The effect of the deeming provision
34 In its reasons for decision, the Tribunal referred to Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 at [18], where Mathews J said:
"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."
35 In Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482, decided after the Tribunal's decision in the present case, Ryan J also grappled with the relevant provisions of the Migration Regulations. At [32] - [35], his Honour said:
"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 Reg 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 Reg 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 Reg 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 Reg 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 the 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."
36 In Meroka, Ryan J held that the Tribunal had declined to accept the declarations of two competent persons as activating the deeming mechanism in reg 1.23(1), not because they failed to state the requisite opinions, but because the evidence on which those opinions were based did not, in the Tribunal's view, establish relevant domestic violence as defined. His Honour held that the Tribunal went beyond asking itself whether that evidence was capable, as a matter of law, of supporting an opinion that relevant domestic violence had been committed. His Honour set aside the Tribunal's decision in that case and ordered that the matter be reheard.
37 In the present case, both parties placed considerable reliance on what Ryan J said in Meroka. Neither counsel contended that anything that his Honour said was wrong.
38 The relevant provisions of the Migration Regulations recognise that it would be unjust to refuse to grant a subclass 100 visa to a person whose marriage or other relationship had come to an end if the person has been the victim of violence at the hands of his or her spouse or partner. To alleviate the difficulties faced by the victims of domestic violence in giving accounts of that violence, which are often exacerbated by behavioural norms that depend on culture and tradition, the regulations have provided for a specific method of proof of domestic violence. No doubt, at the heart of the scheme provided by the Migration Regulations, is the assumption that the competent persons who make statutory declarations will be those whom the victim consults in the immediate aftermath of an episode or episodes of violence. In such cases, the declarant will often be able to observe signs and symptoms of the violence and to form an opinion as to whether those signs and symptoms are consistent with the account given by the alleged victim. It was no doubt for this reason that Mathews J in Du spoke of consistency between a person's presentation and their account of domestic violence or its occurrence.
39 The problem, however, is that the regulations are not in terms limited to cases in which the competent person has been consulted shortly after the occurrence of an incident alleged to constitute all or part of the domestic violence. As occurred in the present case, each of the competent persons might be consulted at some considerable time after the occurrence of any relevant incident. As Ryan J recognised in Meroka at [37], a competent person will rarely, if ever, have first-hand knowledge of the conduct said to constitute the domestic violence as to which his or her opinion is being furnished. In most, if not all, cases, the source of information on which the competent person must act in forming the requisite opinion will be the alleged victim. For this reason, there is a considerable level of responsibility attaching to the making of a statutory declaration by a competent person, to enquire as to the details of the allegations and to exercise professional judgment as to whether what the alleged victim says can be accepted as an account of events satisfying the definition of domestic violence. It is for this reason that reg 1.26(f) requires that the declaration of a competent person describe briefly the evidence on which the competent person's opinion is based.
40 The traditions underlying our legal system have embedded in them a considerable suspicion of mechanical modes of proof. The relatively rare instances in which a finding of the truth of a serious allegation cannot be made because of the requirements of rules of corroboration quite rightly fuel this suspicion. Australian law contains no rule that the evidence of two women is required to equal the evidence of one man, a rule sometimes said to be a feature of some other legal systems. Mechanical modes of proof are regarded as capable of producing injustice. They also undermine the confidence normally reposed in the fact-finding abilities of courts. The effect of reg 1.23 of the Migration Regulations is to institute a mechanical mode of proof. The regulation requires that a finding in respect of a serious allegation must be made if the right mechanism is adopted to prove that allegation. In such circumstances, it is appropriate to be vigilant to ensure that every element of the mechanical mode of proof has been satisfied.
41 The Tribunal appears to have acted on the basis that it was not proper for any of the competent persons to rely on the applicant's account of the sponsor's actions towards him. This is implicit in the Tribunal's criticism of each of the declarants for relying only on the consistency of the applicant's accounts of what had occurred. As I have said, the relevant regulations require that the competent person rely on an account given by the alleged victim, so the statutory declarations cannot be regarded as failing to comply on this ground. The Tribunal was in error in rejecting them for this reason.
42 It may therefore be that the first reason on which the Tribunal rejected the applicant's case was not open to it. As I have said, however, the Tribunal gave two reasons. The second was that the applicant had not proved, by appropriate means, violence that was sufficiently serious to satisfy the definition of domestic violence. In my view, it was open to the Tribunal to reach this conclusion.
43 The only episode of violence alleged by the applicant in his own statutory declaration, and referred to in part by Ms Guducu in hers, was an occasion when the sponsor allegedly threw the contents of a can of soft drink in his face and scratched him over his face and chest. There is no mention in the applicant's statutory declaration of verbal abuse by the sponsor, only by members of her family. Ms Guducu referred to physical abuse by scratches to the applicant's chest and to continued verbal abuse since that time, without specifying its nature or quality. Ms Sozer referred to both physical and psychological/verbal abuse experienced by the applicant during his marriage. She referred to "constant verbal abuse (insults, threats and degrading comments) from his wife". She did not detail the nature of any physical or psychological abuse, or the identity of the person alleged to have inflicted it. Dr Munir referred to the applicant being "constantly abused by his wife and her family verbally and physically" and being "humiliated and threatened to be sent back to Turkey if he did not obey his wife on all issues." No description of any physical abuse was given. No attempt was made to distinguish between abuse by members of the sponsor's family and by the sponsor herself.
44 It was open to the Tribunal to take the view that a single episode of physical violence, which at its highest resulted in the humiliation of being splashed in the face with soft drink and physical injury amounting to scratches on the face and chest, was not of itself sufficiently serious to amount to domestic violence satisfying the definition. The Tribunal was, of course, obliged to take into account the extent of any threats or humiliating comments made by the sponsor that might have contributed to the requisite state of mind of the applicant. The problem was that the applicant did not allege them in his statutory declaration. There were variations in the descriptions of them between the three competent persons. As a result, the Tribunal could not have made a clear finding on the evidence as to the nature of threats or humiliating comments by the sponsor herself, as distinct from members of her family, or as to the separate effect on the applicant's state of mind of anything said by the sponsor. In the words of Ryan J in Meroka at [32], both Ms Sozer and Dr Munir had referred to "'evidence' which was quite unrelated to whether relevant domestic violence had been suffered by the applicant". Only Ms Sozer's statutory declaration was confined to verbal abuse from the sponsor. A single statutory declaration of a competent person could not satisfy the requirement of reg 1.24(1)(b) that there be two such declarations.
45 In the circumstances, it was open to the Tribunal to be satisfied that, even in conjunction with the single episode of violence, no allegation had been made of conduct sufficiently serious to amount to domestic violence in accordance with the definition.
46 There was no substance in the submission on behalf of the applicant that the Tribunal had wrongly ignored the statutory declaration of Serpil Ozalp. The Tribunal was correct in holding that "welfare worker" was not a qualification satisfying the definition of "competent person" in reg 1.21. There was nothing in the statutory declaration itself to indicate either that Ms Ozalp had any of the qualifications referred to in reg 1.21(1)(a)(i) - (v), or that the Australian Turkish Association was a women's refuge or a crisis and counselling service that specialised in domestic violence, within the meaning of reg 1.21(2). The Tribunal could not therefore take into account the contents of the statutory declaration as part of the mechanical process of establishing that the sponsor had committed domestic violence in relation to the applicant. To the extent to which the declaration could be viewed on its own, it suffered from the same vice as the declarations of Ms Guducu and Ms Sozer, in that it failed to distinguish between what had been done by the sponsor and what had been done by her relatives. Nor did it corroborate evidence of the applicant in relation to threats or verbal abuse because, as I have said, he gave none. To the extent to which Ms Ozalp corroborated the applicant's evidence as to the scratching incident, even assuming that this single incident of physical violence had occurred, as the Tribunal appeared to do, it was open to the Tribunal to find that there was nothing serious enough to amount to domestic violence for the purposes of the relevant criterion.