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MIGRATION - Spouse visa - domestic violence.

Zhen v Minister for Immigration [2004] FMCA 874 (26 November 2004)

Zhen v Minister for Immigration [2004] FMCA 874 (26 November 2004)
Last Updated: 6 December 2004


[2004] FMCA 874

MIGRATION - Spouse visa - domestic violence.

Migration Act 195 , s.474

Migration Regulations 1994, reg.1.26, Pt.1, Div.1.5, Sch.2 subclauses 100.221(2) &100.221(4)

Cakmak v Minster for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 333




File No:

MLG 280 of 2004

Delivered on:

26 November 2004

Delivered at:


Hearing date:

30 September 2004

Judgment of:

O'Dwyer FM


Counsel for the Applicant:

Ms. Frederico

Solicitors for the Applicant:

Wayne Wong & Associates

Counsel for the Respondent:

Ms. de Ferrari

Solicitors for the Respondent:

Australian Government Solicitor


(1) The application filed on 7 January 2004 and the amended application filed on 11 June 2004 be dismissed.

(2) The Applicant shall pay the Respondent's costs fixed in the sum of $6,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.




MLG 280 of 2004







1. By an application filed on 7 January 2004 and an amended application filed on 11 June 2004 the Applicant sought a review of the decision of the Migration Review Tribunal (the MRT) made on 11 December 2003 wherein the MRT affirmed the decision of the Respondent's delegate made on 23 December 2002 to refuse to grant a Partner (Migrant)(Class BC) visa, subclass 100, to the Applicant.


2. The Applicant is a 28 year old national of the People's Republic of China. The Applicant married his spouse, who is an Australian citizen, in China on 13 September 2000. His spouse became his nominator. He arrived in Australia on 13 April 2001 on a temporary spouse visa which could not become permanent until the expiration of two years from 1 October 2000, when the application for the visa was made.

The two year period is designed to allow an evaluation of whether the spousal relationship is genuine and still continuing at the end of that time.

3. After arriving in Australia, the parties experienced marital difficulties, said by the Applicant to revolve around the nominator's gambling addiction and her constant demands for money with threats; the threats being that should the money not be forthcoming, the nominator would divorce him, withdraw her support and have his visa cancelled.

4. The nominator did withdraw her nomination and on 6 November 2002 advised the Respondent's Department of such.

5. The Respondent's delegate then considered the status of the visa and after inviting the parties to be interviewed and provide material in support of their positions, resolved to refuse to grant the Applicant a permanent spouse visa.

6. There is no dispute that the spouse relationship has ended and had ended at the time of both the delegate's and MRT's decisions.

Because of that, it was conceded that the only avenue to the Applicant to obtain a permanent spouse visa was if he qualified under subclause 100.221(4)(c) of the Migration Regulations 1994 (the Regulations); namely, that after arriving in Australia he was the victim of domestic violence perpetrated by his spouse.

7. The material provided by the Applicant included a history of his treatment by the nominator, a history of his admission to hospital following an attempted suicide by him and statutory declarations by two psychologists and a social worker who had a professional involvement with him.

8. In essence, the delegate and the MRT found that the difficulties suffered by the Applicant at the hands of the nominator did not amount to domestic violence.

9. The decision is a "privative clause decision" under s.474 of the Migration Act 1958 and, as such is final unless it can be shown that there was a "jurisdictional error" on the part of MRT.

Applicant's contentions

10. In final submissions the Applicant's case was narrowed to a consideration as to whether the MRT applied the wrong test, or made an error in law or failed to ask the right question, when it did not find the conduct of the nominator amounted to domestic violence.

The issue raised in the Applicant's amended application and contentions that there was a failure to provide procedural fairness because of the employment of an allegedly inadequate interpreter was withdrawn at the hearing.

11. The Applicant submitted that, on the face of the evidence of competent witnesses:-

(i) the suicide attempt by the Applicant was a serious physical harm brought about by the conduct of the nominator, which conduct amounted to domestic violence;

(ii) the continual harassment of the Applicant for money coupled with threats to divorce him and have his visa cancelled, amounted to bullying, which amounts to domestic violence;

(iii) in not asking the question about bullying and its association with domestic violence, the MRT erred; and

(iv) the MRT erred in applying too narrow a definition of domestic violence, to the exclusion of a proper consideration of the bullying suffered by the Applicant and the physical harm as a consequence, evidenced by the attempted suicide, as constituting domestic violence.

12. The Applicant proffered the following definitions of bullying:

(i) "persecute, intimidate, oppress (physically or morally) by threats of superior force" - The New Shorter Oxford English Dictionary;

(ii) "Bullying is repeated oppression, psychological or physical .. (sic) of a less powerful person by a more powerful person or group of persons" - Dr Ken Rigby, "What harm does bullying do?", a paper delivered at conference convened by the Australian Institute of Criminology, Brisbane, June 1999.

13. Whilst I am satisfied that the treatment afforded the Applicant by the nominator may meet the definition of bullying, it is, however, another thing altogether to say bullying and, in particular, of the type described by the Applicant, constitutes domestic violence as contemplated by the applicable legislation.

14. The applicable legislative regime is set out in subclauses 100.221(2) and (4) and Pt.1 Div.1.5 of the Regulations. Subclause 100.221(4)(c) provides for the situation where:

"(c) after the applicant first entered Australia as the holder of that visa ...

(i) ...


(B) ... the applicant has suffered domestic violence committed by the sponsoring spouse."

15. "Violence" is not defined, save to say it includes a threat of violence (see Div.1.5 of the Regulations). What constitutes violence and domestic violence in the context of subclause 100.221(4) was considered by the Full Court of the Federal Court in Cakmak v Minster for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 333 at 350 per Gyles, Conti and Allsop JJ (the Cakmak case).

Their Honours, after considering definitions of violence, went on to conclude at paras 61 and 62 that:

"to `commit' or `perpetrate' violence or the treat of violence involves the act, or threat of, application of physical force. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little by way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling expressions or contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement.

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

16. Their Honours went on to say at p351:

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

17. There appears little doubt that domestic violence requires, in the context of the Regulations as considered in the Cakmak case, an element of physical force, or the threat of it. In light of the above, to contend, as the Applicant does, that an attempted suicide is evidence of the effect of the behaviour on one's well being and personal safety and, therefore, ipso facto, the behaviour must be categorised as domestic violence, is untenable.

18. The MRT's finding that there was no domestic violence is clearly correct and it cannot be said to have failed to ask the right question, or applied the wrong test.

19. In respect of the contention that the MRT failed to take into account relevant information, such as the declarations of Ms Novella made on

9 December 2002 and that of Ms Nelson made on 25 March 2003, it is apparent from the MRT's decision that both were considered and found not to have complied with the regulatory requirements of reg.1.26. That failure rendered them inadmissible. It further follows that the inadmissibility of the statutory declarations resulted in the Applicant's failure to establish the required evidentially proof of domestic violence (see the Cakmak case at p337). The MRT did not err in taking the position it did.


20. To bring his candidature for a permanent spouse visa within the provision of subclause 100.221(4)(c), the Applicant relied on extending the plain meaning of "domestic violence" to include the threats by the nominator to withdraw her nomination unless he gave her money.

The Cakmak case, in my view, clearly precludes such an extension.

It excludes psychological pressure created by "constant harassment", as it was submitted, notwithstanding that the harassment may have created in the mind of the Applicant such stress as to result in physical harm; namely, an attempted suicide.

21. In any event, the Applicant relies upon the material tendered to the MRT from allegedly "competent witnesses" which did not comply with regulatory provisions and which, correctly, was rejected by the MRT. Because of its rejection, there was no admissible evidence before the MRT upon which it could have made a finding of "domestic violence".

22. The Applicant has failed to show that the MRT has committed a jurisdictional error. As a consequence, I find that the MRT has not erred in any manner that would devoid the protection of the decision afforded by s.474 of the Act. Accordingly, the review application should be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM


Date: 26 November 2004
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