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MIGRATION - Review of decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister finding the applicant was not entitled to the grant of a spouse (Migrant) (Class BC) visa subclass 100 domestic violence alleged - no reviewable error disclosed - application dismissed.

Wang v Minister for Immigration [2003] FMCA 135 (10 April 2003)

Wang v Minister for Immigration [2003] FMCA 135 (10 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION
[2003] FMCA 135



MIGRATION - Review of decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister finding the applicant was not entitled to the grant of a spouse (Migrant) (Class BC) visa subclass 100 domestic violence alleged - no reviewable error disclosed - application dismissed.



Migration Act 1958 (Cth), s.474

Migration Legislation Amendment (Procedural Fairness) Act 2002

Judiciary Act 1903 (Cth)

Statutory Declarations Act 1959 (Cth)

Migration Regulations 1994 (Cth), regulations 1.23, 1.24, 1.25, 1.26

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

Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2

NAAV v Minister for Immigration & Multicultural& Indigenous Affairs (2002) 193 ALR 449

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1

Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 661

R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598

NAAG 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Meroka v MIMA (2002) FCA 482

Bojanovic v MIMA (2002) FCA 113

Malik v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA562

Applicant:
MEI RONG WANG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ619 of 2002



Delivered on:


10 April 2003



Delivered at:


Melbourne



Hearing date:


11 November 2002



Judgment of:


Hartnett FM


REPRESENTATION

Counsel for the Applicant:


Mr Hurley



Solicitors for the Applicant:


Chua Tan and Associates



Counsel for the Respondent:


Mr Mosley



Solicitors for the Respondent:


Australian Government Solicitor



ORDER

(1) The application is dismissed.

(2) The applicant pay the respondent's costs assessed pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.

(3) It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ619 of 2002

MEI RONG WANG


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant filed her application in this Court on 26 June 2002. She filed concurrently an affidavit and tendered exhibits MRW1-11 inclusive. She sought review under s.39B of the Judiciary Act 1903 (Cth) and sought constitutional relief in respect of a decision of the Migration Review Tribunal (MRT) made on 30 May 2002. Paragraph 3 of the application sets out the claims made by the applicant as to jurisdictional error said to be committed by the MRT. Those claims were as follows:

a) the MRT erred in law in failing to inform the applicant in notices pursuant to s.359A of the Migration Act 1958 (Cth) (the Act) forwarded on the 27 November 2001 and 26 March 2002, that the MRT considered the failure of statutory declarations (relied upon by the applicant) to conform with the requirements of the Statutory Declarations Act 1959 (Cth) constituted a reason for affirming the decision under review; and

b) the MRT erred in law in failing to conduct a hearing according to the rules of natural justice in that the MRT failed to inform the visa applicant that evidence or other materials submitted on her behalf was not in a form satisfactory to the MRT; and

c) the MRT erred in law in finding that the applicant had not provided evidence in accordance with regulation 1.24(1)(b) of the Migration (1994) Regulations where the applicant had submitted evidence or other material which substantially complied with the requirements of the said regulation; and

d) the MRT erred in law in failing to consider the evidence of other material tendered to it by the applicant in the statutory declarations of Mr Newton of 15 August 2001 and 13 April 2002 and those of the applicant of 4 September 2001 and 19 April 2002.

2. The applicant is a citizen of the Peoples Republic of China and was born on 2 March 1962. On 26 May 1998 she applied for a visa to enter Australia as the spouse of an Australian citizen, one Mr Yi Qi (the nominator). The parties married in Shanghi on 1 April 1998. The applicant was granted a Spouse (Provisional) visa, subclass 309. The applicant entered Australia on 26 May 1999 as a holder of this visa. Accompanying her was her son An Jia Zhu born 5 August 1989.

3. On 13 June 2001 the applicant and her nominator spouse were interviewed at their residential address in Blackburn. As a result of this interview, officers of the respondent concluded the applicant no longer lived with the nominator-spouse and indeed the applicant deposes in her affidavit filed in these proceedings to having separated from the nominator by that time due to his treatment of her.

4. On 18 June 2001 a delegate of the respondent determined to refuse to grant the applicant a permanent spouse visa (CB 116-118). The basis for that determination was that the applicant did not at the time of decision satisfy the criteria in regulation 100.221 sub clauses (2) (3) or (4). The delegate determined the applicant was not the spouse (as defined) of the nominator on the basis that during the course of the visit on 13 June 2001 sufficient evidence was sighted by officers of the respondent to indicate that Ms Wang and Mr Yi were not living in a genuine ongoing relationship.

5. On 10 July 2001 the applicant lodged an application for review with the MRT. A hearing was conducted on 19 March 2002 at which the applicant gave evidence. On 26 March 2002 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting her to comment on information that the statutory declarations provided as evidence of a new ground relied upon of domestic violence, did not comply with the regulations. By decision dated 30 May 2002 the Tribunal affirmed the decision under review finding that the visa applicant was not entitled to the grant of a spouse (Migrant) (Class BC) visa.

Tribunal hearing

6. The Act empowers the Minister to grant or refuse a visa. The Act is supported by the Migration Regulations which include the prescribed criteria for the grant of visas in various sub-classes. 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 sub-class. 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 sub-class 100 are provided in schedule 2 of the Migration (1994) Regulations as it existed at the time the application was made. In the normal course of events applicants are eligible to be considered for grant of a permanent visa (subclass 100) some two years after grant of the subclass 309 visa.

7. An applicant must, at the time of decision, satisfy sub-clause (2) (3) or (4) of regulation 100.221. The delegate assessed the application under sub-clause (2) which requires the applicant to be, at time of decision, the spouse as defined of the original sponsor. Sub-clause (3) requires that the originally sponsoring spouse has died which was not applicable and sub-clause (4) requires that the relationship has ceased and that either the applicant or a dependent child has suffered domestic violence from the sponsoring spouse; or there is a child to whom both the applicant and sponsoring spouse have obligations in the nature of custody and/or contact/access. There was no evidence before the delegate as to sub-clause (4) and thus the delegate proceeded under sub-clause (2). The delegate was not satisfied that the primary applicant was the spouse as defined of the nominator.

8. Before the Tribunal the applicant proceeded on the basis that she had been the victim of domestic violence which was not known by the delegate involved in the case. A long definition of domestic violence is contained in regulation 1.23. Regulation 1.24 in conjunction with regulations 1.25 and 1.26 sets out the evidence required to prove that the alleged victim has suffered domestic violence at the hands of the alleged perpetrator. Statutory declarations are provided for in these regulations. It is accepted that the concept of domestic violence does not need to involve physical assault and that psychological violence such as belittling, intimidating or frightening an alleged victim may be sufficient.

9. The applicant claimed in statement dated 4 September 2001 and attached to her Statutory Declaration that although her husband Yi Qi was never physically violent toward her or her son, the continued harassment of her made both she and her son feel threatened by him and apprehensive about their personal safety. Ultimately the applicant concluded that the only feasible course of action she could take was to cease living with her husband. Accordingly in November 2000, she purchased a home and moved in to that accommodation with her son the following month. Thus by the time of the departmental officers visit on 13 June 2001, the applicant had in fact ceased living with her husband some six months previously.

10. In support of her application the applicant filed the above referred to statutory declaration dated 4 September 2001 declaring that she considered she had suffered domestic violence perpetrated by Mr Qi in his changed attitude toward her culminating in him being "unfriendly, unkind and verbally abusive" toward her. That declaration was said to be made by virtue of the provisions of an Act of the Parliament of Victoria. A further statutory declaration made by virtue of the provisions of an Act of the Parliament of Victoria was declared at Ivanhoe on 15 August 2001 by Patrick Gerald Michael Frederick Newton, Psychologist, (a "competent person") declaring it to be his professional opinion that the applicant had been the victim of an act of domestic violence perpetrated upon her by Mr Yi Qi the applicant's former husband. Attached was a report prepared by Mr Newton as a result of his consultation with the applicant on 31 July 2001. Finally, a statutory declaration of Dr Stanley Charles Chiang (a "competent person") was submitted by the applicant that declaration also being made pursuant to the provisions of an Act of the Parliament of Victoria. It declared that Dr Chiang, a registered medical practitioner, had formed the professional opinion that the applicant had been the victim of an act of domestic violence as defined in regulation 1.23. A report prepared by the said doctor and dated 20 August 2001 was attached to that declaration. That report referred to a first and only consultation on 1 August 2001 together with the report of Mr Newton and a letter from Interpac.

11. Prior to the hearing of the matter by the Tribunal the Tribunal wrote in letter of 27 November 2001 to the applicant inviting her to comment in writing on information as contained in that letter. Generally speaking that information was firstly, that on 13 June 2001 neither the nominator nor the applicant advised DIMA officers that the applicant was no longer living at the residential premises with the nominator. According to officers of the Department there was evidence at the premises which suggested that one Ms Fang Wang and her daughter lived there with the nominator, this person being a person whom the applicant claimed to be her friend but which the Tribunal noted it was open to it to infer was in fact her sister. Secondly, the Tribunal asked the applicant to comment on her claim that she had ceased to live with the nominator in November 2000 but had failed to advise the Department of this prior to the delegate's decision on 18 June 2001. The review applicant did not offer an explanation prior to the hearing conducted on 19 March 2002 as to why Ms Fang Wang was living with the nominator at the time of the house search despite the Tribunal requesting this information.

12. The Tribunal also noted that the applicant did not make any claim of domestic violence until after the delegate's decision. The Tribunal noted that it was open to it to infer that the applicant deliberately concealed from the departmental officers her separation from the nominator and/or that she fabricated a claim of domestic violence to support her application for review. The Tribunal invited the applicant pursuant to s.359(2) of the Act to provide additional information to it which went to the genuineness of the spousal relationship with the nominator. By letter dated 17 January 2002 the migration agents acting on behalf of the applicant responded to the Tribunal's correspondence. The applicant claimed she was not intentionally avoiding the truth with the DIMA officials but rather acting in a way she felt would not lead to any repercussions from Mr Qi. In relation to Ms Wang she advised that they in fact shared the same birth mother although a different father; that they were raised in different households and had no contact during childhood; and that the applicant had never considered this person as her sister but rather someone that she knew. Ms Wang acknowledged she made no claims of domestic violence toward her by her husband until she lodged her application with the Tribunal but claimed there was no way she could know that the treatment she received from him amounted to domestic violence. Documentation was submitted on her behalf to support proof of the ongoing and genuine nature of the marital relationship between the applicant and nominator from May 1999 through to December 2000.

13. Following the hearing on 19 March 2002 the Tribunal wrote to the applicant by letter of 26 March 2002 inviting the applicant to comment in writing on further information. That further information related to the statutory declarations provided by the applicant, Mr Newton and Dr Chiang. The Tribunal asserted that same did not comply with regulations 1.25 and 1.26 for the reasons as set out in that correspondence. With respect to Mr Newton and Dr Chiang the Tribunal noted that whilst a psychological report and medical report were provided respectively there was no evidence that either of these reports was included in the statutory declarations made by Mr Newton on 15 August 2001 and Dr Chiang on 22 August 2001. Further, Dr Chiang based his opinion on his own assessment and the report from Mr Newton - the Tribunal asserted neither of the statutory declarations set out the evidence on which the competent person's opinion was based; the applicant in her own statutory declaration did not set out an allegation of relevant domestic violence. The applicant's migration agent responded in letter of 22 April 2002.

14. On 23 April 2002 the Tribunal received further statutory declarations from the review applicant, Dr Chiang and Mr Newton. The statutory declarations were made by virtue of the provisions of an Act of the Parliament of Victoria. Dr Chiang's statutory declaration referred to an attached document.

15. During the course of the hearing on 19 March 2002 the applicant stated that she lived at the nominator's house from May 1999 until the end of 2000. She stated that after one year in Australia the nominator became distant toward her and critical of her in public. She stated that although his behaviour was unpleasant there was no physical risk. The applicant stated she was worried about her son being unsupervised at home when she was working and that the nominator ignored her and despised her. She stated she woke at night in fear because she was worried about what the future might hold. She stated that she had tried to save the marriage but was worried about her son and did not want the nominator to do something unreasonable to him. She did not state what unreasonable acts she feared. She stated that she and the nominator agreed they should separate and that he had helped her purchase a new home in the same street as the nominator's. In November 2000 the nominator gave her $20,000 as her share from the investment property in Mitcham owned by them and she purchased a nearby home, the balance of proceeds being obtained from moneys held by her in China. She stated that she had purchased the house nearby because he saw it on the way to work and was not able to go looking for other houses. She stated that she did not know whether the nominator was involved in a relationship with Ms Lan Fang Wang and that further she had no contact with Ms Wang during her marriage to the nominator and has no contact with her now because she was too busy working.

16. The applicant agreed that the nominator had lied to departmental officers when he told them that the review applicant lived at his home but said she did not know why the nominator would do that. When asked why the nominator would try to protect her from the department's inquiries when she reported that he despised and abused her she stated that she did not know if he was trying to protect her but maybe he felt guilty because he knew she had given up everything in China to be with him in Australia.

17. On 30 May 2002 the Migration Review Tribunal advised the applicant of its decision to affirm the delegate's decision and enclosed a copy of the Tribunal's decision.

Tribunal findings

18. At the time the visa application was lodged class BC contained subclass 100 (spouse). The criteria for a subclass 100 visa is set out in subclause 100.22. There are no criteria prescribed for the time of application. At the time of decision the applicant must satisfy the criteria set out in the Regulations.

19. The review applicant and the nominator separated in November or December 2000 and the Tribunal found the review applicant to not be the nominator's spouse at the time of decision. The application for review was made on the basis that the review applicant satisfied clause 100.211(4) namely that the relationship between she and the nominator had ceased and after the review applicant had entered Australia she suffered domestic violence committed by the nominator. To ascertain whether the applicant suffered domestic violence the Tribunal referred to regulations 1.23, 1.24, 1.25 and 1.26 - as it was required to do. The Tribunal found that if the statutory declarations submitted by the review applicant; a registered psychologist; and a medical practitioner complied with the requirements of regulations 1.25 and 1.26 then the review applicant would be taken to have suffered domestic violence under regulation 1.23. Each of the six statutory declarations provided on behalf of the review applicant were made by virtue of an Act of the Parliament of Victoria and not pursuant to the Statutory Declarations Act 1959 and therefore the Tribunal found them not to be statutory declarations as contemplated by the regulations. The Tribunal referred to the decision of Morgan v Minister for Immigration and Multicultural Affairs (1999) FCA 1059 (29 July 1999) when the Court accepted that:

A statutory declaration not made under the Statutory Declarations Act 1959 was not a statutory declaration contemplated by the Migration Regulations 1994.

I observe that even though Hill J found this to be an "extremely narrow and technical basis" to find for the Minister, he nevertheless felt compelled to do so.

20. The Tribunal also found that neither of the statutory declarations submitted by Dr Chiang satisfied the requirements of regulation 1.26. His statutory declaration of 22 August 2001 did not name the person who committed the domestic violence against the review applicant and did not set out the evidence on which he based his opinion that the applicant had suffered domestic violence. The Tribunal did not accept that the medical report apparently signed two days prior to the statutory declaration formed part of the statutory declaration on 22 August 2001 there being no indication on the report that it was incorporated in the statutory declaration. With respect to his second statutory declaration dated 18 April 2001 the Tribunal noted that Dr Chiang referred to a medical report which was attached to the declaration. The document was not otherwise identified. The medical report is dated 22 April 2002 four days after the statutory declaration was most likely signed being the 18 April 2002 and not 2001. The Tribunal had no alternative but to find that either the statutory declaration was signed on an unknown day after 22 April 2002 or that the statutory declaration was signed before the report was prepared. The Tribunal found the second statutory declaration submitted by Dr Chiang did not satisfy the requirements of the Statutory Declarations Act 1959 because it failed to meet the requirements of regulation 1.26.

21. The Tribunal concluded that as the applicant had failed to provide evidence in accordance with regulation 1.24 the applicant was taken not to have suffered domestic violence under regulation 1.23. Accordingly the applicant did not satisfy clause 100.221(4) and having not submitted evidence that she satisfied any other provision of clause 100.221 the applicant failed to satisfy all the necessary criteria at the time of decision.

Consideration

22. The Act authorises the MRT to exercise all the powers given to the respondent (s.349(1)); for the MRT to invite an applicant to comment on certain information (s.359A); or give additional information (s.359B); and for the MRT to prepare a written statement setting out its decision and findings on material questions of fact (s.368). This Court has power to review the decision of the MRT by virtue of Part 8 of the Act.

23. The applicant in the proceedings before me, and as set out concisely by her Counsel in the contentions of fact and law of the applicant pages 5 to 7 thereof submits that the Tribunal acted without or in excess of jurisdiction and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material in that;

a) the MRT failed to raise with the applicant that the statutory declarations provided by her were not made under the Commonwealth legislation but were purportedly made under State legislation. This failure constituted a denial of procedural fairness; and

b) the MRT chose to ignore the evidence which the applicant gave as to the domestic violence she had suffered and referred only to the failure of the two witnesses Dr Chiang and Mr Newton to descend into a detail required by the MRT in the statutory declaration; and

c) the MRT accepted correctly that "domestic violence" was established with threats of violence less than physical abuse but failed to consider the actual circumstances of the applicant; and

d) the MRT failed to consider the other material tendered by the applicant which would have enabled it to act on the substance of the evidence given by Dr Chiang and Mr Newton being an error of law.

24. Essentially the applicant claims that the grounds of review propounded by her challenge the way the MRT rejected the evidence relied on to satisfy regulation 1.24.

25. Regulation 1.24 deals with the production of evidence to establish regulation 1.23(1)(g) which the applicant relied upon.

The law

26. Following the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) HCA 2 I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Act.

27. On 4 February 2003 the High Court gave judgment in Plaintiff S157/2002 v Commonwealth of Australia. The High Court determined that the privative clause provision in s.474 of the Act properly construed is a valid enactment. It found the proper construction of the Act, including s.474, imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority; see per Gleeson CJ (at 37-38), Gaudron, McHugh and Gummow JJ, Kirby and Hayne JJ (at 83); and per Callinan J (at 160). The question whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction, in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002 is yet to be determined. The decision in S157/2002 related to the Act as it stood prior to that amendment.

28. The decision in S157/2002 is binding upon this Court. An Administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) at 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive and these different kinds of error may well overlap (see Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21). The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretions that are conferred by the Act - that is, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2 division 3 sub-division AB of the Act.

29. The task for the MRT was to satisfy itself that the applicant satisfied each of the criteria for the grant of a subclass 100 visa. In particular the applicant claimed that she had satisfied sub-clause 100.221(2) because she satisfied sub-clause 100.221(4)(c) by having "suffered domestic violence committed by the sponsoring spouse."

30. The regulations provide for the manner in which the MRT determines that a person is "taken to have suffered domestic violence" (see regulation 1.23). Evidence must be presented in accordance with regulation 1.24 which 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." Regulation 1.25 sets out the requirements of the statutory declaration of the alleged victim.

31. Regulation 1.26(f) provides that the competent person must set out the evidence upon which his or her opinion is based.

32. Statutory declaration is defined in regulation 1.21 to mean:

A statutory declaration under the Statutory Declarations Act 1959.

33. It is only such statutory declarations that are admissible as confirmed by regulation 1.27.

34. The applicant does not assert in these proceedings that the statutory declarations relied upon by her were in accordance with the definition contained in the regulations (see regulation 1.21). Thus there was no evidence in accordance with regulation 1.24 provided to the Tribunal (see Morgan v MIMA (1999) FCA 1059 at 11). It was therefore not possible for the Tribunal to find that the applicant could be taken to have suffered domestic violence for the purposes of regulation 1.23(g). I find this, even if such a finding is made on an "extremely narrow and technical basis" as determined by Hill J in Morgan's case.

35. Further however, as the respondent asserts correctly in my view in its contentions of fact and law paragraph 25, the applicant does not challenge the MRTs finding that the date on the medical report of Dr Chiang was four days after the date of signature (if 2002) on the second statutory declaration, such statutory declaration referring to an attached document. Clearly the Tribunal was correct in finding that Dr Chiang's second statutory declaration did not, for a reason other than it not being in accordance with the definition contained in the regulations, satisfy the requirements of the Statutory Declarations Act 1959.

36. I accept the respondent's further submissions that the MRT did not err in its interpretation and application of regulation 1.26(f). Relevantly in his second statutory declaration Dr Chiang stated as follows:

It is my professional opinion that Ms Mei-Rong Wang has been the victim of an act of domestic violence (as defined in regulation 1.23(2)(6) of the Regulations. The form of abuses is based on my examination and reference from Dr Patrick Newton, the psychologist, were psychological and emotional from Mr Qi Yi.

37. Whether there is or is not evidence which contains a 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 MIMA (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.

38. 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 Reg 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.

39. And at 35 that:

The description of the nature of the violence must reveal that the competent person did not misconceive the definition of "domestic violence."

40. Dr Chiang's statutory declaration referred to his examination and reference from Dr Patrick Newton. It did not recite what Dr Chiang had been told by the applicant with a subsequent opinion formed nor did it constitute an incorporation of or adoption of the evidence relied upon by Dr Newton in his statutory declaration.

41. The MRTs statutory obligation was confined to the application of regulation 1.23(g) and relevantly to an assessment of whether there was "evidence in accordance with regulation 1.24." Whilst the applicant may have sought to rely upon other evidence such other evidence did not constitute evidence "set out" in a statutory declaration for the purposes of regulation 1.26(f). The regulations require the competent person to express an opinion in very specific terms. I accept the submissions of counsel for the respondent that in this context, once the MRT had found that the second statutory declaration of Dr Chiang did not satisfy the definition for the purposes of the regulations then the MRT was precluded from relying upon Dr Chiang's opinion or any other evidence upon which such an opinion was based including a medical report dated 22 April 2002 (see Bojanovic v MIMA (2002) FCA 113 at 20 and 25). I reiterate, it is not the function of the Tribunal to substitute its own opinion for that of the "competent persons" as to whether or not domestic violence has occurred.

42. Counsel for the respondent submitted that the applicant was accorded procedural fairness. Counsel submitted that s.359A does not oblige the MRT to identify the statutory criteria including definitional matters which must be satisfied. In my view this is clearly so. Section 359A of the Act does not require the Tribunal to notify the applicant as to defects in the documentary material provided in support of her application nor as to any doubts the Tribunal may have as to the sufficiency of the case put by the applicant. Rather, it is to advise the applicant of material which comes to the Tribunal from a source other than the applicant and upon which the Tribunal may rely. The applicant is then accorded natural justice and has an opportunity to respond.

43. Even had the statutory declaration's deficiency been brought to the attention of the applicant such that the applicant had filed documents complying with the Statutory Declarations Act 1959 such documents would still have failed to set out the evidence for the purposes of regulation 1.26(f). In this context the MRT wrote to the applicant and informed her of its concerns that neither of the statutory declarations of Mr Newton or Dr Chiang set out the evidence on which each of their respective opinions was based (CB 181 to 182). There needed to be included amongst other things, a description of conduct or cause of conduct, of one party towards the other, which had the consequences of causing fear or apprehension. (See Malik v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA562 at page 294. Wilcox J).

44. I find no jurisdictional error to have been committed by the Tribunal in this matter. The Tribunal's decision is a privative clause decision for the purposes of s.474 of the Act and satisfies those matters as set out in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 in that the decision was a bona fide attempt by the decision-maker to exercise the power which the Act reposed in such decision-maker. There is no breach of an inviolable limitation which must be satisfied before the decision-maker's power is attracted and the effect of s.474 activated.

45. I dismiss the application and order that the applicant pay the respondent's costs pursuant to Part 21 Rule 21.10 of the Federal Magistrates Court Rules.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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