Kumar v Minister for Immigration & Multicultural & Indigenous Affairs

relevant regulations 4 The relevant criteria that must be met for the grant of a spouse visa, are set out in clause 801 of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations'). It was necessary in this case for the appellant to meet the requirements of sub-clause 801.221 (6), which relevantly provided: '(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; … has suffered domestic violence committed by the nominating spouse;' 5 A deeming provision in relation to domestic violence was contained in reg 1.22: '1.22 References to person having suffered or committed domestic violence (1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.' 6 So far as is relevant to this case, reg 1.23 provided as follows: '1.23 When is a person taken to have suffered or committed domestic violence? (1) For the purposes of these Regulations: (a) a person (the alleged victim) is taken to have suffered domestic violence; … (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. (2) In paragraph (1)(g): (a) the persons referred to are the following: (i) a spouse of the alleged perpetrator; … (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.' (emphasis added) 7 Reg 1.24, relevantly, provided: '1.24 Evidence (1) The evidence referred to in paragraph 1.23 (1)(g) is: … (b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.' 8 Reg 1.25 provided for the statutory declaration by an alleged victim as follows: '(2) A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2)(b)) must: (a) set out the allegation; and (b) name the person alleged to have committed the relevant domestic violence.' 9 "Competent person" was relevantly defined in reg 1.21 as follows: '(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or … (iv) a person who: (A) is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and (B) is performing the duties of a social worker; or' 10 Reg 1.26 dealt with the statutory declaration by competent persons as follows: '1.26 Statutory declaration by competent person 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 decision 11 In support of his claim to have suffered domestic violence, the appellant submitted a statutory declaration made by himself on 22 November 2001, a statutory declaration made by a psychologist, Edwin Kleynhans, on 25 July 2001, and a statutory declaration made on 27 November 2001 by a social worker, Helen Cleak. 12 The appellant was represented before the Tribunal by a migration agent, Mr Young. Mr Young submitted to the Tribunal that, on receipt of the statutory declarations from the appellant and the competent persons, the Tribunal was bound to find that the appellant had suffered domestic violence. In other words, the role of the Tribunal was to assess the statutory declarations, and not to conduct an independent enquiry into the existence of domestic violence. 13 At the hearing, the appellant, his aunt and his daughter gave evidence, including evidence about the alleged domestic violence. 14 The reasoning of the Tribunal commenced with an assessment of the oral evidence given at the hearing. The Tribunal found the evidence of the incidents of domestic violence unconvincing. The Tribunal then dealt with the statutory declarations as follows: '39. The evidence under subregulation 1.23(1)(g)(i) must be evidence that the alleged victim has suffered relevant domestic violence which is then defined under subregulation 1.23(2)(b) as "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". Subclause 801.221(6) requires that the domestic violence to have been committed by the nominating spouse. The form in which the evidence is to be presented is set out in reg 1.24. The Tribunal finds that evidence presented in the statutory declaration does not provide evidence of relevant domestic violence as defined and committed by the nominator. Further, having heard the evidence of the visa applicant and his daughter of the circumstances surrounding the alleged pressing of the neck incident the Tribunal finds that the visa applicant would not now be able truthfully to make such a declaration that he has been a victim of violence in respect to that incident to the extent that it caused him or his family to fear for or to be apprehensive about his personal well-being or safety. The other evidence presented in the visa applicant's statutory declaration rather refers to alleged acts by persons other than the nominator and so is not evidence in accordance with subregulation 1.23(1)(g)(ii). 40. The lack of credibility of the evidence of the visa applicant and his daughter diminishes the reliability of the evidence upon which the opinion of the psychologist was said to be based, as well as the reliability of the evidence upon which the opinion of the social worker was based who stated that her sources of information were the report of the psychologist and the interview with the visa applicant and his daughter, Poonam. The information relied upon is also contradictory in part with the visa applicant's own statutory declaration. The statutory declaration of the social worker is also found not to satisfy subregulation 1.26(c) in that she fails to "state that in the competent person's opinion, relevant domestic violence (within the meaning of paragraph (2)(b)) has been suffered by a person". She simply concluded that "there is some evidence that [the visa applicant] suffered from domestic violence…". Similarly, the statutory declaration of the psychologist fails to specifically state what must be included in the statutory declaration under subregulation 1.26(c) but rather states that he is "of the opinion that [the visa applicant] suffers from PTSD because of the domestic violence at the hands of [the nominator]". 41. The Tribunal finds, therefore, that the statutory declarations do not satisfy the Regulations, that the visa applicant cannot be taken pursuant to regulation 1.23 to have suffered domestic violence committed by the nominator. He, therefore, fails to satisfy subclause 801.221 (6) in respect to domestic violence and consequently fails to satisfy clause 801.221.'

The judgment of the federal magistrates court 15 The Federal Magistrates Court (FMC) held that the Tribunal had erred in conducting an independent enquiry into the evidence of domestic violence. Such a course was contrary to the operation of the regulation explained in Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251; (2002) 70 ALD 298; [2002] FCA 482 and Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279. The FMC concluded, at [59]: 'Having regard to these authorities it is in my view clear that the MRT in this case embarked upon an erroneous investigation of the facts underlying the evidence provided. The obligation of the MRT was to refrain from determining whether or not the applicant had suffered domestic violence at the hands of the nominator but simply to determine the sufficiency of the statutory declarations supplied. It is clear that the MRT went well beyond that role. First, the MRT in its hearing embarked upon an inquisitorial task in challenging the evidence of the applicant and his daughters and then making findings about the credibility of that evidence. Those findings were then directly translated into a consideration of the evidence. The lack of credibility of the evidence of the visa applicant and his daughter diminishes the reliability of the evidence upon which the opinion of the psychologist was said to be based as well as the reliability of the evidence upon which the opinion of the social worker was based who stated that her sources of information were the report of the psychologist in the interview with the visa applicant and his daughter, Poonan. The MRT was not entitled to embark upon this inquiry and although the MRT is not required to accept statutory declarations without question, its role is limited to seeing whether the description of the nature of the violence experienced or the evidence set out by the competent person, is capable as a matter of law, of affording a basis for an opinion that relevant domestic violence has been suffered.' 16 The judgment of the FMC continued at [60]: 'Whilst the statutory declaration of the applicant does not specifically refer to the definition of domestic violence in regulation 1.23(2)(b) in my view the evidence of the applicant and the statutory declaration on its face asserts behaviour on the part of the nominator in circumstances in which it was open for the MRT to conclude that violence had occurred against the applicant and his children which caused him to fear or be apprehensive about his personal well being or safety. The conclusion of the MRT after hearing the evidence of the visa applicant and his daughter of the circumstances surrounding the alleged pressing of the neck so that he would not now be able to truthfully to make a declaration that he was the victim of violence in respect of that incident to the extent it caused him to feel or be apprehensive about his personal well being or safety, fails to take into account the threats to kill. In my view, therefore, the MRT erred in rejecting the evidence of the applicant and his daughter, and therefore in rejecting or diminishing the reliability of the evidence upon which the psychologist and social worker based their opinions.' 17 The FMC then found that the Tribunal had erroneously rejected the statutory declaration of Mr Kleynhans. In the view of the FMC, the statutory declaration did express the necessary opinion required by the Regulations. However, the FMC held that the error of the Tribunal in this respect was not a jurisdictional error, and hence could not ground the relief sought. 18 As to the statutory declaration of Ms Cleak, the FMC said at [67]-[68]:- 'However the statutory declaration of Ms Cleak is somewhat different. Unlike that of Mr Kleynhans she does not refer at any stage 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. Indeed, in considering domestic violence issues as described in her report and the definition of "domestic violence" given, there is no indication that Ms Cleak was aware of the definition of domestic violence in the regulations and her description of domestic violence as used by her tends to suggest that she was not. As was said by Matthews J in Du v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 1115: 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 regulation 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. This was cited with approval in Alan [sic] v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 979. The regulations are quite specific. The evidence required to support domestic violence referred to in the regulations requires (in this case) a statutory declaration under regulation 1.25 together with two statutory declarations under regulation 1.26. One of the statutory declarations under 1.26 does not comply with that regulation and therefore the statutory declarations do not satisfy the regulations and the applicant has failed to satisfy subclause 801.221(6) in respect of domestic violence and consequently fails to satisfy clause 801.221.'

The Grounds of Appeal 19 The grounds of appeal were set out in par 3 of the original notice of appeal which was filed on 13 February 2003, as follows: '3 GROUNDS: 3.1 The learned Federal Magistrates Court erred in holding that the provisions of s474(1) and (2) of the Migration Act precluded the Federal Magistrates Court from granting a Constitutional Writ upon the Federal Magistrates Court finding: (a) that "the MRT in this case embarked upon an erroneous instigation [sic] of the facts underlining [sic] the evidence provided" (reasons of the Federal Magistrates Court at paragraph [59]); and (b) that the MRT "erred in rejecting Mr Kleynhans statutory declaration" (tendered pursuant to Migration (1994) Regulation reg 1.23(2)(b)) (reasons of the learned Magistrate at paragraph [66]). 3.2 The learned Federal Magistrates Court erred in concluding that the errors of law committed by the MRT were errors validated by s474 of the Migration Act and did not constitute jurisdictional errors warranting the grant of the constitutional writ of Mandamus and the anisomery [sic] remedy of certiorari. 3.3 The learned Federal Magistrates Court erred in concluding that the affidavit of Ms Cleak did not comply with sub-reg. 1.26 of the Migration (1994) Regulations. 3.4 The learned Federal Magistrates Court erred in ordering that the application to it be dismissed.' 20 On 15 April 2003, the Chief Justice determined under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal should be heard and determined by a single judge. At that time the grounds of appeal were limited to the grounds set out in the original notice of appeal. 21 A document entitled Second Proposed Amended Notice of Appeal was filed on 22 December 2003, and raised a further ground of appeal (the natural justice ground), as follows: '3.5 The learned Federal Magistrates' Court erred in failing to hold that The hearing conducted by the Migration Review Tribunal was in breach of the requirements of the rules of natural justice in that the Appellant and his advisors were led to believe that the only way in which the material submitted [by] Ms. Helen Cleak did not comply with the requirements of Reg.1.21 1.26 of the Migration (1994) Regulations was that it was not declared in accordance with the provisions of the Statutory Declarations Act 1959 (Cth).' 22 In light of the possibility that the new argument would be agitated on the appeal, the Acting Chief Justice on 22 October 2003 extended the direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) to encompass consideration of the proposed new ground.

The Natural Justice Ground 23 The natural justice ground was not raised before the FMC. It is therefore necessary for the appellant to persuade the Court that he should be permitted to raise the argument at the appellate stage of the process. A party will be permitted to do so in a case such as the present if it is expedient in the interests of justice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; H v Minister for Immigration and Multicultural Affairs(2000) 63 ALD 43; [2000] FCA 1348; Coulton v Holcombe(1986) 162 CLR 1; O´Brien v Komesaroff (1982) 150 CLR 310. 24 One relevant consideration in determining whether to allow an appellant to raise a new ground is the reason that the issue was not raised previously. Before the FMC the appellant accepted that, as a result of the decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1; (2002) FCAFC 228, a denial of procedural fairness was not reviewable in view of the provisions of s 474(1) of the Migration Act 1958 (Cth). The respondent contended that, at the time of the hearing before the FMC: 'it was not inconceivable that NAAV would be overturned as far as natural justice was concerned. Both Wilcox and French JJ held in NAAV that a breach of the rules of natural justice, specifically where an applicant had been misled by the Tribunal, was not protected by the privative clause: [320], [331], [533], [537] and [556]. A number of other judges of the Federal Court were of the same view. Pending a determinative decision of the High Court on the issue, it was within the bounds of contemplation, at the time that the original application to the Federal Magistrates Court was filed, that the natural justice ground could ultimately have succeeded. Certainly, when the notice of appeal was filed, S157 had been decided by the High Court.' The contention of the respondent is unduly demanding in the circumstances. The uncertain state of the law provides an explanation for the appellant's failure to agitate the argument before the FMC. 25 When considering whether to allow the appellant to argue the proposed new ground of appeal it is also relevant to consider the merits of the proposed new ground. The appellant contends that, by virtue of the way in which the hearing was conducted, he was led to believe that the only impediment to the acceptance of Ms Cleak's statutory declaration was compliance with the formal requirements of the statute under which it was made. After the hearing, a statutory declaration was filed which rectified that defect. Thereafter, the appellant contends, it was not open to the Tribunal to reject the statutory declaration, without notice to the appellant, on the ground that it failed to comply with a substantive requirement of the Regulations where, if the appellant had been told of the substantive defect, that defect could also have been remedied. 26 In order to establish the elements of the alleged denial of procedural fairness, the appellant sought leave to call evidence on the appeal. The evidence fell into two categories. First, evidence of what happened at the hearing, and second, evidence to establish that the appellant could have rectified the substantive defect in the statutory declaration if he had known that the Tribunal intended to reject it for that reason. 27 The transcript of the hearing before the Tribunal was evidence before the Court on the appeal. The relevant passages must be set out in order to consider the appellant's argument. At the start of the hearing, before any witness gave evidence, the following exchange occurred: 'YOUNG [Migration Agent for the Appellant] Can I just - if I can clarify something before we start - the reason the social worker and the psychologist are not here is given the legislation and given the procedures, is seems to me that those statutory declarations if they're from competent persons as required under the regs are sufficient to prove that there is domestic violence. CARSON [Tribunal Member] Well, I've still got to evaluate the evidence that's what it comes down to. YOUNG What I'm suggesting to you is that um Pam's [sic] Part 1 Division 1.5 says that on receipt of appropriate documentation officers must accept the applicant has suffered domestic violence so the whole purpose of domestic violence provisions is to provide stat decs from competent persons setting out if domestic violence has occurred or not and our submission to - our submission in October which I just mentioned - confirms that domestic violence has taken place in the form of domestic violence from those submissions, so just to clarify that, that's the reason why and it's not usual in those circumstances given stat decs aren't provided from the two competent persons. CARSON Oh yes they do. Well, I've seen a few of them, certainly a few from Mr Kleynhans. How do you pronounce that? YOUNG "Klinehans" [sic] actually. CARSON I think it is, yes, alright well as I said I still have to evaluate the evidence basically that's what I'm looking at today so, just to make sure I've got everything that you think I have - there is that report there from Helen Click [sic], and also Mr Kleynhans' report, and there's also a statutory declaration from YOUNG The applicant. CARSON Mr Kumar. Alright look perhaps if I - there are a few issues there to have a look at but I'll perhaps have a talk to Mr Kumar first and just hear what he would like to say about the case.' (emphasis added) 28 The appellant then gave evidence. In the course of his evidence the Tribunal referred to his statutory declaration. After a series of questions about how the appellant's daughter translated the statutory declaration for him, the following exchange occurred: 'CARSON So she's not an official interpreter or a registered interpreter is she? KUMAR No she isn't CARSON I might come back to that, if you remind me, about the affidavit because there are a few things I'd like to YOUNG The stat dec you mean. CARSON Sorry, the stat dec, yes. I'd like to come back to that. Alright, so, the form of - you do refer in that statutory declaration to incidents. Your wife's health, what was that like?' 29 Later, during the questioning of the appellant, the Tribunal referred to the statutory declaration of Ms Cleak as follows: 'CARSON Those photographs, I think you sent those in didn't you? KUMAR Yes. CARSON She doesn't look - in fact she looks a lot shorter than you and I wouldn't have said that she was bigger than you. KUMAR She is a bit heavier than I am. CARSON Alright. Your daughter is stated as telling Helen Crick [sic] that she was bigger than you.' 30 And again, shortly afterwards, the Tribunal asked: 'CARSON In the report from Helen Creek [sic]she says that your wife left for the final time in March 2001. KUMAR Yes, she left in November and then she came back and then she left in March 2001. CARSON So you're saying she came back? KUMAR Yes she went once or twice again then she came back. CARSON So she then came back for how long? KUMAR She would go away for a day or two and come back. CARSON Well in your statutory declaration you're saying in November 2000 your wife left our place and took her belongings with her. We have separated since that time up to the present. KUMAR That's what it says. CARSON Is that right? KUMAR She went in November but she came back. Then she went - she went in November but she left everything in the home. CARSON Well you say in your declaration that she left in November 2000 - Samila Watte [sic] left our place and took her belongings with her. KUMAR She would sometimes take my things away, then she'd take a few things away.' 31 A little later, the Tribunal asked several short questions about the interviews between Mr Kleynhans and Ms Cleak on the one hand and the appellant on the other. 32 Then, at the end of the questioning of the appellant, the following exchange occurred: 'CARSON Perhaps I will raise with you just at the moment I was going to say about the Statutory Declaration. YOUNG Whose Stat Dec? His? CARSON Yes. Just making you aware of it. The Statutory Declaration actually doesn't fully comply with the requirements of the Act, Commonwealth Legislation. YOUNG Why is that? CARSON Even the wording is different. Hereby solemnly, it would be hereby solemnly and sincerely declare. It is also that it is signed by, witnessed by a barrister and solicitor of the Supreme Court of Victoria which isn't the wording that is now acceptable. There is another Statutory Declaration which is correct in the sense that it talks about a legal practitioner holding a current practitioner, legal practise act. So it isn't correctly witnessed. It is also written there interpreted by Rahini Comari. Now my understanding and I haven't checked understanding, was where a document is interpreted that interpreter needs to be able to declare that they have well and truly understood the language and interpreted the document and that's not there. YOUNG Well I am sure the issue of the Statutory Declaration can be remedied. CARSON Yes. YOUNG There is no problem with that. CARSON Just to make you aware of that anyway.' 33 The issue of the statutory declarations was again addressed several questions later as follows: 'CARSON …That's my understanding is that where a document is interpreted it has to be a further statement that that person has well first of all well and truly understands the languages both English and any ……… language and that they also have well and truly interpreted from that language into the other language. The document, Helen Creek's [sic] document once again doesn't state that this is an Affidavit pursuant to that legislation, to the Commonwealth legislation. YOUNG Affidavit? CARSON Statutory Declaration. I keep saying Affidavit. The Statutory Declaration does not say that it is made under the Commonwealth Legislation. YOUNG You've mentioned that. CARSON Oh, did I. YOUNG I thought that you just mentioned that under the Statutory Declarations Act 1959. I suppose that can be remedied straight away CARSON Yes I've just got to make you aware of it because unless it is remedied it doesn't comply with the legislation.' 34 Then, there was a short exchange concerning the purpose for calling the other two witnesses. It was as follows: 'CARSON I want to give them a chance to say, just in case there is something they'd like to, you go ahead and tell me what you think. YOUNG We could probably clarify this. I understand the 820 Visa was granted on the basis that the Department was aware that the relationship was genuine when the application was lodged. So if that's not a dispute here, and it is going to be issued. CARSON 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. YOUNG Well you're reviewing. CARSON I'd just like to know, do you know what these two people are likely to be addressing? YOUNG I mentioned at the start that they can talk about the issues of domestic violence but also about the relationship. CARSON I guess it's more to do about the domestic violence issue isn't it really. YOUNG I would have thought so because it, what's under review is the issue of domestic violence at the time of your decision. CARSON I think that's the basis of the decision originally was wasn't it. Perhaps his daughter, Rahami. YOUNG Alright. I'll go and get her.' (emphasis added) 35 At the conclusion of the evidence of the appellant's aunt and daughter, the following exchange occurred: 'CARSON Alright, well that's probably all I was going to ask. Do you want to perhaps look at it and you might want to check that out. That was my understanding about the interpreter, there is meant to be some sort of statement that's added that that [sic] it's been interpreted correctly but also those other aspects. As I said I've got to leave it with you as to what the final product is, and the other one as I said the document from Ms Creek [sic] does not comply with the wording in that it certainly doesn't refer to the Commonwealth Act. And I think that basically they're fairly pedantic about the correctness of those statutory declarations. But if I perhaps give you the opportunity just to a - how long would it take to YOUNG Probably about fourteen days - 7 days - 7-14 days. CARSON Well could I perhaps just give you to - what's today, Wednesday, say close of business Thursday - next Thursday - Thursday week that is. YOUNG Yea, that's alright. CARSON Is that alright, and look if there's anything additional there that you feel should be - I'm happy to look at any other … [submissions] YOUNG If I could clarify for just five minutes, I won't take long. Are you happy with the Stat Dec from the psychologist? CARSON 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… YOUNG I'm not sure what you meant by the social worker's report because hers CARSON Where it says at the end and if you have a look at the legislation it sets out what the wording must be - I'm just trying to find it. YOUNG I make this solemn declaration. CARSON Yes that's right. It's the end bit that's wrong. YOUNG Declared by. CARSON Where is it. Where is it. Oh just that I make this solemn declaration but it doesn't refer to what act [sic] of Parliament. It could be a state act [sic], it could be, you know which wouldn't be acceptable anyway but it should refer to the actual. YOUNG Statutory Declarations Act 1959. CARSON If you have a look at the wording Mr Kleynhans' one is correct isn't it. YOUNG His is correct, yeah. CARSON I think he has. YOUNG 1959. CARSON Yes I think that's - in fact I think he's got it exactly. YOUNG That clears that up.' (emphasis added) 36 There followed a short discussion about a statutory declaration made by the appellant's wife, and then the following exchange occurred: 'YOUNG And just lastly, the way I read the regulations is that when a person has taken to have suffered or committed domestic violence it refers to regulation 1.2.3 and 1.2.4 and it talks about, apart from the issue of the Stat Decs, it talks about in reg 1.2.4 the evidence and that's what I said to you at the start that that information is to be taken as correct from those Stat Decs and the way the law is interpreted the Tribunal would seem to me to have no option and I think the Tribunal should be aware of the decision of - I'll give you the file number - A99-02484 where the member said much the same thing, that once that evidence of those Stat Decs is provided from those competent persons, that is the evidence that domestic violence has occurred. CARSON I've noted that as a submission on that so um, YOUNG I know. CARSON Because you did say at the beginning and I don't make any comment on it at this stage. YOUNG I know you are not bound by PAMS. But PAMS is procedure but it says that also in PAMS. But I think it is consistent with the regulations that is taken as evidence. CARSON Yep. YOUNG And apart from the issue of clarifying and getting the right Stat Dec next week that should be taken as true. CARSON Alright, look if he can get that in and look if you want to make any other you know submission. I've noted that as your submission in relation to those Stat Decs …. I don't know about the other, 9902484. Is that the one? YOUNG That decision was what the Tribunal said was required to meet domestic violence. CARSON Oh I see, right, right.' 37 In an affidavit sworn on 15 October 2003, and filed in the appeal, Mr Young said that, as the only concern expressed by the Tribunal about Ms Cleak's statutory declaration related to the formalities, he believed, at the end of the hearing, that the only matter of concern to the Tribunal relating to the statutory declarations was their form. Mr Young explained how he arrived at this conclusion in an exchange with the Court concerning the passage extracted at [35] of these reasons as follows: 'But you see, you asked that very question, "Are you happy with the stat dec from the psychologist?" The tribunal member says, "Well, I'm not saying what I'm happy with." Doesn't that say to you ‑ ‑ ‑?---Well, it doesn't tell me anything really. It just explains to me that - well, maybe, I don't know whether he's happy with it or he's not happy with it. I mean, he's referring to taking evidence from witnesses and then making a judgment. … I think, your Honour, it's very hard from a transcript. I mean, you'll see that everything is typed up and it's there, but I still have this very honest view that during the course of the hearing he would - because of the interaction we have, and I don't know whether the court is aware, but tribunal members don't allow you to address the tribunal. I have a situation where I have good rapport with them, so they don't mind me addressing these issues, and I was concerned that maybe the tribunal was not prepared to - how do I say - well, I was a bit worried that they weren't going to follow the regulation explicitly and the procedures explicitly and start forming their own conclusion as to whether there's domestic violence or not. I don't believe that they have that power to do that. You were right in that?---Yes, and that's why I said, well, if there was any issue about the type of content of what Helen Cleak had said, I would have gone away and ensured that that was remedied. … I suppose the crunch question is, well, how can you go away from the tribunal feeling that the tribunal has in effect approved the statutory declaration when he has said, "I'm not going to tell you what I'm happy with or not." That's the issue that's concerning me from this passage?---I understand. I understand that, but I just took the view, I suppose, that anything that we had on that day that was a concern to him would have been raised with me. That would be my view and I think one could interpret it that way.' 38 The appellant contended that the Tribunal misled Mr Young as to the sufficiency of the statutory declaration of Ms Cleak by raising only the formal problems and, thereby, intimating that the statutory declaration was otherwise acceptable to the Tribunal. By later rejecting the statutory declaration for failing to comply with the substantive requirements of reg 1.26, without any notice to the appellant of the alleged defect, the Tribunal denied the appellant procedural fairness. 39 The appellant relied on certain passages in the judgment of Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60 which described some circumstances which amount to a denial of procedural fairness. For instance at [28] their Honours said: 'If counsel addressing a judge is stopped in the middle of a submission on a matter of fact, it is safe for counsel to assume that, unless notice to the contrary is given, the submission will be accepted: if the judge later rejects that submission, an appeal will succeed unless it is shown that a properly conducted trial could not possibly have produced a different result. And if, as is illustrated by Re Refugee Review Tribunal; Ex parte Aala, the Tribunal tells the applicant for refugee status that it will take material into account and does not and if in reliance on that statement the applicant does not elaborate on that material, there will have been a denial of a fair hearing.' [footnotes omitted] Later, at [58], their Honours said: 'It would have been erroneous for the Tribunal to have represented at the hearing that a particular piece of evidence or argument had been accepted and then to have rejected it in the decision in circumstances where, but for the representation, the prosecutrix could have mended her hand.' 40 Whilst the second passage refers to the Tribunal misleading an applicant by making a representation, the first part of the earlier passage seems to contemplate conduct by the Tribunal short of an explicit reference to the course which the Tribunal intends to take. I accept, for the purposes of argument, that an applicant may be misled by the conduct of a Tribunal without an express reference by the Tribunal of its intended course. In the present case, there was no express representation made by the Tribunal that the formal defect was the only deficiency in the statutory declaration. Therefore, the question is whether the appellant was denied procedural fairness as a result of the way the Tribunal conducted itself. This question has both subjective and objective elements. 41 Mr Young gave oral evidence that he left the hearing with the belief that the only defect to be remedied in the statutory declaration of Ms Cleak was the formal defect. I accept his evidence to this effect. 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. 45 Consequently, the appellant cannot make out a denial of procedural fairness as alleged. As the proposed new ground of appeal could not succeed, it follows that the appellant should not now be permitted to raise it. Leave to raise the further ground of appeal must be refused. In view of this conclusion that the appellant suffered no denial of procedural fairness, it is unnecessary to consider the evidence called on appeal to the effect that the appellant could have remedied the defects in Ms Cleak's statutory declaration. Nor is it necessary to deal with the authorities such as Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298,which address this question.

Ms Cleak 46 Paragraph 3.3 of the notice of appeal, challenges the conclusion of the FMC that the statutory declaration of Ms Cleak did not comply with reg 1.26 of the Regulations. Reg 1.26(c) requires that a competent person state that relevant domestic violence has been suffered. 'Relevant domestic violence' is defined for this purpose in regulation 1.23(2)(b) as '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 be apprehensive about, the alleged victim's personal well being or safety.' It is established that the Regulations require that the competent person provide an opinion not only as to whether the violence has occurred, but also whether the alleged victim experienced the necessary fear or apprehension: Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [18]-[19]; Alin v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 979 at [12] -[13]. It is desirable that the competent person expressly set out in the statutory declaration the opinion that the necessary fear or apprehension was experienced by the victim. However, the opinion may be implicit in the terms of the statutory declaration: Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251; (2002) 70 ALD 298; [2002] FCA 482 at [32]-[13] ('Meroka'). In Meroka, the implication derived from the fact that the statutory declaration was on a standard form which directed the attention of the competent person to the definition of domestic violence contained in reg 1.23(2)(b). In the present case, that standard form was not used. The appellant, however, contended that the terms of the statutory declaration of Ms Cleak implicitly expressed the view that the appellant had experienced fear for, or apprehension about his personal well-being or safety as a result of the events described. 47 Ms Cleak used what she described as the normal definition of domestic violence within the social welfare field to report on the appellant's situation. That definition required her to consider six elements, namely, psychological and emotional abuse, verbal abuse, physical abuse, economic abuse, social abuse and sexual abuse. Ms Cleak addressed each element separately. 48 On 21 November 2003, that is, about two years after Ms Cleak prepared her report, the Full Court delivered judgment in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257 ('Cakmak'). The Court determined that domestic violence as defined by the Regulations was limited to physical violence. Counsel for the appellant, accepting the binding authority of that judgment, confined his submission to that part of Ms Cleak's statutory declaration which dealt with physical abuse. That was an appropriate approach. I am also bound by the authority of Cakmak, although I am exercising appellate jurisdiction in this case. Whilst no argument was addressed to me on the question, in applying Cakmak, I should record some reservation about its correctness. On the face of it, it is difficult to see that domestic violence would not encompass those elements referred to above which are accepted by social workers as within the definition. 49 So far as is relevant to the appellant's submission that Ms Cleak's statutory declaration implicitly offered an opinion that the appellant suffered physical abuse, the statutory declaration stated: '2. Nature of the Presenting Problem The case referred to in this report concerns domestic violence as defined by Australian Immigration Law. … 4. Sources of Information · Interview with Mr Rajesh Khumar [sic] and his daughter, Poonam, on the 25th September · Psychology Report: Kleynhans, E.C. 6th June 2001-09-30 5. Reason for Report The case was referred to Social Work Services P/L by Mr John Young of Australian Migration Program and Investments, 461 Bourke Street, Vic., 3000, to give a professional opinion as to whether or not (because of psychological trauma) the client has suffered domestic violence. 6. Assessment … This report looks at domestic violence issues presented by Rajesh. "Domestic Violence" here is used as it is normally defined within the social welfare field as being: … 3. Physical Abuse … The report assessed each category of abuse to determine whether domestic violence was present in this case. … 6.3 Physical Abuse Although Rajesh is a fairly big man, Poonam described Sumila as even bigger than him who would physically intimidate Rajesh when she became enraged. On one occasion, Rajesh would not allow Sumila's brother to drive his car without him being with him so Sumila grabbed a knife and tried to break all the windows in his flat. Another time, she tried to strangle him and said 'I'll kill you'! [sic] Sumila's brother-in-law has also threatened to kill him. … 7. Conclusion Based on the information provided by Rajesh and Poonam, the psychological report and the definition of domestic violence, there is some evidence that Rajesh suffered from domestic violence in the four categories of psychological and emotional abuse, verbal abuse, physical abuse and social abuse.' 50 The question is whether Ms Cleak's report offered an opinion on the appellant's state of mind. Does it indicate that he suffered the necessary fear or apprehension? In paragraph 2 of the statutory declaration, Ms Cleak stated that she used domestic violence 'as defined by Australian Immigration Law'. She did not indicate in her statutory declaration any awareness of the need for an assessment of the state of mind of the appellant. The reference to "Australian immigration law" is too vague to stand on its own as a reference to the elements of the definition of domestic violence in reg 1.23(2)(b). The reference in paragraph 7 of her statutory declaration to 'the definition of domestic violence' does not advance the matter. In paragraph 6.3 of her statutory declaration, there is a general reference in the first sentence to physical intimidation of the appellant. A person who is intimidated is a person who is placed in a position of fear. Thus, this sentence is an indirect reference to a mental state of fear suffered by the appellant. However, the sentence does not express an opinion that the appellant felt fearful. Rather it records a statement of fact made by the appellant's daughter, that physical intimidation was the effect of Sumila's actions. In the context of the statutory declaration, this reference cannot stand as an expression of the opinion required by the Regulations. 51 Counsel for the appellant submitted that it followed from the facts recounted in par 6.3 that the appellant must have experienced fear. I cannot accept this argument. The facts recounted are too sketchy to lead to the conclusion that the events gave rise to fear or apprehension about the appellant's personal wellbeing or safety. It is possible that Mr Kumar did not find his wife's behaviour a threat to his wellbeing. Whether he did so could only be established on a fuller description of the circumstances which occurred, and preferably by a direct reference to his feelings at the time. 52 Thus, both the Tribunal and the FMC were correct to hold that Ms Cleak's statutory declaration did not comply with the requirements of reg 1.26 (c) in that it did not state that the relevant domestic violence within the meaning of reg 1.23(2)(b) had been suffered by the appellant. As this statutory declaration was necessary to establish the appellant's claim, the Tribunal was correct to affirm the decision under review that the appellant was not entitled to the grant of a visa.

The Appellant's Statutory Declaration 53 So far as is relevant to the issue of domestic violence, the appellant's statutory declaration before the Tribunal stated: 'My wife had given me a lot of problems. She did not want me to go to any of my friends or relatives. I was always stacked [sic] at home because of this kind of attitude on her part. When I wanted to work to earn a living, she would tell me not to work, as it would affect her pension. One night, she wanted to kill me by pressing my neck. When I asked her why she was doing that to me, she said that she had a high blood pressure, which she could not control. After a couple of days, she told me that she wanted to kill me. One night, my wife Sumila came home with a person who was drunk. This drunken person started shouting and swearing at us. In December 1999, Sumila's brother Bruce came with a friend to our place saying that he was going to kill me. When I asked my wife Sumila why her brother wanted to kill me, she replied that her other sister had planned to kill me. We reported this matter to the Police but the Police did not do anything. In November 2000, Sumila Wati left our place and took her belongings with her. We have been separated since that time up to the present. Sometime before Christmas 2000, Sumila's brother and a friend came to our place and turned off our electricity. We had no electricity for a couple of days and we had to use candles.' 54 Regulation 1.25(2)(a) requires the alleged victim of domestic violence to 'set out the allegation'. The Tribunal held that the statutory declaration of the appellant did not provide evidence of relevant domestic violence as defined. I take this to mean that the appellant's statutory declaration did not refer to sufficient facts to establish the elements of domestic violence and, in particular, failed to demonstrate that the appellant feared or was apprehensive about his personal well being or safety as a result of the events described. The Tribunal then went on to deal with the oral evidence given at the hearing. In the view of the Tribunal, the appellant 'would not now be able truthfully to make such a declaration that he has been a victim of violence in respect to that incident to the extent that is caused him or his family to fear for or to be apprehensive about his personal well-being or safety.' 55 The FMC came to the opposite conclusion. The reasoning of the FMC can be seen in the following passage: 'Whilst the statutory declaration of the applicant does not specifically refer to the definition of domestic violence in regulation 1.23(2)(b) in my view the evidence of the applicant and the statutory declaration on its face asserts behaviour on the part of the nominator in circumstances in which it was open for the MRT to conclude that violence had occurred against the applicant and his children which caused him to fear or be apprehensive about his personal well being or safety. The conclusion of the MRT after hearing the evidence of the visa applicant and his daughter of the circumstances surrounding the alleged pressing of the neck so that he would not now be able to truthfully to make a declaration that he was the victim of violence in respect of that incident to the extent it caused him to feel or be apprehensive about his personal well being or safety, fails to take into account the threats to kill. In my view, therefore, the MRT erred in rejecting the evidence of the applicant and his daughter, and therefore in rejecting or diminishing the reliability of the evidence upon which the psychologist and social worker based their opinions.' 56 The appellant, unsurprisingly, made no complaint about the FMC's conclusion that the Tribunal wrongly rejected the appellant's statutory declaration. He relied upon the reasoning of the FMC. 57 However, on the appeal, the respondent contended that even if Ms Cleak's statutory declaration complied with the Regulations, the appellant's statutory declaration did not. Therefore, the respondent submitted, the Tribunal was correct to find against the appellant in the final result. Ordinarily such an argument would have been foreshadowed by the filing of a notice of contention. The respondent did not file a notice of contention, but did raise the argument squarely in a written submission dated 29 January 2004. 58 In my view, the appellant's statutory declaration did not set out the allegation of domestic violence as was required by reg 1.25(2)(a). The state of mind of the victim is an essential element in the proof of domestic violence under the regulation. It was necessary for the statutory declaration to show that the appellant suffered fear for, or apprehension about, his personal well-being or safety. Nothing is said in the statutory declaration about the appellant's state of mind in the face of the events described. The FMC found that the appellant's statutory declaration complied with the requirements of the regulation. The reasoning of the FMC in the passage extracted at [55] of these reasons was that it was open to the Tribunal to conclude that the violence described in the statutory declaration and in the oral evidence of the appellant caused the appellant to suffer the relevant fear or apprehension. This approach cannot be sustained for three reasons. First, as the FMC rightly held, the oral evidence of the appellant was not relevant to the exercise to be undertaken by the Tribunal, namely, to assess whether the statutory declaration provided the necessary proof. Second, the issue for the FMC was whether the Tribunal erred in holding that the statutory declaration complied with the Regulations, not, as the FMC stated, whether it was open to the Tribunal to conclude that domestic violence had occurred. And finally, even if the oral evidence of the appellant could have been taken into account, there was no evidence from him that the incidents caused him the necessary fear or apprehension. 59 Thus, even if I am wrong in concluding that Ms Cleak's statutory declaration did not comply with the Regulations, the Tribunal was correct in affirming the delegate's decision, because the appellant's statutory declaration did not comply with the Regulations. 60 In the result, the appeal must be dismissed with costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 10 March 2004 Counsel for the Appellant: Mr Tom Hurley

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 21, 23 and 31 October 2003

Counsel for the Respondent: Mr R Tracey QC with Ms Heather Riley

Solicitor for the Respondent: Blake Dawson Waldron