Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of Migration Review Tribunal affirming a decision not to grant a spouse visa - domestic violence by nominator relied on - whether the MRT is entitled to reject evidence of the applicant as lacking credibility - requirement for statutory declaration to state that domestic violence within the meaning of the regulations has been committed - grounds for review - matter remitted to Migration Review Tribunal.

Singh v Minister for Immigration [2003] FMCA 186 (21 May 2003)

Singh v Minister for Immigration [2003] FMCA 186 (21 May 2003)
Last Updated: 30 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION
[2003] FMCA 186



MIGRATION - Review of decision of Migration Review Tribunal affirming a decision not to grant a spouse visa - domestic violence by nominator relied on - whether the MRT is entitled to reject evidence of the applicant as lacking credibility - requirement for statutory declaration to state that domestic violence within the meaning of the regulations has been committed - grounds for review - matter remitted to Migration Review Tribunal.



Judiciary Act 1903 (Cth)

Migration Regulations 1994 (Cth)

Migration Act 1958 (Cth)

Statutory Declarations Act 1959 (Cth)

Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11

Morgan v Minister for Immigration & Multicultural Affairs (1999) FCA 1059

Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FMCA 5

Meroka v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 482

Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1279

S157 v Commonwealth of Australia [2003] HCA 2

Applicant:
CHARANJEET SINGH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ1111 of 2002



Delivered on:


21 May 2003



Delivered at:


Melbourne



Hearing date:


10 April 2003



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr Niall



Solicitors for the Applicant:


Wimal and Associates



Counsel for the Respondent:


Mr Fairfield



Solicitors for the Respondent:


Australian Government Solicitor



THE COURT DECLARES THAT:

(1) The decision of the Migration Review Tribunal made on 22 August 2002 is invalid and of no effect.

THE COURT ORDERS THAT:

(2) The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law.

(3) The costs of the applicant be paid by the respondent as assessed pursuant to Part 21 Rule 21.10 of the Federal Magistrates Court Rules 2001.

(4) That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 it is certified that this matter reasonably required the attendance of counsel.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ1111 of 2002

CHARANJEET SINGH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The matter proceeds in this Court following transfer from the Federal Court of Australia by order of Heerey J made on 21 October 2002.

2. The applicant filed his application for review on 27 September 2002. The basis of that application was that the Migration Review Tribunal had exceeded its jurisdiction, or committed a jurisdictional error because it:

i) erred in law in holding that the statutory declarations filed in support of the application for a visa including the statutory declarations of Mr Peter O'Connor made on 2 March 2000 and 21 August 2002 were not capable in law of supporting the opinion required by Regulation 1.24 that the applicant had suffered relevant domestic violence and that the applicant's sponsor was the alleged perpetrator of that relevant domestic violence;

ii) erred by failing to find that the applicant had provided to the Tribunal statutory declarations in the form required by Regulation 1.23 and 1.24 of the Migration Regulations 1994 (Cth);

iii) failed to take into account the statutory declarations of Ms Warren being a statutory declaration that complied with Regulation 1.26

3. The application is made under s.39B of the Judiciary Act 1903 (Cth) and the applicant seeks an order in the nature of certiorari quashing or setting aside the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law. The applicant sought also that the Tribunal be differently constituted. This is not a matter for this Court and indeed not an order that I can make (see Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11).

4. The decision sought to be reviewed is that of the Migration Review Tribunal (MRT) dated 22 August 2002 affirming the decision of the respondent's delegate that the applicant is not entitled to the grant of a general (Residence) (Class AS) visa, subclass 820.

History

5. The applicant is a male citizen of India born on 6 November 1972. He entered Australia on 3 March 1995 on a subclass 560 student visa. On 22 October 1995 he married Valdelice Amorin (the nominator) who at all material times was an Australian citizen.

6. By application lodged 10 January 1997 the applicant applied for a General (Residence) (Class AS) subclass 801 (spouse) visa on the basis of his marriage to the nominator. The application for that permanent visa was also taken to be an application for a temporary visa known as an Extended Eligibility (temporary) visa subclass 820 (spouse) pending the determination of the permanent visa.

7. On 21 June 1997 the applicant was granted an Extended Eligibility (temporary) visa (CB 42-43). By the time of the proceedings before the delegate of the Minister however the applicant and nominator had ceased residing in a marital relationship. The cessation of such relationship was 16 November 1999. The applicant contended that he had been a victim of domestic violence suffered at the hands of the nominator.

8. By a decision dated 17 September 2001 a delegate of the respondent refused the applicant's application for a permanent subclass 801 Spouse visa. The delegate also informed the applicant that the subclass 820 Spouse (Temporary) visa, previously granted to the applicant, would cease upon notification of the decision to him but that the applicant's bridging visa would remain in effect for a further 28 days (CB 97).

9. The delegate refused the application on the basis that as required by Division 1.5 of the Migration Regulations two "competent persons" had not stated in their statutory declarations that in their professional opinion the applicant had suffered domestic violence. Accordingly the applicant was said not to satisfy sub clause 801.221(6) of the Migration Regulations at the time of decision. The delegate found however that the statutory declaration completed by Peter O'Connor dated 2 March 2000 did satisfy the requirements of Regulation 1.26(c) (CB 101).

10. By application received on 10 October 2001 the applicant sought review of that decision by the MRT. The applicant provided a further statutory d eclaration on Form 1040 dated 6 December 2001 from

Dr Lahanis (CB 107-108).

11. By letter dated 24 April 2002 the MRT wrote to the applicant pursuant to s.359A of the Migration Act inviting him to comment on the perceived absence by the MRT of "prescribed evidence of domestic violence to satisfy the relevant regulations." (CB 109-110).

12. The applicant attended a hearing before the MRT on 27 June 2002 at which he gave evidence. Written submissions were also filed on his behalf. A further document from Dr Lahanis dated 26 June 2002 bearing the letterhead "Family Care Medical Centre, Chadstone" was relied upon by the applicant (CB 114).

13. By decision handed down on 22 August 2002 the MRT affirmed the decision of the delegate.

The Tribunal hearing

14. The Migration Act 1958 (Cth) (the Act) empowers the Minister to grant or refuse a visa. The Act is supported by the Migration Regulations 1994 (Cth) which include the prescribed criteria for the grant of visas in various subclasses. The Minister has delegated the power to grant or refuse a visa to departmental officers. Except where special waiver provisions exist in the regulations there is no power under the law for an officer to grant a visa to an applicant who does not satisfy all of the prescribed criteria for a specific subclass. Therefore once an application has been found not to satisfy at least one criterion for grant of a visa the application must be refused - whether or not other criteria can be satisfied. The prescribed criteria for subclass 801 are provided in Schedule 2 of the Migration Regulations. Where domestic violence perpetrated by the nominating spouse is claimed to have been suffered Division 1.5 of the Migration Regulations makes specific provisions for deeming when it is to taken to have occurred.

15. The MRT accepted that the relationship between the applicant and the applicant's spouse was genuine at the time of application but that it had ceased on or about 19 November 1999. The MRT then considered the applicant's claim that he nevertheless satisfied criterion 801.221(6). The applicant claimed pursuant to criterion 801.221(6) that

a) he was the holder of a subclass 820 visa - which he clearly was; and

b) he would meet the requirements of subclause 2 except that the relationship between he and the nominating spouse had ceased; and

c) that he had suffered domestic violence committed by the nominating spouse. This (domestic violence) was as described in Division 1.5 of the Migration Regulations 1994.

16. To ascertain whether the applicant had suffered domestic violence committed by the nominating spouse the MRT referred to Regulations 1.23, 1.24, 1.25 and 1.26 - as the Tribunal was required to do. These provisions are "deeming" provisions.

17. The Regulations provide for the manner in which the MRT determines that a person is "taken to have suffered domestic violence". Regulation 1.24 deals with the production of evidence to establish Regulation 1.23(1)(g) on which the applicant relied. That evidence includes a statutory declaration under Regulation 1.25 together with two statutory declarations under Regulation 1.26. Those declarations under Regulation 1.26 are to be declarations of a "competent person" each with differing qualifications. Regulation 1.25 sets out the requirements of the statutory declaration of the alleged victim. Regulation 1.26(f) provides that the competent person must set out the evidence upon which his or her opinion is based. Statutory declaration is defined in Regulation 1.21 to mean a statutory declaration under the Statutory Declarations Act 1959 and it is only such statutory declarations that are admissible as confirmed by Regulation 1.27 (see also Morgan v Minister for Immigration & Multicultural Affairs (1999) FCA 1059 where Sackville J found that a statutory declaration made under a state act did not satisfy that definition).

18. In the proceedings before the Tribunal the statutory declarations relied upon by the applicant (Dr. Lahinis, registered medical practitioner; Peter O'Connor, psychologist, and Elizabeth Warren, psychologist) were made pursuant to the Statutory Declarations Act 1959.

19. The MRT acknowledged that if the statutory declarations submitted by the review applicant complied with the requirements of Regulation 1.25 and 1.26 then the review applicant would be taken to have suffered domestic violence under Regulation 1.23.

20. The applicant relied upon statutory declarations including the following:

a) a statutory declaration dated 10 December 1999 of the applicant and contained in form 1040 (CB 63-64) wherein the nature of the violence included:

"My wife is abusing me mentally and physically";

b) a statutory declaration dated 23 August 2001 of Dr Lahanis, medical practitioner, and contained in form 1040. A further statutory declaration was submitted by the applicant from Dr Lahanis dated 6 December 2001.

The Tribunal found that both statutory declarations of Dr Lahanis complied with the Regulations. However the Tribunal could take only one of the statutory declarations into account in determining whether the review applicant was taken to have suffered domestic violence because of the existence of Regulation 1.24. The Tribunal found both declarations to set out the nature of the violence suffered by the review applicant and the evidence on which the doctor based his opinion that the review applicant was a victim of domestic violence;

c) a statutory declaration dated 6 August 2001 of Ms Elizabeth Warren, psychologist, and contained in form 1040;

d) a statutory declaration of Peter O'Connor, psychologist, dated

2 March 2000 and contained in form 1040. A further statutory declaration was provided by Mr O'Connor dated 21 August 2001.

Finding of the Migration Review Tribunal

21. The MRT found the applicant's statutory declaration did not comply with Regulation 1.25. The MRT found that the statutory declaration referred to

"mental and physical abuse which was current as at 10 December 2000 (which it was conceded appeared a typing error and should have been 10 December 1999) and which had been continuing for six months prior to that date."

22. The MRT found the applicant gave evidence at the hearing that the only assault on him by the nominator was on 15 November 1999 and that the applicant had

"stated repeatedly that no abuse occurred at any other time."

23. The MRT found therefore that the statutory declaration of the applicant did not, as a finding of fact, set out "the allegation" of relevant domestic violence as claimed by the applicant for the purposes of Regulation 1.25.

24. This is clearly an error of law. The Tribunal wrongly rejected the applicant's statutory declaration on the basis that it did not set out the `precise' allegation of domestic violence. What it did set out, I find, in general terms was an allegation that the applicant had been abused mentally and physically. The MRT then required of the applicant that he give further evidence. He gave evidence as to an episode of physical abuse in the relevant period but claimed no other. This was not necessarily contradictory evidence and it is not the function of the Tribunal to investigate the facts underlying the evidence contained in the statutory declaration. Division 1.5 of the Regulations precludes this. It is for the MRT to ascertain the sufficiency of the statutory declaration.

25. The MRT found that the statutory declarations of Ms Warren and

Mr O'Connor likewise did not satisfy the Regulations. The reasons for coming to that conclusion are set out on pages 133-135 of the Court Book.

Statutory Declaration of Mr O'Connor

26. The delegate by decision dated 17 September 2001 found:

"The Statutory Declaration completed by Peter R O'Connor, Counselling Psychologist, does satisfy the requirements of Regulation 1.26(c). Mr O'Connor has stated, that in his opinion, the applicant was a victim of domestic violence, within the meaning of paragraph 1.23(2)(b)".

The MRT - being the decision that is sought to be reviewed - found:

"There was no evidence in Mr O'Connor's psychological report or in his statutory declarations which is capable in law of supporting his opinion that the review applicant is a victim of domestic violence"

Therefore, Mr O'Connor's statutory declarations were said to not refer to domestic violence as required by Regulation 1.26 and not amount to statutory declarations in the proper form as required by Regulation 1.24.

The reasoning for this conclusion was the finding by the Tribunal that:

"Mr O'Connor's account of the nature of the violence experienced by the review applicant was entirely inconsistent with the account of events reported by the review applicant at his hearing. The Tribunal noted that the review applicant admitted that he gave the psychologist an account of events which may have been inaccurate and overstated because of his state of mind at the time of the interview, which is that he was broken-hearted. Significantly, the review applicant stated at the hearing that Mr O'Connor misunderstood him in relation to any fear or apprehension which he might have experienced because of the nominator's shouting. The review applicant stated that he was not apprehensive or fearful about the nominator's shouting during the marriage, although he might have been after the marriage breakdown, had the nominator's behaviour continued. The Tribunal can not reconcile the account of events provided by Mr O'Connor in his report with that provided by the review applicant at his hearing. As the review applicant has indicated clearly that Mr O'Connor's account of events was based on inaccurate or misleading information or misunderstandings by the psychologist, it is not a true account of the violence experienced by the review applicant.

27. Effectively the Tribunal found that the lack of credibility adduced by it to the evidence of the applicant diminished the reliability of the evidence upon which the opinion of Mr O'Connor was said to be based.

28. The MRT is not required to accept statutory declarations without question but its role is limited to seeing whether the description of the nature of the violence experienced or the evidence set out by the competent person is capable as a matter of law of affording a basis for an opinion relevant domestic violence has been suffered (see Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FMCA 5 Bryant CFM at page 21). The MRT is required to limit itself to examine the evidence to ensure that it complies with the regulatory requirements. Whether domestic violence in fact has occurred, is not a matter to be determined by the MRT.

29. In my view, the MRT erred in rejected the evidence of the applicant and in rejecting or diminishing the reliability of the evidence upon which Mr O'Connor based his opinion.

30. Mr O'Connor in his statutory declarations annexed his report dated

1 March 2000. Both the nature of the violence experienced by the applicant and the evidence on which Mr O'Connor based his professional opinion were contained in that report. He described the nature of the violence as being the

"wife's aggressiveness took the form of yelling, screaming, pushing and shoving him. He (the applicant) said he was scared of his wife as she is much stronger than he is" (CB 76).

Dr Lahanis in his two accepted statutory declarations had described the nature of the violence as being:

"verbal abuse

throw heavy material at victim and physically struck" (CB 94)

and subsequently

"severe verbal abuse

threatening to kill/injure the victim

throwing of heavy dangerous object at the victim" (CB 107)

30B. As can be seen, the nature of the violence stated by each of the competent persons is not inconsistent nor significantly differing. The evidence on which the competent persons opinion that the applicant has suffered domestic violence is based is said by Dr Lahanis to be:

"medical history taken in consultation. Patient requires medication for emotional sequaelae to abuse" (CB 94)

and subsequently:

The patient attended the clinic several times with depression, sleeplessness, nervousness/anxiety as a consequence of this alleged abuse and has shown grazes/scratches on his body.

He requires to stay on antidepressant medication as a consequence of his resultant mental state" (CB 107).

The evidence of Mr O'Connor, the second competent person is as contained in his report dated 1 March 2000 and as annexed to (and referred to in) his statutory declaration. That report sets out a history consistent with that contained in Dr Lahanis' statutory declarations and states an opinion based on the evidence contained in the report that the applicant has been the victim of domestic violence. The statutory declarations need not recite the provisions of Regulation 1.23(2)(b). It is clear however that domestic violence which has been suffered in the competent person's opinion must be violence which:

Causes the alleged victim, or a member of the alleged victim's family to fear for, or be apprehensive about, the alleged victim's personal well being or safety.

31. That report referred to the applicant being:

"traumatised by his wife's aggressive behaviour"

and that:

"Even his wife's yelling and screaming would induce fear and apprehension in (the applicant) as he would experience this behaviour as an attack and a threat to his well being and safety" (CB 76-77).

32. These statutory declarations of Dr Lahanis and Mr O'Connor complied with the requirements of Regulation 1.26. Whether the Tribunal member found the opinion of the competent persons to lack any apparent credibility is not a matter for the Tribunal.

33. Whether there is or is not evidence which contained the description of the matters which form the basis of the requisite opinion is a matter of fact. It was clearly open to the Tribunal to find that there was no evidence as set out for the purposes of regulation 1.26(f). In Meroka v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 482, Ryan J observed at [32] that:

Each statutory declaration must set out the evidence on which the competent person's opinion is based.

And 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 regulation 1.23 only if the description of the nature of the violence experienced on 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.

And at [34]:

I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence has been suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of "domestic violence" in regulation 1.23(2)(b).

34. In Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1279, Wilcox J considered the effect of Meroka and said:

(The Tribunal member's) ... task was only to determine the sufficiency of the statutory declaration supplied by Mr Ibrahim; if there were statutory declarations by two competent people that complied with the requirements of regulation 1.26 (and the statutory declaration by Mr Ibrahim under regulation 1.25) that was enough.

... it leads to a curious result. The statutory declarations of the competent persons must state the competent person's opinion that relevant domestic violence has been suffered by the visa applicant (regulation 1.26(c) and (d)) and must name the person who in the competent person's opinion is the perpetrator of the violence

(reg 1.26(e)). However, once that is done it seems immaterial if these opinions are based entirely on statements made to the competent person by the visa applicant or they lack any apparent credibility.

[38] As to the former point, that the opinions may be based on hearsay, is implicit in the terms of the regulations. All persons falling within the definition of "competent person" are health or social work professionals. Almost invariably, they will deal with the visa applicant away from his or her home, usually in the absence of the spouse.

35. I find that the MRT has here embarked upon an erroneous investigation of the facts underlying the evidence provided rather than determining the sufficiency of the statutory declarations supplied. The MRT embarked upon an inquisitorial task in challenging the evidence of the applicant and then made findings about the credibility of that evidence and the evidence of one of the competent persons but not the other in a situation where both opinions were based on statements made by the applicant and a subsequent professional diagnosis.

36. The MRT went beyond asking itself, whether the evidence as contained in the statutory declarations was capable, as a matter of law, of supporting an opinion that relevant domestic violence had been committed.

37. I am satisfied that this case is not about errant fact finding but rather a failure by the decision-maker to properly apply the law. The decision is infected by jurisdictional error. Given the failure to exercise jurisdiction the decision is not protected by s.474 of the Act (see S157 v Commonwealth of Australia [2003] HCA 2 at [76]).

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: L.M.Dorian

Date: 20 May 2003
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia