Malik v Minister for Immigration & Multicultural Affairs

EXTEMPORE REASONS FOR JUDGMENT 1 WILCOX J: Application has been made to the court by Akbar Hussain Malik to review a decision of the Migration Review Tribunal. The Tribunal affirmed a decision, made within the Department of Immigration, not to grant to Mr Malik an Extended Eligibility, (Temporary) (Class TK) Subclass 820 visa. 2 The criteria for the grant of such a visa are lengthy and complex. It is sufficient for present purposes to say that Mr Malik would have satisfied the relevant criteria if he had been able to persuade the Tribunal that he is a person who, in the words of sub-reg 820.221(3)(b)(i) of the Migration Regulations "has suffered domestic violence committed by the nominating spouse". 3 The person who, in the present case, is the "nominating spouse" is Zarina Akbar Malik whom Mr Malik married on 26 April 1997 in Sydney. According to Mr Malik's evidence to the Tribunal, there were some differences between himself and his wife on the question whether they should visit Pakistan. It seems the wife was born in Australia, although apparently from Pakistani stock. The husband was born in Pakistan and has family still residing there. It seems the wife was not keen to visit Pakistan and this disappointed the husband. 4 However, according to the husband, they continued to live together until August 1997. The Tribunal dealt with the husband's version of the break up of the marriage in the following way: "The Applicant was asked why he had this condition and he stated because of his marriage break up. He was further asked about his wife's conduct during the time of their breakup. The Applicant gave evidence that the break up started around early August 1997. He had gone to work and his wife rang him and he knew from how she communicated with him that something was wrong. He got home and his wife treated him like a stranger, she would not even sit next to him. He was told by his mother in law that he was already married. He said that if that was so he would have told them. From that time on his wife started to change gradually. I went to work one day and she was not there. Since that time I have had no communication or meeting with her." 5 The Tribunal later recorded it had explained to Mr Malik what was required, in order to come within the domestic violence provisions of the Migration Regulations. The Tribunal's reasons went on: "He was asked to tell the Tribunal why he believed he was a victim of domestic violence. He stated that what he had suffered and does suffer is domestic violence. I am being mentally tortured. I was encouraged to stay and then I was dumped this is mental torture. In my culture and society a divorce is not nice. If I want to marry again I will be asked why I married and divorced, all I can say is that I was dumped. What reasons can I give? I can not face my family they are also asking why. In my culture a wife can not physically attack her husband but I have been kicked out of my home. I have believed my life is over, I can not sleep or work properly." 6 At this stage, apparently, the Tribunal granted the applicant a short adjournment of the hearing. After the adjournment, the applicant gave further evidence in which he described having come home from work at about 9pm one night. After a discussion with his wife, his mother-in-law and some sisters-in-law, he was asked to leave the residence. He left that night. 7 It seems the reason for the request that Mr Malik leave the matrimonial home was that his wife had come to believe she had been deceived by the applicant, because he was already married to a woman living in the Philippines. There is no evidence to indicate, one way or the other, what might be the truth of that allegation. 8 The applicant furnished to the Tribunal reports from a psychiatrist and a psychologist. These reports indicated opinions by those two persons that the applicant was suffering anxiety and stress, and that this was attributable to the marriage break up and his feeling of rejection and loss of self-esteem. The Tribunal was apparently prepared to accept the correctness of the views expressed in the two reports. 9 The regulations are detailed in their requirements for proof of domestic violence. There is elaborate provision for proof of a court order or an undertaking to a court and the like. However, the door is left open for a person to establish domestic violence, notwithstanding that there has been no application to a court. This is provided by Regulation 1.23(1)(g). 10 Regulation 1.23 has a heading "When is a person taken to have suffered or committed domestic violence?" The regulation then goes on to deal with the answer to that question and it includes sub regulation (1)(g) as follows: "(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." 11 Sub-regulation 1.23(2) goes on to indicate the persons who may provide the evidence sufficient for paragraph (g) and to include the following description of the concept of "relevant domestic violence": "(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." 12 Regulation 1.24 requires that the relevant evidence be in the form of a statutory declaration. This requirement was not satisfied in the present case, as the Tribunal member noted. However, the Tribunal member did not allow the case to go off on that basis. The Tribunal said: "The Applicant has provided reports from a psychiatrist and psychologist and gave evidence in the hearing as to what he claimed was the emotional domestic violence he suffered at the hands of his former spouse. However, the Tribunal finds nothing in his evidence or the reports that would, even if it where [sic] in the form of a statutory declaration, lead the Tribunal to find that the Applicant had suffered domestic violence, apprehended or otherwise." 13 Mr Newman, solicitor for the applicant, argues the Tribunal misinterpreted the words "domestic violence", as used in the regulations, and this was an error of law infecting the Tribunal's decision. He points out there was evidence before the Tribunal of emotional and psychological sequelae to the marriage break up and says this must be attributable to the decision of the wife to terminate the marriage. He argues that "domestic violence" does not necessarily require physical assault; it is sufficient there be psychological violence, if this has an emotional or psychological consequence. 14 Mr Allatt, solicitor for the Minister, accepts that the concept of domestic violence does not necessarily involve physical assault. Psychological violence, such as belittling, intimidating, or frightening, may be sufficient. However, he argues that, for there to be domestic violence, there must be hostile conduct by one person towards another. 15 It seems to me Mr Allatt is correct. This is the way in which the term "domestic violence" is used in the regulations. The term is not defined. Probably the drafter primarily had in mind physical violence, but the word "physical" is not used. So it is reasonable to accept that the term may cover cases where the damage suffered by an applicant is not physical. Nonetheless, it is important to note that the description in reg 1.23(2)(b) refers to "violence against the alleged victim" that causes the alleged victim to fear for, or be apprehensive about, the victim's personal well being or safety. Regulation 1.23(g) talks about the "perpetrator" of violence. In other words, "domestic violence" is conduct against the victim, usually a course of conduct, that causes the victim to have fear or apprehension about her or his personal well-being or safety. It is not sufficient that there be conduct which has had the effect of causing diminution of a person's feeling of well being. There must be conduct, of one party towards the other, which has the consequence of causing fear or apprehension. 16 In the present case there is no suggestion of the wife having engaged in a course of conduct of intimidation, belittling, frightening or similar conduct towards the husband. There seem to have been some matrimonial differences, and then a break up of the marriage in the context of an accusation about bigamy. There is no suggestion of the applicant having been caused to suffer fear or apprehension. 17 The Tribunal was prepared to accept that Mr Malik was upset, and emotionally and psychologically affected by the break up of his marriage, but it took the view this was not enough to constitute "domestic violence" within the meaning of the regulation. This conclusion was open to the Tribunal. It involved no error of law. 18 The second matter relied upon by Mr Newman is an alleged failure by the Tribunal to comply with section 359A of the Migration Act 1958. Section 359A relevantly provides: "(1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. ... (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 19 The complaint is that the Tribunal did not give to Mr Malik "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review." 20 It seems from the correspondence that, although Mr Malik was apprised of the arrangements for the hearing and given adequate notice about them, he was not told he needed to deal with the matter of domestic violence. 21 However, it seems to me this case is covered by subs 4(b) of s359A. I think the purpose underlying s359A(1) is to ensure that any information which comes to the Tribunal, otherwise from the applicant and which is potentially prejudicial to the applicant's case, shall be drawn to the attention of the applicant, in order that he or she may have the opportunity of dealing with it. I do not think s359A(1) was intended to require the Tribunal to signal to an applicant its doubts or hesitation about the sufficiency of the case which the applicant, himself or herself, had put before the Tribunal. 22 The distinction between the two situations is readily understandable. It is an obvious breach of natural justice to take into account information which has been received by a decision maker from a third party, and which is detrimental to the case being made by a person seeking the exercise of a statutory discretion, if the person affected by the decision is left unaware of the information. On the other hand, if the problem, from the applicant's point of view, is simply that the material which he or she has put before the Tribunal is not sufficiently persuasive, it can hardly be said the applicant has been denied natural justice. He or she put such information as was thought useful, but it turned out to be insufficient to achieve the desired result. 23 I do not think this is a case to which s359A applies; consequently there was no procedural error by the Tribunal in failing to give a notice under that section. 24 The third matter raised by Mr Newman arises out of the fact that the psychiatrist, who reported on Mr Malik's condition, suggested it would be prudent to contact Mr Malik's wife and her family "and ask them for an explanation of events". She thought "this may lend insight into the degree of abuse (emotional trauma) that Akbar has suffered". Mr Malik's wife did not give evidence before the Tribunal. The complaint is made that the Tribunal took no action to ensure that she did. 25 I do not think it was a breach of the Tribunal's obligations not to require Mrs Malik to attend the hearing. Whatever the degree of Mr Malik's emotional trauma, it was clear that it was not caused by domestic violence, within the meaning of the regulations. No good purpose would have been served explaining the degree of the trauma. 26 I do not think any error of law affects the Tribunal's decision, with the consequence that the application must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox .