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MIGRATION - Migration Review Tribunal decision - partner visa - deficiency in statutory declaration - relevance of compliance with requirements of statutory declaration - whether breach of s.359A of Migration Act - whether contents of statutory declaration supplied by Applicant's `information' for purposes of s.359A.

Sheik v Minister for Immigration [2004] FMCA 621 (9 September 2004)

Sheik v Minister for Immigration [2004] FMCA 621 (9 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEIK v MINISTER FOR IMMIGRATION
[2004] FMCA 621



MIGRATION - Migration Review Tribunal decision - partner visa - deficiency in statutory declaration - relevance of compliance with requirements of statutory declaration - whether breach of s.359A of Migration Act - whether contents of statutory declaration supplied by Applicant's `information' for purposes of s.359A.



Migration Act 1958, s.359A

Migration Regulations 1994

Statutory Declarations Act 1959, s.8

Malik v Minister for Immigration and Multicultural Affairs (2002) 98 FCR 562

Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 201 (10 March 2004)

WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171

Applicant:
SHAHID MUNIR SHEIK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MLG 1198 of 2003



Delivered on:


9 September 2004



Delivered at:


Melbourne



Hearing Date:


9 September 2004



Judgment of:


McInnis FM



REPRESENTATION

Pro Bono Counsel for the Applicant:


Mr J Belbruno



Counsel for the Respondent:


Dr S Donaghue



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application filed 30 October 2003 be dismissed.

(2) The applicant shall pay the respondent's costs fixed in the sum of $6000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MLG 1198 of 2003

SHAHID MUNIR SHEIK


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application by Shahid Munir Sheik against the Minister for Immigration and Multicultural and Indigenous Affairs. It is an application filed on 30 October 2003 where the applicant seeks review of a decision made by the Migration Review Tribunal (the MRT) made on 7 October 2003. The MRT had affirmed a decision under review not to grant a partner residence class BS visa to the applicant and had affirmed the delegate's decision.

2. The factual background is not in dispute and indeed it might be said that in this particular application the area of dispute is somewhat narrow. The application itself refers to two grounds, first the respondent failed to observe the proper procedures with regard to the applicant and to act in accordance with substantial justice, and secondly that the respondent exceeded its jurisdiction.

3. In the applicant's contentions of fact and law filed 25 February 2004 the applicant asserts that the tribunal exceeded its jurisdiction in that, inter alia, it failed pursuant to s.359A of the Migration Act 1958 (the Act) to inform the applicant of information it had that would be the reason or part of the reason to refusing the visa, and further and more particularly, the tribunal reached its decision on the ground that the document provided by a medical practitioner on behalf of the applicant was not a valid statutory declaration. It is further argued that the tribunal failed to inform the applicant or to invite comments from the applicant regarding this information.

4. The appropriate background information and relevant statutory regime has been set out adequately in the respondent's contentions of fact and law filed 26 April 2004. As I have indicated, the factual background and the statutory regime is not in dispute.

5. The applicant is a citizen of Pakistan. He first arrived in Australia as the holder of a student temporary class TU visa on 1 April 1997. He married an Australian citizen on 22 November 2000 and on 10 April 2001 applied for a spouse visa. Before the grant of that visa the student visa was cancelled. He was then granted, however, on 23 November 2001 an extended eligibility temporary visa. It would appear that the applicant's wife had left the matrimonial home as soon as the temporary visa was granted. A few days later the department was advised that the relationship had ended. As a consequence, on 10 December 2001 a delegate of the respondent wrote to the applicant advising him that the department's attention had been drawn to the fact that the relationship had ended. The delegate sought comments from the applicant. On 19 December 2001 the applicant applied to have his application for a permanent visa assessed under the domestic violence provisions of the Migration Regulations 1994.

6. In a statutory declaration dated 13 December 2003 the applicant claimed to have suffered domestic violence at the hands of his wife. He further submitted two other statutory declarations, the first from a psychologist and the second from a medical practitioner. The delegate asked for the medical practitioner's declaration to be resubmitted in paper form. So much is clear from material in the court book, and in particular I refer to paragraph 12 of the MRT decision as follows:

7. On 26 May 2003 the delegate refused to grant the applicant a Partner (Residence) subclass 801 (Spouse) visa. On 13 June 2003 the applicant applied to the MRT for review of that decision. He was then represented before the MRT which, as I indicated earlier, on 7 October 2003 affirmed the delegate's decision.

8. The statutory regime set out by the respondent, as I indicated, is not in dispute. The statutory regime which appears in paragraphs 7 to 13 of the respondent's outline as follows:-

"7. Subclause 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) contains the criteria that were required to be satisfied prior to the grant of the visa. Subclause 801.221(1) requires that, at the time of decision, an applicant fall within at least one of the other paragraphs in subclause 801.221.

8. Subclause 801.221(6), which is the relevant subclause provides:

An applicant meets the requirements of the 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 of the applicant or of both of them;

has suffered domestic violence committed by the nominating spouse.

9. An evidentiary framework for establishing where domestic violence is deemed to have occurred is set out in Division 1.5 of the Regulations.

10. Regulation 1.22 states that a reference to a person having suffered domestic violence is a reference to a person being taken under regulation 1.23 to have suffered domestic violence.

11. Regulation 1.23 provides that `the alleged victim' is `taken to have suffered domestic violence' if evidence is presented by the alleged victim or another person on the alleged victim's behalf in accordance with regulation 1.24.

12. Regulation 1.24(1)(b) requires a statutory declaration to be provided from the alleged victim under regulation 1.25, `together with 2 statutory declarations under regulation 1.26'.

13. Regulation 1.26 relevantly provides that a statutory declaration under that regulation `must be made by a competent person' and must state various specified matters, including that in the competent persons' opinion `relevant domestic violence' has been suffered by the applicant."

9. Of significance in the present application is a finding by the MRT set out in its decision, and in particular set out in paragraph 36 as follows:-

10. It will be evident from paragraph 36 that the MRT has examined the statutory declaration in some detail. The relevant declaration is set out at court book pages 36 and 37. Although the court did not have the benefit of the original of that document, it is evident on the face of the document, leaving aside the observations about the use of different pen, that the date as it appears on the document as being the date declared, namely, 15 December 2001, is different from the date of the witnessing of the document which appears to be either 21 or 25 December 2001. Hence, there is a period of up to perhaps 10 days difference between those two dates.

11. The tribunal in its reasoning had further referred to the material and indeed despite its finding as to the inadequacy of the relevant statutory declaration went on to otherwise make observations about the evidence of the medical practitioner. Ultimately, it concluded that the visa applicant did not meet the requirements of the visa sought in the application.

12. In my view it is relevant to note the framework within which this particular visa operates. It is a statutory regime which has clear requirements and it perhaps also needs to be noted that where there is an opportunity given to applicants to provide statutory declarations, that, in the absence of any further evidence, provides what might be described as some evidentiary advantage to applicants to assist in the consideration of their applications. It is submitted by the respondent in the present case that s.8 of the Statutory Declarations Act 1959 clearly provides that a statutory declaration made under this act must be made before a prescribed person. It is submitted, therefore, the making of the declaration cannot be witnessed on a different day from the day the declaration is made. Such a declaration, it was submitted, would not be made before the prescribed person.

13. In any event, the applicant has not disputed, it was submitted, the conclusion that the document provided by the medical practitioner was not a valid statutory declaration. As I understand the submissions for and on behalf of the respondent, the MRT having made that finding based on the material before it and in circumstances where arguments are not advanced as to the validity of the statutory declaration, the clear requirements of the statutory regime had not been met. The observance of the requirements of the statutory declaration had not been met, and accordingly, the deficiency results in what might be described as a fundamental defect in this application.

14. As I understand the submissions for and on behalf of the applicant referred to earlier and elaborated upon this day, the central submission is that by reaching a conclusion as to the contents of the declaration and/or its validity, that that process itself is a process whereby the MRT has considered what might be described as information, albeit material clearly provided by the applicant. It is claimed that in those circumstances the applicant ought to have been given an opportunity arising out of s.359A of the Act to at least receive that information.

I use the word "information", however, in this case somewhat technically because, in my view, the contents of a statutory declaration submitted by an applicant clearly form part of the information and an assessment provided by the applicant rather than information of a kind which otherwise would activate the operation of s.359A.

15. I should note that it is submitted on behalf of the respondent that in any event it is apparent that s.359A turns upon there being information that is part of the reasons for affirming the decision under review and the applicant has not identified that information. It is suggested the contentions imply that the information is said to be that document provided by a medical practitioner on behalf of the applicant and was not a valid statutory declaration. It is submitted that is not information of a kind that s.359A requires to be disclosed. As I have indicated, in my view, it will require extraordinary mental gymnastics to find otherwise. I accept the submissions in that regard by the respondent.

16. It is clear to me that the MRT has a duty to properly assess documents presented to it for and on behalf of the applicant and as a first essential step must determine whether or not in the case of a statutory declaration the document complies with the requirements of law. It clearly does not in this case comply with the lawful requirements of a declaration as indicated earlier in this judgment. It is clearly deficient. That means that instead of having two valid statutory declarations there is only one submitted and in the circumstances it is almost inevitable that this application would fail.

17. I have otherwise been referred to decisions by both parties. The matter of Malik v Minister for Immigration and Multicultural Affairs (2002) 98 FCR 562 Wilcox J stated:

"I do not think s 359A(1) was intended to require the Tribunal to signal to an applicant its doubts or hesitation about the sufficiency of the case which the applicant, himself or herself, had put before the Tribunal ... f the problem, from the applicant's point of view, is simply that the material which he or she has put before the Tribunal is not sufficiently persuasive, it can hardly be said the applicant has been denied natural justice. He or she put such information as was thought useful, but it turned out to be insufficient to achieve the desired result."

18. In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 201 (10 March 2004) North J stated at paragraphs 42 to 44 the following:-

"42 But the appellant will only suffer a denial of procedural fairness if the belief was a reasonable response to the words and actions of the Tribunal. On the evidence, I am not able to find for the appellant on this aspect. The Tribunal gave several clear indications that it had not formed even a preliminary view about the proper approach which it should take to the application. At the start of the hearing, Mr Young argued that the statutory declarations were conclusive. He sought to persuade the Tribunal that it should not make any independent enquiry into the existence of domestic violence. Notwithstanding that submission, the Tribunal proceeded to hear the three witnesses, one of whom, the appellant, had made a statutory declaration. This process itself indicated that the Tribunal had not determined that the statutory declarations were conclusive, or what their function in the proceeding was to be. Indeed, when Mr Young attempted to clarify what was to be gained from the evidence of the witnesses, the Tribunal said:

`I can't tell you what's in dispute. I'm hearing evidence today so I don't know what's going to be an issue.'

43 Mr Young returned to this issue twice near the end of the hearing. On both occasions, the Tribunal responded that Mr Young's submission had been noted. It did not indicate that the submission had been accepted or rejected. A little earlier Mr Young asked directly whether the Tribunal was happy with the psychologist's statutory declaration. The Tribunal responded:

`Well I'm not saying what I'm happy with at the moment because today I am just soaking up the information from the witnesses and I will then make a decision on it but all I wanted to say was it was just in relation to the format of those documents and that they are lacking just in that sense but...'

44 Whilst I accept that Mr Young left the hearing with the impression that only the formal part of Ms Cleak's statutory declaration required amendment, that impression could not reasonably have been generated by the words or conduct of the Tribunal. The Tribunal raised the formal issue, but it did not suggest that the statutory declaration was otherwise acceptable. Neither did the references made by the Tribunal to the contents of the statutory declarations in the course of questioning the appellant contain any suggestion that the Tribunal was prepared to accept the contents. The central concern of Mr Young was to convince the Tribunal that it should rely solely on the statutory declarations to determine whether domestic violence had been suffered. The Tribunal was non-committal in response. Where the Tribunal raised the issue of the form of the statutory declarations, it said nothing to justify a conclusion that it otherwise accepted the statutory declarations. That subject was not addressed by the Tribunal either expressly or by implication."

19. It seems to me that the decision referred to by the applicant's representative of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171 delivered 15 August 2003 relating as it does generally to procedural fairness does not have application to the present matter.

20. Otherwise, in my view, it is clear that this is not a case where it could be properly said that s.359A would operate in a manner which would assist the applicant. I am otherwise satisfied, to the extent that I need to be satisfied, that there is no basis upon which it could be claimed that the applicant has been denied procedural fairness. Where the MRT has assessed all the material, including the validity of a statutory declaration it does not mean, in circumstances where that document was provided by the applicant himself, that there has been a denial of procedural fairness by simply failing to alert the applicant in this case to the due process that might be followed; namely, an analysis of the validity of that document.

21. In all the circumstances it follows, therefore, the application should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 September 2004
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