Rith Sok v Minister for Immigration Multicultural And Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant, a male Cambodian national, married an Australian citizen and was granted a temporary subclass 309 Spouse (Provisional) visa with his wife as sponsor. He later applied for a Partner (Migrant)(Class BC) subclass 100 visa. 2 A delegate of the Minister refused that visa and that decision was affirmed by the Migration Review Tribunal. The applicant seeks review of the Tribunal's decision under s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 3 The applicant has to show that the Tribunal's decision was affected by jurisdictional error and thus not protected from judicial review by s 474(2) of the Migration Act 1958 (Cth) (the Act). Visa criteria 4 At the time of the delegate's and Tribunal's decisions the marriage had broken down and the applicant was no longer in a spouse relationship. He therefore had to satisfy one of a number of possible alternative criteria, the relevant one being that he had "suffered domestic violence committed by" his wife: Migration Regulations sch 2 subclass 100.221(4)(c)(i)(A). 5 Division 1.5 of the Regulations mandates a procedure where domestic violence is in issue. The decision-maker's task is not to determine whether or not domestic violence has in fact been committed but whether an applicant has provided evidence of a specified kind. If so, then the person is "taken to" have suffered domestic violence and another person is "taken to" have committed that violence. 6 In the present case the applicant supplied statutory declarations by a social worker and a psychologist, those being two of the categories of "competent persons" specified by the Regulations (reg 1.21(1)(a)). 7 The statutory declarations had to, amongst other things: · state that, in the competent person's opinion, relevant domestic violence had been suffered by the applicant (reg 1.26(c)); · set out the evidence on which the competent person's opinion was based (reg 1.26(f)). Issues 8 Counsel for the applicant argued that the Tribunal committed jurisdictional error by 1. holding that the competent persons had failed to express an opinion; and 2. failing to give to the applicant, as required by s 359A of the Act, particulars of "information" that was part of the reason for affirming the Tribunal's decision, that information being its opinion about the adequacy of the two statutory declarations of the "competent persons". Applicant's case before the Tribunal 9 The applicant, like the competent persons, made a statutory declaration. All the declarations were on a Departmental form 1040 headed "Statutory Declarations under the Domestic Violence Provisions of the Migration Regulations". The form has printed instructions and information including the following: "What is domestic violence? For the purposes of the Migration Regulations, domestic violence means: "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. Violence includes the threat of violence. Please refer to this definition when making your statement." Under the heading of "Evidence of domestic violence" it is said: "In order to access the provision, applicants need to provide evidence that domestic violence occurred. This may be - · family court injunctions, court recognised joint undertakings, court orders or convictions; or · A statutory declaration from the applicant and two statutory declarations from any of a range of 'competent persons' stating that in their opinion the applicant has suffered from domestic violence." The form has a number of questions including "3. Briefly describe the nature of the violence experienced (Please refer to the definition of domestic violence on the front of this form)", and "7. Briefly describe the evidence on which you base your professional opinion that the people named in question 1 have experienced domestic violence (Please refer to the definition of domestic violence on the front of this form)". 10 In the applicant's statutory declaration made on 22 April 2003 he said he was born on 6 February 1975 and was the fifth of seven children. His father and all his siblings were killed during the Pol Pot regime, he and his mother being the only survivors. He married on 9 May 2001. After a honeymoon his wife returned to Australia in July 2001 and after six months waiting he was granted a visa to travel to Australia where he arrived on 28 December 2001. He continued: "Later she got me a job to work in a strawberry farm where I was picked up at five o'clock in the morning and dropped off back at home at six or seven pm everyday. When I got home, I was asked to cook, wash dishes and clean the house. She kept all the money that I earned and after 3 months we went to buy a car. She asked me to pay three thousand in advance with the money that I brought with me from Cambodia and we financed the rest. However, the car was purchased in her name only and so I was not allowed to drive the car. If I needed to go places I had no choice but to be driven by my wife or her brother. I was not allowed to go out by myself, I had to work and stay home. She and her brother threatened me that if I defied them then they would report to the Department of Immigration, so that I would be deported. This made me feel very worried and frightened. I often wondered why she treated me this way in comparison to how she treated me before. She went out everyday and frequently to Crown Casino to gamble. When she lost money, she expressed her anger out on me by swearing and scorning my mother. I tried desperately to convince her to stop gambling but to no avail. She told me that my business was to work and apart from that it wasn't any of my business. When my friend helped me to get a job in the pack point factory, she was so angry and agitated. She kept warning me that I broke the family principles by seeking outside help and therefore I would pay the price. She withdrew all the money in our bank account and lost it when gambling. She then demanded fifteen thousand dollars from me or else she said she would call my mother and squeeze it from her, if she did not receive the money from me in a week's time. I did not have fifteen thousand dollars on standby for her so she rang my mother for the money. My mum explained to her that this amount of money was beyond her reach when she only makes very little profit from selling eggs. My estranged wife then told my mother that she would report to the Department of Immigration to send me back to Cambodia as a punishment. My mother was fearful and worried and as a result she ended up in hospital. I am a law-abiding citizen, I have not been doing anything that would breach the Immigration law nor the Australian family law. In fact I am the victim of domestic violence and other types of abuse through my two-year marriage. I, therefore ask that the decision maker at the Department of Immigration takes into account all of the circumstances surrounding the various forms of violence inflicted on me by my estranged wife and make a decision that will allow me to stay in Australia. I believe I meet the requirements of the domestic violence regulations." 11 The first competent person was Mr Peter Anthony Moore, a social worker. He stated in answer to question 3 that the applicant had experienced "…various forms of violence directed against himself by his estranged wife, Mrs Sophear Hort. This violence affects Mr Sok's personal well-being and safety. The violence has included financial abuse, emotional abuse, physical abuse and exploitation. Mr Sok has been denied control over his own financial resources and further he believes that they have been squandered on his wife's gambling practices. Mr Sok's wife has exploited his limited knowledge of Australia and English to maintain Mr Sok in a subjected and isolated lifestyle of working extreme hours with limited recreation to maintain her lifestyle. Ms Hort's brothers who lived with the couple have aided her to accomplish this. Mr Han (sic) and his mother have also been subjected to extortion by Ms Hort exploiting Mr Sok's tenuous residency in Australia and the effects of a failed marriage would have in Cambodian custom. Mr Sok's personal well-being and safety is jeopardised in his marriage to Ms Hort and the maintenance of the relationship would be concerning. Mr Sok needs further counselling to deal with the abuse issues created through his two year marriage." In answer to question 7 Mr Moore deposed: "Interview conducted with Mr Rith Sok on 8 April 2003 with Mr Heng Phang of Keysborough interpreting. Mr Sok was clearly distressed when relating the incidents of the abuse in his marriage. He displayed many of the behaviours, emotions and verbal nuances consistent with a man who has been subjected to the abuse described in question three. His responses and description were consistent with a survivor of domestic violence." 12 The other competent person was Ms Joan James, a psychologist. In answer to question 3 she deposed: "Sophear emotionally abused Rith by belittling him, isolating him and neglecting his needs. This caused him to fear for his personal well being. He also feared for his psychological health. He became depressed, anxious, withdrawn and this affected his personal well being. Sophear controlled his entire existence and threatened him with immigration intervention if he did not comply. He was intimidated and fearful." In answer to question 7 she said: "It is my professional opinion that Rith Sok has suffered from domestic violence. This is based on a very extensive interview whereby symptoms of trauma, grief and depression were observed. He was notably distressed when recalling events of his marriage and there were changes observed when he discussed earlier events. His narratives and behaviours are consistent with someone who has experienced domestic violence such as described. His descriptions remain consistent and still causes pain to recollect." The Tribunal's decision 13 The Tribunal found that the competent person's statutory declarations did not satisfy reg 1.26 "on the basis that they fail to conform to regulation 1.26: see Du's case where the court held that: It is not sufficient compliance, in my view, with these Regulations by a competent person simply to note the consistence 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 reg 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 statement of mind of the alleged victim." The reference is to Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [18] to [19] where the Court considered whether there had been a failure to express an opinion. Counsel for the applicant argued that at the time Du was decided there was no form 1040. He said it was implicit from the making of a declaration on form 1040 that the competent person had formed the opinion required. There was no dispute in the present case that Mr Moore and Ms James were "competent persons" for the purposes of the Regulations. Counsel relied on a passage from the judgment of Ryan J in Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251 at [34] where his Honour said: "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 and birth of the victim and the full name of the person believed to have perpetrated the domestic violence." 14 I agree with counsel's submissions up to this point. But Ryan J went on to say in the immediately following paragraph: "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." 15 A Full Court of this Court has held that "domestic violence" for the purposes of the Regulations has as an essential element the application of physical force or the threat thereof; emotional or psychological violence is not enough: Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 333. Cakmak is the subject of a special leave application to the High Court. Counsel formally submitted that it was wrong but of course accepted that I am bound by it. 16 I am prepared to accept for the purposes of argument that Mr Moore's statutory declaration would be sufficient since it does contain reference to "physical abuse", albeit in the form of a bare and unparticularised allegation. However, Ms James' declaration contains no reference to physical violence. The threats she speaks of are threats to report the applicant to the Immigration Department. 17 This reading of Ms James' declaration is confirmed by the applicant's own declaration which contains no suggestion of physical violence. His reference to "paying the price" relates to reporting to the Department, not to any physical violence. 18 Counsel drew attention to a passage in the Tribunal's reasons when, referring to the applicant's evidence before it, it said: "He was asked whether she or her brothers had been physically violent to him, but his response was somewhat garbled (notwithstanding the assistance of a skilled and experienced interpreter) and largely returned to her threats to have him sent back to Cambodia without referring to physical violence. It was quite evident that the visa applicant had been ill used by both his wife and his employer." 19 The passage in the evidence is in the context of the applicant explaining how he was working picking strawberries and his wife had demanded the $15,000 to pay her gambling debts. The following passage occurred (p 5): "MR FORD: All right, and what did you do? Did you give her the money or did you argue with her? What happened? INTERPRETER: (indistinct) I couldn't make 15,000 as demand. It was only hundred dollar per day picking strawberries, all hundred dollar she kept and (indistinct) she couldn't get what she asked for, she report to the Department of Immigration about my residency here, and also she phones my mum (indistinct) and made same demand to her - to his mother. MR FORD: It doesn't sound like you married a very nice lady. INTERPRETER: She was a good lady, a nice lady, but after she lost a lot of money in gambling, her personality has changed, ask to give her money every day from me and also swear to my mother and also to myself. MR FORD: Was she ever physically violent towards you? INTERPRETER: He ask you can you put the questions --- MR FORD: Did she ever try to hit you, punch you, scratch you, anything like that? INTERPRETER: Yes, she did that to me (indistinct) but I was not aware. I was under pressure and I couldn't report this incident to any authority. MR FORD: What do you mean, you were under pressure? INTERPRETER: I mean that she follow me everywhere I went or sent her brother to follow me. If I wanted to do anything, I had to ask for her permission. MR FORD: Where were they going? Off to Crown Casino? INTERPRETER: (indistinct) MR FORD: But I take it that all of the money that she took was wasted, thrown away, on gambling. INTERPRETER: Yes." 20 The Tribunal in my opinion was justified in not placing any importance on this passage. The applicant was responding to a leading question from the Tribunal. His own detailed statutory declaration quoted above (made before the Tribunal hearing), as already mentioned made no reference to physical violence. In any case, the mandatory criteria for the visa required each competent person to express an opinion as to domestic violence, which as construed by the Full Court means physical violence. Plainly Ms James' declaration did not satisfy that criteria. 21 The conclusion which the Tribunal came to was the only one open to it. It would not be a proper exercise of the discretion to send the matter for a rehearing thereby giving the applicant an opportunity to patch up a critical gap in his evidence. 22 Counsel for the applicant put his argument in relation to regulation 1.26(c) in two ways. First, that the Tribunal failed to take into account a relevant matter, namely that the two competent persons had made their statutory declarations in the form 1040 which implicitly states that they held the relevant opinion. For the reasons already given, I find that the declarations did express an opinion but it was not an opinion as to the question of violence in the sense mandated by Cakmak. That also answers the second way counsel put the argument, namely, that the Tribunal misapplied and misconstrued regulation 1.26(c) in finding that the statutory declarations did not comply with it. Section 359A 23 Section 359A relevantly provides: (1) … the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers it 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; (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. Subsection (2) deals with the way in which the information and invitation is to be given to the applicant. Subsection (4) provides that the section does not apply to information: (a) … (b) that the applicant gave for the purpose of the application; or (c) … 24 In support of his argument counsel said that the Tribunal did not in the course of the hearing raise with the applicant the contents of the statutory declarations or the view it took as to their adequacy. They were provided to the Department prior to the delegate's decision. 25 The short answer is that the statutory declarations were not "information" within the meaning of s 359A. The word does not encompass the Tribunal's subjective appraisals, thought processes or determinations. The applicant obviously knew that statutory declarations had been provided to the Tribunal through the Department. The Tribunal's conclusion that they did not satisfy the regulations was not "information" to be provided to him for his comment: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. Conclusion 26 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 Heerey.