Shaikh v Minister for Immigration & Multicultural & Indigenous Affairs

· whether the MRT took into account irrelevant considerations by its misapplication of the Migration Regulations 1994 (Cth) ("the regulations").

Factual background 4 Mr Shaikh is a citizen of India. He entered Australia on 30 September 1998 as the holder of a student visa, which was valid until 30 July 2000. On 29 July 1999, Mr Shaikh married Ms Cynthia Monica Krishna. On 2 August 1999, he applied for a General (Residence) (Class AS) Spouse 801 visa, based on his marriage to Ms Krishna. Ms Krishna was Mr Shaikh's nominator for the purposes of the application for the visa. 5 On 15 December 1999, the Department of Immigration and Multicultural Affairs ("the department") advised Mr Shaikh that he had been granted a temporary spouse visa pending the resolution of his application for a Class AS spouse visa. In part the advice stated that: "This office will contact you around two years from the date your application was lodged regarding your permanent residence application as you will need to supply further evidence that your relationship is ongoing at that stage."

6 By letter dated 19 February 2001, an officer of the department informed Mr Shaikh that the department had received information that his relationship with Ms Krishna was "no longer continuing". Mr Shaikh contacted the department and was subsequently interviewed on 1 March 2001 with respect to the subject matter of the letter. 7 On 21 June 2001, Ms Krishna wrote to the department. In that letter she referred to a conversation with a departmental officer on 18 April 2001 concerning the withdrawal of her "sponsorship" of Mr Shaikh. In the letter Ms Krishna said that she had decided to proceed with the withdrawal of her nomination of Mr Shaikh, but that the withdrawal was not due to a breakdown in her relationship with him. 8 On 24 July 2001, an officer of the department requested that Mr Shaikh contact her concerning information that the department had received that the relationship, upon which his visa application was based, was no longer continuing. On 1 August 2001, Mr Shaikh's migration agent responded to that letter. The agent admitted that Mr Shaikh and Ms Krishna were "having a few difficulties in their marriage" and that "a marriage consultant was appointed to try to improve their relationship". The agent said that "at this stage" the marriage was genuine and on-going. 9 By statutory declaration dated 6 September 2001, Ms Krishna informed an officer of the department that she supported the sponsorship of Mr Shaikh and that any doubts she previously held had been removed. Mr Shaikh also provided a statutory declaration dated 6 September 2001, attesting to the genuineness and on-going nature of the marriage. 10 On 23 October 2001, Ms Krishna applied in the Federal Magistrates Court for the dissolution of the marriage. In the application she stated that she and her husband separated on 30 July 1999, the day after their marriage. She also stated that the couple lived as husband and wife for four days, from 21 February 2001 to 25 February 2001. In addition, she stated that she had applied for an apprehended violence order against Mr Shaikh in the Parramatta Local Court. In a "response" document filed by Mr Shaikh on 10 January 2002, he said that the separation occurred on 6 September 2001, and that he regarded the marriage as over when his wife applied for an intervention order against him on 29 September 2001. It appears that, on 30 October 2001, the Local Court at Parramatta made an interim apprehended violence order against Ms Krishna for the protection of Mr Shaikh. 11 Also on 23 October 2001, a delegate of the respondent Minister refused Mr Shaikh's application for the General (Residence) (Class AS) visa. On 20 November 2001, Mr Shaikh sought a review of the delegate's decision in the MRT. By letter dated 22 March 2002 the MRT sought Mr Shaikh's comment on information it had received that Ms Krishna had withdrawn her nomination for the purposes of the visa application. In the meantime, on 16 January 2002, Mr Shaikh and Ms Krishna were divorced. 12 By letter dated 29 April 2002, Mr Shaikh's solicitors wrote to the MRT in response to its letter of 22 March. The letter stated that Mr Shaikh had suffered domestic violence at the hands of Ms Krishna and her mother. It requested the grant of the visa, notwithstanding the withdrawal of the nomination, and enclosed material including statutory declarations from a medical practitioner and a dentist, one from Mr Shaikh, another from a friend of his, together with a reference from his local federal parliamentarian, Mr Kelvin Thomson M.H.R. 13 The statutory declaration from Mr Shaikh was dated 17 October 2001. At paragraph 6 it claimed that Ms Krishna "became violent" against him. The details of that allegation were supplied in the following paragraph which said: "One day she telephoned and told me that she had aborted her pregnancy because she would not carry a Muslim child. She demanding that I buy expensive Jewries for her otherwise she would inform the Department of Immigration to deport me to India. In most cases Cynthia and her mother would telephone me at the middle of the night and start abusing me. In particular after the September 11 terrorist attack on America they started telling me that all Muslims should be killed. That I should go to Afghanistan and join my terrorist brothers. When I could not handle it any longer I told Cynthia that I was going to seek legal advise. At that time I did not know about the DOMESTIC VIOLENCE provision under the law. She told me not to worry about legal advice that things would work out in the end. She told me to wait until her mother travelled to India for good. While waiting as Cynthia advised me, I received a letter from the Department of Immigration informing me that my application has been refused because my sponsor had withdrawn her sponsorship." 14 The MRT conducted an oral hearing on 25 June 2002. Mr Shaikh's solicitors forwarded a post-hearing written submission to the MRT on 11 July 2002, together with a statutory declaration made by a dentist, a medical report of a Dr Parikh and a statutory declaration made by a social worker. On 31 July 2002, the MRT affirmed the decision under review.

The reasons of the MRT 15 After reciting the relevant regulations the MRT stated at [7] that the "major issues" before it were: · at the date of decision whether the visa applicant and nominator were in a spousal relationship as defined in the regulations and met the requirements of sub-cl 801.221(2); and

· if they were not in a spousal relationship, then did the visa applicant fall within sub-cl 801.221(6), in that notwithstanding that the parties' relationship was no longer in existence, he suffered domestic violence as described in Part 1.5 of the regulations. 16 The MRT found at [46] that at the time of the making of Mr Shaikh's application he was married to Ms Krishna, but that the couple was not in a spousal relationship in accordance with reg 1.15A. That was because the parties to the marriage did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. In addition the parties to the marriage were financially independent, lived apart, and largely kept their marriage secret. The MRT found that the parties were not in a spousal relationship at the time of the decision, as they were divorced by then. 17 The MRT then considered Mr Shaikh's claim to be a victim of domestic violence at the hands of Ms Krishna, and her mother, pursuant to sub-cl 801.221(6)(c)(i). That part of the regulations provides, essentially, that if the relationship between a visa applicant and a nominating spouse has ended in circumstances where the applicant has suffered domestic violence, committed by the nominating spouse, the applicant meets the requirements of cl 801.221 and thus qualifies for the relevant visa. 18 On the issue of domestic violence, the MRT found that, as Mr Shaikh and Ms Krishna were not in a spousal relationship at the time of the application, sub-cl 801.221(6) was inapplicable. 19 The MRT next considered, in the event that it was in error on the question of the existence of a spousal relationship, whether Mr Shaikh had suffered domestic violence. 20 The MRT considered the evidence submitted in support of the domestic violence allegation and found that it did not comply with reg 1.24(2)(a), which requires two statutory declarations from competent persons, both of whom have a qualification referred to in paragraph (a) of the definition of "competent person". In the current case Mr Shaikh provided two statutory declarations, both from medical practitioners. This was inappropriate. He was provided with 21 days to present another declaration from a competent person. On 2 July 2002, a declaration was provided by a social worker. The MRT considered that this declaration was insufficient to meet the requirements of reg 1.23(2)(b) as it did not suggest that Mr Shaikh feared, or was apprehensive about his safety or well-being, or use words to that effect. 21 The MRT then considered whether Mr Shaikh's statutory declaration of 17 October 2001 complied with reg 1.25(2). At [67] of its reasons for decision, it said: "The statutory declaration of the visa applicant (the alleged victim) does not refer to a "fear for or being apprehensive about his personal well being or safety" or statements to that effect which might indicate that he had a fear of apprehension relating to his personal well being or safety. It simply describes the offending behaviour by the nominator as taking the form of verbal abuse of different kinds. The visa applicant in his evidence focused predominantly on what he described as the verbal abuse of the nominator and her mother. The statutory declaration of the visa applicant does not comply with Regulation 1.25(2) in the Tribunal's view."

The judgment below 22 The first issue before the learned Chief Federal Magistrate was the allegation that Mr Shaikh had been denied procedural fairness. Mr Shaikh alleged that the hearing before the MRT had proceeded on the basis that the sole question was whether he was entitled to a visa, notwithstanding his separation, on account of his having suffered domestic violence. Mr Shaikh claimed that the matter was determined adversely to him on a basis not traversed at the hearing, that is, whether he was in a spousal relationship at the time he made his application for a spouse visa. 23 Mr Shaikh, in his contentions filed in the Court below, undertook to produce the transcript of the hearing before the MRT. He failed to do so. 24 At [21] in her reasons for judgment, her Honour said: "…the applicant did not produce the transcript and no further submissions, or arguments, were directed to this ground. Thus, the applicant has not discharged the onus of demonstrating failure to accord procedural fairness. Without a transcript it is difficult to form a concluded view but I have concerns about the manner in which the Tribunal dealt with this issue." 25 At [22] her Honour expressed her concurrence with submissions of counsel for the Minister that a failure to accord procedural fairness which did not affect the result of the hearing would not lead to a remedy for Mr Shaikh. Her Honour referred, in this context, to Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [58], Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1, and Stead v State Government Insurance Commission (1986) 161 CLR 141. 26 Mr Shaikh's complaint was that he had been led by the MRT to believe that it was unnecessary to call witnesses on the question whether he was in a spousal relationship at the time of the making of his application. 27 Mr Shaikh also raised other matters under the heading of "natural justice/procedural fairness" which are not the subject of any ground of review. 28 The second issue raised in the Court below was the contention that the MRT's findings about domestic violence were so unreasonable as to amount to an error of law. 29 At [31] her Honour said: "The Tribunal found that the statutory declaration of the applicant did not comply with subregulation 1.25 (2) as the applicant did not make statements which might indicate that he had a fear or apprehension relating to his personal wellbeing or safety. It simply described the then behaviour by the nominator as taking the form of verbal abuse of different kinds."

30 At [32], her Honour noted that the MRT found that the statutory declaration made by a social worker, Mr Button, did not deal with the issue of "relevant domestic violence" and that Mr Button did not refer to Mr Shaikh being in fear for, or apprehensive about, his well-being or safety. 31 At [36], her Honour said that there was a fatal flaw in Mr Shaikh's statutory declaration of 17 October 2001. She said: "…it does not present any evidence that the applicant had any fear or apprehension for his wellbeing or safety by reason of violence or threat of violence from his spouse. The finding of the Tribunal that the statutory declaration of the applciant was inadequate to satisfy the Regulations was open on the material and in my view is the only view available." 32 Her Honour then referred to dicta in Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183 ("Cakmak") to the effect that belittling behaviour not accompanied by actual physical violence is not "domestic violence" under the regulations. Her Honour's reasons pre-dated the judgment of the Full Court in Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 ("Sok") where Cakmak was not followed in that respect. In Sok, Branson J said at [27] that: "I conclude that the better view of the true meaning of regulation 1.23(2)(b) is that the 'violence' there referred to is not restricted to physical violence. It seems to me that this conclusion accords with notions of fairness and with what may be assumed to be the policy lying behind regulation 1.23(1)(g). Without wishing in any way to diminish the horror of physical violence, it seems unlikely, in my view, that it was intended that while a person who had experienced an act of physical violence at the hands of his or her spouse might be able to bring himself or herself within regulation 1.23(1)(g), a person who had suffered the psychological violence of, for example, being compelled by non-physical means to be complicit in the sexual abuse of a child would necessarily fall outside the regulation." 33 Whilst Hely J dissented in Sok, Marshall J at [36] agreed with the reasoning of Branson J, adding at [37] a further basis to support her Honour's conclusion. 34 As the judgment below proceeded on the basis of the correctness of Cakmak,no good purpose is served by dealing with the Chief Federal Magistrate's treatment of this issue. This is especially so when we consider that the appeal can be determined solely by upholding the correctness of her Honour's view as to the inadequacy of Mr Shaikh's statutory declaration of 17 October 2001. 35 The third issue raised by Mr Shaikh before the Court below concerned an alleged breach of s 379G(1) of the Migration Act 1958 (Cth) ("the Act") by the MRT. We do not pause to consider this issue as it is not the subject of any ground of appeal.

The grounds of appeal 36 Counsel for Mr Shaikh raised two issues on the appeal. The first related to the question of procedural fairness and the second to her Honour's application of the regulations dealing with the issue of domestic violence.

The procedural fairness ground 37 Having regard to our views concerning the application of the regulations relevant to domestic violence, it is not necessary to deal with this ground.

The "domestic violence" ground 38 Regulation 1.25 of the regulations requires a person who claims to have been a victim of relevant domestic violence to make a statutory declaration in which that person must, amongst other things, set out the allegation and the evidence upon which the allegation is based. Regulation 1.23(2)(b) provides that a reference to relevant domestic violence: "(b) …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." 39 We agree with the MRT, and with the observations of the primary judge, that Mr Sheikh's statutory declaration did not comply with reg 1.25. At the very least, it was open to the MRT to find, as a matter of fact, that the statutory declaration did not refer to Mr Sheikh's fear or state of apprehension about his personal well-being or safety. The highest point of the statutory declaration for him in that regard, is the claim contained in it, that he "could not handle it any longer." That is not of itself an expression of fear about one's personal well-being or safety, but may rather be an expression of an exasperated state of mind. However, in making that point, we should not be taken as detracting from the proposition in Sok that "domestic violence", for the purposes of the regulations, is not confined to actual physical violence. 40 Counsel for Mr Shaikh conceded that in order to succeed on this point he would need to convince the Court that the MRT should have found that the statutory declaration complied with the regulations, and that no other inference was reasonably open. For the reasons given above, we reject that submission. Like her Honour below, we consider that the MRT's findings regarding the inadequacy of the statutory declaration were open, and cannot be impugned on judicial review.

Disposition 41 It was for the reasons set out above that we considered that the appeal must fail. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Marshall and Weinberg.

Associate: Dated: 26 August 2005 Counsel for the Appellant Mr B Kissane

Solicitors for the Appellant: Di Mauro Solicitors

Counsel for the Respondent: Mr P Gray

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 19 August 2005

Date of Order: 19 August 2005

Date of Publication of Reasons for Judgment: 26 August 2005