FEDERAL COURT OF AUSTRALIA

Baylouneh v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 360

MOHAMMED BAYLOUNEH  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 369 of 2004

RYAN J

7 APRIL 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The decision of the Tribunal made on the 18 February 2004 be set aside.

2.         The matter be remitted to the Tribunal to be heard and determined according to law. 

3.         The respondent pay the applicant’s costs of the application, including any reserved costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     There is before the Court an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent (“the Minister”) on 29 May 2003 to grant the applicant a Partner (Migrant) (Class BC) visa. 

2                     The applicant was nominated for the purpose of his initial application for a combined subclass 309/100 visa on 19 March 2001 by his spouse, Ms Faye El Naha (“the Nominator”), an Australian citizen whom the applicant married in Lebanon on 31 January 2003.  However, on 15 April 2003, the Nominator informed the delegate of the Minister that she wished to withdraw her nomination of the applicant as her relationship with him had broken down.  In support of that assertion she submitted an intervention order made by a Magistrates Court against the applicant and expressed to remain in force until 23 May 2005. 

3                     On receiving that information, the delegate advised the applicant and asked him for a response.  What follows is the Tribunal’s summary of the submission made by the applicant in response to the delegate’s invitation;

‘16.      In a submission dated 27 May 2003, the visa applicant stated that he worked full time and all his wages are paid to the nominator who manages their financial needs. The arrangement is that the nominator visits his employer every week who gives her his pay packet unopened. The nominator then pays him a small sum each week to enable him to buy small items for day to day living. He stated that the nominator left the home as a result of his refusal to sign documents associated with her borrowing money. He refused to sign the documents because he did not believe that they could afford the loans that she wished to incur. He further stated that as a consequence the nominator falsely alleged that he assaulted her and as a result of that assault she left the matrimonial home. He concluded that he continues to be employed and he wants to reconcile and he can continue to provide financially for the nominator and her children (D1, f 119-121).

17.       The visa applicant also submitted a declaration from his employer, Fayez El Danawi dated 27 Mary 2003 in which he stated that the visa applicant worked for him but the nominator was the person who collected the applicant’s wages weekly (D1, f 118).’

4                     The delegate refused to grant the applicant a visa, taking the view that the applicant was no longer in a spousal relationship with the Nominator and the nomination which had been in existence at the time of applying for the visa had been withdrawn. 

5                     Before the Tribunal, the applicant sought to make out a case that he had been subjected to threats of, and actual, physical violence by the Nominator.  Those claims were summarised as follows by the Tribunal at [22]-[24] of its reasons for decision;

‘22.      He told the Tribunal about the circumstances of meeting his former nominator and the deterioration of the relationship since his arrival in Australia in June 2001. He said the relationship had been good for the first few months but they then began to argue. He described the forms of abuse to which he increasingly became subject to in terms which reflected the evidence given in his statutory declaration. He indicated that she subjugated him by taking his wages from him, prevented him from learning English and belittled him in front of family and friends. He said she struck him on 40 or 50 occasions with a clenched fist, or with implements such as a mop handle or towel. The conflict came to a head in April 2003 when she tried to coerce him into signing loan documents. When he refused she hit him with a chair. She called the police.  She threatened him by saying she “would not let you live on this earth.” He was fearful for his life. She left the matrimonial home and obtained an intervention order shortly thereafter.

23.       The visa applicant’s sister, Amina Baylouneh, told the Tribunal that she had observed the former nominator physically assault him including on one occasion with a shoe. The visa applicant’s sister in law, Lama Kanjo, told the Tribunal that she had observed the former nominator “slap him around”. His ex employer, Fayez El Danawi corroborated the visa applicant’s evidence that the former nominator demanded that his wages be paid directly to her.

24.       A number of documents were also submitted including a letter of approval of a personal loan to the nominator from the Commonwealth Bank dated 4 June 2001, bank statements, documentation in relation to the purchase of a motor vehicle by the nominator, payslips from Hassoun Coffee and documentation from the Australian Taxation Office in relation to a Notice of Seizure and the prosecution of the nominator in an excise matter.’

6                     The Tribunal approached the review on the basis that it was common ground that the applicant satisfied all of the criteria for a Class BC Sub-class 100 Spouse visa set out in sub-cl 100.221(2) of the Migration Regulations (“the Regulations”).  As sub-cl 100.221(3) was inapplicable to him, the applicant had also to satisfy sub-cl 100.221(4) which provided;

‘(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 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; …’

7                     In the circumstances, the Tribunal concluded, at [32] of its reasons;

‘Accordingly the only issue to be determined is whether domestic violence as defined has occurred in order to meet the requirements of sub-clause 100.221(4)(c)(i)A.’

8                     The meeting of those requirements was understood to necessitate a finding that the marriage is no longer subsisting but the visa applicant has suffered domestic violence committed by the sponsoring spouse.  In that context, it was noted that Div 1.5 of the Regulations contains a special evidentiary regime under which a person is taken to have suffered domestic violence.  The Tribunal noted that Reg 1.23(2)(b) provides that “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 to fear for, or to be apprehensive about, the alleged victim’s personal or well-being or safety.”  It was further noted that the effect of Reg 1.23 is that a person is taken to have suffered domestic violence if that person presents evidence in accordance with Reg 1.24, which provided;

‘(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.’

9                     After setting out extracts from Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909, Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 and from the reasons of a Full Court of this Court in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183, the Tribunal examined each of the statutory declarations purporting to comply with Reg 1.24 which had been filed on behalf of the applicant.  After considering the applicant’s own declaration, the Tribunal stated that, in the light of that declaration and the applicant’s own evidence at a hearing before the Tribunal, it was “satisfied that the visa applicant has met the requirements of Regulations 1.25 and 1.23(2)(b).” 

10                  The Tribunal then turned to examine the statutory declarations by a medical practitioner and a social worker which had been furnished in respect of the applicant who relied on them as satisfying Reg 1.26 which provided;

‘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.’

11                  The Tribunal concluded that the statutory declaration of the medical practitioner relied on by the applicant did not satisfy Reg 1.26.  The Tribunal’s reasoning in respect of that statutory declaration was set out in the following paragraphs;

‘47.      Dr Davinder Singh Kochar made a statutory declaration on 14 November 2003. He indicated his occupation as medical practitioner (consultant psychiatrist).

48.       In response to the question is there evidence that indicated to you that the visa applicant is a victim of domestic violence?  Dr Kochar states

according to the information made available to me (the visa applicant) has been subjected to domestic violence repeatedly by his wife.  He has been subjected to considerable degree of emotional and physical abuse, and humilitation [sic] and actual and threatened violence both physical and emotional..

in April 2001(the visa applicant) spent some money to get an Australian drivers license, his wife slapped him, abused him and threw him out of the house of four days..

on 4 July 2002 he was once again abused and thrown out of the house, because he chose to learn and join English classes…

49.       In response to the question, what conclusions have you reached?  He states

these examples and several other examples.. have caused great trauma and hardship to (the visa applicant).  All these incidents caused (the visa applicant) to be very traumatised, depressed, lack of confidence, low self-esteem and at one stage he thought of killing himself when he was humiliated by throwing him out of the house. (the visa applicant) lost self-respect and felt like having been treated like a “ slave”.

50.       The competent person referred to emotional and physical abuse causing depression, lack of confidence and low self-esteem and indicated that the visa applicant was traumatised. The Tribunal does not regard depression, lack of confidence or low self esteem as constituting a fear for well-being and safety.

51.       In relation to “traumatised” the Court in Cakmak held at paragraph 72 that:

There is nothing in his statutory declarations which state, or from which one could infer, that his wife’s actions caused him to fear or be apprehensive about, his well-being or safety. Mr Heerey placed emphasis on Mr Cakmak’s statement that his wife’s scratching him “traumatised” him. One can be traumatised or emotionally or psychologically shocked without having the slightest fear or apprehension for one’s well-being or safety.

52.       Whilst the statutory declaration refers to violence against the alleged victim, it does not state that, in the competent person’s opinion, the violence has caused the alleged victim or a member of his family to fear for or be apprehensive about his personal well-being or safety which is the second limb of the definition of “relevant domestic violence” in Regulation 1.23(2)(b). The Tribunal finds, therefore, that the medical statutory declaration does not express an opinion that the visa applicant has suffered relevant domestic violence within the meaning of Regulation 1.23(2)(b) as it is required to do by Regulation 1.26(c). Accordingly, the Tribunal finds that the medical statutory declaration does not satisfy the evidentiary requirements of Regulation 1.26.’

12                  The Tribunal, however, went on to express a finding that the statutory declaration of the applicant’s other “competent person”, Mr Wadad Khalil, a social worker, satisfied the evidentiary requirements of Reg 1.26.  Consequently, because of the perceived deficiencies in Dr Kochar’s statutory declaration, the Tribunal reached this conclusion, at [56] of its reasons;

‘56.      The visa applicant has presented a statutory declaration declared by himself which complies with Regulation 1.25 and a statutory declaration by a competent person which complies with Regulation 1.26 but failed to produce a second statutory declaration by a competent person which complies with Regulation 1.26. The Tribunal notes that the statutory declaration declared by the visa applicant and the social worker, Mr Khalil, each refer to the visa applicant’s fear for his well-being and safety but those statutory declarations cannot inform or remedy the deficiency in the medical statutory declaration which is assessed separately for compliance with Regulation 1.26. The visa applicant has tendered reports from Sala Abdo and Fouad Elali dated 20 November and 9 December 2003 but neither report is in the form of a statutory declaration as required by the Regulations. The Tribunal concludes that the visa applicant has failed to meet the evidentiary requirements of Regulation 1.24(1)(b) for the purposes of satisfying subclause 100.221(4)(c). Given this finding the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Partner (Migrant) (Class BC) visa.’

Submissions on behalf of the applicant

13                  Ms De Ferrari of Counsel for the applicant contended that the Tribunal’s reasons disclosed that nothing short of the appearance in Dr Kochar’s declaration of the actual words “fear for his safety or well-being” would have persuaded it that the declaration complied with Reg 1.26(c).  Support for that contention was drawn from the Tribunal’s failure to refer to Dr Kochar’s response to Question 10 on the official Form 1040.  It was said, rather, that the Tribunal had simply “parsed” each word of Dr Kochar’s statutory declaration to see whether it matched a corresponding word in the Full Court’s formulation in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (supra). 

14                  In a related way, it was contended that the Tribunal had misconstrued and misapplied Reg 1.26(c) because it had disjunctively examined Dr Kochar’s answers to each of Question 10 and Question 11, apparently in the mistaken belief that the requisite expression of opinion had to be found within the four corners of the answer to Question 11.  In this context, Counsel submitted that in both Du v Minister for Immigration and Multicultural Affairs (supra) and Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251, it had been recognised that the relevant statement of opinion by a “competent person” could be found by implication.  As far as it relied on the embodiment of the opinion in an official Form 1040, Meroka had been cited with approval by Sundberg J in Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979.  In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 2001, North J had acknowledged that the competent person’s statement of opinion might be implicit but, because the official Form 1040 had not been used, his Honour had been led to find that the social worker, Ms Cleak, had been unaware of the need to assess the applicant’s state of mind. 

15                  Because of the Tribunal’s allegedly mistaken approach to its examination of Dr Kochar’s statutory declaration, it was said that it had fallen into jurisdictional error of the kind identified in Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658 at [41]-[46] (applying what had been said by the Full Court in Cakmak at [54]-[55]). 

Submissions on behalf of the Minister

16                  Mr McLeish of Counsel for the Minister contended that a distinction has to be drawn between the line of authority concerned with whether the competent person has set out the evidence on which his or her opinion was based [Reg 1.26(f)] and the cases dealing with whether the statutory declaration evinces a statement of opinion that the applicant has suffered relevant domestic violence [Reg 1.26(c)].  He accepted that the requisite statement of opinion can be conveyed by implication.

17                  In the present case, it was submitted, the Tribunal had asked itself whether an opinion had been stated that the applicant had a fear for his well-being or safety and concluded that no such statement had been made expressly or by implication in Dr Kochar’s declaration.  That was a conclusion which the Tribunal could have reached without perpetrating a jurisdictional error of the kind identified in Meroka.  On a proper analysis of its reasons, the Tribunal had asked itself the question indicated by the Full Court in Cakmak at [50], [52] and [53].  Dr Kochar had simply not turned his mind to the question of the applicant’s apprehensions as to his well-being or safety.  The Tribunal did not need to set out or refer to those parts of his declaration which did not discuss the applicant’s state of mind. 

Resolution of the Issues

18                  The standard departmental Form 1040 containing the statutory declaration by Dr Kochar was prefaced by the following “Notes about domestic violence”; 

‘What is domestic violence?

Under the Migration Regulations, the definition of domestic violence is:

‘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.

Violence includes the threat of violence.’

Examples of domestic violence may include, but are not limited to:

¨               causing or threatening to cause a physical injury to the person;

¨               abducting or confining the person, or threatening to do so;

¨               harassing by stalking, interrogations, accusations, keeping under surveillance;

¨               psychological and emotional abuse, eg. public humiliation and criticism, displaying intimidating anger,

¨               economic deprivation, eg. not allowing the person to get or keep a job, not allowing the person access to money for household purposes or personal needs; and.

¨               social abuse, eg. not allowing the person access to friends, family, medical care.

The presence of emotional or psychological distress is not necessarily evidence of domestic violence. There are many other circumstances that can cause distress - for example, the emotional and psychological stress that commonly accompanies the breakdown of a relationship.

Where a visa applicant experiences the breakdown of the relationship that was also the basis for their being able to apply for Australian permanent residence, they may also become very distressed at losing not only their relationship but also their right to live in Australia.

Emotional or psychological stress related to relationship breakdown or the potential loss of the right to live in Australia does not, by itself, necessarily constitute evidence of domestic violence for the purposes of the Migration Regulations. However, these factors do not preclude the visa applicant also being the victim of domestic violence.’

19                  The same prefatory notes included, on p 3 of the Form, this passage under the heading “Notes for competent persons”;

‘Responsibilities of competent persons

Under the Migration Regulations, you must provide the following information in your statutory declaration:

¨               the basis of your claim to be a competent person for the purposes of assessing an allegation of domestic violence; and

¨               the name of the person who, in your opinion, has suffered domestic violence; and

¨               the name of the person who, in your opinion, committed the domestic violence; and

¨               whether, in your opinion, domestic violence has been suffered by the person; and

¨               the evidence on which you base your opinion.

Please refer to the definition of domestic violence contained in the Migration Regulations (see page 2 of this form) and the information about domestic violence, also given on page 2, when assessing the evidence and stating your conclusions as to whether, for the purposes of the visa application, the person has been subjected to domestic violence.

If you are not experienced in domestic violence matters

DIMIA is aware that not all of the people in the ‘competent persons’ list will have sufficient knowledge and experience of domestic violence issues to make a confident recommendation. You are not obliged to complete the statutory declaration.

You may wish to refer the visa applicant to another competent person.’

20                  In Part C of the standard form declaration to be completed by a competent person, the printed form recited;

‘10       Is there evidence that indicates to you that the visa applicant is a victim of domestic violence?

Please give details, citing:

¨           Specific incidents of domestic violence;

¨           Dates on which the incidents occurred;

¨           The impact of these incidents on the visa applicant.

For further information about what you are required by the Migration Regulations to provide, please refer to the definition of domestic violence on page 2 and Responsibilities of competent persons on page 3 of the guidelines at the front of this form.  If there is insufficient space, please provide additional pages.’

21                  To Question 10, Dr Kochar responded in his own handwriting;

‘According to the information made available to me Mr Mohammed Baylouneh has been subjected to domestic violence repeatedly by his wife,

He has been subjected to considerable degree of emotional & physical abuse and humiliation and actual and threatened violence both physical & emotional.

-           She told him that she did not marry him to have a husband but wanted him to make money for her.  She did not let him spent his money and collected his payments of his work from him

-           She taught her children from previous marriage to insult him and slap him on the neck every time they went past him.

In April 2001 Mr Baylouneh spent some money to get Australian driving licence, his wife slapped him, abused him and threw him out of the house for a day when Mr Baylouneh lived with her [sic] sister.

On 4 July 2002 he was once again abused and thrown out of the house because he chose to learn & join English classes in Footscray.  This time Mr Baylouneh slept on the park bench and washed in the public toilet.

During Ramadan 2002 Mr Baylouneh did not receive any cooked food in the evening but instead was thrown out of the house and for 2 weeks Mr Baylouneh slept in the car and used public toilets to wash & clean.

On 14^th April 2003 Mr Baylouneh was asked to sign yet another bank loan paper.  He refused to sign as it was loan of $20,000.  His wife then left the home & told him that she will withdraw her sponsorship from the Immigration Department.  Mr Baylouneh had already spend lot of money on debts.’

22                  The printed part of the official form which embodied Question 11 was in these terms;

‘11       What conclusions have you reached?

Please support your conclusions with regard to:

¨           The evidence provided;  and

¨           Your own observation

For further information about what you are required by the Migration Regulations to provide, please refer to the definition of domestic violence on page 2 and Responsibilities of competent persons on page 3 of the guidelines at the front of this form.

If there is insufficient space, please provide additional pages.’

23                  Then followed, again in Dr Kochar’s handwriting, three paragraphs, the first of which was;

‘On 1^st September 2003, a man with a knife approached Mr Baylouneh & threatened to harm him if he ever tried to make any complaint against his wife.’

24                  The remaining two paragraphs of Dr Kochar’s response to Question 11 were as set out at [49] of the Tribunal’s reasons which is reproduced at [11] above.  The question which the form and substance of Dr Kochar’s statutory declaration raises is whether it expressly, or by implication, conveys the opinion that the applicant experienced violence, or the threat of violence, which caused him to fear for, or be apprehensive about, his personal well-being or safety.  I accept that, in answering that question, it is appropriate to look primarily to the competent person’s answer to Question 11 which is directed to that person’s conclusions on the critical questions. 

25                  However, the Tribunal, in its examination of Dr Kochar’s answer to Question 11, omitted any reference to the statement that a man with a knife had approached the applicant and threatened to harm him if he ever tried to make any complaint against the Nominator.  The inclusion of that statement in answer to Question 11 indicates that Dr Kochar accepted that a threat in those terms had been made to the applicant.  As there is no indication in Dr Kochar’s declaration that the applicant had discounted or disregarded that threat, it follows that it caused, or should have caused, him to fear for his personal well-being or safety.  Similarly, the statement in Dr Kochar’s answer to Question 10 that the incidents of physical violence to which the applicant had been subjected by the Nominator had brought about the result that “at one stage he thought of killing himself”, raises the strongest possible inference that the violence or threat of violence had caused the applicant to fear for, or be apprehensive about, his personal well-being or safety.  It is difficult to conceive of anything more inimical to a person’s personal well-being or safety than that person’s committing suicide. 

26                  The question of whether Dr Kochar’s statutory declaration is to be taken as implying that the applicant feared for, or was apprehensive about, his personal well-being or safety can be answered by applying, by analogy, the principles extracted by the Privy Council in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, where their Lordships recited, at 283;

‘In Reigate v Union Manufacturing Co [1918] 1 KB 592, at p 605 Scrutton LJ said:

“A term can only be implied if it is necessary in the business sense to give efficacy to the contract i.e., if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, ‘What will happen in such a case?’, they would both have replied: ‘Of course, so and so will happen; we did not trouble to say that; it is too clear.’

In Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, at p 227 MacKinnon LJ said:

“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, ‘Oh, of course.’”’

Their Lordships’ reasoning in that case was approved by the High Court, especially per Mason J at 347, in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.

27                  Applying a similar test to the statements in Dr Kochar’s statutory declaration, I consider that, had he been asked whether it was his opinion that the applicant, as a result of the actual or threatened violence to which he had been exposed, feared for, or was apprehensive about, his personal well-being or safety, Dr Kochar would have responded “Of course, I did not trouble to say that but it goes without saying that if a person has been threatened by another with a knife, or thinks of killing himself, that person fears for, or is apprehensive about, his personal well-being or safety.”

28                  It is not easy to identify why the Tribunal declined to draw from Dr Kochar’s statutory declaration the inference which, I consider, arises so readily.  Perhaps the doctor’s conclusion that the incidents, which were manifestly of physical violence by the Nominator, caused the applicant “to be very traumatised” suggested to the Tribunal, because of certain observations in Cakmak, a traumatised state of mind falling short of fear for, or apprehension about, the applicant’s personal well-being or safety.  However, in Cakmak, the Full Court observed, at [72];

‘In his statutory declaration Mr Cakmak identifies only the December 1999 incident as involving Mrs Cakmak.  No other act of violence, physical, emotional or psychological, is ascribed to her.  His statutory declarations do not present any evidence, either at the time of the incident when he was scratched or thereafter, that he had any fear or apprehension for his well-being or safety by reason of violence or threat of violence from his spouse.  We agree with the conclusion that Mr Cakmak’s statutory declarations did not present the requisite evidence. There was nothing in his statutory declarations which state, or from which one could infer, that his wife’s actions had caused him to fear for, or be apprehensive about, his well-being or safety.  Mr Heerey placed emphasis on Mr Cakmak’s statement that his wife’s scratching him “traumatised” him. One can be traumatised or emotionally or psychologically shocked without having the slightest fear or apprehension for one’s well-being or safety. Indeed, the statutory declarations contain evidence that Mr Cakmak had no fear of his well-being or safety from Mrs Cakmak or her actions in December.’

29                  It is to be noted, in the first place, that the Full Court’s observations were concerned with a statutory declaration by the applicant himself in which it could be presumed that the applicant would have said that he had feared for, or been apprehensive about, his well-being or safety, had that been his state of mind.  In the present case, as already noted, the Tribunal considered that the applicant’s own statutory declaration was sufficient to establish that he personally had the requisite state of mind.  Since the evidence of the psychiatrist was evidently based on what had been told to him by the applicant, that should have gone a long way towards persuading the Tribunal to draw the inference suggested above as to what that competent person’s opinion was.

30                  It is true that the Full Court in Cakmak, after noting that Counsel for the appellant had emphasised the appellant’s claim that his wife’s scratching him had “traumatised” him, went on to say;  “One can be traumatised or emotionally or psychologically shocked without having the slightest fear or apprehension for one’s wellbeing or safety.”  However, their Honours are not to be taken, by that passage, to have asserted the corollary that a claim to have been “traumatised” negates a fear or apprehension for the physical well-being or safety of the person making the claim.  It is commonplace that emotional or psychological trauma may have direct or physical sequelae such as insomnia, nausea, self-mutilation or, as is claimed in this case, suicide.

31                  Another possible explanation of the Tribunal’s refusal to draw what I consider to be an obvious inference may be its unstated conclusion that the applicant did not fear for his well-being or safety because he had resolved, after the conceded episodes of actual and threatened physical violence, to remove himself to a situation where he would no longer realistically be exposed to physical violence by the wife or person or persons acting on her behalf.  However, Reg 100.221(4) does not require that the visa applicant continue to the date of hearing of his or her application to suffer domestic violence as defined.  Sub-clause 221(4) is expressed in the perfect tense so that all that is required is that, after the visa applicant first entered Australia, he or she “has suffered domestic violence committed by the sponsoring spouse” (emphasis added).  That use of the perfect tense in the relevant regulation clearly indicates that it is sufficient that the applicant has, at some point at or after the violence was committed, feared for, or been apprehensive about, his or her personal well-being or safety.  Obviously, the closer the fear or apprehension is in time to the commission of the domestic violence, the easier will be the task of persuading the delegate or the Tribunal of the requisite causal link between it and the fear for, or apprehension about, the applicant’s personal well-being or safety.  However, a claim will not be defeated by the fact that, since the commission of the domestic violence, the applicant has removed himself or herself far enough from the sponsoring spouse that the fear for or apprehension about his or her well-being or safety has evaporated.

32                  It will be apparent from the analysis just undertaken that there are at least two possible explanations for the Tribunal having declined to infer from Dr Kochar’s statutory declaration that he was of the opinion that the applicant had suffered relevant domestic violence.  Either of those explanations, I consider, leads to the conclusion that the Tribunal has asked itself a wrong question in examining the application of Reg 1.26 to Dr Kochar’s statutory declaration.  The explanation which I prefer is that the Tribunal considered it incumbent on Dr Kochar to convey an opinion that the applicant feared for, or was apprehensive about, his personal well-being or safety being impinged upon by further acts of violence to be committed by or on behalf of the sponsoring spouse.  For reasons which I have endeavoured to explain, that view proceeds form an erroneous construction of the relevant provisions of the Regulations.

33                  Whether or not the explanation which I have imputed to the Tribunal for its treatment of Dr Kochar’s statutory declaration is the correct one, that treatment clearly resulted from the Tribunal’s having distilled from the Regulations the wrong question, or having taken into account, in answering the question, supererogatory considerations.  On either view, the error was within the spectrum of “jurisdictional error” identified by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Craig v South Australia (1995) 184 CLR 164.  In the latter case, in a joint judgment of the High Court, it was observed, at 179;

‘The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

34                  I do not consider this to be a case where the Tribunal simply chose between two competing inferences of fact in deciding what opinion Dr Kochar’s statutory declaration conveyed.  Rather, I have concluded that the Tribunal asked itself whether the declaration conformed with what the Tribunal thought was required before a statutory declaration by a competent person could be availed of by an applicant claiming to have suffered relevant domestic violence.  I am reinforced in imputing this approach to the Tribunal by the fact that it did not raise with the parties, either at the hearing on 19 June 2004, or afterwards, what inferences of fact could be drawn from Dr Kochar’s declaration.  That suggests that the Tribunal regarded the question concerning that declaration as capable of resolution, as a matter of law, by itself examining after the hearing what appeared on the face of the declaration in the light of the Tribunal’s understanding of the effect of the relevant provisions of the Regulations.  That understanding, I have been persuaded, was erroneous, although the elliptical statements in the relevant parts of the Tribunal’s reasons do not permit a precise formulation of the error.  It follows, for the reasons which I have endeavoured to explain, that the Tribunal’s decision must be set aside as infected by jurisdictional error.  This is not a case where the statutory declaration, on its face, satisfies, with such manifest certainty the requirements of the relevant provisions of the Regulations that the Court can make the order for review which the Tribunal, had it not committed the jurisdictional error, must have made;  contrast Commissioner of Taxation v Emmakell Pty Ltd (1990) 22 FCR 157 where a Full Court of this Court observed, at 165-166;

‘However, the Tribunal then held the applicant before it failed because of Austral's "failure to ensure that investors obtained enforceable leasehold interests over the acreage with respect to which the lease payments were made". This way of putting the matter, of course, involves a finding that the payments were made in the character of lease payments in respect of lands described by acreage but not otherwise defined and thus not identified. It was not because of any relevant finding of fact, or any failure to find any relevant fact, that the Tribunal rejected the respondent's application, but because of its view, which was directly contrary to Commissioner of Taxation v Lau, 6 FCR 202 of the legal effect of the invalidity of the "leases".

………

We conclude that this, like Stathamv Commissioner of Taxation (Cth) (1988) 89 ATC 4070, is a case where the facts necessary to enable a decision to be made have been found, so that the Court's ruling upon the question of law involved enables the whole matter to be disposed of. The appeal should be dismissed, and the cross-appeal should be allowed to the extent that the order of remitter made below should be set aside, and it should be ordered as follows:

1.         That the objection against each assessment be upheld;

2.         That each assessment be reduced to the extent required by the allowance of the deductions referred to in these reasons;

3.         That the Commissioner pay the respondent's costs of the appeal and of the cross-appeal.’

35                  I shall therefore order that the matter be remitted to the Tribunal to be heard and determined according to law.  The Minister must pay the applicant’s costs of the application, including any reserved costs.

Associate:

Dated:              7 April 2005