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MIGRATION - Regulations concerned with domestic violence - meaning of phrase "domestic violence" in Migration Regulations - proper approach to regulations which "take" domestic violence to have been committed in certain circumstances - questions of law and fact discussed - jurisdictional error discussed.

Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs

Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 (21 November 2003)
Last Updated: 21 November 2003


FEDERAL COURT OF AUSTRALIA
Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257


MIGRATION - Regulations concerned with domestic violence - meaning of phrase "domestic violence" in Migration Regulations - proper approach to regulations which "take" domestic violence to have been committed in certain circumstances - questions of law and fact discussed - jurisdictional error discussed.

Family Law Act 1975 (Cth) s 114(1)

Judiciary Act 1903 (Cth) s 39B

Migration Regulations 1994 (Cth) Regs 1.21, 1.23, 1.24, 1.25, 1.26 Cl 100.221

Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 201 ALR 271 referred to

Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 referred to

Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 referred to

BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs [2003] FCAFC 61 referred to

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 referred to

Commissioner of Taxation v Roberts (1992) 37 FCR 246 referred to

Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909 approved

Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 referred to

Hope v Bathurst City Council (1980) 144 CLR 1 referred to

Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 disapproved in part

Lombardo v Federal Commission of Taxation (1979) 40 FLR 208 referred to

Malik v Minister for Immigration (2000) 98 FCR 291 disapproved in part

Meroka v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 117 FCR 251 disapproved in part

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 referred to

Nizich v Federal Commissioner of Taxation (1991) 91 ATC 4,747 referred to

Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 referred to

Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 referred to

Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (2001) 75 ALJR 542 referred to

Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to

FIKRI CAKMAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 459 of 2003

GYLES, CONTI & ALLSOP JJ

21 NOVEMBER 2003

SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 459 of 2003




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
FIKRI CAKMAK

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
GYLES, CONTI & ALLSOP JJ


DATE OF ORDER:
21 NOVEMBER 2003


WHERE MADE:
SYDNEY (HEARD IN MELBOURNE)




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 459 of 2003




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
FIKRI CAKMAK

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
GYLES, CONTI & ALLSOP JJ


DATE:
21 NOVEMBER 2003


PLACE:
SYDNEY (HEARD IN MELBOURNE)





REASONS FOR JUDGMENT

THE COURT

Background

1 This is an appeal from orders made by a Judge of this Court dismissing an application under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent Minister to refuse the grant of a Partner (Migrant) (Class BC) visa, subclass 100 to the appellant, Mr Cakmak.

2 Mr Cakmak is a Turkish national. He married his wife, Nuray Cakmak, on 5 January 1999 in Turkey. Mrs Cakmak is an Australian citizen of Turkish descent. She had travelled to Turkey on 18 December 1998. On 25 April 1999, Mr and Mrs Cakmak arrived in Australia.

3 The appeal concerns the proper approach to be adopted in applying provisions of the Migration Regulations 1994 (Cth) (the Regulations) dealing with "domestic violence". Before dealing with the alleged errors of the primary judge, we will set out the legislative regime.

Legislative Regime

4 Relevantly, Mr Cakmak was required to meet the requirements of cl 100.221(4), which made cl 100.221(2) also relevant. Clauses 100.221(2) and (4) were in the following terms:

(2) The applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 309 (Spouse (Provisional)) visa; and

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

(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.

...

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

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

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

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

(i) either or both of the following:

(A) the applicant;

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

has suffered domestic violence committed by the sponsoring spouse".

[emphasis added]

5 Clause 100.221(4) was satisfied if Mr Cakmak met the requirement that he had suffered domestic violence committed by his "sponsoring spouse", Mrs Cakmak, after entering Australia on 25 August 1999.

6 It can be seen from cl 100.221(4)(c) that the domestic violence is to be "committed by the sponsoring spouse".

7 Division 1.5 of the Regulations contained a particular regime relating to domestic violence and its method of proof for the purposes of the Regulations.

8 Regulation 1.22 dealt with the phraseology used in cl 100.221(4)(c): "suffering" and "committing" domestic violence, as follows:

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

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

9 Regulation 1.23 prescribed when a person will be taken to have suffered or committed domestic violence, as follows:

1.23 When is a person taken to have suffered or committed domestic violence?
(1) For the purposes of these Regulations:

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

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

if:

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

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

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

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

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

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

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

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

(a) the persons referred to are the following:

(i) a spouse of the alleged perpetrator;

(ii) a dependent child of:

(A) the alleged perpetrator; or

(B) the spouse of the alleged perpetrator; or

(C) both the alleged perpetrator and his or her spouse; or

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

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

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

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

10 Thus, here, by reg 1.23, the applicant, Mr Cakmak, is the alleged victim and the sponsoring spouse, Mrs Cakmak, is the alleged perpetrator.

11 It will be seen that regs 1.23(1)(c) to (f) take as conclusive of the suffering and committing of domestic violence if a court has dealt with an application in which violence is alleged (Regs 1.23(1)(d), (e) and (f)); or in which violence is likely to be involved (regs 1.23(1)(c)). In this latter context, s 114(1) of the Family Law Act 1975 (Cth), referred to in reg 1.23(1)(c), was in the following terms:

(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;

(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

(d) an injunction for the protection of the marital relationship;

(e) an injunction in relation to the property of a party to the marriage; or

(f) an injunction relating to the use or occupancy of the matrimonial home.

12 If the participation of a court is not present, reg 1.23(1)(g) provides for a regime of evidence in reg 1.24. The terms of this regime, involving regs 1.23(1)(g), 1.23(2), 1.24, 1.25 and 1.26, together with relevant definitions, must be examined with care. The alleged victim must be a person referred to in reg 1.23(2): reg 1.23(1)(g). Of the list of persons in reg 1.23(2)(a), the only relevant category here is reg 1.23(2)(a)(i): the spouse of the alleged perpetrator. (The phrase "interdependent relationship" for reg 1.23(2)(a)(iv) is defined by regs 1.03 and 1.09A and does not encompass the relevant actors in the events to be referred to.)

13 The alleged victim (or another on his or her behalf) must present evidence in accordance with reg 1.24 that the alleged victim has suffered domestic violence and that the alleged perpetrator has committed that relevant domestic violence. Here, Mr Cakmak sought to present evidence pursuant to reg 1.23(1)(g) and in accordance with reg 1.24 that he had suffered relevant domestic violence, he said, perpetrated by Mrs Cakmak and her family.

14 Bearing in mind that the word violence is defined by reg 1.21 as including a threat of violence, the definition of "relevant domestic violence" in reg 1.23(2)(b) is to be noted. For present purposes, the violence or threats of violence by Mrs Cakmak might be against Mr Cakmak or his property, causing Mr Cakmak to fear for, or be apprehensive about, his personal well-being or safety. It will be necessary to say something more about the meaning of "violence" in due course.

15 Regulation 1.24 sets out the evidence necessary to be presented for the purposes of 1.23(1)(g), as follows:

1.24 Evidence
(1) The evidence referred to in paragraph 1.23(1)(g) is:

(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:

(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and

(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or

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

(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:

(a) the same subparagraph of paragraph (a) of the definition of competent person; or

(b) subparagraph (b) (ii) of that definition.

...

16 The language of the regulations, in particular regs 100.221(4)(c), 1.23(1)(a) and (b), 1.23(2)(b) and 1.24(1)(a)(ii), conforms with an intention that this part of the regulations concerns violence by a spouse on his or her spouse or on other family members. It appears to be directed to such interpersonal violence between parties to the spousal relationship and violence directed to a member of the family unit committed or perpetrated by the spouse, himself or herself. To "perpetrate" means to perform or execute or commit. Its meaning is narrower than acting by or through an agent. The "perpetrator" is usually understood to be the actor. The importance of this will become evident in due course.

17 Relevantly, what was required in Mr Cakmak's case depending upon reg 1.23(1)(g) was a statutory declaration by him under reg 1.25 and two statutory declarations under reg 1.26 from "competent persons" as defined in reg 1.21, and bearing in mind the requirement in reg 1.24(2) that the statutory declarations come from different types of "competent persons". Regulation 1.21 defined "competent person", relevantly, as follows:

...
1.21 Interpretation

(1) In this Division:

competent person means:

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

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

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

(iii) a person who:

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

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

(iv) a person who:

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

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

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

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

...

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

(a) manager or coordinator of:

(i) a women's refuge; or

(ii) a crisis and counselling service that specialises in domestic violence; or

(b) a position with:

(i) decision-making responsibility for:

(A) a women's refuge; or

(B) a crisis and counselling service that specialises in domestic violence;

that has a collective decision-making structure; and

(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.

18 Regulation 1.25 dealing with the statutory declaration of the alleged victim was, relevantly, in the following terms:

1.25 Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by:

(a) the spouse of the alleged perpetrator; ...

...

(2) A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) must:

(a) set out the allegation; and

(b) name the person alleged to have committed the relevant domestic violence.

...

19 Regulation 1.26 dealing with the statutory declaration of the competent persons was in the following terms:

1.26 Statutory declaration by competent person
A statutory declaration under this regulation:

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

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

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

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

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

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

The Tribunal's Decision and the Facts

20 The Tribunal noted that Mrs Cakmak had provided a statutory declaration dated 8 December 1999 that gave her account of the relationship. That statutory declaration painted a picture of domestic violence and overbearing behaviour committed by Mr Cakmak against his wife. There was some corroboration for this from police and hospital records. There was apparently a separation in December 1999 which was followed by a brief reconciliation. An intervention order was made by the Magistrate's Court in Preston against Mr Cakmak in April 2000. One of the complaints on appeal was that the Tribunal had regard to this material.

21 Mr Cakmak and his migration agent submitted various statutory declarations in support of his claim that he was the victim of domestic violence committed by Mrs Cakmak. These statutory declarations were those of:

(a) Mr Cakmak dated 25 May 2000 and 12 October 2000;

(b) a psychologist, Hanife Guducu dated 9 May 2000 and 29 November 2000;

(c) a welfare worker from the Australian Turkish Association, Serpil Ozalp dated 27 April 2000;

(d) a social worker, Birsen Sozer, dated 12 October 2000 and 27 November 2000; and

(e) a medical practitioner, Halil Hussein Munir, dated 6 October 2000 and 6 December 2000.

22 There was also a letter from Serpil Ozalp to the Department dated 3 April 2000.

23 It was common ground that Serpil Ozalp was not a "competent person" for the regulations.

24 The appeal raises the question of the adequacy of the declarations to comply with the regulations. It is necessary therefore to describe their contents.

The Statutory Declarations of Mr Cakmak

25 It will be recalled that reg 1.25 required Mr Cakmak to "set out the allegation" of domestic violence and name the person alleged to have committed the relevant domestic violence.

26 In his first statutory declaration, dated 25 May 2000, Mr Cakmak, after briefly outlining the history of the marriage, identified an incident said to have occurred at the end of December 1999 in the following terms:

2. Towards the end of December 1999, I was on night shift and had therefore slept during the day. I had just come out of the shower and was wearing only a towel when my wife, Nuray, returned home at around 10.00 pm. I was aware that she had been at a computer class from 5.00 pm till 7.00 pm but she had not told me that she would be home so late and I had expected her home at shortly after 7.00 pm. I asked where she had been and she told me that she was a free woman and could do anything that she wanted. I told her that I had been worried about her and that as my wife she did have certain obligations to let me know where she was. She became very upset and threw her can of coke in my face. She then lunged at me and scratched me over my face and chest. I did not harm her in any way and simply tried to restrain her from hitting and scratching me.
[emphasis added]

27 Mr Cakmak then described the aftermath of that evening and the following morning of this incident. He said:

3. Nuray then told me that she was going to her parents place and I told her that it was not safe for her to walk there in the middle of the night and that if she was going to go there, she should take the car. However, she just walked off so I put some clothes on and drove after her in the car, begging her to come home or take the car for herself. She finally took the car and drove to her sister's place and I walked home again.
4. In the morning, my parents in law came to the house and asked what had happened. They told me that they had reported the matter to the police. I told them that nothing had happened and I showed them the scratches Nuray had given me. They told me that the police may come to the house and that I should give them a statement. However, when I showed them the scratches, they were concerned and told me that they would contact the police again and tell them not to come as it was clear that Nuray had assaulted me and not the other way around.

28 Mr Cakmak then described the attempts said to have been made to reconcile the relationship, which involved the local Imam. Mr Cakmak described the following events at one of the meetings:

6. I was about to kiss the hands of the elders present, which is customary, when Nuray's mother and sisters came into the room yelling abuse at me in Turkish and English. They said things like, "I shit in your mouth" and other obscenities. My father in law also interrupted and basically told me that our relationship was over and I was not to remain with his daughter. I was shocked and upset, especially since Nuray and I had seemed to resolve our differences and wanted to get back together. I told Nuray's family that I was completely alone in Australia and that I had come to the meeting in order to resolve our differences and yet they had all ganged up against me and were abusing me. I had no choice but to leave the house.
29 Mr Cakmak then described how he later spoke to Mrs Cakmak on the telephone and arranged for her to return to their home. She did so, where he said:

...we lived contentedly for a time.
30 The end of the relationship was then described by Mr Cakmak in the following terms:

8. In around early March 2000, I went to work one day and when I came home my wife was not there. I telephoned her at her parents house and asked her why she had left. She told me that she wanted to live separately from me as a free woman. I asked her why she suddenly wanted to be free of me and she told me that this was how she wanted it. She told me that she would be coming to the house with the police in order to collect her personal belongings. I told her that she did not need to bring the police and that it was her house too.
9. Nuray then obtained an interim intervention order which the police served on me. I attended the Preston Magistrates Court a few weeks later on 6 April 2000 as I wanted to convince Nuray to get back together. Eventually, the Court staff convinced me that I should agree to the order, without admitting to the allegations made, as I was unrepresented and realised that there was no point in challenging it as our relationship was over. In any event, I was the one who was afraid of her and her family as they had behaved violently towards me in the past and I had no intention of going anywhere near her or her family. Nuray has two brothers and five sisters who are all extremely protective of her and I was afraid that they would continue to harass me.

10. After Nuray had scratched me in December 1999 I was extremely upset and confused and I went to the Australian Turkish Association to get support and advice. Whilst there I spoke to a welfare worker, Serpil Ozalp, who has prepared a statutory declaration on my behalf. Serpil witnessed the scratch marks on my face and chest and saw how depressed and traumatised I was.

11. I am still very upset that my marriage to Nuray has broken down as I felt that we would have a good future together. I cared for her very much and would never hurt her. I believe that she has been influenced by her family to leave me and make up allegations against me.

[emphasis added]

31 The second statutory declaration of Mr Cakmak, dated 16 October 2000, dealt with a report of Dr Alpay of the Meadow Heights Medical Centre recording Mrs Cakmak's presentation in July 1999 and December 1999 with evidence of violence. Mr Cakmak stated the following:

1. ...I am not aware of the injuries Dr Alpay describes in that report although I am aware that Dr Alpay was my wife's doctor and that she was taking medication. If my wife suffered such injuries, I deny that I caused them or was in any way involved in them. I categorically deny any allegation that I abused my wife, either physically or verbally. Rather, it was my wife and her family who threatened and humiliated me as set out in my statutory declaration dated 25th May 2000 and confirmed by three expert witnesses.
32 Mr Cakmak added to the allegations in his first declaration by stating the following:

2. ...Nuray's older sister told me once when Nuray and I were still together that their father had stabbed someone. She told me that if my marriage to Nuray ended for any reasons her father would do the same to me as it was a matter of pride and honour. She stated that he would have to harm me to punish me for the marriage ending. I later learned from Nuray that her father had spent time in prison for the stabbing. This is just one example of the threats made against my safety by my wife or her family.
[emphasis added]

33 The following is to be noted about Mr Cakmak's declarations:

(a) The only event involving the application of force or the threatened application of force by Mrs Cakmak to or against Mr Cakmak was the December incident.

(b) Nowhere does Mr Cakmak say that the incident caused him to fear for, or to be apprehensive about, his personal well-being or safety. Indeed, [3] and [4] of his first declaration would militate against any such conclusion.

(c) Mr Heerey, who appeared for Mr Cakmak, pointed to [10] of the first statutory declaration and Mr Cakmak's statement that he was "depressed and traumatised" at the time he saw Mr Ozalp after the December incident. He submitted that from this could be drawn the inference that the December incident caused Mr Cakmak to have the relevant fear and apprehension.

(d) The other conduct said to be relevant domestic violence was carried out by the family: see [6] and [9] of the first declaration and [2] of the second declaration. The collective responsibility for the fear contained in [9] cannot overcome the fact that there was only one incident involving Mrs Cakmak and this apparently caused no fear or apprehension at all for Mr Cakmak.

(e) There was no direct evidence that this conduct by Mrs Cakmak's family was done with her knowledge or assent or at her request.

(f) Mr Heerey submitted that it could be inferred that his was so, or, alternatively, that it was enough that it was done by the family in, what they perceived to be, the interests of Mrs Cakmak.

The Statutory Declarations of Hanife Guducu

34 Hanife Guducu was a psychologist. The following appeared in the first declaration of May 2000. (The sections in bold font were the instructions to the declarant in completing the declaration.)

Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)

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

...

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

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

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

35 The following appeared in the second declaration of 29 November 2000:

Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)

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

...

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

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

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

The Statutory Declarations of Birsen Sozer

36 Birsen Sozer was a social worker. The following appeared in the first declaration of 12 October 2000:

Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)

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

...

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

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

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

37 The following appeared in the second declaration of 27 November 2000:

Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)

Please refer to previous statutory declaration dated 12/10/00.

...

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

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

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

The Statutory Declarations of Dr Munir

38 Dr Munir was a medical practitioner. The following appeared in the first declaration of 6 October 2000:

Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)

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

...

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

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

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

39 The following appeared in the second declaration of 6 December 2000:

Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)

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

...

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

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

Please refer to my previous statutory declaration dated 6/10/2000.

Further consultation with Mr F Cakmak, I confirmed that in my opinion, Mr Cakmak is suffering from anxiety/depression symptoms secondary to his marriage breakdown and to the verbal/physical abuse. He has been a victim of domestic violence and this has caused him to be concerned for his well being and safety.

The Approach of the Tribunal

40 The primary judge described the approach of the Tribunal, relevantly, at [27] and [29] to [31] of his reasons:

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

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

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

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

The Approach of the Primary Judge

41 The primary judge concluded at [41] of his reasons that the Tribunal fell into error in one respect as follows:

[41] The Tribunal appears to have acted on the basis that it was not proper for any of the competent persons to rely on the applicant's account of the sponsor's actions towards him. This is implicit in the Tribunal's criticism of each of the declarants for relying only on the consistency of the applicant's accounts of what had occurred. As I have said, the relevant regulations require that the competent person rely on an account given by the alleged victim, so the statutory declarations cannot be regarded as failing to comply on this ground. The Tribunal was in error in rejecting them for this reason.
42 There was no notice of contention seeking to agitate this issue.

43 The primary judge however concluded at [42] of his reasons that the decision of the Tribunal could be supported on another ground:

[42] It may therefore be that the first reason on which the Tribunal rejected the applicant's case was not open to it. As I have said, however, the Tribunal gave two reasons. The second was that the applicant had not proved, by appropriate means, violence that was sufficiently serious to satisfy the definition of domestic violence. In my view, it was open to the Tribunal to reach this conclusion.
44 His Honour's reasoning in this respect was at [43] to [45] as follows:

[43] The only episode of violence alleged by the applicant in his own statutory declaration, and referred to in part by Ms Guducu in hers, was an occasion when the sponsor allegedly threw the contents of a can of soft drink in his face and scratched him over his face and chest. There is no mention in the applicant's statutory declaration of verbal abuse by the sponsor, only by members of her family. Ms Guducu referred to physical abuse by scratches to the applicant's chest and to continued verbal abuse since that time, without specifying its nature or quality. Ms Sozer referred to both physical and psychological/verbal abuse experienced by the applicant during his marriage. She referred to "constant verbal abuse (insults, threats and degrading comments) from his wife". She did not detail the nature of any physical or psychological abuse, or the identity of the person alleged to have inflicted it. Dr Munir referred to the applicant being "constantly abused by his wife and her family verbally and physically" and being "humiliated and threatened to be sent back to Turkey if he did not obey his wife on all issues." No description of any physical abuse was given. No attempt was made to distinguish between abuse by members of the sponsor's family and by the sponsor herself.
[44] It was open to the Tribunal to take the view that a single episode of physical violence, which at its highest resulted in the humiliation of being splashed in the face with soft drink and physical injury amounting to scratches on the face and chest, was not of itself sufficiently serious to amount to domestic violence satisfying the definition. The Tribunal was, of course, obliged to take into account the extent of any threats or humiliating comments made by the sponsor that might have contributed to the requisite state of mind of the applicant. The problem was that the applicant did not allege them in his statutory declaration. There were variations in the descriptions of them between the three competent persons. As a result, the Tribunal could not have made a clear finding on the evidence as to the nature of threats or humiliating comments by the sponsor herself, as distinct from members of her family, or as to the separate effect on the applicant's state of mind of anything said by the sponsor. In the words of Ryan J in Meroka at [32], both Ms Sozer and Dr Munir had referred to "`evidence' which was quite unrelated to whether relevant domestic violence had been suffered by the applicant". Only Ms Sozer's statutory declaration was confined to verbal abuse from the sponsor. A single statutory declaration of a competent person could not satisfy the requirement of reg 1.24(1)(b) that there be two such declarations.

The Notice of Appeal and the Disposition of the Appeal

45 An amended notice of appeal was filed which contained five grounds as follows:

4. The learned trial Judge erred in not finding that the Migration Review Tribunal ("the Tribunal") fell into jurisdictional error and misapplied the authorities of Ryan J in Meroka v MIMA (2002) 117 FCR 251 and Wilcox J in Ibrahim v MIMA [2002] FCA 1279 by:
(a) making its own assessment of the "seriousness" of the domestic violence described in the declarations submitted by the appellant for the purposes of regs 1.23 to 1.26 of the Migration Regulations 1994 (Cth);

(b) going beyond asking itself whether the evidence contained in each competent person's declarations was capable, as a matter of law, of supporting that competent person's opinion that relevant domestic violence had been committed for the purposes of reg 1.26;

(c) going beyond asking itself whether the evidence contained in the appellant's own statutory declarations was capable, as a matter of law, of setting out an allegation of relevant domestic violence for the purposes of reg 1.25;

(d) not finding that those statutory declarations did, as a matter of law, satisfy regs 1.23 to 1.26.

...

(f) admitting and considering irrelevant and prejudicial evidence from the appellant's wife.

46 Grounds (a) to (d) had a common foundation, in the appellant's submission. The statutory declarations (of the appellant and the competent persons) were, it was submitted, to be considered only by asking whether what they contained was capable, as a matter of law, of satisfying what was contemplated by the regulations. The submission was based on what Ryan J said in Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251, 262 at [33]:

That is not to say that the Minister (or the Tribunal) can substitute for that of the "competent person", his or its own opinion of whether domestic violence has been suffered. Operation can be denied to reg 1.23 only if the description of the nature of the violence experienced or the evidence set out by the competent person is incapable, as a matter of law, of affording a basis for an opinion that relevant domestic violence has been suffered by an applicant and has been committed by the person identified by the competent person as the perpetrator.
47 This expression of view was followed by Wilcox J in Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279 at [35] to [37].

48 It is necessary to have regard to the text of the regulations. That is where one finds the task of the Tribunal, that is, its authority or "jurisdiction". The Tribunal must conclude that the alleged victim has suffered domestic violence in certain circumstances where this is "taken" to have occurred: reg 1.23. Those circumstances are where the alleged victim (or someone on his or her behalf) presents evidence in accordance with reg 1.24 that the alleged victim has suffered violence or the threat of violence against him or her, or his or her property, that causes the alleged victim or a member of his or her family to fear for, or be apprehensive about, the alleged victim's personal well-being or safety.

49 The correct question for the Tribunal to ask itself here is: Has there been presented the evidence called for by regs 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26?

50 Thus, when the Tribunal is examining the statutory declarations of the alleged victim, it must ask itself the following questions:

(a) Is the statutory declaration made by the spouse of the alleged perpetrator?

(b) Does it set out the allegations of "relevant domestic violence"?

(c) Does it name the person alleged to have committed the "relevant domestic violence"?

(d) Is the statutory declaration a presentation of evidence that the alleged victim has suffered violence or the threat of violence to him or her, or his or her property, that caused or causes the alleged victim (or a member of his or her family) to fear for or be apprehensive about the alleged victim's personal well-being or safety?

51 We think it deflects attention from that proper expression of the task set for the Tribunal (or the Minister or delegate) to say that it is a question of law as to whether the evidence is capable of amounting to the required evidence. The differences between questions of law, fact and mixed fact and law can be difficult to rationalise: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394-98, Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305, 319-322 (per Windeyer J), Lombardo v Federal Commission of Taxation (1979) 40 FLR 208, 210-12, Nizich v Federal Commissioner of Taxation (1991) 91 ATC 4,747, 4752 and Commissioner of Taxation v Roberts (1992) 37 FCR 246, 251-52.

52 The Tribunal has a statutory declaration of the alleged victim. It must assess whether that is the presentation of the requisite evidence. The Tribunal does not find what underlying conduct in fact occurred by weighing the statutory declaration against the surrounding evidence. It reads and assesses whether the evidence presented to it satisfies the description called for in the delegated legislation. The extent to which that task is one of fact, one of law or one of mixed fact and law need not, for present purposes, be explored exhaustively. It suffices to refer to what was said by Gleeson CJ, Gummow J and Callinan J in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450-52, esp [24] to [28].

53 If a Tribunal concluded that the evidence presented did or did not satisfy the statutory description and the contrary view was the only one open, that can be characterised as an error of law: Vetter at [24] and [27], Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, 128, Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, 155, 160-61.

54 That does not mean, however, that where (as here) the words of the legislation are ordinary English words capable of being understood and applied by the Tribunal without resort to any process of statutory interpretation and legal reasoning, a view that the statutory declaration satisfies or does not satisfy the terms of the legislation may not be factual: Vetter, Hope v Bathurst City Council (1980) 144 CLR 1, Collector of Customs v Agfa-Gevaert Ltd 394-98, BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs [2003] FCAFC 61 at [30], NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 512, Federal Commissioner of Taxation v Broken Hill South Limited 155, Re Minister for Immigration and Multicultural Affairs, Ex parte Cohen (2001) 75 ALJR 542 at [35]. 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.

55 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.)

56 The hearing below was conducted on the basis that the word "violence" meant not only what was referred to by counsel as "physical violence", but also, its meaning included, as something different and wider, "emotional violence" or "psychological violence". This approach seems to have had its origins in what Wilcox J said in Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291, 293-97 consequent upon a concession on behalf of the Minister:

Mr Newman, solicitor for the applicant, argues the Tribunal misinterpreted the words "domestic violence", as used in the regulations, and this was an error of law infecting the Tribunal's decision. He points out there was evidence before the Tribunal of emotional and psychological sequelae to the marriage break up and says this must be attributable to the decision of the wife to terminate the marriage. He argues that "domestic violence" does not necessarily require physical assault; it is sufficient there be psychological violence, if this has an emotional or psychological consequence.
Mr Allatt, solicitor for the Minister, accepts that the concept of domestic violence does not necessarily involve physical assault. Psychological violence, such as belittling, intimidating, or frightening, may be sufficient. However, he argues that, for there to be domestic violence, there must be hostile conduct by one person towards another.

It seems to me Mr Allatt is correct. This is the way in which the term "domestic violence" is used in the regulations. The term is not defined. Probably the drafter primarily had in mind physical violence, but the word "physical" is not used. So it is reasonable to accept that the term may cover cases where the damage suffered by an applicant is not physical. Nonetheless, it is important to note that the description in reg 1.23(2)(b) refers to "violence against the alleged victim" that causes the alleged victim to fear for, or be apprehensive about, the victim's personal well being or safety. Regulation 1.23(g) talks about the "perpetrator" of violence. In other words, "domestic violence" is conduct against the victim, usually a course of conduct, that causes the victim to have fear or apprehension about her or his personal well-being or safety. It is not sufficient that there be conduct which has had the effect of causing diminution of a person's feeling of well being. There must be conduct, of one party towards the other, which has the consequence of causing fear or apprehension.

In the present case there is no suggestion of the wife having engaged in a course of conduct of intimidation, belittling, frightening or similar conduct towards the husband. There seem to have been some matrimonial differences, and then a break up of the marriage in the context of an accusation about bigamy. There is no suggestion of the applicant having been caused to suffer fear or apprehension.

57 This approach was followed by Ryan J in Meroka. The declaration found by Ryan J to comply with reg 1.26 included material said to evidence "violence" as follows at [22] and [23]:

"In my opinion this gentleman has been verbally & emotionally abused. There has been a pattern of behaviour toward Mr Simeon Meroka whereby self development & sense of worth has been questioned also excessive or unreasonable demands that placed expectation of Mr S. Meroka beyond his capacity & constant criticizing, insulting, rejecting behaviour."
...

"I have known Mr Meroka from the time he arrived in Australia in 1993 as a member of the Kenyan community. I have been aware of the complaints he had against Suzane but I don't have first hand experience as she did not encourage his friends to visit. The DV issues in regard to Mr Meroka are primarily psychological. Being isolated from his community and being made to feel inadequate. This was done by denying him to visit or have his friends visit. Negative comments that Mr Meroka reported her making were calculated to hurt his feelings as a male and as a member of a racial group."

58 In Ibrahim, Wilcox J accepted the following as evidence of "relevant domestic violence" for the purposes of a statutory declaration under reg 1.26 at [17]:

"Behavioural observation of Mr Ibrahim during assessment and interview.
At interview Mr Ibrahim exhibited symptoms consistent with trauma through domestic violence. While there may have been other factors which contributed to his `mental breakdown', it is almost certain that the verbal and emotional abuse he speaks of at interview played a pivotal function in his `breakdown' and current `fragile state'."

59 In argument, the Court raised with the parties whether these cases exhibited an approach wider than that permitted by the regulations. Mr Gray, who appeared for the Minister, said that he was expressly instructed to submit that the approach in Malik, Meroka and Ibrahim was correct. Given this approach, Mr Heerey, on behalf of Mr Cakmak, who put the same submission, sought to have his client's appeal determined on this basis: cf Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 201 ALR 271, 281 [41].

60 The phrase used by the regulations is "domestic violence". The word "violence" is not defined, other than to include a threat of violence. Domestic violence is "suffered", "committed" and "perpetrated". It must be of a kind, to be "relevant domestic violence" (reg 1.23(2)(b)) to cause the relevant fear or apprehension there referred to. It is of the kind dealt with by the Courts in the applications referred to in reg 1.23(1)(c) to (f) and by the police reports referred to in reg 1.24(1)(a)(ii). "Violence" is an ordinary English word. The phrase "domestic violence" refers to the social context of its occurrence. This is reflected in the spousal and familial relationship found in the regulations. The phrase is not a term of art. It describes something: "violence" occurring in the domestic context. "Violence" has the following meanings in accepted dictionaries:

(a) Oxford English Dictionary (2nd Ed)
Violence: 1. a. The exercise of physical force so as to inflict injury on, or cause damage to, persons or property; action or conduct characterized by this; treatment or usage tending to cause bodily injury or forcibly interfering with personal freedom.

(b) The Macquarie Dictionary (3rd Ed)

Violence: noun 1. rough force in action: the violence of the wind. 2. rough injurious action or treatment: to die by violence. 3. any or unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury; wrong; outrage. 4. a violent act or proceeding. 5. rough or immoderate vehemence, as of feeling or language; fury; intensity; severity. 6. a distortion of meaning or fact.

(c) New Oxford Dictionary of English

Violence noun [mass noun] behaviour involving physical force intended to hurt, damage, or kill someone or something.

61 In some contexts in ordinary usage, the notion of "violent" as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone's behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. It is the plainest use of language, we think, that to "commit" or "perpetrate" violence or the threat of violence involves the act, or threat of, application of physical force. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little by way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling, expressions of contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement.

62 However, belittling, lowering self esteem, "emotional violence" or "psychological violence" and such behaviour as surrogates or synonyms for violence is, we think, to broaden the scope of the regulations beyond their words. There must be "violence", or the "threat of violence", involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety.

63 This is not a body of regulations about marriage breakdown, matrimonial cruelty or psychological or emotional harm. The difficulties sometimes expressed as to the presumptive method of proof by the regulations (Wilcox J said it was a triumph of form over substance), to a significant degree, arise consequent upon the impermissibly broad scope given to the notion of violence. If the visa must be granted if a psychologist and a social worker express views that a client has been belittled, humiliated, rejected and insulted such that emotional violence has been done to him or her and that he or she fears for his or her emotional or psychological well-being, such criticisms have force. If, however, one recognises that the regulations were directed to the social problem of violence, that is the application, or threat of application, of force by a spouse to the other or a family member, and one recognises the difficulties of proof of those kinds of allegation that can exist, one can see the aim of the provisions. The sworn evidence of responsible professionals who could give an opinion, whether, from the viewing of contemporaneous evidence or indicia or not, that there has been violence or the threat of violence committed or perpetrated to cause the relevant fear or apprehension, was seen as a satisfactory surrogate for what might be intractably difficult fact finding in the absence of court orders already dealing with the allegations.

64 As we have said, "violence" is an ordinary word and "domestic violence" is an ordinary concept. Each normally includes the exercise of physical force. There are a number of pointers in the regulations themselves to indicate that this primary sense was intended by the drafter. In the first place, by virtue of regulation 1.21: "violence includes a threat of violence". If the concession on the part of the Minister is correct, this would have been unnecessary. Next, the reference in reg 1.23(2)(b) to violence against property is an indication in favour of the primary use of the term. The necessity for the violence to cause fear for, or apprehension about, the victim's personal well-being or safety underlines that meaning. Furthermore, as we have pointed out, none of paras (c), (d), (e) and (f) of reg 1.23(1) would usually apply unless there had been physical assault or the threat of physical assault upon person or property. The applications referred to in paras (a), (b) and (c) of s 114(1) of the Family Law Act, picked up by reg 1.23 (1)(c), in contrast to paras (d), (e) and (f) of s 114(1), not picked up by reg 1.23(1)(c), are of a kind likely to be based on a complaint of violence, in the sense we have discussed. The applications referred to in reg 1.23(1)(d), (e) and (f) expressly contemplate court orders about violence, in the sense we have discussed. Furthermore, reg 1.24(1)(a)(ii) provides for proof, by the production of a record kept by the police of an assault.

65 Reference also needs to be made to the structure of the regulations and their purpose. These regulations are obviously framed with a view to having as much objective certainty and as little room for subjective judgment as possible. This is difficult enough even when violence in the ordinary sense, and the threat of violence in the ordinary sense, is the criterion. If the criterion involves a kind of constructive violence, all manner of difficulties emerge, as illustrated by this case and by other cases to which we have been referred, particularly Meroka, and which are, as we have said, a significant underlying reason for some of the criticisms of the system made by Wilcox J in Ibrahim at [40] and [41]. In cases which do not involve physical violence to person or property, or a threat of such, the concession on behalf of the Minister means that there will always be a subjective judgment as to whether the conduct which is alleged is sufficient to reach the threshold of being domestic violence as required, unless that concept is regarded as devoid of all content.

66 The concession is also contrary to the opinion of Lindgren J in Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909 at [41], which predated Malik.

67 None of the above is intended to limit the types of facts which might permit a conclusion that violence or the threat of violence (in the sense to which we have referred) was committed or perpetrated. Belittlement and expressed contempt may have their place in the creation of a climate of fear. But we reject the extension of "violence" to encompass "emotional" and "psychological" violence as the subject of these regulations, in the absence of the application, or threat of application, of physical force.

68 Counsel for the Minister declined to argue the proper construction of the regulations in this respect, apparently based upon express instructions. That may be understandable in view of the forensic history of this case. It is not an acceptable general position. The construction of delegated legislation is for the Courts, not for the Executive. It is not appropriate for a departmental official, or for a Minister, to administer delegated legislation on a basis that does not accord with its proper construction and then to buttress that deficiency in administration by declining to argue the proper construction of the delegated legislation when the matter arises in litigation. That would amount to de facto amendment of delegated legislation by officials without following the required procedure, and would exclude Parliamentary scrutiny. It would be to treat delegated legislation as if it were merely official policy.

69 Even if one approaches the appeal on the conceded basis of the width of the word "violence" and the phrase "domestic violence", there must still be violence committed or perpetrated by the spouse of the alleged victim.

70 Here, apart from the incident in December with the throwing of a can of drink and the scratching, all the various words and deeds of unpleasantness of which Mr Cakmak complains in his statutory declarations were committed by Mrs Cakmak's family members. There was nothing to suggest on the evidence that these were done "by or on behalf of" Mrs Cakmak, even if the regulations are to be construed as extending to violence committed by or on behalf of the spouse who is described as the perpetrator. We think the regulations are directed to acts of the spouse. The meanings of "commit" and "perpetrate" direct one to the personal act of the spouse of the victim. This accords with the intended subject matter of the regulations: the infliction or threat of infliction of violence on a spouse or family member in a domestic context.

71 The primary judge appears to have been of the opinion that the Tribunal was entitled to conclude that the evidence presented to the Tribunal was inadequate to meet the requirements of the regulations. If that was the approach of the Tribunal, we would agree that the Tribunal was entitled to conclude that the statutory declarations of Mr Cakmak did not meet the requirements of reg 1.25.

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.

73 Whilst the Tribunal, from time to time, used language which might be seen as reflective of finding the underlying facts on a number of occasions it correctly directed itself to the declarations of the competent persons and to the task of assessing the evidence presented. Whilst there may be some difficulty in the Tribunal's mode of expression, we think the above reflects its approach. That is how the primary judge viewed it. The reasons of the Tribunal are not to be pedantically scrutinised.

74 It needs to be borne in mind that the reasons of the Tribunal were directed to the declarations of the competent persons as well as to the statutory declarations of Mr Cakmak. The Tribunal expressed the view that the statutory declarations under reg 1.26 did not satisfy the requirements of the regulations. It did so fundamentally because it was of the view that they were in effect limited by the allegations of Mr Cakmak and that the statutory declarations of Mr Cakmak were an inadequate foundation upon which one could conclude that there had been relevant domestic violence. We need not decide whether the Tribunal fell into error in confining the reg 1.26 statutory declarations to the content of the reg 1.25 statutory declarations. We think that the declarations contemplated in regs 1.25 and 1.26 should be looked at separately. A submission to the contrary was withdrawn by Mr Gray.

75 Implicit in the Tribunal's approach was a view that the statutory declarations of Mr Cakmak were inadequate to satisfy reg 1.23(1)(g), 1.23(2)(b), 1.24 and 1.25. We agree. That finding was open on the material, and we are inclined to think that it is the only view available. This conclusion does not rest on our view of the meaning of "domestic violence". This conclusion was fatal to Mr Cakmak's position before the Tribunal and the primary judge. It is fatal to the appeal.

76 The last ground of appeal masked a species of complaint of apprehended bias. The material in question was irrelevant to the ultimate question. We think the Tribunal understood that. It said so. It did not take this material into account. It did not commit or display an error, jurisdictional or otherwise, by mentioning it.

77 The appeal should be dismissed with costs.

I certify that the preceding seventy seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles, Conti and Allsop.




Associate:

Dated: 21 November 2003

Counsel for the Applicant:
Mr E J C Heerey






Solicitor for the Applicant:
Clothier Anderson & Associates






Counsel for the Respondent:
Mr P R D Gray






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
13 November 2003






Date of Judgment:
21 November 2003


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