Tribunal’s decision;

(a)    was made without jurisdiction or was affected by an error of jurisdiction;

(b)    was affected by an error of law affecting the exercise of power;

(c)    was made without authority; and

(d)    was an improper exercise of power conferred by the Migration Act 1958 (Cth) (“the Act”)

Legislation

5                     Schedule 2, subclass 100.221(4) of the Regulations provides as follows;

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

(a)     the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:

(i)                 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 the visa mentioned in paragraph (a) - either or both of the following circumstances applies:

(i)                 either or both of the following:

(A) the applicant;

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

has suffered domestic violence committed by the sponsoring spouse;’

6                     Division 1.5 of the Regulations contains the following relevant specific provisions related to domestic violence;

‘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.

…

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:

… 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):

             …

(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:

…

(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.

…

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.’

7                     By way of complying with sub-regulations 1.23(1)(g) and 1.24(1)(b), the applicant lodged his own statutory declaration in purported satisfaction of reg 1.25 and statutory declarations of Peter Moore and Illona Riener, both social workers, and Boris Goloub and Joan James, both psychologists, in purported satisfaction of reg 1.26. It was not disputed that these four individuals were ‘competent persons’ within the meaning of the Regulations.  

Tribunal’s decision

8                     The issue before the Tribunal was whether the statutory declarations relied on by the applicant complied with the Regulations.  The Tribunal accepted that the applicant’s statutory declaration complied with reg 1.25 and that declaration need not be considered further.  However, the Tribunal found that none of the statutory declarations by Mr Moore, Ms Riener, Dr Goloub and Ms James complied with reg 1.26.

9                     Before examining each statutory declaration, the Tribunal made these preliminary observations about reg 1.26(f);

‘52. Where the requisite statutory declarations have been provided by competent persons to the Tribunal then, in accordance with the Federal Court decision in Meroka v MIMA [2002] FCA 482, the Tribunal cannot determine whether in its opinion relevant domestic violence has occurred. It can however determine whether the statutory declarations meet the requirements of Regulation 1.26. In Meroka, Ryan J stated:

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.

53. The Tribunal is therefore bound to objectively examine the evidence set out in the statutory declarations and whether the statutory declarations filed comply with Regulation 1.26(f) which states that the competent person's statutory declaration:

(f) must set outthe evidence on which the competent person's opinion is based.

54.  The Tribunal is bound by the wording of the Regulations and concludes that if the statutory declaration by a competent person does not set out the evidence on which that person’s opinion is based then it does not comply with the Regulations.  In the Tribunal's view to set out evidence requires more than simply identifying a document or identifying an interview where evidence may appear or have been canvassed. It requires at the very least stating the essence or a synopsis of the factors on which the opinion was based and from

which source it came. It may come from a variety of single sources or a combination of sources such as an interview or another document or a report. The factors however, in the Tribunal's view should be specifically identified otherwise the statutory declaration does not, in the words of Ryan J, "provide an opportunity for objective examination of the evidence on which the opinion was based" to see if the declaration complies with the Regulations.

55. The fact that the Tribunal has no independent discretion to assess whether or not domestic violence has taken place, emphasises the need that there be proper compliance with the Regulations.’

10                  It is appropriate to deal now with these preliminary observations of the Tribunal, as the approach taken by the Tribunal in assessing the validity of each of the statutory declarations rested upon the principles distilled in the paragraphs just quoted.  It follows that any error in the statement of those principles must have affected the Tribunal’s evaluation of the relevant statutory declarations.

11                  In Meroka v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 482 at [32]-[33], I made these observations on the operation of subreg 1.26(f):

‘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.’

12                  In its reasons, the Tribunal seems to have accepted that the purpose of requiring the evidence to be “set out” is to provide an opportunity for an objective examination of the material on which the opinion of the competent person has been based.  The Tribunal also accepted that it has no scope for forming its own view of whether domestic violence has occurred.  However, in my view, the Tribunal fell into error in identifying what subreg 1.26(f) required when it stipulated that the competent person “set out” the evidence on which his or her opinion is based.  At [54] of its reasons, the Tribunal described the effect of subreg 1.26(f) as being ‘…to set out evidence requires more than simply identifying a document or identifying an interview where evidence may appear or have been canvassed. It requires at the very least stating the essence or a synopsis of the factors on which the opinion was based and from which source it came.’

13                  Mr Fairfield of Counsel for the respondent submitted that the Tribunal had correctly described how the evidence is to be set out because mere references to a document or an interview as being the evidence upon which the opinion of the competent person was based would not allow the Tribunal to determine objectively whether the evidence supported the opinion.  What is required, so the argument went, is for the declarant to refer specifically to those parts of a document or an interview that are relied upon.  Mr Fairfield further submitted in oral argument that, if a competent person had merely referred, for example, to a document in general terms, the document might have contained irrelevant matters and it would be unduly onerous for a Tribunal to have to go through lengthy documents to identify those parts which are objectively capable of sustaining the competent person’s opinion.

14                  I am not persuaded by these submissions.  To identify specifically which parts of a document or an interview he or she relied upon, requires a competent person to expose the reasoning process used in forming the opinion.  This, in my view, goes beyond ‘setting out” the evidence as required by subreg 1.26(f) and the purpose, which I identified in Meroka,of requiring it to be “set out”’.  It is not to the point that a document or an interview may contain irrelevant matter.  If a body of material has been referred to, some parts of which are capable of supporting the competent person’s opinion, and the ‘setting out’ refers indiscriminately to the whole of the material, the appropriate inference is that the competent person has relied upon those parts that are capable of supporting the opinion. 

15                  Further, in interpreting regulations, regard may be had to the practical implications of a particular interpretation (see Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180, at 183 cited in Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316, at [37]) and the other cases cited at [38] in the latter authority.  It would be unduly onerous and impractical, in my view, to require the competent person to set out each part, of what might be a considerable body of evidence, that was influential in the conclusion that domestic violence had been committed.  This is a practical consideration that militates against interpreting subreg 1.26(f) in the manner favoured by the Tribunal and argued on behalf of the respondent.

16                  I have been mindful of the stricture of Gray J at first instance in Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503, where his Honour said, at [40];

‘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.’

However, being vigilant to ensure that every element of a mechanical mode of proof has been satisfied is not to go beyond the words of the legislation which, in my view, a requirement that the competent person set out his or her reasoning process does.

17                  Against that examination of the Tribunal’s view of what subreg 1.26(f) entails, I now deal, in turn, with the statutory declarations of the four competent persons.

Mr Moore

18                  The Tribunal held that Mr Moore’s statutory declaration did not comply with either subreg 1.26(c) or 1.26(f).  The Tribunal found that;

‘56. Whilst Mr. Moore's statutory declaration describes the physical acts of violence of the nominator referred to in paragraph 24 which he states in his opinion caused him to be fearful for his safety or personal wellbeing and therefore which amount to relevant domestic violence, in the Tribunal's view, it does not set outthe evidenceon which he bases his opinion. He cites a number of documents and his interview with the visa applicant as providing the evidence on which his opinion is based. Those documents are not annexed to his statutory declaration and therefore do not form part of it.  Although he identifies the documents by author and date, he does not set out the evidence from the interview or in the documents on which he bases his opinion nor are they discussed or extracted in his statutory declaration. The Tribunal is therefore not in a position to objectively examine the evidence on which his opinion was based. In the Tribunal's view therefore, Mr. Moore's statutory declaration does not in this respect, comply with Regulation 1.26(f).

57. Mr Moore's statutory declaration also refers to acts of emotional abuse which he states include denial of access to a child, belittling the visa applicant and making him feel unwanted and that this is "effecting his personal wellbeing". It does not suggest that it causes him to be fearful or apprehensive about his safety or personal wellbeing. Whilst Mr Moore states "his relation of the experience and the emotions he describes and his behaviour are consistent with a male who has experienced the domestic violence described". He does not state that in his opinion the visa applicant has suffered domestic violence as a result of the emotional abuse.

58. As such, those acts described by Mr. Moore as amounting to emotional abuse in the Tribunal's view, do not fall within the definition of "relevant domestic violence" nor has he stated that in his opinion they do. As with the physical acts, Mr. Moore has similarly not set out the evidence on which he has based his opinion and the Tribunal will not again set out in detail the matters set out in the previous paragraph. In relation to the emotional abuse, the Tribunal finds that the acts as described by Mr Moore and his statements about them relate to the relationship breakdown between the parties and do not fall within the definition of "relevant domestic violence". The Tribunal concludes that the statutory declaration does not comply with Regulation 1.26(c).’

19                  In relation to subreg 1.26(f), Mr Niall of Counsel for the applicant submitted that the evidence on which Mr Moore relied is made abundantly clear in his statutory declaration and, in rejecting it, the Tribunal misdirected itself as to the meaning of subreg 1.26(f).  For the reasons indicated in the discussion of the requirements of subreg 1.26(f) at [11] – [16] above, I agree with this submission.

20                  In describing the evidence upon which he relied, Mr Moore’s statutory declaration recited;

‘Psychology assessment by Dr Boris Golub (3 Jan 2003), Social Work report by Ms ILONA RIENER (11 Nov 2002), Statutory Declaration by Igor Kozel (30 Oct 2002), Police Statement (30 Sep 2002) and an extensive interview conducted 19 March 2003.  Mr Kozel was noticeably distressed when recalling the incidents of the violence, this was noticeably different when he was recalling happier times of the marriage.  His relation of the experience and the emotions he describes and his behaviours are consistent with a male who has experienced the domestic violence described.  His description of the violence has remained consistent since first reported in September 2002 and clearly is still painful in its recollection.  This abuse is still occurring by Ms Kozel’s refusal for Mr Kozel access to a child he …’

21                  In my view, by identifying the documents and interview on which he based his opinion, Mr Moore has, for the purposes of subreg 1.26(f), ‘set out’ the evidence relied upon in forming the conclusion that the applicant had suffered domestic violence.  It is sufficient that he referred to each document and interview without setting out specifically which parts of a particular document or the interview had contributed to the formation of the opinion.  In any event, Mr Moore went beyond a mere reference to the interview with the applicant and ventured this brief explanation of the aspect of the interview which supported his conclusions;  “His relation of the experience and the emotions he describes and his behaviours are consistent with a male who has experienced the domestic violence described”.

22                  For the respondent it was submitted that there was nothing in Mr Moore’s statutory declaration to indicate that he had been given a version of events consistent with that contained in other material and that merely to repeat evidence is not to set it out evidence (see Ibrahim v  Minister for Immigration & Multicultural Affairs [2002] FCA 1279).  This submission is based on an unduly narrow reading of Mr Moore’s statutory declaration, which specifically recited that “His description of the violence has remained consistent since first reported in September 2002 and clearly is still painful in its recollection.”  I infer from that passage that the consistency of the applicant’s version of events as repeated to others was very much in Mr Moore’s mind and that he was not simply repeating evidence which he had not also heard at first hand. 

23                  In this respect Mr Moore’s declaration can be contrasted with the offending statutory declaration in Ibrahim.  In that case, the competent person, in that part of the declaration which purported to set out the evidence, merely stated “Based on my full clinical assessment, I am of the opinion that Mr Taleb Ibrahim has most likely suffered from domestic violence”.  On that assumption, Wilcox J commented, at [43]-[44];

‘…That was not evidence at all, not even hearsay or unconvincing evidence.  It was merely a “trust me” statement.

At para 30 above, I quoted the Tribunal member’s comment that the “evidence on which (Dr Tadros’ declaration) is said to be based is the kitchen knife incident and the assault in the park”.  But these matters were mentioned by Dr Tadros in the course of setting out a description (Mr Ibrahim’s description) of the alleged violence.  Dr Tadros did not claim to have based his own opinion on these statements.  In any case, mere repetition of a claim could never be evidence justifying an opinion about the truth of the claim.’

Unlike that in Ibrahim, Mr Moore’s statutory declaration does not merely repeat the applicant’s claim that domestic violence has been suffered.  Rather, it points to documents and an interview as evidence upon which the opinion was based.  It is not, in Wilcox J’s words, a ‘trust me’ statement.

24                  The Tribunal also found that Mr Moore’s statutory declaration did not comply with subreg 1.26(c), in that the acts described by him did not fall within the definition of relevant domestic violence.  I accept, that, insofar as Mr Moore’s statutory declaration describes the violence as ‘emotional abuse’, that cannot amount to domestic violence as defined in subreg 1.23(2)(b) in light of the recent Full Court decision in Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCAFC 257.  In that case, the Court held, at [61]-[62], that violence in subreg 1.23(2)(b) is confined to physical violence and I regard myself as bound to adopt the same interpretation. 

25                  However, in describing the nature of the violence, Mr Moore also declared that: “Anna has physically assaulted Igor with a fork, she has thrown kitchen crockery at him and threatened him with grievous bodily harm by a third person.  This has caused Igor to have a fear for his personal well being or safety if they continue to share accommodation.”  Although Mr Moore mistakenly regarded emotional abuse as amounting to domestic violence, it is apparent, at least by clear implication, that in the remainder of the description, he accepted that the applicant had been subjected to actual and threatened physical violence (see Meroka at [34]).  In my view, Mr Moore’s description of the nature of the violence, when taken as a whole, is capable, as a matter of law, of affording a basis for an opinion that domestic violence in the requisite legal sense has been suffered.  In these circumstances, the operation of subreg 1.23 cannot be denied (see Meroka at [33]). 

Ms James

26                  The Tribunal held that Ms James’ statutory declarations did not comply with sub-regulation 1.26(f), observing, that;

‘59. Similarly the Tribunal finds that Ms. James statutory declaration does not comply with the requirements of Regulation 1.26(f) in that it does not set out the evidence on which her opinion is based. As with Mr. Moore, she states that the basis of her opinion is an interview with the visa applicant and other documents which she mentions. As with Mr Moore those reports and statements to which she refers are also not annexed to her statutory declaration. They were not properly identified, extracted or discussed in Ms. James' statutory declaration. The Tribunal finds that Ms. James has not set on what aspects of those documents she bases her opinion, thereby not providing the Tribunal with the opportunity for objective examination of the evidence on which the opinion was based to see if the declaration complies with the Regulations.

60. An illustration of the importance of the need for a competent person to set out the evidence as required in Regulation 1.26 and the shortcomings of not doing so may be seen from Ms. James' statutory declaration where she refers to Dr. Golub's report. The evidence before the Tribunal indicates that there are 2 reports by Dr. Golub in existence being a report dated 3 January 2003 and a further report dated 17 March 2003. In order for the Tribunal to make an objective assessment as foreshadowed by Ryan J, the Tribunal would need to know on which part of and from which report she based her opinion.

61. In not setting out the evidence properly, there is also the danger that the competent person may be perceived to be adopting another professional person's opinion instead of forming their own opinion as required by the Regulations.

62. Ms. James does not state that the acts of emotional abuse which she described caused the visa applicant to fear for or be apprehensive about his personal well being or safety…

63. The way Ms James describes the acts of emotional abuse (as opposed to physical acts), they are acts that caused the visa applicant "symptoms of trauma, grief and depression" as a result of ending his relationship with the nominator to whom he is still attached and with whom he wishes to continue his relationship but she does not state that they caused him to be fearful or apprehensive about his wellbeing or safety.’

27                  In describing the evidence upon which she relied, Ms James’ statutory declaration recited;

‘It is my professional opinion that Igor Kozel has suffered from domestic violence that is based on a very extensive interview whereby symptoms of trauma, grief and depression were observed.  There were indications that he suffered disbelief at his current predicament and seemed at a loss to understand the events that led to his miserable current situation.  He still loves his wife deeply and believes she will come to her senses and return to the marriage.  Her refusal to do so violates his strong commitment to her.  She is making it impossible for him to cope with recovery of his marriage.  His stat dec, police statement and Psych (Goloub) + Social worker reports (Riener) attest to her violation of Igor.’

28                  It is clear that Ms James expressly refers to an extensive interview with the applicant as evidence on which she relies to form her opinion that the applicant has suffered domestic violence, as well as various other documents.  Mr Fairfield submitted that it was far from clear to which documents Ms James was referring to or on which specific parts of documents she had relied.  Further, it was contended that Ms James had merely adapted a description of the violence given by the applicant and there was nothing to suggest that she had been given a version consistent with that contained in the other material.  These criticisms, which have been made by both the Tribunal and Counsel for the respondent on the present appeal, are similar to those directed at Mr Moore’s statutory declaration.  For the reasons explained in relation to Mr Moore’s declaration, I am unable to uphold these criticisms of Ms James’ declaration.  As I have mentioned at [14] and [21] of these reasons, it is not necessary for the competent person to expose his or her reasoning process when referring to documents in the course of setting out the evidence on which the opinion has been based.  Provided that the documents are capable, as a matter of law, of supporting an opinion that domestic violence has occurred, subreg 1.26(f) has been complied with.  Nothing has been put on behalf of the respondent to indicate that the documents identified by Ms James were not capable of providing a basis for the opinion which she expressed.

29                  Mr Fairfield also submitted that the Tribunal was correct in reasoning that, at best, the evidence identified by Ms James established only that the applicant had exhibited symptoms of trauma, grief and depression as a result of the breakdown of the marriage.  There was nothing in the statutory declaration, so the argument went, to elevate those symptoms to evidence of possession of the requisite fear for the purposes of subreg 1.23(2)(b), that is, a fear or apprehension about the applicant’s personal well-being or safety.  I do not agree with this submission, which, I consider, does not accurately reflect the effect of Ms James’ statutory declaration.  By stating that, during the interview, symptoms of trauma, grief and depression had been observed, Ms James does not, on a careful reading of her declaration, necessarily connect those symptoms solely with the breakdown of the marriage.  I accept that there is nothing recited in the section of the declaration quoted at [27] above that expressly relates the observed symptoms to possession of the requisite fear for the purposes of subreg 1.23(2)(b).  However, I infer that Ms James regarded symptoms, which she observed during the ‘extensive interview’, as part of the evidence that the applicant had suffered domestic violence, in the sense that the observed symptoms of trauma, grief and depression were consistent with the applicant’s having suffered physical domestic violence or being in fear for his safety.  This inference I consider to be particularly open because the description of the symptoms follows immediately after the expression of the opinion that the applicant had suffered from domestic violence.

30                  It may be conceded that Ms James could have set out more clearly the evidence on which her opinion was based.  However, “competent persons”, as defined in subreg 1.21(1), are unlikely to have had legal training and qualifications and therefore may not ‘set out’ evidence in a manner which would commend itself to a legal practitioner or would be acceptable in a court of law.  Nevertheless, the Regulations have reposed in competent persons, not legal practitioners or the Tribunal, the function of forming an opinion as to whether a person has suffered domestic violence.  In my view, the principle that reasons of an administrative decision-maker are not to be scrutinised over-zealously with a view to detecting some inadequacy of expression from which error may be imputed (see Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259), can be applied by analogy to considerations of statutory declarations of competent persons.

31                  For the reasons which I have endeavoured to explain, the evidence set out or referred to by Ms James, when its description is taken as a whole, is capable, as a matter of law, of constituting the basis of an opinion that the applicant had suffered domestic violence.

32                  I note that subreg 1.24(1)(b) requires only two statutory declarations to be provided by competent persons, provided that those two competent persons do not have the same qualifications (see subreg 1.24(2)).  In light of my finding in relation to the declaration of Mr Moore (a social worker) and that of Ms James’ (a psychologist), it is not strictly necessary for me to deal with the other two statutory declarations which have been examined in the course of this application.  However, out of deference to the careful arguments addressed to them, I shall briefly indicate the results of my application of the Regulations to those declarations. 

Ms Reiner

33                  Mr Niall did not contend in his written or oral submissions that Ms Reiner’s statutory declaration complied with the Regulations.  I shall, therefore, not review the Tribunal’s reasons for rejecting that statutory declaration.

Dr Goloub

34                  In his statutory declaration, Dr Goloub referred to an interview which he had conducted with the applicant and made certain observations about the demeanour of the applicant during the interview.  Under the heading “Antecedent Conditions”, Dr Goloub recited what was obviously a “history” taken from the applicant at interview.  That recital included these passages;

‘All of a sudden in July 2002 Mr. Kozel’s wife radically changed her behaviour toward the husband.  The couple started to have different arguments for no significant reason.  Igor tried to talk about the atmosphere in the family but Anna would become irritated and even aggressive, telling him to leave her alone.  Mr Kozel thought the reason for Anna’s condition was his regular absence due to his hrd [sic] work.  However, one day, Mrs. Kozel deliberately slammed the door hitting [sic] husband’s back, when he was leaving for work after they had an argument.

………

One day Mr. Kozel was sitting and watching TV, when his wife suddenly started an argument.  Igor asked her to calm down and explain what was going on.  Anna replied that she did not want him to be present in her life.  Saying that, Mrs. Kozel was extremely aggressive, she slapped husband in the face and told him that she would find a way to force him to leave her.  In response Igor made another attempt to communicate with Anna positively, asking her to think about their experience of previous years and telling her about future prospective.  Anna ignored him.

… …

That moment Mr. Kozel was uncertain, for the first time, if Anna was telling the truth or it was just another outburst of anger of a pregnant woman.  Finally he said to her that he did not believe her for they had four years of perfect relations and he never noticed a sign of cheating and, as for himself, he always tried to be a good husband working hard and doing his best to keep the wife happy.

In response Mrs. Kozel said that she lied to him and that she hated him.  To prove herself Anna strongly slapped Igor in the face.

Mr. Kozel told his wife to calm down and walked to the kitchen, wanting to think it over.  Nevertheless, Anna followed him screaming that if the man would not live [sic] the house immediately, she will make a phone call and somebody will come and brake [sic] Igor’s legs.  Mr. Kozel did not know how to react and kept standing in the kitchen, looking at his wife.  The latter then grabbed a plate from the table and threw it at him.  Igor moved his head and the plate missed him.  Once more he asked his wife to calm down.  Instead, Anna grabbed the fork and hit her husband, ripping his t-shirt and leaving scratches on his arm from the shoulder to the wrist.

The scene was the last bit for Mr. Kozel to understand that his wife was serious about her hatred.  The man did not try to talk with his wife anymore or suggest anything;  he just took his belongings and left the place.’

35                  In the last paragraph of “Antecedent Conditions”, Dr Goloub’s declaration noted that an estate agent had ‘advised Igor to go to the police and make a statement, as it was a form of domestic violence with further threat and no one could say if the threat was real.  Thus Mr Kozel made a statement to the Caulfield Police.”

36                  After describing the applicant’s “Present State” in terms which did not refer to physical violence or any present fear of the infliction of such violence, Dr Goloub’s declaration ended under the heading “Conclusion”;

‘Considering all the above, it is obvious that Mr. I. Kozel has suffered both verbal and physical assault from his wife.  In my professional opinion it was a pure case of home violence.’

37                  The Tribunal held that Dr Goloub’s statutory declaration did not comply with either par (c) or par (f) of sub-reg 1.26.  The Tribunal made these specific findings;

‘66. Dr. Golub's statutory declaration describes the nature of the violence as reported to him. He describes the nominator denying the visa applicant access to a child who he believes is his as "emotional violence" by the nominator towards the visa applicant. He also describes her slapping him, throwing a plate at him and attacking him with a fork, threatening him with violence from a third person and having fierce arguments.

67. Dr. Golub's typed statutory declaration, which is not on a form 1040, does not indicate that Dr. Golub is aware of the definition of relevant domestic violence or what evidence is required to meet that definition.

…

72. In the present case, Dr. GOLUB has not given an opinion that the visa applicant suffered the relevant domestic violence. He states that in his opinion the visa applicant suffered "home violence" but does not indicate what he means by that. The Tribunal concludes that it is in no position to imply that relevant domestic violence within the terms of Regulation 1.23 has taken place in Dr. Golub's opinion on the basis of his statutory declaration.

73.Dr. Golub's declaration does not in the Tribunal's view comply with Regulation 1.26 in that it does not set out the evidence on which his opinion is based (1.26(f)). Dr. Golub gives a description of the violence (1.26(b)) but that is a separate requirement from the evidence on which his opinion is based (1.26(f)). The intention of the legislature clearly is that each of the subclauses of Regulation 1.26 sets out a different requirement from the others and that each of the subclauses must be satisfied. The Tribunal concludes that it must be clear on what evidence the psychologist's opinion as to relevant domestic violence is based. In the present case there is no indication in the Tribunal's view that Dr. Golub addressed or was even aware of the requirements of relevant domestic violence as defined in Regulation 1.23(2)(b). The Tribunal concludes that the statutory declaration does not do that and relies on the previously quoted authorities of Alin and Du.’

38                  Mr Niall submitted that it is not obligatory that a declaration be on an approved form nor necessary that a declarant specifically refer to the definition of relevant domestic violence.  The declaration is to be given a fair reading.  I agree with this submission.  However, I am unable to infer, on a fair, even benevolent, reading of Dr Goloub’s statutory declaration, that the requisite opinion has been expressed for the purposes of par (c) of subreg 1.26.

39                  Mr Niall submitted, in relation to par (c) of subreg 1.26, that the recital in Dr Goloub’s statutory declaration that the estate agent “advised Igor to go to the police and make a statement, as it was a form of domestic violence with further threat and no one could say if the threat was real” was obviously a reference to the concern of the applicant for his personal well-being or safety.  I am unable to uphold that contention.  Dr Goloub’s statutory declaration contains no reference to the applicant’s state of mind or his possession of fear for, or apprehension about, his personal well-being or safety.  It is not necessary for the statutory declaration to refer to, or use the language of sub-reg 1.23 but there must be an expression of opinion that the alleged victim has suffered violence at the hands of the alleged perpetrator which has caused the alleged victim to fear for, or to be apprehensive about his or her personal well-being or safety.  Dr Goloub’s declaration clearly expresses an opinion that the applicant has suffered violence at the hands of his wife and sets out, in the sense discussed above, the evidence on which that opinion has been based.  However, there is no express or implied indication of opinion by Dr Goloub that the “home violence” to which he refers has caused the applicant to fear for, or be apprehensive about, his personal well-being or safety.  As Matthews J held in Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [19] what the Regulations require of a competent person “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.”  Nothing on the face of Dr Goloub’s declaration indicates that he has made any such assessment of the applicant’s state of mind.

40                  The conclusion which I have just reached entails that Dr Goloub’s statutory declaration is unavailable to contribute to the presumption embodied in subreg 1.23 notwithstanding my view, contrary to that of the Tribunal, that Dr Goloub has adequately expressed the opinion that the applicant has suffered physical violence by his wife and has sufficiently “set out” the evidence on which that opinion was based.

Section 474

41                  I turn now to consider whether the Tribunal’s decision is subject to judicial review in light of s 474 of the Migration Act 1958 (Cth), which protects ‘privative clause decisions’ from judicial review.  This requires a determination of whether the Tribunal’s decision is a ‘privative clause decision’.  It is now accepted that a decision will not be a privative clause decision if it has been affected by jurisdictional error (see Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 1 at [75]-[78] and SDAH v Minister for Immigration & Multicultural Affairs [2003] FCAFC 49 at [17]).

42                  On behalf of the applicant it has been submitted that, while the High Court in Plaintiff S157 did not seek to define or explain what it meant by “jurisdictional error”, other than indicating that it included a breach of the rules of natural justice as established at common law and a failure to discharge imperative duties or observe inviolable limitations or restraints, it is implicit in the reasoning of the majority that the expression has the same meaning as accorded to it in earlier High Court authorities.  In that sense “jurisdictional error” encompasses the range of omissions or mistakes identified in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Craig v South Australia (1995) 184 CLR 163.  Conversely, Counsel for the respondent contended that, if the High Court had intended to equate “jurisdictional error” with what had been identified by authority before the enactment of s 474, it would have referred expressly to Craig and Yusuf.

43                  The question has been discussed by a Full Court of this Court in SDAV v Minister for Immigration & Multicultural Affairs [2003] FCAFC 129, where it was observed, at [33]-[35];

‘It must be emphasised that the aim of the process of reconciliation is to determine whether the impugned act is within the jurisdiction granted by the Migration Act.  As such the process does not distinguish between jurisdictional errors that are and are not protected by the privative clause.  It distinguishes between errors that are jurisdictional errors and those that are not jurisdictional errors.  This analysis accords with the view expressed by a number of other Full Courts, exemplified by the following comment from NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 25 (‘NAEB’) at [4]:

‘The High Court has now held that the approach to the construction and application of s 474 adopted in NAAV, and many other decisions of this Court, was wrong:  S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2.  Section 474 is not, that decision holds, effective to protect jurisdictional errors.’

See Zahid v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCAFC 24,  NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 at [13], Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33 at [11], SDAH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 49 at [17], SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [27]-[28] per Madgwick and Conti JJ, Gyles J dissenting, SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 at [18]-[21] and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [20]-[21]. 

The above analysis leaves no room for the approach adopted in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 at [13]  (‘Lobo’) namely that the scope of Plaintiff S157 is limited to cases involving a breach of natural justice or procedural fairness.  While it is true that a failure to accord procedural fairness was the particular error with which the High Court was concerned in Plaintiff S157, the principles of interpretation laid down by the High Court in that case are of wider application. We agree with the comments of Madgwick J in his dissenting judgment in Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 at [11] and with Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499 at [28]-[30].

The nature of jurisdictional error which will enliven the court’s power under s 39B of the Judiciary Act was discussed in Craig v The State of South Australia (1995) 184 CLR 163 (‘Craig’) at 179 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (‘Yusuf’) where McHugh, Gummow and Hayne JJ said at 351:

‘“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise that in accordance with the law.’

It follows from those observations of the Full Court that “jurisdictional error” for the purposes of s 474 encompasses errors of the kind identified in cases like Craig and Yusuf.  I am bound to take the same approach.

44                  It is therefore necessary to determine whether the error which I have imputed to the Tribunal in its treatment of the statutory declarations of Mr Moore and Ms James amounts to a jurisdictional error.  Whether a mistake in applying the requirements for statutory declarations laid down by Div 1.5 of the Regulations constitutes a jurisdictional error was considered in Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCAFC 257, where the Full Court said, at [54]-[55];

‘…There may be room for debate between different readers of a declaration whether its contents are a presentation of the evidence that is called for.  If that be so, it is not necessarily the case that there is error displayed by the Tribunal in reaching a conclusion which, on the material presented, is open.  A difference of view from that of the Tribunal by the reviewing or appellate body may, nevertheless, lead to a conclusion that there has been error, which may be characterised as an error of law or an error of fact, depending on what is involved.  However, error of fact or law or not, if the Tribunal has asked itself the correct question the error may well be seen to be one within jurisdiction.

Even assuming some error be shown in this way, and even assuming that it be a legal error, because, for instance, only one possible conclusion could be reached, the existence of such an error may not conclude the question as to whether such error was made in the exercise of jurisdiction or as a jurisdictional error.  The error may allow one to conclude that the Tribunal asked itself the wrong question, but if the Tribunal asked itself the right question, but erred in law in reaching a conclusion that was not open to it, a real question might arise as to whether any jurisdictional error was present.  (See generally, Hill J in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 at [20]-[32] approved in this respect on appeal to the Full Court: Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 per Black CJ at [4], Wilcox J at [348] and von Doussa J at [651]; and see also Beaumont J at [188].  These views were independent of the other issues discussed in that case concerning the meaning, effect and operation of s 474 of the Act.)’

45                  Whether the Tribunal, in misapplying the test of whether a competent person has “set out” the evidence for the purposes of subreg 1.26(f), has asked itself a wrong question or, has asked itself the right question but erred in law in reaching a conclusion, may be a difficult question to resolve.  In attempting a resolution, it is necessary to return to the relevant provisions of the Regulations.

46                  I have already set out at [5] and [6] of these reasons the relevant provisions of the Migration Act and Regulations.  In effect, they are designed to create a presumption that a person has suffered domestic violence if, relevantly, two statutory declarations have been provided by competent persons in accordance with subreg 1.26.  Compliance with subreg 1.26 is a criterion for the grant to an applicant of a subclass 100.221(4) visa.  As I have already pointed out, it is not the function of the Tribunal to assess whether domestic violence has taken place.  Rather, it is the Tribunal’s responsibility to assess whether statutory declarations have been furnished which express the opinions mandated by subreg 1.26.  I have already concluded that the Tribunal, in making this assessment, has misapplied the criteria, specifically those laid down by subreg 1.26(f).  In SDAV¸ the Full Court held, at [47]-[48], that the Tribunal, in misconstruing a criterion about which a decision-maker must be satisfied in order to grant a visa, made a jurisdictional error.  Accordingly, it was held that the decision was not a privative clause decision within the meaning of s 474 of the Act.  Although SDAV was concerned with criteria directed to whether a visa applicant was entitled to a protection visa, the reasoning, in my view, is equally applicable to misapplication of the criteria relating to statutory declarations which go to the grant of subclass 100.221(4) visas under Div 1.5 of the Regulations.

47                  I have therefore concluded that the Tribunal’s decision was infected by jurisdictional error and was not a privative clause decision for the purposes of s 474.  I shall accordingly order that the decision of the Tribunal made on 2 May 2003 be set aside and the matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law.  The respondent must pay the applicant’s costs.

Associate:

Dated:              26 May 2004