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MIGRATION - Review of decision of Migration Review Tribunal affirming decision not to grant a spouse visa - domestic violence by nominator relied on - whether MRT entitled to reject evidence of applicant as lacking credibility - whether domestic violence can be perpetrated by nominator's agent - requirement for statutory declaration to state that domestic violence within the meaning of the Regulations has been committed - Review of Migration Review Tribunal affirmed.

Kumar v Minister for Immigration [2003] FMCA 5 (24 January 2003)

Kumar v Minister for Immigration [2003] FMCA 5 (24 January 2003)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION
[2003] FMCA 5



MIGRATION - Review of decision of Migration Review Tribunal affirming decision not to grant a spouse visa - domestic violence by nominator relied on - whether MRT entitled to reject evidence of applicant as lacking credibility - whether domestic violence can be perpetrated by nominator's agent - requirement for statutory declaration to state that domestic violence within the meaning of the Regulations has been committed - Review of Migration Review Tribunal affirmed.

Migration Act 1958, ss.54, 359A, 474, 474(1)

Judiciary Act 1903, s.39B(1)

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228;

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

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

Du v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1115;

Alan v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979;

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361;

Minister for Immigration and Multicultural and Indigenous Affairs v SBAN (2002) FCAFC 431;

Muin v Refugee Review Tribunal (2002) 190 ALR 601



Applicant:
RAJESH KUMAR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ613 of 2002



Delivered on:


24 January 2003



Delivered at:


Melbourne



Hearing Date:


29 October 2002



Judgment of:


Bryant CFM


REPRESENTATION

Counsel for the Applicant:


Mr Porceddu



Solicitors for the Applicant:


Armstrong Ross



Counsel for the Respondent:


Ms H. Riley



Solicitors for the Respondent:


Blake Dawson Waldron



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 613 of 2002

RAJESH KUMAR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application under s.39B(1) of the Judiciary Act 1993 (Cth) ("Judiciary Act") for writs of mandamus, prohibition and certiorari in respect of a decision of the Migration Review Tribunal ("MRT") made on 31 May 2002 affirming a decision of a delegate of the respondent ("the Minister") that the applicant was not entitled to a grant of a general (residence) (Class AS) visa.

Background

2. The applicant is a national of Fiji who was born on 15 May 1951. He entered Australia as the holder of a visitor (short term) (Class TR) visa, subclass 676 on 6 April 1997. On 29 March 1998 he married Sumila Watti ("the nominator"), a permanent resident of Australia and on

1 April 1998 the applicant applied for permanent residency on the basis of his marriage to the nominator.

3. On 3 April 1998 he withdrew the application in order to return to Fiji to look after his ill mother. On 12 December 1998 he returned to Australia on a visitor visa with his daughters and on 12 January 1999 he reapplied for permanent residence on spouse grounds. On 29 March 2000 the applicant was granted an Extended Eligibility Temporary Visa ("EETV") spouse (temporary) (TK) subclass 820 visa.

4. On 8 December 1999 the nominator wrote to the Department stating that she no longer supported the applicant's visa application. On

16 December 1999 she again wrote to the Department advising that she had ceased living with the applicant as at December 1999. However, subsequently in an undated letter she wrote to the Department wishing to reinstate her support for the applicant.

5. On 22 December 1999 a departmental delegate interviewed the applicant and the nominator separately and on 29 March 2000 the applicant was granted an EETV visa 820. A further letter was sent from the nominator dated 13 April 2000 advising that she was not going to be divorcing the visa applicant and that she had decided to continue her relationship with him.

6. However, in a letter dated 10 November 2000 the nominator wrote again to the Department advising that she no longer supported the applicant's application, and formally withdrew her nomination of the applicant. The Department sent two letters which were returned unclaimed, to the applicant, advising that the nominator had withdrawn her support and on 1 May 2001 the delegate refused the grant of the AS general (residence) visa on the basis that the applicant did not meet the criteria for a spouse visa or any of the other applicable criteria.

7. On 29 May 2001 the applicant applied to the MRT for a review of that refusal. By letter dated 26 July 2001 the Tribunal invited the applicant to comment, pursuant to s.359A of the Migration Act 1958 (Cth), ("the Act"), on information in the possession of the Tribunal to the effect that the applicant's relationship with the nominator was no longer continuing. The applicant's adviser by letter dated 31 July 2001 indicated that it was not disputed that the spousal relationship between the applicant and the nominator was no longer continuing. The applicant's adviser advised the MRT that the applicant was still eligible for the grant of a visa subclass 801 as a result of domestic violence pursuant to subclass 801.221(6)(c)(i)(A) and forwarded to the Tribunal a statutory declaration of a psychologist Mr Edwin Kleynhans and sought an adjournment of the hearing to permit further statutory declarations to be provided.

8. A statutory declaration dated 29 May 2001 signed by the applicant was sent to the MRT as well as a report dated 10 October 2001 from Helen Cleak, a social worker.

9. At a hearing on 21 November 2001 in which the visa applicant, an aunt of the visa applicant and the visa applicant's daughter gave evidence, the MRT pointed out to the applicant that the statutory declarations by Ms Cleak and the applicant's daughter did not comply with regulation 1.23. Since the hearing the migration agent has submitted the three statutory declarations, one signed by the applicant, the second signed by his daughter Rohini Kumari, and the third by Ms Cleak.

10. On 31 May 2002 the MRT affirmed the decision of the delegate to refuse the grant of general (residence) (Class AS) visa.

Evidence before the MRT

11. The applicant told the MRT that he was married on 29 March 1998 and separated from the nominator in November 2000. He said that he and the nominator were living at the West Footscray address at the time when there was a fight and the nominator left. He said that he continued living there for almost a year up until a month before the hearing. He confirmed that his statutory declaration contained the allegation that he made about domestic violence and he had nothing to add to it. In his statutory declaration he said that his wife had caused him a lot of problems and did not want him to go to any of his friends or relatives. When he wanted to earn a living she would tell him not to work as it would effect her pension. One night she wanted to kill him by pressing his neck. He said that when he asked her why she was doing that she said that she had a high blood pressure which she could not control. After a couple of days, he said, the nominator told him that she wanted to kill him.

12. One night the nominator came home with a person who was drunk and started shouting and swearing at the applicant and his daughters.

13. In December 1999 the nominator's brother Bruce came with a friend to their home saying that he was going to kill the applicant. When he asked his wife why her brother wanted to kill him she replied that her other sister had planned to kill him. He says that he reported this matter to the police but the police did not do anything.

14. In November 2000 the nominator left their home and took her belongings with her. He says that some time before Christmas 2000 the nominator's brother and a friend came to their home and turned off the electricity and they had no electricity for a couple of days and had to use candles.

15. The statutory declaration of Rohini Kumari, the applicant's daughter, simply says that she has assisted her father in the completion of the statutory declaration and interpreted the contents to him.

16. The statutory declaration of Helen Cleak, a social worker and a member of the Australian Association of Social Workers, indicates that the case concerns domestic violence:

"as defined by Australian immigration law."

In paragraph 5 she says that the reason for the report was that the case was referred by a Mr John Young of Australian Migration Program and she was asked to give a professional opinion as to whether or not (because of psychological trauma) the client had suffered domestic violence.

17. In paragraph 6 Ms Cleak says:

This report looks at domestic violence issues presented by Rajesh. "Domestic violence" here is used as it is normally defined within the social welfare field as being:

(1) psychological and emotional abuse

(2) verbal abuse

(3) physical abuse

(4) economic abuse

(5) social abuse

(6) sexual abuse

The report assessed each category of abuse to determine whether domestic violence was present in this case.

18. Under psychological and emotional abuse Ms Cleak says:

Rajesh stated that his premarital relationship with Sumila was loving and relatively conflict free and he felt so confident about the strength of their love that he sold his home and house in Fiji and left his market business to his eldest son. However, in the same month that they married, Rajesh returned to Fiji to access some money to help Sumila's brother and when he was unable to withdraw the amount they wanted, Sumila became verbally abusive and threatening towards him.

Rajesh stayed in Fiji for another nine months but returned to Australia because Sumila told him on the telephone that she wanted him and his two daughters to all live happily together with her.

Throughout the remainder of the marriage which finally ended when Sumila left for the final time in March 2001, Rajesh has been subject to a pattern of ongoing psychological and emotional abuse with short periods where Sumila would display signs of remorse and regret.

This pattern of abuse would take the shape of verbal attacks and demeaning comments about Rajesh and his daughters, followed by periods when she would disappear and live with her brother or sister, only to return unexpectedly, with another tirade of verbal attacks. Sumila would take charge of the house, make orders about when the girls could have the lights on and when they could watch TV and refused to allow Rajesh to work and made him dependent on his savings.

This uncertainty and lack of domestic security was very difficult for Rajesh and his family as he never knew when Sumila was going to be home and for how long. He was periodically unsettled by her threats to give evidence to DIMA which may result in him and his daughters being sent back to Fiji. He showed me copies of four letters that she wrote to DIMA indicating that she was withdrawing her complaints about him and that she had "made a mistake".

19. Under the heading verbal abuse Ms Cleak set out that verbal abuse was a constant feature of the relationship and:

Rajesh was publicly admonished in front of both his daughters and her family during their marriage.

20. Under the subheading physical abuse Ms Cleak says:

Although Rajesh is a fairly big man, Poonan described Sumila as even bigger than him who would physically intimidate Rajesh when she became enraged. On one occasion Rajesh would not allow Sumila's brother to drive his car without him being with him so Sumila grabbed a knife and tried to break all the windows in his flat. Another time she tried to strangle him and said, "I'll kill you". Sumila's brother-in-law has also threatened to kill him. When questioned why Sumila and her family would behave like this, Rajesh answered that they are only interested in his money and want him to give them some of his savings that he's accumulated by the sale of his home and business in Fiji.

21. Under the heading "Conclusion" Ms Cleak says:

Based on the information provided by Rajesh and Poonan, the psychological report and the definition of domestic violence, there is some evidence that Rajesh suffered from domestic violence in four categories of psychological and emotional abuse, verbal abuse, physical abuse and social abuse.

I believe that Rajesh is a shy and timid person who genuinely believed that Sumila would be a good wife and he sold his home and business in Fiji to marry her. Throughout their turbulent marriage, he continued to believe that it was her poor physical health that precipitated her abuse towards him and he continued to allow her to return to the marriage after she left three times in the hope it would change.

22. The second statutory declaration was that provided by Mr Kleynhans. Mr Kleynhans is a psychologist and registered with the Victorian Psychologists Registration Board. Mr Kleynhans indicates that he psychologically assessed the applicant and that the reason for the referral was that he was not successful in his marriage. As a result of this, he is suffering psychologically because of traumatic experiences during his estranged marriage to an Australian national. He says that he has reason to believe that the applicant suffered domestic violence/abuse at the hands of his estranged wife.

23. Mr Kleynhans interviewed the applicant. He says that during March 1998 the applicant's wife needed some money to bail her brother out of a migration detention centre and that when the applicant went to Fiji to get some money to assist but was unable to get the money out of the country this enraged the nominator who threatened to withdraw her spouse application with DIMA and in April 1998 did so.

24. Under the heading "Abuse" Mr Kleynhans says that the applicant will write to DIMA complaining about him and withdraw statements later on. He told Mr Kleynhans that the nominator did not want him to talk to or visit friends or relatives and he had to remain at home and was forbidden from going out to work as it would effect her pension.

25. He says:

She made death threats: one night apparently, she tried to strangle him, which she blamed it on her hypertension. However, this death threat was revitalised by her a few days later. Another example of abuse was that she came home one night with a drunkard who harassed Rajesh. In December 1999 his brother-in-law, Bruce, visited his house with a friend and both were drunk. Bruce threatened to have Rajesh killed. She apparently told him that one of her sisters wanted to have him killed and asked Bruce to do it. This frightened the daylights out of him. This matter was reported to the local police, but apparently nothing happened. Sumila left their home in Francis Street, Yarraville in November 2000. Apparently in December 2000, Bruce and his friend came to their house and turned off their electricity; for three days they did not have electricity and had to use candles. His daughters could not really do their homework properly at night. Moreover, she would not allow them to have the lights on at night so that they could do their homework. Bruce returned later on to turn his electricity on again.

26. Mr Kleynhans then goes on to say:

In the early stages of his marriage, he felt isolated, abandoned and emotionally blackmailed. He did not feel secure in their house and felt like a prisoner. Whilst the abuse was occurring, his two daughters were locked up in their bedroom and could not come out. When they were having a shower, Sumila would ask them to leave promptly if she wanted to use the toilet. The lights would be switched off at 5.00 pm and his daughters could not study. If they wanted a bath, they had to go to the neighbour, they told me. Moreover, they could not watch television and had to do all the housework. She threatened to have them all sent back to Fiji. There was another time when Sumila was chasing Rajesh with a knife. Rajesh was told by his estranged wife that he was a bastard "good-for-nothing" and hopeless. Many times during his marriage to Sumila he felt that he was going crazy and "losing it all". When she moved out of their house it was a relief for him and his two daughters.

27. Mr Kleynhans noted that:

The PTSD-symptoms that he was portraying were (and still are): depression, fears, anxiety, less contact with other people, ashamed and embarrassed et cetera. ... When he married her, he told me that his stress levels increased quite remarkably. This is to be expected of victims of PTSD and domestic violence.

28. Under the heading:

Rajesh's Mental Health Condition: Domestic Violence

Mr Kleynhans says that:

It is quite clear from my assessment, that over time, his marital problems with Sumila became progressively worse and as a direct consequence, his mental health deteriorated accordingly. He shows symptoms of PTSD, which are typical of people who are exposed to domestic violence. He felt extremely lonely as his wife and family-in-law were not supporting him and were the "opposition" as it were.

29. Under the heading:

Critical Incidents Stress

Mr Kleynhans says that:

The critical incidents that he experienced since the time of his marriage in March 1998 up til now have caused him to be traumatised, which inevitably led to PTSD. The cause of his PTSD was magnified when his brother-in-law, Bruce, came to his flat with a friend and threatened to kill him. He became more stressed when he reported the matter to the police who did not seem to be interested in his safety and security. Since that time, he has been feeling very unsafe and insecure which was aggravated when his brother-in-law switched off his electricity.

30. Mr Kleynhans then says:

I observed that he was anxious about the whole situation and still felt threatened by her, even though they were separated. He's annoyed that she abused him to a great extent; he is also annoyed with himself for being in a relationship with an abusive wife.

31. Mr Kleynhans decided that because the applicant was stressed when he came back to see him he would administer the BECKS' (for depression) and Burns' (for anxiety) inventories to measure his level of stress and to confirm symptoms of PTSD. The depression test confirmed his hypothesis that he was severely depressed and the anxiety test corroborated a high level of anxiety and chronic fears. He concluded that the abuse took the following formats:

1) Physically, such as strangling him when she is angry et cetera.

2) Psychologically (ie. verbal and emotional) such as taunting him and telling him that she will have him sent back to Fiji et cetera.

3) Socially isolated; eg. he could not talk to others or get a job.

4) Financially; she would demand money from him all the time, eg. she wanted about $15,000 to bail out her brother from a detention centre.

32. Mr Kleynhans indicated in conclusion that his diagnosis of domestic violence was based on the following:

1) A diagnosis of post-traumatic stress disorder (PTSD).

2) Because of PTSD he has many fears about his estranged wife including anticipating an unpleasant and painful agitation should he be confronted with her again.

3) Feeling sad and melancholic as a result of the break up of his marriage.

4) Having experienced some fearful moments (such as death threats) and since these experiences:

He is very fearful and worrying all the time (eg. he would worry about his family). He's finding it difficult to leave his house as he fears that she or her family will do him harm as she has threatened to do in the past.

Mr Kleynhans says:

I'm of the opinion that Mr Kumar was at risk in this relationship because of domestic violence.

5) The prognosis of his mental health is not favourable as he still feels threatened and his PTSD could be revitalised if her or her family confronts him.

33. Mr Kleynhans finally concludes:

In summary, based on my assessment, I am of the opinion that Rajesh suffers from PTSD because of the domestic violence at the hands of his estranged wife Sumila.

The criteria for a spouse visa

34. The criteria for a spouse visa are to be found in clause 801, schedule 2 of the Regulations. Par 801.221(6) of the Regulations:

(6) An applicant meets the requirements of this subclause if: -

(a) the applicant is the holder of a subclass 820 visa; and

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

(c) either or both of the following circumstances applies:

(i) either or both of the following: -

(A) the applicant;

(B) a dependent child of the nominating spouse or the applicant or both of them;

has suffered domestic violence committed by the nominating spouse;

(ii) ...

35. Sub-regulation 1.23 contains a "deeming mechanism" by providing;

1.23 When is a person taken to have suffered or committed domestic violence?

(i) 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

...

(g) if the alleged victim is a person referred to in sub-regulation (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.

...

1.2 Evidence

(i) 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:

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

...

1.25 Statutory Declaration by Competent Person.

A statutory declaration made 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 such a person; and

...

1.21 Interpretation. Competent person means:

(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: ...

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

36. Regulation 1.23(2)(b) says:

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 or, to be apprehensive about, the alleged victim's personal well being or safety.

The MRT's decision

37. The MRT initially referred to the statutory declaration by the applicant and noted that his said that:

It contains the allegations he has made about domestic violence and he had nothing to add to it.

It appears however from the decision that the applicant was queried by the MRT about the contents of his statutory declaration. For example MRT says (at p.144 CB):

He was referred to an incident on an unspecified date when he claimed she pressed his neck. He said that she had some problem with her blood pressure and she started pressing his neck and that he vomited blood the next morning when he asked her what had happened she said that she had some form of pressure. He said that this occurred at the Sunshine address in March or April 2000. He said that they were in bed together when this incident occurred in the middle of the night. He then said that she told him in the morning that she had wanted to kill him but a little later after persisting to ask her what had happened she said that she had "had pressure". He said that when the incident occurred his two daughters came in from the next bedroom and they wanted to take him to hospital but he did not see the need. He said that he thought she was going to kill him because that was what she told him the next morning. ... He said that the relationship did continue, however, that the nominator had said in the morning that it was her fault and that she had "had pressure". He said that he had slept with her the following night. He said that in the past when she had "had pressure" she would do strange things such as not let the children study, or switch off the light, or let them watch television.

38. On another occasion the MRT also referred him to another incident in his declaration (par 20 CB144):

The visa applicant was referred by the Tribunal to another incident in his declaration about a person coming home drunk with the nominator. He said that this other person was her brother and it occurred in December 1999. It was pointed out that he had also referred to another incident in December 1999. He said that on one occasion the visa applicant's brother came home drunk and there was another occasion in March/April.

39. The MRT then confronted the applicant with a photograph (par 21 CB144):

He said that the nominator is about five feet tall but heavier than he is. He was referred to a photograph and identified it as showing himself and the nominator together. He said that they have not changed. It was put to him that the photographs provided do not show the nominator as bigger than he appeared. He was referred to a statement in the report of Helen Cleak that the visa applicant's daughter, Roni had said that the nominator is bigger than the visa applicant. He stated that the nominator is not taller than he is but is heavier.

40. The MRT asked the visa applicant how often he attended a doctor and asked about his state of health. He was also asked about his interview with the Department in December 1999 (par 23 CB145):

He was asked about his interview with the Department in December 1999. He said that he attended with the nominator but did not tell the officer of the domestic violence because "there was nothing at that stage". It was pointed out that he had claimed that the domestic violence started in September 1999 to which he replied that the interview was in April 1999. He was again referred to the interview recorded by the Department as taking place in December 1999 and to this being when he was told about the letters sent by the nominator to the Department. He thought that interview took place on 29 February 2000.

41. The MRT also asked the visa applicant's daughter, Roni Kumari, about the incidents of domestic violence (par 28 CB145):

She was asked what incidents of violence she had witnessed by the nominator against the visa applicant and she said that the nominator would not allow the visa applicant to work or visit the family and would not allow her to have the light on to study or have a shower for more than five minutes and would knock on the door when they went to the toilet and on one occasion threw their things outside and did not allow them to do the cooking. She said that this happened in May or June 2000. She said that neighbours told them that the nominator's brother came in and turned off the power.

42. The Tribunal then asked her about the incident in which the nominator had pressed the visa applicant's neck:

She said that the visa applicant told her after the incident that the nominator had told him after a week that she wanted to kill him. She said that she was in the house at the time but was in her bedroom sleeping. She said that she did not know of the incident on that night. She said that her sister went into the bedroom. She said that she did not take the visa applicant to the doctor but that her sister took him to the doctor because he had pain.

Findings of the MRT

43. The MRT found that the statutory declarations do not satisfy the regulations, that the visa applicant cannot be taken pursuant to regulation 1.23 to have suffered domestic violence committed by the nominator and therefore fails to satisfy subclause 801.221(6) in respect of domestic violence and consequently fails to satisfy clause 801.221. Consequently the Tribunal affirmed the delegate's decision.

44. The reasons for coming to that conclusion are set out on pp.148 and 149 of the Court book. First, the MRT reviewed the credibility of the applicant. In relation to the incident claiming that the nominator had pressed his neck and he coughed up blood and his daughter came into the bedroom wanting to take him to hospital, the MRT found that the older daughter gave evidence that she was not told of the incident a week later and she did not enter the room that night. The MRT noted that the visa applicant stated he sought no medical attention about the incident notwithstanding he had regularly seen a doctor and that despite the incident he slept with the nominator the following night. The MRT said:

The Tribunal found the evidence of the visa applicant and his daughter about this incident contradictory and unconvincing.

45. In relation to the incident referred to in the statutory declaration to a night when the nominator came home with a "person who was drunk" and the person started shouting at them the MRT concluded:

In the hearing the visa applicant was vague about the date of this alleged incident.

46. In relation to the incident referred to in December 1999 when the nominator's brother and friend came to the residence and allegedly stated they were going to kill the visa applicant which the applicant had reported to police but nothing had been done about, and in relation to the incident where the electricity was turned off, the MRT said that subclause 801.221(6) requires the domestic violence to have been committed by the nominating spouse.

The Tribunal finds that evidence presented in the statutory declaration does not provide evidence of relevant domestic violence as defined committed by the nominator.

47. The MRT went on to say:

Further, having heard the evidence of the visa applicant and his daughter of the circumstances surrounding the alleged pressing of the neck incident the Tribunal finds that the visa applicant would not now be able truthfully to make such declaration that he has been a victim of violence in respect to that incident to the extent that it caused him and his family to fear or to be apprehensive about his personal well being or safety. The other evidence presented in the visa applicant's statutory declaration refers to alleged acts by persons other than the nominator and so is not evidence in accordance with sub-regulation 1.23(1)(c)(ii).

48. The Tribunal then went on to say:

The lack of credibility of the evidence of the visa applicant and his daughter diminishes the reliability of the evidence upon which the opinion of the psychologist is said to be based, as well as the reliability of the evidence upon which the opinion of the social worker was based who stated that her sources of information were the report of the psychologist and the interview with the visa applicant and his daughter, Poonan. The information relied upon is also contradictory in part with the visa applicant's own statutory declaration. The statutory declaration of the social worker is also found not to satisfy sub-regulation 1.26(c) in that she fails to "state that in the competent person's opinion, relevant domestic violence (within the meaning of par 2(b)) has been suffered by a person". She simply concludes that "there is some evidence that [the visa applicant] suffered from domestic violence ...". Similarly, the statutory declaration of the psychologist fails to specifically state what must be included in the statutory declaration under sub-regulation 1.26(c) but rather states that he is "of the opinion that [the visa applicant] suffers from PTSD because of the domestic violence at the hands of [the nominator]".

Grounds of the application

49. The grounds identified by the applicant are twofold. Firstly that the MRT exceeded its jurisdiction or failed to exercise jurisdiction. It is contended that the MRT has totally misconstrued the statutory provisions and in particular the construction of domestic violence in regulation 1.23(2)(b) and consequently failed to comply with s.353 of the Migration Act which requires it to act on substantial justice and the merits of the case. This it is contended is an inviolable limitation or constraint as described by the Full Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228 which does not attract the validity of s.474 of the Act.

50. Secondly, it is contended that because of the error committed by the MRT, namely looking at the adequacy of the evidence rather than the question of whether the opinion is open on the evidence, there was no bona fide attempt to exercise jurisdiction on the part of the MRT and accordingly the application falls within one of the exceptions to s.474 as described by the Full Court of the Federal Court in NAAV.

51. The applicant recognises s.474(1) of the Act creates a difficulty for the applicant's case. Section 474(1) provides as follows:

474(1) A privitive clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed, or called in question in any Court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court or on any account.

52. The applicant accepted that, at least pending the decision by the High Court on the issue, the constitutional validity of s.474(1) of the Migration Act has been established by the decision of the five member Full Court in NAAV.

53. It is also accepted that the majority in NAAV held that in general, jurisdictional errors, including breaches of the requirement for procedural fairness, do not suffice to establish a reviewable error in the face of s.474(1) of the Migration Act. Nevertheless, he submitted that for the reasons set out, s.474(1) does not constitute an insuperable obstacle to the applicant's case in this Court.

54. The respondent contends that the Tribunal's findings were properly made and the conclusion that the statutory declarations of the psychologists and social worker did not meet the requirement of regulation 1.26(c):

That the competent person expressed the opinion that domestic violence as defined has been suffered by the applicant.

was an appropriate finding and the Tribunal was obliged to affirm the decision under review.

55. Furthermore, the respondent contends that if errors were made by the MRT that the errors were errors of law and that pursuant to NAAV no such errors are reviewable.

56. A third ground raised by the applicant which was that the Tribunal acted in breach of the express statutory limit in s.54 of the Act to have regard to all of the information in the application. The applicant did not identify any information that the Tribunal allegedly failed to consider and did not press that matter further in submissions.

Conclusions

57. The applicant contends that the MRT has misconstrued the legislation as to what is required to satisfy the definition of domestic violence. In this regard the applicant relies upon the decision of Ryan J in Meroka v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 482 ("Meroka"). The relevant statement of principle made by Ryan J in Meroka appears at pars 32 to 35. It is as follows:

In my view it is not sufficient for an applicant to adduce statutory declarations from two "competent persons" each of which recites the possession of an opinion that relevant domestic violence has been suffered by the applicant. Regulation 1.26(f) imposes the additional requirement that each statutory declaration must set out the evidence on which the competent person's opinion is based. The only purpose which can be imputed to the drafter who inserted that requirement is to provide an opportunity for objective examination of the evidence on which the opinion was based. Thus, if the competent person, in purporting to comply with regulation 1.26(f) were to refer to "evidence" which was quite unrelated to whether relevant domestic violence had been suffered by the applicant, the alleged victim could not be "taken" pursuant to regulation 1.23 to have suffered domestic violence. That is not to say that the Minister (or the Tribunal) can substitute for that of the "competent person" his or its own opinion of whether domestic violence has been suffered. Operation can be denied to regulation 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.

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).

The implication arises in the context of that direction from the insertion in the respective spaces provided of the name and date of birth of the victim and the full name of the person believed to have perpetrated domestic violence.

However, as already noted, the statement of opinion by a competent person will not cause the applicant to be taken to have suffered domestic violence if the description of the nature of the violence, or the evidence on which the express or implied statement of opinion is said to be based, reveals that the competent person misconceived what the definition required for the formation of the requisite opinion. An examination of the form as completed by the competent persons in this case does not lead unequivocally to the conclusion that either of them misconceived what is involved in the concept of domestic violence.

58. In Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1279, Wilcox J considered the effect of Meroka and at pars 36 to 40 inclusive said as follows:

It will be apparent that the Tribunal member who determined

Mr Ibrahim's application for review did not misunderstand Meroka. In particular, he appreciated that authority required him to refrain from determining whether or not Mr Ibrahim had suffered domestic violence at the hands of Ms Saleh; his 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.

[37] I think this is the effect of Meroka. And I respectfully agree with Ryan J that this is what is intended by the regulations. 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 (regulation 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. Only in a rare case will they personally witness an act of domestic violence against someone whom they know only as a patient or client. Yet they are req uired by par (e) (of regulation 1.26), to name "the person who, in the opinion of the competent person, committed that relevant domestic violence". Except in the rare case, the declarant can answer that question only by reference to hearsay or conjecture. Competent persons are required to offer an opinion as to whether domestic violence has occurred. Yet in some cases, there will not be any observable sequelae of violence; the competent person will be dependent upon the alleged victim to know that violence has occurred at all, and its nature.

[39] In relation to the second point, if the Minister or Tribunal is not entitled to act on his or its own opinion as to whether the visa applicant has suffered domestic violence, it obviously has no right to reject the competent person's opinion on the basis that it is inherently improbable. It would not matter even if the Minister or Tribunal had credible evidence that the spouse was not present at the time of the alleged violence.

[40] The regulatory regime is a triumph of form over substance. Paragraph 801.221(6) creates an exception to the general rule that an application for a subclass 801 visa must continue to be supported by the applicant's spouse. It does so, no doubt, on the humanitarian ground that it would further victimise a victim of domestic violence if a break down of the spousal relationship, which may be the result of, or associated with, the domestic violence, thereby disqualify the victim from obtaining the visa to which he or she would otherwise have been entitled. However, although the relevant exceptions expressed in par 801.221(6)(c) by reference to a factual situation ("have suffered domestic violence committed by the nominating spouse"), Division 1.5 of the regulations precludes the visa decision maker investigating the facts. If the appropriate statutory declarations are provided by the visa applicant, domestic violence "is taken" to have been suffered by the visa applicant at the hands of the nominating spouse, even if the opinions stated in the statutory declaration lack any discernible cogency. If the visa applicant fails to obtain appropriate statutory declarations, by the required two competent persons, the visa application has to be refused. This is so even if the decision maker is totally satisfied that the applicant suffered domestic violence at the hands of his or her spouse.

59. Having regard to these authorities it is in my view clear that the MRT in this case embarked upon an erroneous investigation of the facts underlying the evidence provided. The obligation of the MRT was to refrain from determining whether or not the applicant had suffered domestic violence at the hands of the nominator but simply to determine the sufficiency of the statutory declarations supplied. It is clear that the MRT went well beyond that role. First, the MRT in its hearing embarked upon an inquisitorial task in challenging the evidence of the applicant and his daughters and then making findings about the credibility of that evidence. Those findings were then directly translated into a consideration of the evidence.

The lack of credibility of the evidence of the visa applicant and his daughter diminishes the reliability of the evidence upon which the opinion of the psychologist was said to be based as well as the reliability of the evidence upon which the opinion of the social worker was based who stated that her sources of information were the report of the psychologist in the interview with the visa applicant and his daughter, Poonan.

The MRT was not entitled to embark upon this inquiry and although the MRT is not required to accept statutory declarations without question, 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 that relevant domestic violence has been suffered.

60. The statutory declaration of the applicant includes details about the neck pressing (or strangulation) episode and includes threats to kill the applicant. Subsequently there is a threat to kill made by the nominator's brother. I do not agree with the Tribunal that in order for domestic violence to have been committed by the nominating spouse, the actual threats must be made by that particular person. Threats made by other persons acting on their behalf, or apparently acting on their behalf or at their behest, could in my view properly form domestic violence committed by the nominating spouse. Whilst the statutory declaration of the applicant does not specifically refer to the definition of domestic violence in regulation 1.23(2)(b) in my view the evidence of the applicant and the statutory declaration on its face asserts behaviour on the part of the nominator in circumstances in which it was open for the MRT to conclude that violence had occurred against the applicant and his children which caused him to fear or be apprehensive about his personal well being or safety. The conclusion of the MRT after hearing the evidence of the visa applicant and his daughter of the circumstances surrounding the alleged pressing of the neck so that he would not now be able to truthfully to make a declaration that he was the victim of violence in respect of that incident to the extent it caused him to feel or be apprehensive about his personal well being or safety, fails to take into account the threats to kill. In my view, therefore, the MRT erred in rejecting the evidence of the applicant and his daughter, and therefore in rejecting or diminishing the reliability of the evidence upon which the psychologist and social worker based their opinions.

61. However that was not the only basis upon which the application failed. The MRT went on to then determine that the statutory declaration of the social worker was found not to satisfy sub-regulation 1.26(c) in that she failed to:

...state that in the competent person's opinion, the relevant domestic violence [within the meaning of par 2(b)] has been suffered by a person.

She simply concluded that:

There is some evidence that [the visa applicant] suffered from domestic violence ...

62. The MRT then went on to similarly reject the statutory declaration of the psychologist for failing to specifically state what must be included in the statutory declaration under sub-regulation 1.26(c). The MRT then concluded that none of the statutory declarations satisfied the regulations.

63. It is not clear to me entirely the basis upon which the statutory declarations of the psychologist and social worker were rejected. Regulation 1.26 states what must be the basis for the statutory declaration and is quite specific in its terms. It requires that it be made by a competent person; it must set out the basis of the competent person's claim to be a competent person for the purposes of this Division, and must state the name of the person who in the opinion of the competent person has suffered relevant domestic violence and must name the person who in the opinion of the competent person committed that relevant domestic violence. In addition, subparagraph (c) requires that the statutory declaration:

...must state that, in the competent person's opinion, relevant domestic violence [within the meaning of par 1.23(2)(b)] has been suffered by a person.

This does not require that the statutory declaration must recite the provisions of section 1.23(2)(b). It requires that the statutory declaration must state that domestic violence (which has to be domestic violence within the meaning of par 1.23(2)(b) of the regulations) has been suffered. If the MRT in its conclusion has rejected the statutory declarations because they do not recite the relevant wording of regulation 1.23(2)(b), then in my view the MRT has erred.

64. However, it is clear that the domestic violence that in the competent person's opinion has been suffered must be violence which:

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.

65. Mr Kleynhans sets out a number of matters which cause him to conclude that domestic violence has occurred and that the applicant is suffering from post traumatic stress disorder. In explaining his diagnosis of domestic violence he refers to the fears about the nominator and in particular says:

He experienced some fearful moments (such as death threats) with Sumila and her family and since these experiences, he is very fearful and worrying all the time (eg. he would worry about his family). He is finding it difficult to leave his house as he fears that she or her family will do him harm as they threatened to do so in the past. I am of the opinion that Mr Kumar was at risk in this relationship because of domestic violence.

66. In my view, it is clear from his report that his conclusion is that the applicant had been subjected to violence as set out in his report which has caused him to fear for or be apprehensive about his personal well being or safety. The fact that he did not refer to or use the precise terms of the regulations does not in my view mean that his affidavit is defective. In my view, the MRT erred in rejecting Mr Kleynhans statutory declaration.

67. However the statutory declaration of Ms Cleak is somewhat different. Unlike that of Mr Kleynhans she does not refer at any stage to the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well being or safety. Indeed, in considering domestic violence issues as described in her report and the definition of "domestic violence" given, there is no indication that Ms Cleak was aware of the definition of domestic violence in the regulations and her description of domestic violence as used by her tends to suggest that she was not. As was said by Matthews J in Du v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1115:

The regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these regulations for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in regulation 1.23 has been suffered by a person.

This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here.

This was cited with approval in Alan v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979.

68. The regulations are quite specific. The evidence required to support domestic violence referred to in the regulations requires (in this case) a statutory declaration under regulation 1.25 together with two statutory declarations under regulation 1.26. One of the statutory declarations under 1.26 does not comply with that regulation and therefore the statutory declarations do not satisfy the regulations and the applicant has failed to satisfy subclause 801.221(6) in respect of domestic violence and consequently fails to satisfy clause 801.221.

69. Even if I had been satisfied that the statutory declaration of Ms Cleak satisfied regulation 1.26 the errors committed by the Tribunal would, in my view, not entitle the applicant to relief. First, that ground is not made out merely by establishing that the Tribunal has erred in fact or in law. There is no such thing as deemed or constructive bad faith. The enquiry is directed to the actual state of mind of the decision maker and it is the ultimate decision which must be shown to have been taken in bad faith. SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361 and Minister for Immigration and Multicultural and Indigenous Affairs v SBAN (2002) FCAFC 431. There is nothing in this matter to suggest that the decision maker did not attempt to exercise the power in this case in a bona fide manner.

70. Insofar as a breach of an inviolable limitation is concerned, the applicant contends that the failure by the MRT to properly construe the statutory provisions, and in particular, the definition of "domestic violence", has led to failure to comply with s353 of the Act and is a breach of an inviolable limitation to the exercise of its powers, as explained in NAAV.

71. Even if the applicant's contentions regarding the MRT's approach to the statutory provisions and in particular the definition of "domestic violence" was made out it would create an error of law which is now validated by the privative clause.

72. This is not the sort of matter which was dealt with by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 nor by the Full Court in NAAV.

73. Accordingly, the Application must be dismissed.

I certify that the seventy-three (73) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 20 January 2003
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