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[2002] FCA 1279
respondent. Application dismissed, with the applicant to pay the respondent’s costs.
The case concerned whether two professional declarations adequately supported a claim that an applicant had suffered domestic violence for partner-visa purposes. The Court said one declaration was inadequate because it did not identify the evidence behind the doctor’s opinion. The Tribunal was wrong to reject the psychologist’s declaration merely because it allowed that other factors may have contributed to the applicant’s condition. Even so, the required declarations were not all compliant, so the Tribunal’s refusal was not legally wrong in its ultimate result. The Court dismissed the review application and did not decide the separate s 474 question.
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In Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279, Wilcox J considered a judicial review application concerning the domestic-violence provisions for a partner visa. The applicant, Taleb Mahmoud Ibrahim, was a Lebanese national who arrived in Australia on 19 June 1999 on a prospective marriage visa linked to his planned marriage to Sussan Saleh, an Australian citizen. They married on 21 January 2000 and apparently lived together in Thomastown, Victoria [3].
No linked legislation citations have been extracted yet.
Mr Ibrahim applied for permanent residence in March 2000, with Ms Saleh as nominator. In February 2001, Ms Saleh told the Department that the marriage had ended “in about December 2000 or earlier” and withdrew her nomination [5]. Mr Ibrahim initially maintained that the marriage remained genuine and continuing, but admitted at a later interview that this statement was false and that he had misled the Department [6].
A delegate refused his partner-visa application because he no longer met the ordinary criterion requiring the nominating spouse’s continuing support [7]. Before the Migration Review Tribunal, Mr Ibrahim relied on the regulatory domestic-violence exception. That exception could apply where a relationship had ceased but the applicant or a dependent child had suffered domestic violence committed by the nominating spouse [20].
The dispute in the Federal Court concerned the form and sufficiency of three declarations. Mr Ibrahim made a statutory declaration and submitted Form 1040 declarations from Dr Tadros, a medical practitioner, and Ms Vrklevski, a psychologist. The professional declarations named Ms Saleh as the alleged perpetrator. Dr Tadros referred to alleged incidents involving a kitchen knife and an assault in a park. Ms Vrklevski described alleged verbal and emotional abuse and episodes involving a television remote control [12–17].
The Tribunal found that the declarations did not meet reg 1.26, and affirmed the refusal [33–34]. Wilcox J concluded that the Tribunal’s treatment of the two professional declarations involved errors, but that the errors did not change the result. Dr Tadros’s declaration failed the regulatory requirement to identify the evidence on which his opinion was based. Ms Vrklevski’s declaration, by contrast, was not deficient just because her opinion acknowledged possible other contributors to Mr Ibrahim’s condition [43–46]. The application was dismissed, with costs ordered against Mr Ibrahim [48].
The statutory framework was central. Section 65 of the Migration Act required the Minister to grant or refuse a visa according to whether the prescribed criteria were met [18]. The ordinary partner-visa pathway required continued nomination by the spouse. The exception in para 801.221(6) could apply when the relationship had ceased and the applicant or a dependent child had suffered domestic violence committed by the nominating spouse [20].
The regulations supplied a particular evidentiary route for establishing that domestic violence was to be “taken” to have occurred. Under reg 1.23(1)(g), the alleged victim, or someone acting for them, had to present evidence in accordance with reg 1.24. One permitted route was a declaration by the alleged victim under reg 1.25 together with two declarations by competent persons under reg 1.26 [22–26].
Regulation 1.26 required more than the professional’s status and conclusion. The declaration had to identify the competent person’s qualifications or basis for being competent, state the opinion that relevant domestic violence had been suffered, identify the victim and perpetrator, and set out the evidence supporting the opinion [27]. The Court, adopting the approach in Meroka, treated this as a statutory sufficiency inquiry. The Tribunal was not to decide for itself whether the applicant had actually suffered domestic violence, but it could examine whether the declarations met the regulatory requirements [35–38].
Applying that framework, Wilcox J found Dr Tadros’s declaration insufficient. The declaration said that, “Based on my full clinical assessment”, Mr Ibrahim had “most likely suffered from domestic violence”. But it did not say what evidence formed the basis of that assessment [43]. The doctor’s description elsewhere in the form of alleged incidents did not cure the defect: the Court observed that he had not said he based his opinion on those statements [44]. The declaration therefore did not satisfy reg 1.26(f).
The analysis of Ms Vrklevski’s declaration went the other way. She identified Mr Ibrahim’s behaviour during assessment and interview as evidence. The Tribunal rejected her declaration as “qualified”, apparently because she acknowledged that other factors might have contributed to his mental breakdown [33, 45]. Wilcox J held that this was not a valid reason to treat the declaration as deficient. The visa criterion did not require proof that a continuing physical or mental effect existed, or that domestic violence was its sole cause [45].
That did not secure the applicant’s visa criterion. The required evidence included declarations from two competent persons. Since Dr Tadros’s declaration did not comply, the declarations did not collectively satisfy the regulatory route, even though the Tribunal had wrongly rejected the psychologist’s declaration for the reason it gave [46]. The decisive point was the effect of the errors on the ultimate conclusion, not whether every part of the Tribunal’s reasoning was correct.
The judgment explains the relevant legal framework as it stood in 2002, rather than setting out a general account of the law before and after the decision. Its focus is the interaction between the partner-visa criteria and the documentary mechanism in regs 1.23–1.26.
Before the decision, the ordinary partner-visa criterion described in the judgment required the applicant to continue to be nominated by the spouse [20]. Paragraph 801.221(6) provided an alternative where the relationship had ended and the specified domestic-violence circumstance applied. The regulations then prescribed what evidence was needed for a person in the relevant category to be taken to have suffered domestic violence [22–27].
The judgment clarifies how that evidence mechanism operated. A competent person’s opinion alone was not enough: the declaration also had to set out the evidence on which the opinion was based [35, 43]. At the same time, the decision-maker was not authorised to replace the professional’s opinion with its own view of the underlying facts, provided the prescribed material met the regulatory conditions [36–39]. Wilcox J endorsed the approach expressed by Ryan J in Meroka [35–37].
The decision also identifies a practical consequence of the scheme. It could prevent an inquiry into the underlying facts where the required declarations were supplied, while making the prescribed documentary requirements decisive even where a decision-maker might otherwise believe domestic violence had occurred [40]. This criticism is part of the Court’s explanation of the scheme’s effect, not a holding that the regulations were invalid.
The judgment does not establish what the law became after 2002. It does not discuss later amendments, later cases, or subsequent statutory developments. It also did not decide whether s 474 excluded judicial review in this case. Wilcox J said it was unnecessary to determine that question after finding no error in the Tribunal’s ultimate conclusion [47]. Any account of the later state of the law would require sources beyond this judgment.
At [35], Wilcox J set out the reasoning from Meroka: a competent person’s declaration needed to set out evidence, but a decision-maker could not substitute its own opinion on whether domestic violence had occurred. In plain English, the professional had to show what the opinion rested on; the Tribunal’s role was not to conduct its own trial of the alleged violence.
At [37], Wilcox J agreed with that understanding of Meroka. He also identified what he saw as an unusual consequence: if the declarations complied, the underlying opinion could be based on the applicant’s account, even if the account lacked apparent credibility. That observation explains the boundary the Court drew between checking formal and evidentiary compliance and making an independent factual finding.
At [43], the Court called Dr Tadros’s statement a “trust me” statement. In context, the criticism was specific: saying that an opinion followed from a full clinical assessment did not set out the evidence supporting the opinion, as reg 1.26(f) required.
At [45], the Court explained why the psychologist’s acknowledgement of possible other causes did not disqualify her declaration. The relevant question was whether she held the required opinion about past domestic violence, not whether the applicant had a continuing condition attributable exclusively to that violence.
At [46], Wilcox J drew the controlling distinction: the Tribunal had erred in its treatment of both declarations, but the errors pointed in different directions and did not undermine the ultimate conclusion. The doctor’s declaration remained insufficient, so the overall evidentiary requirement was not met.
At [47], the Court left the s 474 issue open. It did not rule that s 474 barred review or that it did not apply. It only observed that the provision could present a problem for the applicant if it were necessary to decide the issue.
The decision is most directly relevant to cases involving a partner-visa application where a relationship has ended, the spouse has withdrawn nomination, and the applicant seeks to rely on the domestic-violence exception under para 801.221(6) as described in the judgment [20].
It is particularly relevant where the applicant uses declarations from competent persons, such as a registered medical practitioner or psychologist, to satisfy the evidentiary pathway in regs 1.23–1.26 [26–27]. The central question is not simply whether the professional supports the claim. The declaration must state the required opinion, identify the relevant people and set out the evidence on which the opinion rests [27].
The decision distinguishes two types of deficiency. A bare conclusion, or an unexplained reference to a clinical assessment, may fail because the declaration does not identify its evidentiary basis [43]. Conversely, an opinion is not necessarily deficient because the professional recognises that other factors may have contributed to the applicant’s mental or physical state, where the governing criterion does not require proof of an ongoing effect caused solely by the violence [45].
The judgment also bears on cases where the evidence is indirect. Wilcox J noted that competent persons will often encounter the applicant away from the alleged perpetrator and may not personally witness the violence. In many cases, their opinion will necessarily rely on the applicant’s account or other indirect material [38–39]. The decision does not say that hearsay automatically satisfies reg 1.26(f); it says the scheme may permit reliance on such material, while still requiring the declaration to identify the evidence relied on.
The supplied judgment does not describe how later courts treated Ibrahim. It contains no later judicial decisions applying, distinguishing, overruling or reconsidering its reasoning. It would therefore be unsupported to state a later treatment history on the basis of this source alone.
The judgment does identify two authorities relevant to its own reasoning. First, the Tribunal had referred to Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482. Wilcox J considered Ryan J’s reasoning in that case, said it reflected the effect of the regulations, and expressly agreed with it [35–37]. That is the clearest precedent relationship in the supplied text.
Second, Wilcox J referred to NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 when discussing s 474 and the so-called Hickman conditions [47]. But he did not decide the s 474 issue. The reference is therefore not a determination that NAAV controlled the outcome; it identifies a potentially relevant framework for an issue the Court left unresolved.
The judgment also records that the Tribunal mentioned Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 290 and Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909 in connection with the meaning of “domestic violence” [28]. Wilcox J’s own analysis, however, focuses on the declaration requirements and the effect of Meroka. The supplied reasons do not provide a substantive account of how Ibrahim affected those cases or how those cases affected the Court’s conclusions.
The most explicit open question is the application of s 474. Wilcox J did not decide whether the privative clause excluded review of the alleged error. He observed that it might be difficult to establish that an erroneous conclusion about para 801.221(6) involved failure to comply with an inviolable condition of the Tribunal’s power or contravention of the Hickman conditions [47]. That is a provisional observation, not a ruling.
The judgment also leaves open how the declaration rules would apply to different kinds of supporting material. It explains that a competent person may rely on an applicant’s statements, because professionals will rarely witness the violence themselves [38]. But the Court does not comprehensively define what kinds or levels of evidence will satisfy reg 1.26(f) in other cases. Its specific conclusions are that Dr Tadros’s unexplained reference to a full clinical assessment was inadequate, while Ms Vrklevski’s reference to behavioural observations during interview was sufficient for the issue before the Court [43–45].
Another question concerns the practical tension the Court identified between documentary form and underlying reality. Wilcox J criticised the scheme’s potential to make the prescribed declarations decisive regardless of the apparent cogency of the underlying account [40–41]. The judgment does not determine whether that consequence could be addressed through statutory interpretation beyond the approach it adopts, or through later legislative change.
Finally, the reasons include an apparent reference to “806.221(6)(c)” at [45], whereas the surrounding discussion concerns para 801.221(6)(c). The judgment does not explain that reference. The analysis above follows the provisions identified elsewhere in the reasons and does not infer a separate criterion from the inconsistent number.
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REASONS FOR JUDGMENT WILCOX J: 1 This is an application by Taleb Mahmoud Ibrahim for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The application is made under s 39B of the Judiciary Act 1903. 2 The Tribunal decided to affirm a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), that the applicant is not entitled to the grant of a Partner (Residence) (Class BS) visa, subclass 801. The background facts 3 The applicant, a national of Lebanon, arrived in Australia on 19 June 1999. At that time, he held a Prospective Marriage (Temporary) (Class TO) visa, issued to him on account of his proposed marriage to Sussan Saleh, an Australian citizen. The marriage took place on 21 January 2000. The applicant and Ms Saleh thereafter apparently lived together in the Melbourne suburb of Thomastown. 4 On 7 March 2000 Mr Ibrahim applied for a General (Residence) (Class AS) permanent visa. Ms Saleh acted as nominator in connection with that application. On 1 May 2000 Mr Ibrahim was granted an Extended Eligibility Temporary visa, apparently to cover his position until the application for permanent residence could be resolved. 5 On 8 February 2001 Ms Saleh informed the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") that her marriage had ended "in about December 2000 or earlier", when Mr Ibrahim suddenly left the matrimonial home and went to Sydney. She withdrew her nomination of Mr Ibrahim for a visa. 6 Thereafter, there was contact between officers of the Department and Mr Ibrahim. On 19 April 2001 Mr Ibrahim sent a statement to the Department in which he asserted that he was still in a genuine and continuing marriage. However, at an interview on 30 May 2001, Mr Ibrahim admitted this statement was false and that he had misled the Department. 7 Following this interview, a delegate of the Minister refused what had apparently become an application by Mr Ibrahim for a Partner (Residence) visa. He did this on the basis that Mr Ibrahim was no longer able to meet the requirements of the relevant regulation, para 801.221 of Schedule 2 of the Migration Regulations. 8 Mr Ibrahim sought review of this decision by the Migration Review Tribunal. The Tribunal fixed the matter for hearing on 4 October 2001. However, Mr Ibrahim sought an adjournment on account of ill-health. There were a number of adjournments, at his request, before the matter was eventually heard on 2 May 2002. 9 Prior to the hearing, the Tribunal received from Mr Ibrahim's migration agent several statements and statutory declarations. For present purposes, it is necessary only to refer to four documents. This application for review turns on the question whether the Tribunal erred in holding that these documents fail to satisfy the requirements of para 801.221 and, if so, whether that error entitles the Court to grant review of the Tribunal's decision, having regard to s 474 of the Migration Act 1958. The documents 10 The first document is a statutory declaration by Mr Ibrahim dated 1 May 2002. This document does not use Form 1040, the form provided by the Department for use in cases of claimed domestic violence. However, that circumstance is not suggested to affect its admissibility. This statutory declaration read: "1. I make this statement with reference to my application for a review of a decision not to grant me a Partner (Residence) (Class BS) visa. 2. I acknowledge that in my initial application before the Department of Immigration I did not convey any claims of having suffered domestic violence. I also acknowledge that even up to October 2001, I had not made any mention to the Migration Review Tribunal of any aspects of domestic violence during my relationship with Susan (sic) [Sussan] Saleh. 3. Although I previously had the benefit of an adviser, I was not made aware of the provisions of domestic violence until the time I had decided to instruct my current representative Mr Sam Issa solicitor. 4. After my initial conference with Mr Issa on 15 October 2001, he had advised me that the migration legislation provides for cases to proceed on grounds of proven domestic violence. It was also during this initial conference when Mr Issa asked me to provide an elaborate account of the problems that I had experienced with Susan (sic). He then advised me to consult a psychologist in order to ascertain whether there had existed any elements of domestic violence during my relationship with Susan (sic). 5. I had also provided Mr Issa a medical report from Dr Quang-Khanh Lee dated 8 October 2001. I took this report and had a subsequent consultation with Lil Vreklevski in Mr Issa's office on 23 October 2001. 6. Lil Vreklevski was able to identify elements of domestic violence and accordingly completed form 1040 and also provided a comprehensive report. 7. Mr Issa advised me that I required another medical opinion and on 21 January 2002, I attended the surgery of Dr M Tadros. After informing Dr Tadros of my medical history and a relationship with Susan (sic) tainted with violence and abuse, Dr Tadros was also of the opinion that I had suffered domestic violence and accordingly completed and executed form 1040. 8. Dr Tadros is still treating me and I will tender his report tomorrow. 9. I also seek to rely on the report provided by Dr S Benjamine dated 5 March 2002. 10. I also seek to rely on the report provided by Lil Vreklevski dated 23 October 2001 and form 1040. 11. I attach herewith form 1040, which today, have (sic) completed and executed. 12. I respectfully submit that the reports referred to above do comprehensively confirm that I have suffered domestic violence at the hands of my former nominator and it is on the basis of this domestic violence that (sic) am still experiencing significant medical problems including major depressive disorder with psychotic features. I am also suffering from pseudo seizures - refer to Dr S Benjamine report dated 5 March 2002. 13. I am still receiving psychiatric counselling and management by Dr Con Yiannikas, Dr Benjamine and Dr Tadros. I am also taking Zyprexa tablets. 14. I also submit that in coming from a Middle Eastern background, aspects of emotional abuse and even physical abuse that is perpetrated by a women (sic) on her male partner, is an alien concept. I would not have recognised that the abuse I suffered during my period of cohabitation with Susan (sic), amounted to legally and medically recognised domestic violence, without the benefit of proper legal advise (sic) and proper medical diagnosis and treatment, which I have been only receiving since October 2001. 15. I have already advised the Tribunal of the incident which occurred on 5 December 2001 - refer to attached police statement. I am of the firm belief that this physical assault was perpetrated by members of Susan's (sic) family. The matter is currently being investigated by the Victorian police. 16. I also seek to rely on a report by Dr Con Yaniakas, which I expect to receive within 7 days." 11 Paragraph 15 refers to an alleged incident in which, according to Mr Ibrahim, he was assaulted while in a public park. There is, to date, apparently no evidence linking the incident to Ms Saleh, or members of her family. 12 As stated in para 11 of the statutory declaration, Mr Ibrahim also submitted a Form 1040 statutory declaration. The printed document requires the declarant to give the full "name of the person who committed (or who you believe committed) the violence". Mr Ibrahim answered: "Sussan Saleh". In answer to a request to "describe the nature of the violence experienced", he said: "verbal and emotional abuse including threats of violence. There were also episodes of physical violence perpetrated by Sussan Saleh." No particulars were supplied. 13 A Form 1040 statutory declaration was also made by Victor N Tadros, a medical practitioner carrying on practice at Marrickville, Sydney. Dr Tadros also identified the perpetrator of the claimed violence as Sussan Saleh. His description of its nature read: "Ms Saleh threw the remote control at me (sic) on one occasion. On another occasion Ms Saleh held a kitchen knife at my (sic) chest threatening to kill me. Ms Saleh keeps making threatening telephone calls. I (sic) was assaulted by unknown persons while walking in park. I (sic) was hit on the head and lost consciousness." 14 Dr Tadros claimed 26 years experience as a medical practitioner. In answer to an invitation on the form to describe the evidence on which he based the professional opinion he had expressed, he wrote: "Based on my full clinical assessment, I am of the opinion that Mr Taleb Ibrahim has most likely suffered from domestic violence." 15 The final relevant document was a Form 1040 statutory declaration made by Lila Peta Vrklevski, a psychologist carrying on practice at Ryde, Sydney. Ms Vrklevski also named Ms Saleh as the perpetrator of the violence. Her description of the alleged violence was as follows: "Nature of the violence experienced was predominantly verbal and emotional abuse (including threats of violence, disappearing for periods and engaging in extra marital affairs). There appear also to have been two or three episodes of physical violence when Mr Ibrahim was attacked with the television remote control." 16 Ms Vrklevski claimed 13 years experience as a psychologist, in the last seven years of which she was particularly concerned with "the area of trauma through sexual and physical abuse/assault". 17 In answer to the form's request for the evidence upon which she based her professional opinion, Ms Vrklevski said: "Behavioural observation of Mr Ibrahim during assessment and interview. At interview Mr Ibrahim exhibited symptoms consistent with trauma through domestic violence. While there may have been other factors which contributed to his 'mental breakdown', it is almost certain that the verbal and emotional abuse he speaks of at interview played a pivotal function in his 'breakdown' and current 'fragile state'." The legislative provisions 18 Section 65 of the Migration Act governs decisions made by, or on behalf of, the Minister in relation to a valid application for a visa. Subject to certain qualifications, if the Minister is satisfied the criteria prescribed by the Act or Regulations have been satisfied, "the Minister … is to grant the visa". If the Minister is not so satisfied, the Minister "is to refuse to grant the visa". Satisfaction of the prescribed criteria is critical to the decision. 19 The criteria applicable to the visa sought by Mr Ibrahim are stated in para 801.22 of Schedule 2 to the Regulations. These are criteria to be satisfied at the time of decision. There are no criteria to be satisfied at the time of application. 20 Paragraph 801.221 offers alternative criteria for a subclass 801 visa. What is no doubt the usual situation is covered by sub-para 801.221(2), which includes a requirement that "the applicant continues to be nominated for the grant of the Subclass 801 visa by the nominating spouse". As has been seen, Mr Ibrahim reached the stage, prior to determination of his application, when he could no longer meet this requirement. However, he sought to rely upon sub-para (6)(c)(i) of 801.221 which is as follows: "(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 of the applicant or of both of them; has suffered domestic violence committed by the nominating spouse;" 21 Division 1.5 of the Regulations contains special provisions relating to domestic violence. They include a statement (in reg 1.23) of the circumstances in which a person "is taken to have suffered domestic violence" and another person "is taken to have committed domestic violence in relation to the alleged victim". 22 Paragraphs (c) to (f) of reg 1.23(1) refer to a variety of situations, all of them involving court action. None of those situations applies to this case. However, Mr Ibrahim relied before the Tribunal on para (g) which reads: "(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." 23 Subregulation (2) of reg 1.23 identifies the persons referred to in para (g). They include "a spouse of the alleged perpetrator". This subregulation also explains what is meant by the term "domestic violence". It says: "(b) 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." 24 Regulation 1.24 specifies the evidence referred to in para 1.23(1)(g). One of two alternatives is that stated in para (b) of the paragraph: "(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26." 25 Regulation 1.25 relates to statutory declarations by alleged victims of domestic violence. In the case of a spouse alleging domestic violence against himself or herself, the only requirements are that the declaration must: "(a) set out the allegation; and (b) name the person alleged to have committed the relevant domestic violence." 26 Regulation 1.26 concerns a statutory declaration by a "competent person". That term is defined by reg 1.21 so as to include a registered medical practitioner and a registered psychologist. It has been accepted in this case that Dr Tadros and Ms Vrklevski is each a "competent person". 27 Regulation 1.26 reads 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 opinion is based." The Tribunal's decision 28 In his reasons for decision, the Tribunal member set out the facts and the relevant legislative provisions. He also noted two decisions of this Court concerning the meaning of "domestic violence" in the Migration Regulations: Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 290 and Doan v Minister for Immigration and Multicultural Affairs [2000] FCA 909. The member then referred to the problems in arranging a hearing of Mr Ibrahim's application for review. He made a comment about the applicant: "The Tribunal has had considerable difficulty with this case in that it proved hard to arrange a hearing, with the visa applicant having health and psychiatric problems, requiring a number of postponements of proposed hearing dates. The Tribunal accepts that the visa applicant has had serious health problems of a psychiatric nature and while medical information supplied by the MacArthur Health Service on 11 February 2002 and by Dr Benjamin on 5 March 2002 suggested that, as the visa applicant should be encouraged to return to work and was discharged and he could attend a hearing. The Tribunal found the visa applicant a most unsatisfactory witness, who had a highly selective memory and recall of events. The visa applicant also contradicted statements he had made previously in other statements and documents recorded on the file. The Tribunal therefore has serious reservations about the credibility of the visa applicant, which may be a factor of his psychiatric condition. There appear to be many contradictions in the papers related to this case and in oral evidence the visa applicant was not able to satisfactorily explain these contradictions." 29 After mentioning the statutory declarations provided to the Tribunal, the member noted the decision of Ryan J in Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482. The member understood that authority to indicate "it is not for the Tribunal to ask itself whether the evidence addressed in the statutory declaration by competent persons under Regulation 1.26 was capable 'of supporting an opinion that relevant domestic violence had been committed'." The member thought the Tribunal "is not entitled to make any assessment of the merits of the claim of domestic violence", but rather to decide, as a matter of law, "whether a condition had been satisfied which entrusted to the competent persons a conclusive finding of the relevant facts". 30 The Tribunal member noted the content of Dr Tadros' statutory declaration and commented: "The evidence on which this is said to be based is the kitchen knife incident and the assault in the park." 31 The Tribunal member then came to Ms Vrklevski. He said: "There is discussion of domestic violence in the report of the psychologist, Lil Vrklevski, compiled on 23 October 2001. However there was no statutory declaration by the psychologist that in his [sic] opinion domestic violence occurred." The report of 23 October 2001 was not in the form of a statutory declaration. 32 After referring to another psychologist's report, the Tribunal said "these opinions do not provide conclusive findings as specified in the Regulations, both are qualified statements …" 33 The Tribunal member then referred to Ms Vrklevski's Form 1040 statutory declaration. He said: "On 2 May 2002, a Form 1040 statutory declaration was submitted dated 23 January 2001 from Lil Peter [sic] Vrklevski, psychologist stating 'At interview Mr Ibrahim exhibited symptom consistent with trauma through domestic violence. While there may be other factors which contributed to his 'mental breakdown' it is almost certain that the verbal and emotional abuse he speaks of at interview played a pivotal function in his 'breakdown' and current fragile state.' The Tribunal finds that this is also a qualified report. The Tribunal finds that the substance of the statutory declarations are insufficient and accordingly do not meet the requirements of regulation 1.26. Therefore the Tribunal finds that the requirements of regulation 1.24 are not met." 34 The Tribunal member concluded that Mr Ibrahim "does not meet the requirements of subclause 801.221(6)". Consequently, he did not meet the requirements of 801.22 and was not entitled to the visa he sought. Discussion 35 Having regard to its impact on the Tribunal's reasoning, it is useful to set out the statements of principle made by Ryan J in Meroka, at paras 32 to 35: "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. An examination of the forms 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." 36 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 declarations supplied by Mr Ibrahim; if there were statutory declarations by two competent people that complied with the requirements of reg 1.26 (and a statutory declaration by Mr Ibrahim under reg 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 (reg 1.26(c) and (d)) and must name the person who, in the competent person's opinion, is the perpetrator of the violence (reg 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 required, by para (e) of reg 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 breakdown of the spousal relationship, which may be the result of, or associated with, the domestic violence, thereby disqualified the victim from obtaining the visa to which she or he would otherwise have been entitled. However, although the relevant exception is expressed in para 801.221(6)(c) by reference to a factual situation ("has 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 declarations 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 has suffered domestic violence at the hands of his or her spouse. 41 The absurdity of this situation is illustrated by the circumstances of the present case. It seems that neither Dr Tadros nor Ms Vrklevski, who both practise in Sydney, saw Mr Ibrahim until about one year after he ceased to cohabit with Ms Saleh, in Melbourne. Neither of them claimed ever to have met Ms Saleh. Neither of them claimed to have seen any physical signs of violence; indeed, neither suggested there had ever been any physical signs of violence. No doubt Ms Vrklevski formed her own professional view that Mr Ibrahim was suffering the results of trauma. But she was dependent on Mr Ibrahim for information about its cause. Dr Tadros did not even claim a clinical diagnosis. He contented himself by retelling Mr Ibrahim's statements to him, without even changing the personal pronouns. 42 Was the Tribunal correct in determining that the statutory declarations provided by Mr Ibrahim failed to satisfy reg 1.26? I think so but, as it happens, I take the opposite view to the Tribunal in relation to each of the two declarations. 43 In his reasons for decision, the Tribunal member quoted the words used by Dr Tadros in response to the form's request for a description of "the evidence on which you base your professional opinion" that Mr Ibrahim had suffered domestic violence. The member did not comment upon the adequacy of Dr Tadros' answer, or suggest that the declaration failed to satisfy reg 1.26(f). But it did so fail. Dr Tadros only said: "Based on my full clinical assessment, I am of the opinion that Mr Taleb Ibrahim has most likely suffered from domestic violence". That was not evidence at all, not even hearsay or unconvincing evidence. It was merely a "trust me" statement. 44 At para 30 above, I quoted the Tribunal member's comment that the "evidence on which (Dr Tadros' declaration) is said to be based is the kitchen knife incident and the assault in the park". But these matters were mentioned by Dr Tadros in the course of setting out a description (Mr Ibrahim's description) of the alleged violence. Dr Tadros did not claim to have based his own opinion on these statements. In any case, mere repetition of a claim could never be evidence justifying an opinion about the truth of the claim. 45 In contrast to Dr Tadros, Ms Vrklevski revealed the basis of her opinion. She did this by reference to Mr Ibrahim's behaviour during interview. But the Tribunal member rejected her statutory declaration on the ground that it provided only a "qualified report". He did not explain what he meant by that. If the reference was to Ms Vrklevski's opinion that other factors may have contributed to what she called his "mental breakdown", that was an irrelevant reference. In order to come within para 806.221(6)(c), a visa applicant does not need to provide evidence that he or she is suffering a continuing physical or mental effect that is caused solely by domestic violence; indeed the visa applicant does not need to establish a continuing physical or mental effect at all. The question for the competent person is whether he or she is of the opinion that the visa applicant has suffered domestic violence (as explained in reg 1.23(b)) at the hands of the nominating spouse. Even in the absence of any continuing physical or mental effect, there may be "evidence" on the basis of which a competent person can make a satisfactory reg 1.26 statutory declaration. Conclusion 46 Although I think the Tribunal member fell into error in relation to each of the statutory declarations, one being an error favourable to the applicant and the other adverse, I find no error in the Tribunal's ultimate conclusion that "the visa applicant does not meet the requirements of subclause 801.221(6)." It follows that the Tribunal did not err in law in affirming the delegate's decision. 47 Having regard to the conclusion I have reached, it is not necessary for me to determine the implications for this case of s 474 of the Migration Act. However, it seems to me this would be a major problem for the applicant. It is difficult to see that an erroneous conclusion by the Tribunal as to satisfaction of the requirements of subclause 801.221(6) would involve failure to comply with an inviolable condition of exercise of the Tribunal's power or a contravention of any of the so-called Hickman conditions: see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. Disposition 48 The application must be dismissed. The applicant should be ordered to pay the respondent's costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.
Solicitor for the Applicant: Firmstone & Associates
Solicitor for the Respondent: Australian Government Solicitor
Ibrahim
Minister for Immigration & Multicultural & Indigenous Affairs
Application dismissed, with the applicant to pay the respondent’s costs.