Alin v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-08-07|Before: Sundberg J

BACKGROUND 1 The applicant is a national of the United States of America. He was born in Saudi Arabia in 1957 and was raised in Somalia. He applied for a General (Residence) (Class AS) visa, Subclass 801 (Spouse) ("the spouse visa"). The application was refused by the respondent's delegate. The applicant applied to the Migration Review Tribunal for review of the delegate's decision. The Tribunal affirmed the decision, and the applicant has applied to the Court for review of the Tribunal's decision under Part 8 of the Migration Act 1958 ("the Act"). The application to the Court was filed after the new Part 8 of the Act introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 came into operation, and accordingly is to be dealt with under the new provisions.

LEGISLATION 2 Section 65(1) of the Act provides in part that "After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa." 3 The criteria for the grant of a spouse visa are contained in clause 801.22 of the Migration Regulations ("the Regulations"). So far as material to the present case, the criteria to be satisfied at the time of decision are set out in subclauses (2) and (6) of clause 801.221. Subclause (2) is as follows: "An applicant meets the requirements of this subclause if: (a) the applicant is the holder of a Subclass 820 visa; and (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Spouse) visa by: (i) the sponsoring spouse … (c) the applicant is the spouse of the sponsoring spouse; and (d) … at least 2 years have passed since the application was made."

"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 sponsoring spouse has ceased; and (c) either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; … has suffered domestic violence committed by the sponsoring spouse …."

The word "spouse" is defined in reg 1.15A(1) as including two persons who are in a married relationship. Sub‑regulation (1A) provides:

"Persons are in a married relationship if: (a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and (b) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis." 4 Division 1.5 of the Regulations contains Special Provisions Relating to Domestic Violence. Regulation 1.23(1) provides in part that: "For the purpose 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 subregulation (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.

A spouse of the alleged perpetrator is one of the persons referred to in subregulation (2). Regulation 1.24(1) provides in part that:

"The evidence referred to in paragraph 1.23(1)(g) is: … (c) a statutory declaration under regulation 1.25, together with two statutory declarations under regulation 1.26."

Regulation 1.25 deals with a declaration by the spouse of the alleged victim. Regulation 1.26 is as follows:

"A statutory declaration 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 a person; and (d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and (e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and (f) must set out the evidence on which the competent person's evidence is based."

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

The word "violence" includes a threat of violence. The expression "competent person" is defined in reg 1.21(1) to include a registered medical practitioner and a registered psychologist.

EVIDENCE BEFORE TRIBUNAL 5 The applicant entered Australia in July 1998 on a visitor visa. In August 1998 he married Amina Adan Gabas (the sponsor). On 8 September 1998 the applicant lodged an application for a spouse visa based on his marriage. On 12 November 1998 he was granted a temporary subclass 820 spouse visa. On 26 September 2000 the Department was advised by the sponsor that the relationship between the sponsor and the applicant was no longer continuing and had irretrievably broken down on 1 September 2000. In refusing the spouse visa the delegate stated that since the applicant and the sponsor were not in a spousal relationship, the requirements in reg 1.15A were not met. See the definition of "spouse" in reg 1.15A(1A). 6 When lodging his application for review of the delegate's decision, the applicant stated that he was asked by the sponsor to intervene in problems her nephew was having with the nephew's former wife. He declined to do so with the result that he was forced to leave the matrimonial home in September 2000. He submitted a medical report from Dr Munir in which it was stated that the marriage had broken up on 5 October 2000 when his wife destroyed all his clothes and other belongings, and threatened to kill him if he came back to the house or anywhere near her. The Tribunal described the applicant's claim that his wife abused him as follows: "He … said that on 16 September 2000 his wife yelled at him for between 1 and 2 hours and during that time she pulled his shirt and pushed him so that he fell against a coffee table but she did not hit him. His wife accused him of being a liar and of being involved in his nephew's divorce. The visa applicant conceded that this was the only occasion that his wife had been physically abusive of him but claimed that the verbal abuse started in November 1999. The verbal abuse consisted mainly of calling him a liar. … The visa applicant said that he feels threatened and that he is sure that his wife will do something to harm him."

TRIBUNAL'S FINDINGS 7 The Tribunal found the applicant was no longer nominated by the sponsor and accordingly did not satisfy clause 801.221(2)(b) and thus clause 801.221(2). It then found that requirements (a) and (b) of clause 801.221(6) were satisfied. The Tribunal then considered requirement (c)(i)A - whether the applicant had suffered domestic violence committed by the sponsor. It referred to the statutory declarations of Dr Munir and Mr Garcia, a psychologist: "The statutory declaration provided by the medical practitioner stated that the visa applicant consulted him on 14 February 2001 'complaining of lack of sleep, irritability, lack of enjoyment of life, anxiety symptoms and feeling stressed for several months'. The visa applicant related the problem to the break up of his marriage. The visa applicant told the doctor that his wife 'destroyed his clothes' and 'threatened to kill him if he came into her house'. The doctor diagnosed reactive anxiety/depression secondary to divorce. The doctor saw the visa applicant on 2 other occasions in late February and early March 2001. The statutory declaration by the psychologist relates similar facts and concludes that the visa applicant 'was subjected to a series of actions that may indicate that he suffered domestic violence'."

The Tribunal found that the incidents relied on were not sufficiently serious for the applicant to have the benefit of the domestic violence exception to the general requirement that there be a genuine and continuing marriage relationship at the time of decision "to paraphrase the words of Lindgren J quoted above" (Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909). It was not conduct that had the consequence of causing the applicant the fear or apprehension of which Wilcox J spoke in Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291.

GROUNDS OF REVIEW 8 In his application for review the applicant claims that

· his statement to the Tribunal of "continuous, sustained and repetitive domestic violence was not considered seriously"

· "the fact that the domestic violence I suffered was ongoing and had culminated in physical violence to my person on 16/9/2000 was not given due importance"

· the statutory declarations "provided by the medical practitioners were not given the due weight and significance they deserved"

· the threat of violence constituted domestic violence, and the Tribunal erred in stating that "such violence was not sufficient to exempt me from the general requirement"

· the domestic violence was "so serious to have caused me to have a fear or apprehension for my personal safety and well‑being …".

9 Part 8 no longer creates a statutory right of review of Tribunal decisions. The jurisdiction of the Court to review those decisions is now derived from s 39B of the Judiciary Act 1903 (Cth). The Tribunal's decision is a "privative clause decision" within s 474 of the Act. The effect of s 474(1) has been considered in many cases. The Minister explained the ambit of s 474 in the Second Reading Speech as follows: "The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently. In practice, the decision is lawful provided: · the decision maker is acting in good faith; · the decision is reasonably capable of reference to the power given to the decision maker - that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member; · the decision relates to the subject matter of the legislation - it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and · constitutional limits are not exceeded - given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise."

That is essentially the view taken of the effect of s 474 in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281, NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 and Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 and other cases.

10 There is and could be no suggestion that any of the provisos referred to in the Second Reading Speech and the above cases are applicable to the Tribunal's decision. 11 A different view of the effect of s 474 has been taken in other cases. See for example Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 and Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498. A specially constituted Court of five judges has been convened with a view to resolving the differences of opinion that have emerged in the first instance decisions. It is not appropriate that I await the decision of that Court before giving judgment in this case, because even if one were to apply the common law grounds of review considered in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21‑22, it would not assist the applicant. His grounds set out in par 8 invite a review of the merits of the Tribunal's decision. The Tribunal made no error of law. It did not identify a wrong issue, ask the wrong question, ignore relevant material or rely on irrelevant material. There is no suggestion of a denial of procedural fairness. All that is claimed is that the Tribunal did not come to the conclusion the applicant thinks it ought to have come to. 12 Even if I had discerned reviewable error under the approach adopted in the decisions referred to in par 9 or that adopted in those referred to in par 11, I would not have granted the relief sought. The statutory declarations of the medical practitioner and the psychologist do not satisfy reg 1.26. Dr Munir's declaration contains no indication that he was aware of the definition of domestic violence in reg 1.23(2)(b), and makes no reference 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. Nor is there any indication that Mr Garcia was aware of the definition of domestic violence and was expressing his opinion by reference to it. In the last line of the report attached to his declaration he merely says that the applicant was subjected to "a series of actions that may indicate that he suffered domestic violence (emphasis added). This is firmed up somewhat in his declaration - "it appears to me" that the applicant was a victim of domestic violence. Mr Garcia makes no reference to the applicant's state of mind. He expresses no opinion on the central part of the definition. Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 is distinguishable. There the competent persons made statutory declarations on forms approved by the Department which incorporated by reference the definition of domestic violence in reg 1.23(2)(b). See pars 34 and 48 of Ryan J's judgment in that case. 13 In Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 Mathews J said at pars 18‑19: "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 reg 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."

14 There is a further reason why the spouse visa criteria could not be met by the applicant. As Ryan J said in Meroka v Minister for Immigration and Multicultural Affairs above at par 38, the evident purpose of sub‑clauses 801.221(5) and (6) is to deal with persons who are the holders of Subclass 820 visas and whose relationship has come to an end through the death of the sponsoring spouse or as a result of domestic violence for which the sponsoring spouse was responsible. Here the parties' relationship came to an end before the alleged violence occurred. See the definition of "spouse" in reg 1.15A(1A). The Tribunal found, in accordance with information provided by the sponsor, that the relationship came to an end on 1 September 2000. The alleged violence did not occur until 16 September 2000. 15 For the foregoing reasons, any assumed error by the Tribunal could not have affected its decision that the applicant was not entitled to a visa. Cf Craig v South Australia at 179 and Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 350. For the same reasons it would have been pointless to have remitted the matter to the Tribunal. In the exercise of my discretion I would not have done so.

CONCLUSION 16 The application must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Respondent: Australian Government Solicitor

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