Morgan v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, Mr Lascelles Bernard Morgan, applies to the Court for review of a decision of the Immigration Review Tribunal affirming a decision of a delegate of the Minister refusing to him a visa in the General (Residence) class. 2 Mr Morgan was born in Sri Lanka, but is a citizen of the United Kingdom. He applied in 1995 to remain permanently in Australia on the basis that he was married to an Australian citizen. There is no suggestion that the marriage was not a genuine one. However it apparently deteriorated and Mr Morgan and his wife are now separated. 3 He applied for a visa in the General (Residence) class on the basis that he suffered domestic violence committed by his wife that being one criterion which if satisfied would entitle him to such a visa. His application was rejected and ultimately he sought review of the rejection decision by the Immigration Review Tribunal. 4 A person seeking a General (Residence) visa under this head is required to produce evidence under the provisions of Division 1.5 of the Migration Regulations 1994. The relevant regulations provide as follows: "1.24 (1) The evidence referred to in paragraph 1.23(1)(g) is: (a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with: (i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and (ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or (b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26. (2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in: (a) the same subparagraph of paragraph (a) of the definition of 'competent person'; or (b) subparagraph (b)(ii) of that definition. 1.25 (1) A statutory declaration under this regulation must be made by: (a) the spouse of the alleged perpetrator; or (b) if the alleged perpetrator is in an interdependent relationship with a person - that person. (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. (3) A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) must: (a) name that other person; and (b) set out the allegation; and (c) identify the relationship of the maker of the statutory declaration to that other person; and (d) name the person alleged to have committed the relevant domestic violence; and (e) set out the evidence on which the allegation is based." 5 Purporting to comply with these regulations Mr Morgan, represented by a migration agent (who would hardly be said to be particularly competent) filed a statutory declaration which he had made purporting to comply with regulation 1.25. He also filed a document in response to a freedom of information request signed by Constable Barr of the Newtown Police to which was attached a summons for an apprehended domestic/personal violence order for which Constable Barr had been the informant and statutory declarations from a Dr Shapiro, a registered psychologist and a Mr Sklavos, also a registered psychologist. 6 The Tribunal rejected Mr Morgan's application. It did so in a three page "Statement of Reasons and Decision" which counsel for the Minister does not seek to support nor could he. The reasons given by the Tribunal seemed to be that the psychologist's declarations were not satisfactory because they were based on facts which the applicant himself had asserted. The Tribunal said they were an "assessment on the basis of events as described to them". Of course, reports of specialists of this kind will almost invariably be based upon what the specialist is told. It would be rare indeed for the specialist to be present when the act of violence complained of took place. 7 The apprehended violence order summons appears to be rejected because it did not result in an order for apprehended violence. This is no doubt true although I did not think that that was the right issue for the Tribunal to consider. Having regard to the terms of regulation 1.24(1)(a)(ii), the relevant question (and it hardly seems to have been addressed by the Tribunal) was whether the material produced by Constable Barr was a record kept by the New South Wales Police Service. Ordinarily, these errors of law would lead to the conclusion that the Tribunal's decision should be set aside and the matter re-heard. However, counsel for the Minister submits, correctly, that the Court should not make an order setting aside the Tribunal's decision and remitting the matter to it for re-hearing if so to do would be futile. Reliance is placed upon decisions such as Hyundai Automotive Distributors Australia Pty Limited v Australian Customs Service (1998) 81 FCR 590 and 599-600, a decision of a Full Court of this Court, and Jankovic v Minister of Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477, a decision of another Full Court. 8 Counsel submits that a Tribunal properly instructed in the law could do nothing but reject the applicant's application. First, it is said, that so far as the applicant seeks to rely upon regulation 1.24, the statutory declaration, which the applicant himself had sworn, was not a statutory declaration as contemplated by the Migration Regulations because it was not made under the Statutory Declarations Act 1959: see regulation 1.21 which defines statutory declaration as meaning a statutory declaration under the Commonwealth Act. The declaration on its face was sworn under the provisions of the Oaths Act 1900, a New South Wales Act and not the Commonwealth Act. 9 Counsel submits also that in any event the apprehended violence order summons was not a record of an assault kept by the New South Wales Police Service. It is submitted further by the Minister that Mr Morgan's application did not comply with regulation 1.24(2) in association with regulation 1.26 because the combined effect of those regulations is that the statutory declarations filed must come from persons not sharing the same competency. In the present case both declarations filed were from psychologists sharing that same competency. Although counsel did not repeat the point, perhaps it may also be noted that each declaration was a statutory declaration under the provision of the Oaths Act. 10 Counsel for the applicant conceded that he could not rely upon the statutory declarations by the psychologists for the reason that there were two declarations by two people with the same competency. He sought, however, to maintain reliance upon the statutory declaration together with the material produced by Constable Barr. It is perhaps useful at this point, although not ultimately relevant to my decision, to note that the Tribunal appeared to have believed Mr Morgan concerning the assaults to which he referred. Indeed it said in its reasons that there was sufficient evidence to show that Mr Morgan was badly treated by his wife. She was, it seems, addicted to drugs and extorted money from him and threatened him with physical and emotional violence. A threat which extended to, it would seem, associates of Mrs Morgan. 11 It is in these circumstances unfortunate that I have no alternative but to find for the Minister on the extremely narrow and technical basis that the declaration which was prepared on his behalf and which he made available to the Tribunal was not made under the Commonwealth Statutory Declarations Act, but rather under the New South Wales Oaths Act. This is the sort of matter which tends to bring the law into some disrepute. However, were the matter to go back to the Tribunal, the Tribunal would have to find against Mr Morgan for this reason. I do not find it necessary to decide whether the AVO summons was capable of being a record which, if kept by the New South Wales Police, could comply with regulation 1.24(1)(a)(ii). 12 The question whether it was kept by the New South Wales Police is of course a question of fact and one upon which the Tribunal appears to have made no finding. Such summonses are no doubt filed in a court and may or may not be kept by New South Wales Police. There is some suggestion, perhaps, that it was in this case, but in the absence of a factual finding, another error of law on the part of the Tribunal, it would be difficult for me to intervene. I think it is possible for a document in the form of a summons to be a record. Anything upon which relevant material is written can be a record. Whether in this case there was compliance with the regulation ultimately depends upon factual matters not before me. 13 Before concluding this judgment, I should perhaps say that the present would appear to be a case where the Minister might give consideration to substitute for the decision of the Tribunal a decision more favourable to Mr Morgan than that which has been afforded to him. That is a matter for the Minister, not for this Court. It is also a matter in which the Minister must consider the public interest and no doubt relevant to that will be the various matters which appear in Mr Morgan's application as to his activities while in Australia and for that matter in the United Kingdom. 14 Mr Morgan may have the alternative, it is a matter for his advisers to consider, of making another application which does comply with the regulations where hopefully he may be better served by his representation than he was in this instance. Having regard to the very unsatisfactory nature of the Tribunal's decision and the fact that in essence the Minister succeeded on a matter not at all dealt with by the Tribunal and one which might be said to satisfy the description of a narrow technical ground, I would not order the applicant to pay the Minister's costs in the present case. Accordingly, I make no order as to costs.