The statutory declarations
22 The relevant meaning of the verb, "state" given in the Macquarie Concise Dictionary includes:
to set forth formally in speech or writing…to set forth in proper or definite form
23 There is nothing in this definition, and no authority of which the Court is aware, that requires competent persons, in order to conform to reg 1.26 in stating their opinion, to use the word "opinion" as distinct from expressing an "opinion". There are, however, a number of cases in which this Court has considered what is required for a statutory declaration to comply with reg 1.26.
24 In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183, the Full Court referred to the requirement in reg 1.23(1)(g) that the alleged victim of domestic violence (or another person on his or her behalf) must present evidence of domestic violence in accordance with reg 1.24. The Court said that the correct question for the Tribunal to ask itself was whether the evidence called for by the regulations had been presented. If it has not, then the domestic violence is not "taken" to have occurred and the exception does not apply. The Court placed some stress on the fact that reg 1.26 is very specific in its requirement for the competent person to "state" that in his or her opinion relevant domestic violence has been suffered.
25 In Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [18] Mathews J emphasised the need for an expression of opinion and observed that it was not sufficient for a competent person "simply to note the consistency between a person's presentation and their account of domestic violence". It was necessary for that person to "express an opinion in very specific terms … as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person". Her Honour added that this required the competent person to assess the alleged victim's state of mind as well as to form an opinion as to whether past acts of violence have occurred.
26 Sundberg J agreed with Mathews J's observations in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 at [13]. In that casethere was a live issue (which does not arise here) as to whether the conduct of which the visa applicant complained was domestic violence, as that term is defined in the regulations. His Honour also observed that the declarations in Alin did not contain the necessary expression of opinion and distinguished the circumstances before him from those considered by Ryan J in Meroka v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 251. In Meroka, Ryan J arguably took a more flexible approach to the requirement in reg 1.26 that the competent person state his or her opinion when he said at [34] that a statement of opinion might be conveyed by implication.
27 At the hearing of the appeal Mr Ejueyitsi appeared for himself. While it was not always easy to understand his submissions, the main thrust of them was clear. He submitted, relying on Meroka, that the declarations of both Dr Van Dort and Ms Fraser met the statutory requirement because their opinion was stated by implication. This submission is substantially the same as that put to Weinberg J by Mr Horan of counsel who appeared before his Honour for Mr Ejueyitsi. Weinberg J summarised Mr Horan's submission at [52]-[54]:
Once again, Mr Horan submitted that it was "implicit" in Ms Fraser's two statutory declarations that she was of the opinion that the appellant had suffered domestic violence committed by the nominator. He submitted that in considering whether a statutory declaration contains the requisite opinion, it must be read fairly, and should not be "scrutinised over-zealously with a view to detecting some inadequacy of expression from which error may be imputed": see Kozel at [30] per Ryan J. He submitted that in many, if not most, cases, the competent person would have no direct knowledge of the applicant's relationship with his or her spouse, and would therefore be in no position to do other than recount the history given by that person. Even if there were objective signs of violence having been inflicted, it would be difficult for a doctor, or a social worker, to proffer an opinion that the injuries in question had been inflicted in the course of domestic violence, still less that a particular person had inflicted them. He submitted that the Regulations should be construed benevolently, having regard to their evident purpose, which was to allow persons who had been subjected to domestic violence, and forced to live apart, to maintain a claim for a spouse visa. He further submitted that the Regulations should not be construed so as to require the competent person to act as an investigative, or fact finding body, a task which many such persons would either eschew, or not be qualified to undertake.
In that regard, Mr Horan submitted that Dr Van Dort, in his statutory declaration, had stated that he had been given an account of the domestic violence suffered by the appellant, and committed by the nominator, and that he had been shown corroborating evidence in the form of police reports and photographs. It was in that context that Dr Van Dort stated that the appellant "was distressed and I feel that he was depressed". In those circumstances, Mr Horan submitted, it was by no means difficult to infer that Dr Van Dort was stating an opinion that the appellant had suffered domestic violence, as required by reg 1.26, and that he held the opinion that this had been inflicted by the nominator. The same could be said of Ms Fraser's statutory declarations.
Mr Horan noted that the conduct of the nominator, as described by the appellant, was capable of amounting to domestic violence within the meaning of the Regulations. It involved violence against the appellant's property, and at least the implicit threat of violence against him. It must have caused him to fear for, or to be apprehensive about, his personal well-being or safety.
28 Commenting on those submissions and the submission made on behalf of the Minister, Weinberg J said at [100]-[102]:
The appellant's submissions regarding the statutory declarations obviously face significant hurdles. Nonetheless, an argument can be put to the effect that the MRT erred in its treatment of this issue. Much will depend upon whether the approach taken by Ryan J in Meroka, which recognises the possibility that a statutory declaration may state an opinion "implicitly", is good law.