REASONS FOR JUDGMENT
PROCEDURAL BACKGROUND
1 By an application for an order of review filed in this Court on 15 March 2004, Terrence John Theunissen ("the applicant") commenced the proceeding described above as VID 332 of 2004. I will describe this as "the review proceeding".
2 The decision the applicant seeks to disturb by the review proceedings is a decision of the Migration Review Tribunal ("the Tribunal") made on 12 February 2004 ("the decision"). By the decision, the Tribunal affirmed the refusal of the delegate of the Minister to grant a Partner (Migrant) (class BC), subclass 100 (Spouse), visa ("the permanent spouse visa") to the applicant ("the refusal").
3 On 23 March 2004 the applicant filed a writ of summons in the High Court. This was followed by a statement of claim filed on 16 April 2004 ("the statement of claim"). That proceeding was remitted to this Court, whereupon it became the proceeding described above as VID 819 of 2004 ‑ pursuant to an order of Hayne J made on 3 June 2004. I will describe this as "the constitutional proceeding".
4 The constitutional proceeding relates to both the decision and the refusal. The applicant claims that the regulations governing the grant of the permanent spouse visa are invalid mainly, though not solely, on constitutional grounds. For example, much is also made of their 'unworkability'. The applicant also makes other complaints.
5 The application by which the review proceeding was commenced states that "the grounds of the application are as stated in affidavits in support of the application". On 22 April 2004 the applicant filed such an affidavit in which inter alia he repeated and adopted all of his grounds in the constitutional proceeding. For that reason, in certain contexts it has not been necessary to distinguish between the review proceeding and the constitutional proceeding. Where this is so, I refer simply to "the instant proceedings".
6 It having been ordered that the instant proceedings be heard together, they came on for hearing before me on 29 April 2005.
VISAS APPLIED FOR
7 The applicant is presently sixty‑six years of age and is a South African national. He first entered Australia on 30 September 1998 as the holder of a Business (Short Stay), subclass 456, visa. This visa allowed him to enter Australia on multiple occasions. However, it only allowed him to remain in Australia for three months from each date of entry. Thus, he departed and returned to Australia on three occasions while the holder of the visa.
8 On 30 September 1999 the applicant applied for a Business (Long Stay), subclass 457, visa. However, the business that had nominated the applicant for that visa withdrew the nomination. On 14 June 2000 the applicant applied again for the said visa. Again, the business that had nominated him withdrew the nomination.
9 On 27 October 2000 the applicant married one Barbara Aileen Weiley in Albury, New South Wales. As the applicant had no visa at the time of the marriage, he departed Australia on 27 November 2000. On 1 December 2000 he applied for a Partner (Provisional) (class UF), subclass 309 (Partner (Provisional)), visa ("the temporary spouse visa") and a permanent spouse visa. Ms Weiley was the sponsoring spouse in relation to those applications. On 16 February 2001 the applicant was granted the temporary spouse visa pending the determination of his application for the permanent spouse visa. He had returned to Australia on 12 February 2001.
10 The refusal occurred on 28 November 2002. As a result, the temporary spouse visa was revoked on that date.
LEGISLATION
11 Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations") contains regulations governing the grant of visas. Of these, reg 100.221 is relevant to the instant proceedings as it prescribes the criteria that an applicant for a permanent spouse visa must satisfy in order to be granted that visa. So far as it is relevant to the instant proceedings, it is as follows:
"100.22 Criteria to be satisfied at time of decision
100.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is the holder of a [temporary spouse visa]; [and]
…
(b) the applicant is the spouse of the sponsoring spouse; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application [for a permanent spouse visa] was made.
…
(4) The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a [temporary spouse visa] and …:
(i) continues to be the holder of that visa; [and]
…
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse[.]
…
(7) Nothing in paragraphs (2)(c) and (2A)(c) prevents the Minister, less than 2 years after the application is made, from:
(a) refusing to grant a [permanent spouse visa]; or
(b) granting a [permanent spouse visa] to an applicant who meets the requirements of subclause (3) or (4)."
12 The instant proceedings turn upon the applicant's attempt to avail himself of the benefit of the exception in sub‑reg 100.221(4) ‑ in so far as it relates to domestic violence - to the general rule in sub‑reg 100.221(2). Division 1.5 of Part 1 of the Regulations contains regulations governing the proof of domestic violence for the purposes of the Regulations ("the proof regulations"). So far as they are relevant to the instant proceedings, they are as follows:
"1.21 Interpretation
(1) In this Division:
competent person means:
(a) in relation to domestic violence committed against an adult:
(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
…
(iii) a person who:
(A) is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B) is performing the duties of a registered nurse ….
1.22 References to person having suffered or committed domestic violence
(1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2) A reference in these Regulations to a person having committed domestic violence is a reference to a person being taken, under regulation 1.23, to have committed domestic violence.
1.23 When is a person taken to have suffered or committed domestic violence?
(1) For the purposes of these Regulations:
(a) a person (the alleged victim) is taken to have suffered domestic violence; and
(b) another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim:
if:
…
(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.
(2) In paragraph (1)(g):
(a) the persons referred to are the following:
(i) a spouse of the alleged perpetrator;
… and
(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 … to fear for, or to be apprehensive about, the alleged victim's personal well‑being or safety.
1.24 Evidence
(1) The evidence referred to in paragraph 1.23(1)(g) is:
…
(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
…
1.25 Statutory declaration by alleged victim etc
…
(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.
…
1.26 Statutory declaration by competent person
A statutory declaration under this regulation:
(a) must be made by a competent person; and
(b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by a person; and
(d) must name the person who, in the opinion of the competent person, has suffered that domestic violence; and
(e) must name the person who, in the opinion of the competent person, has committed that relevant domestic violence; and
(f) must set out the evidence on which the competent person's opinion is based."
13 Regulation 1.23(1)(g) will only deem the applicant to have suffered domestic violence committed by Ms Weiley (see reg 100.221(4)(c)(i)) if, pursuant to reg 1.24, he provides a statutory declaration of his own that complies with reg 1.25 and two statutory declarations from two "competent persons" (see reg 1.21) that comply with reg 1.26. If he cannot do so, he has no evidence that he has suffered domestic violence committed by Ms Weiley for the purposes of reg 1.23(1)(g). Therefore, the question for any decision‑maker (ie the delegate, the Tribunal or the Court) is not whether the applicant has suffered domestic violence committed by Ms Weiley but whether the statutory declarations proffered by the applicant as evidence thereof for the purposes of reg 1.23(1)(g) meet the requirements of the proof regulations.
THE REFUSAL AND THE DECISION
14 The circumstances surrounding the breakdown of the applicant's marriage are set out in the Tribunal's reasons for the decision: Theunissen, Terrence John [2004] MRTA 798 ("the reasons"). I do not propose to rehearse them in detail. It suffices to say that the breakdown seems to have arisen from mutual antagonism between the applicant and Ms Weiley's adult sons, Christopher and Richard.
15 On 25 July 2002 the applicant contacted the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") by telephone and, according to a file note of the conversation, claimed that he was the victim of domestic violence perpetrated by Ms Weiley and her adult sons. He also sought copies of Form 1040, a form issued by the Department for the purposes of making the statutory declarations referred to in reg 1.24. The next day, Ms Weiley wrote to the Department, withdrawing her sponsorship of the applicant's application for the permanent spouse visa.
16 Subsequently the applicant provided the Department with his own statutory declaration pursuant to reg 1.25 on Form 1040 and two statutory declarations pursuant to reg 1.26 on Form 1040: one from Dr Glen Mobilia, a general practitioner (see reg 1.21(1)(a)(i)) and the other from Mr Harry Williams, a registered nurse (see reg 1.21(1)(a)(iii)).
17 In the reasons for the refusal, the delegate of the Minister found on the basis of "information [received by the Department] that the relationship between the applicant and [Ms Weiley] has ceased [and that] the applicant is no longer in a spouse relationship with [Ms Weiley and] is unable to satisfy the central requirement of subclause (2) of regulation 100.221". As to the statutory declarations of Dr Mobilia and Mr Williams, the delegate found that only the latter met the requirements of the proof regulations.
18 Before the refusal, the delegate queried both Dr Mobilia and Mr Williams as to the sufficiency of their statutory declarations. In response, Dr Mobilia advised that he could not assess the applicant as being a victim of domestic violence. Mr Williams advised that he could do so. The delegate informed the applicant of Dr Mobilia's advice and asked him to provide another statutory declaration from a competent person. However, the applicant failed to do so.
19 What I have set out to this point is simply to 'set the scene' for the decision. The Court is not empowered to disturb the refusal. It is only empowered to disturb the decision. In any case, neither the Court nor the Tribunal is bound by the reasons for the refusal. The fact that those reasons did not call into question the sufficiency of Mr Williams' statutory declaration did not, of itself, bar the Tribunal from doing so. Accordingly, the applicant's complaints as to the refusal ‑ particularly as to the conduct of the delegate in making the queries referred to at [18] ‑ are irrelevant to the determination of the instant proceedings. In any case, I note that the Tribunal placed "no weight" upon any advice received by the delegate in response to her queries. Nor will I.
20 The applicant applied to the Tribunal for a review of the refusal. In its reasons, the Tribunal found that, as at the date of the decision, Ms Weiley:
· had withdrawn her sponsorship of the applicant's application for the permanent spouse visa and had not resiled from said withdrawal: [75]‑[80]; and
· was not the spouse of the applicant (as defined by reg 1.15A): [81]‑[90].
Despite what I note at [63], the applicant did not challenge these findings in the instant proceedings. In any case, the findings were correct and such a challenge would have been unsuccessful.
21 As to the applicant's attempt to avail himself of the benefit of the exception in sub‑reg 100.221(4) ‑ in so far as it relates to domestic violence ‑ to the general rule in sub‑reg 100.221(2), the Tribunal said:
"105. In support of his claim that he has suffered relevant domestic violence within the meaning of the regulations, the visa applicant submitted statutory declarations from himself, from a medical practitioner and from a registered nurse.
106. The visa applicant submitted his own statutory declaration on Form 1040 dated 14 August 2002. He names the persons who are alleged to have committed domestic violence as Barbara, Richard and Christopher Weiley, his previous sponsor and her two adult sons. He describes the nature of the alleged violence as 'verbal, emotional and psychological abuse'. No further detail was provided ….
107. At the hearing the visa applicant confirmed that there had been no physical violence against him and he was not in fear of his life, safety or well‑being, He also said that he was at one time in fear of his life in the sense that he had thought about suicide, and if he had to return to South Africa at this age he would be destitute, would have to live on the streets and for that reason, not be likely to live long. The Tribunal notes that the applicant has an adult son in South Africa with whom he corresponds by email and with whom he seems to be on reasonably good terms. However, the Tribunal did not pursue this point because, in the Tribunal's view, it does not constitute fear or apprehension about his well‑being or personal safety caused by any relevant domestic violence perpetrated by the persons named in his statutory declaration. On the evidence of the visa applicant's statutory declaration, and his clarifications at the hearing, what the visa applicant describes is not 'domestic violence' as required by the Federal Court in Cakmak [v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257]. The Tribunal is satisfied that the visa applicant is not the victim of domestic violence within the meaning of the regulations.
…
111. A statutory declaration on Form 1040, dated 7 August 2002, was submitted from Dr Glen Mobilia, who described himself as a medical practitioner, and who is on that basis a 'competent person' within the meaning of regulation 1.21. He names the persons who are alleged to have committed domestic violence as Barbara, Richard and Christopher Weiley. He describes the nature of the alleged violence as '1. psychological abuse 2. verbal abuse 3. ongoing animosity' and states that the reader should 'refer to the affidavit [of the visa applicant] dated 30/7/02'. The evidence upon which he based his professional opinion was '1. History of events as recounted by the above patient. 2. Reading patient's sworn affidavit dated 30/7/02' ….
112. The medical practitioner does not state when he saw the visa applicant but the visa applicant's letter dated 18 October 2002 stated that he visited Dr Mobilia and Mr Harry Williams (the second 'competent person') only once precisely in order to get them to sign the Form 1040 as required by the Department to support his application. There are no specific incidents referred to in this statutory declaration, it contains no assessment of the mental state of the visa applicant, it makes no mention of physical violence or the threat of physical violence and it makes no attempt to distinguish between abuse allegedly made by the sponsor's sons and that perpetrated by the sponsor herself. While it is not within the power of the Tribunal to go beyond the statutory declaration, the Tribunal must examine the statutory declaration to ensure that it complies with the regulations which require, among other things, that the competent person describes the nature of the domestic violence experienced by the alleged victim. The medical practitioner does not distinguish what domestic violence is alleged to have been perpetrated by which of the three persons named as having committed the violence. Nor does the violence he describes fall within the definition of 'domestic violence' as required by the Federal Court in Cakmak. On these grounds the Tribunal finds that the statutory declaration by the medical practitioner does not meet the evidentiary requirements of regulation 1.26.
113. The delegate stated that she had spoken to Dr Glen Mobilia and he had advised her that he was not able to provide an assessment of whether or not the visa applicant had been a victim of domestic violence. The delegate was of the view that Dr Mobilia's statutory declaration only refers to an acknowledgment of the visa applicant's affidavits, and he has stated that he will not provide a sworn statement to support the applicant's claims of domestic violence. The Tribunal puts no weight on this advice in reaching its findings about Dr Mobilia's statutory declaration. Rather, the Tribunal finds that Dr Mobilia's statutory declaration does not comply with the statutory requirements for the reasons stated in the previous paragraph.
114. A statutory declaration on Form 1040, dated 26 August 2002, was submitted from Mr Harry Leslie Williams, who described himself as a registered nurse, and who is on that basis a 'competent person' within the meaning of regulation 1.21. He names the persons who are alleged to have committed domestic violence as Barbara, Richard and Christopher Weiley. He describes the nature of the alleged violence as 'Mental health abuse (psychological). Verbal abuse. Continual anger and animosity.' No further detail was provided. The evidence upon which he based his professional opinion was stated 'Read the attached affidavit [which was not in fact attached] and documents. Discussion with applicant regarding situation at hand.' This statutory declaration is worded in virtually the same way as the statutory declaration by the medical practitioner and for the same reasons the Tribunal finds that the statutory declaration by the registered nurse does not meet the evidentiary requirements of regulation 1.26.
115. In response to the delegate's enquiry, Mr Harry Williams wrote to the delegate on 16 September 2002, and stated: 'From the evidence and documents provided and the circumstances written and discussed with Terrence John Theunissen, from my experience I would assess that he has been a victim of domestic violence.' The Tribunal puts no weight on this advice in reaching its findings about Mr Harry Williams' statutory declaration.
116. The affidavit referred to by the medical practitioner and the registered nurse, and also provided by the visa applicant to the Tribunal, is a 35 page document written by the visa applicant which canvasses the history of his relationship with his sponsor and her two adult children, and the events leading to marital breakdown. An examination of this document reveals no evidence of physical violence or threat of physical violence by the sponsor or her two adult children named in the statutory declarations of the competent person as the perpetrators of the alleged domestic violence. The affidavit refers to the kind of harassment, financial restrictions and poor relationship with the sponsor's children that are also detailed in the other evidence of the visa applicant and discussed above. The 'domestic violence' described by the visa applicant does not fall within the definition of 'domestic violence' as required by the Federal Court in Cakmak."
THE REVIEW PROCEEDINGS
The privative clause and the need to find jurisdictional error
22 The jurisdiction of the Court in relation to the review proceeding is conferred by s 39B of the Judiciary Act 1903 (Cth). However, section 474(2) of the Migration Act 1958 (Cth) ("the Act") (supplemented by ss 474(3) and 474(4)) provides that the decision is a "privative clause decision". Section 474(1) provides that:
"A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."
Section 474(1) is a "privative clause" that purports to act as a complete bar to proceedings such as the review proceedings. However, it does not protect a decision that is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
23 The applicant's pleadings and submissions (both oral and written) indicate that he was unaware of s 474 of the Act and its effect. Further, though the applicant has clearly gone to much trouble to set them out, the grounds upon which he seeks a review of the decision are not in a form known to the law. This is understandable given that he has represented himself throughout the instant proceedings.
24 Nonetheless, these defects are not, in themselves, fatal to the review proceeding. I will treat the review proceeding as seeking to overturn the decision on the ground that it is vitiated by jurisdictional error.
The species of jurisdictional error
25 The species of jurisdictional error include those identified in Craig v South Australia (1995) 184 CLR 163 at 179 and, in relation to decisions made under the Act, adopted in Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ as follows:
"It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that flow from a decision‑maker making such an error. As was said in Craig v South Australia, if an administrative tribunal …
'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."
(The emphasis is mine and I have omitted the footnotes.) Further, subject to s 422B of the Act, denial of natural justice or procedural fairness can also amount to jurisdictional error: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [41] per Gaudron and Gummow JJ, [142] per Kirby J and [170] per Hayne J.
The bases for the decision
26 The substantive reasons for the decision are extracted at [21]. In essence, the Tribunal determined that each of the requisite statutory declarations profferred by the applicant failed to meet the requirements of the proof regulations. The review proceeding can only succeed if it can be shown that each of those determinations was vitiated by jurisdictional error.
The requirement of physical violence or the threat thereof
27 In its reasons, the Tribunal relied, though not exclusively, upon the decision of the Full Court (constituted by Gyles, Conti and Allsop JJ) in Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257. At the time of the decision, the following statement in Cakmak at [61]‑[62] ‑ though obiter ‑ was generally accepted as a correct statement of the meaning of domestic violence for the purposes of the proof regulations:
"It is the plainest use of language, we think, that to 'commit' or 'perpetrate' violence or the threat of violence involves the act, or threat of, application of physical force ….
However, belittling, lowering self‑esteem, 'emotional violence' or 'psychological violence' and such behaviour as surrogates or synonyms for violence is, we think, to broaden the scope of the regulations beyond their words. There must be 'violence', or the 'threat of violence', involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well‑being or safety."
Having extracted this passage at [101] of its reasons, the Tribunal, in those parts of its reasons extracted at [21], assessed the statutory declarations proffered by the applicant in the light of that passage and found that they did not disclose any conduct that involved physical force or the threat thereof.
28 However, the Tribunal's reliance upon Cakmak is problematic. On 11 April 2005, less than a fortnight before the instant proceedings came on for hearing, the decision of the Full Court (constituted by Branson, Marshall and Hely JJ) in Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56 was handed down. Branson J (Marshall J concurring) said at [18] that "their Honours [in Cakmak] were wrong to conclude that the expression 'domestic violence' is not a term of art". Further, her Honour said at [24] that "[d]omestic violence, understood as I think it must be as a term of art, will ordinarily involve an abuse of power by one of the partners to a domestic relationship". That is, domestic violence for the purposes of the proof regulations is not confined to physical violence or the threat thereof. Hely J dissented.
29 There is a question whether the Tribunal can be said to have fallen into jurisdictional error by applying the law as it stood when it handed down its decision, though later "changed" by Sok. However, it may not need to be resolved. The respondent submits that the decision also rests upon alternative and independent bases ‑ in relation to the statutory declarations of Dr Mobilia and Mr Williams ‑ that are sufficient to sustain the decision and are, importantly, unaffected by jurisdictional error. If that is correct, any error that may have arisen from the Tribunal's reliance upon Cakmak did not, in the words emphasised in the extract from Yusuf at [25], affect the exercise of the power conferred on the Tribunal by the Act (ie to affirm the refusal).
Other bases for the decision in relation to the statutory declarations of Dr Mobilia and Mr Williams
30 At [112] of the reasons the Tribunal determined that the statutory declaration of Dr Mobilia failed to meet the requirements of the proof regulations. At [114] of the reasons the Tribunal determined that "for the same reasons" the statutory declaration of Mr Williams failed to meet the requirements of the proof regulations.
31 Apart from its reliance upon Cakmak, [112] of the reasons demonstrates that the Tribunal relied upon three deficiencies in the statutory declarations of Dr Mobilia and Mr Williams as bases for determining that they failed to meet the requirements of the proof regulations. First, they did not refer to specific instances of alleged domestic violence. Rather, they referred to general categories of alleged domestic violence. Second, they lacked an assessment of the applicant's mental state. That is, whether the alleged domestic violence caused him to "fear for, or to be apprehensive about, [his] personal well‑being or safety". Third, they failed to distinguish between domestic violence that was allegedly committed by each of Ms Weiley, Christopher Weiley and Richard Weiley. I will deal with them in reverse order.
No distinguishing between named perpetrators
32 The Tribunal's reasoning on this point ‑ which involves an aspect of Cakmak that was not disapproved in Sok ‑ is exposed by the reasons as follows:
"103. The Federal Court in Cakmak considered only briefly who might constitute the victims and the perpetrator of domestic violence:
[70] We think the regulations are directed to acts of the spouse. The meaning of 'commit' and 'perpetrate' direct one to the personal acts of the spouse of the victim. This accords with the intended subject matter of the regulations: the infliction or threat of infliction of violence on a spouse or family members in a domestic context.
104. This does not appear to preclude the possibility that if the spouse were to instigate a third party to commit violence on her or his behalf against the victim, such instigation would be an act of the spouse and the resulting violence or threat of violence might qualify, if the other conditions are met, as relevant domestic violence. However, if another person, whether family member of the sponsor or not, were to commit or threaten violence against the victim on his own initiative, such an act would not be an act of the spouse and therefore unlikely to qualify as relevant domestic violence. It follows that when people other than the spouse are alleged to have perpetrated domestic violence, the evidentiary regime requires, at the very least, a distinction between which person committed what acts of violence or threat of violence against the victim."
33 However, the Tribunal may have misread Cakmak. At [16] the Full Court stated that:
"The language of the regulations, in particular regs 100.221(4)(c), 1.23(1)(a) and (b), 1.23(2)(b) and 1.24(1)(a)(ii), conforms with an intention that this part of the regulations concerns violence by a spouse on his or her spouse or on other family members. It appears to be directed to such interpersonal violence between parties to the spousal relationship and violence directed to a member of the family unit committed or perpetrated by the spouse. To 'perpetrate' means to perform or execute or commit. Its meaning is narrower than acting by or through an agent. The 'perpetrator' is usually understood to be the actor. The importance of this will become evident in due course."
This seems to contradict the first sentence of [104] of the reasons.
34 However, the last sentence of [104] of the reasons is correct regardless of whether or not the first sentence is. Regulation 1.23(1)(g)(ii) requires that "the alleged perpetrator has committed that relevant domestic violence" suffered by the alleged victim. Regulation 1.23(2)(b) defines that relevant domestic violence as "violence against the alleged victim or his or her property that causes the alleged victim … to fear for, or to be apprehensive about, the alleged victim's personal well‑being or safety". Therefore, the requirement of a causal relationship between the violence of the alleged perpetrator and the fear or apprehension of the alleged victim means that a statutory declaration proffered in order to meet the requirements of the proof regulations must, where the statutory declaration also names persons other than the alleged perpetrator as having committed domestic violence, distinguish between which of those persons committed which acts (or threats) of violence. Without this, such a statutory declaration is incapable of disclosing the requisite causal relationship ‑ whether or not that requisite causal relationship can be found in violence committed at the behest of the alleged perpetrator.
35 The statutory declarations of Dr Mobilia and Mr Williams fall at this first hurdle. Both name Ms Weiley, Christopher Weiley and Richard Weiley as having committed the alleged domestic violence. Neither identifies which of those persons committed which acts (or threats) of violence. Therefore, the Tribunal did not commit an error ‑ let alone one that amounted to jurisdictional error ‑ when it rejected them on this ground.
No assessment of applicant's mental state
36 The Tribunal's reasoning on this point is exposed by [100] of the reasons ‑ wherein it extracted the following (obiter) comments on the proof regulations from the decision of Mathews J in Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115:
"[18] The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency 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.
[19] This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim."
Mathews J's reference to "the state of mind of the alleged victim" can be taken as a reference to the requirement in reg 1.23(2)(b) that the alleged victim "fear for, or … be apprehensive about, [their] personal well‑being or safety".
37 One of the statutory declarations at issue in Du was that of Dr Din Hoa Tran who simply stated that:
"THI LAN DU attended our surgery at Campsie on 21/2/97 with multiple bruises which were allegedly caused by domestic violence (assaulted by husband)."
This statutory declaration was described as "laconic in the extreme" in Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482 at [44] per Ryan J.
38 In Meroka, Ryan J held at [34] that a competent person making a statutory declaration on Form 1040 need not expressly state that, in his or her opinion, "relevant domestic violence has been suffered" by the alleged victim. This proposition encompasses the fear or apprehension that is one of the elements of "relevant domestic violence" as that concept is defined in reg 1.23(2)(b). His Honour stated at [34] that:
"The requisite statement of opinion may be conveyed by implication having regard to the way in which [Form 1040] 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 [on Form 1040] of the name and date of birth of the victim and the full name of the person believed to have perpetrated the domestic violence."
39 Meroka involved statutory declarations on Form 1040 by two competent persons. The first was that of Ms Vesna Sainovic and was set out at [18]‑[22]. The second was that of Mr Ndungi Wa Mungai and was set out at [23]‑[24]. As to those statutory declarations, Ryan J said at [49]:
"In my view the preferable inference from their declarations is that each of Ms Sainovic and Mr Wa Mungai was of the opinion that the applicant had been fearful or apprehensive in [the requisite] sense. Ms Sainovic asserted that he had been subjected to a systematic and constant 'pattern' of verbal and emotional abuse which 'he mostly feared'. Mr Wa Mungai noted that the 'calculated' psychological attacks by the applicant's wife had proved, according to the applicant, 'to be more than a passing phase', and concluded 'that Mr Meroka has suffered psychologically and the abuse has led to the break up of the relationship'. In the absence of any other suggested reason for the breakdown of the marriage, it is difficult to resist the inference that both Ms Sainovic and Mr Wa Mungai considered that the applicant had escaped from it because he feared for his psychological well‑being if it were to continue."
40 His Honour stated at [48] that, by contrast:
"… it appears that neither of the declarations considered in Du was in the standard Form 1040 so that the implication discussed at [34] of these reasons did not arise in that case. Moreover, even with the benefit of those implications, the declaration of Dr Tran in that case would have been incapable of complying with the relevant Regulations. By contrast, in the present case, each of the competent persons devoted a considerable part of the space afforded by Form 1040 to describing matters which must have impinged on what Mathews J in Du called 'the state of mind of the alleged victim'."
(The emphasis is mine.)
41 Just like the statutory declaration of Dr Tran in Du, the statutory declarations of Dr Mobilia and Mr Williams are "laconic in the extreme". They consist of bald statements that the applicant has suffered "psychological" and "verbal" abuse and "animosity". The former of those statements fortuitously combines a bald description of the nature of the abuse with an equally bald conclusion as to its effect on the applicant. By contrast, the latter two of those statements are solely a description of the nature of the abuse. The concept of "matters which must have impinged" on the alleged victim's state of mind was used by Ryan J as a means of distinguishing the relatively detailed statutory declarations of Ms Sainovic and Mr Wa Mungai in Meroka from the extremely cursory statutory declaration of Dr Tran in Du. However, I do not think that the similarly cursory statutory declarations of Dr Mobilia and Mr Williams can be meaningfully distinguished from that of Dr Tran in Du on that basis. Therefore, the Tribunal did not did not commit an error ‑ let alone one that amounted to jurisdictional error ‑ when it rejected the statutory declarations of Dr Mobilia and Mr Williams on this ground.
No reference to specific instances
42 In my view, this ground is subsidiary to each of the two that I have discussed at [32]‑[41] and need not be separately analysed.
Comments upon aspects of the decision not in relation to the statutory declarations of Dr Mobilia and Mr Williams
43 I have, at [35] and [41], identified two bases for the Tribunal's exercise of its power to affirm the refusal. Each of those two bases is:
a) alternative to and independent of both the Tribunal's reliance upon Cakmak and the other basis;
b) sufficient to sustain the decision; and
c) unaffected by jurisdictional error.
For the reasons that I have given at [13] and [26], that is sufficient to dispose of the review proceedings. Therefore, it is not necessary to answer the question posed at [29].
44 However, I will comment upon aspects of the decision that are not in relation to the statutory declarations of Dr Mobilia and Mr Williams.
The statutory declaration of the applicant
45 The Tribunal, in reliance upon Cakmak, determined that the statutory declaration of the applicant failed to meet the requirements of the proof regulations because it did not disclose physical violence. It did not go beyond that point.
46 However, the statutory declaration of the applicant was just as laconic as those of Dr Mobilia and Mr Williams. It names Ms Weiley, Christopher Weiley and Richard Weiley as having committed the alleged domestic violence without distinguishing between which of them committed which acts (or threats) of violence. All it says as to the nature of the alleged domestic violence is "VERBAL, EMOTIONAL AND PSYCHOLOGICAL ABUSE". For the reasons outlined at [35] and [41], the statutory declaration of the applicant also fails to meet the requirements of the proof regulations.
The affidavit of the applicant
47 Wilcox J was correct when he noted in Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [38] that the statutory declaration of a competent person will invariably involve "hearsay". However, the competent person is still obliged to describe the alleged domestic violence in his or her own words. In describing the alleged domestic violence, the statutory declaration of Dr Mobilia also referred to a detailed affidavit of the applicant. A competent person cannot give such a description by doing little more than purporting to adopt holus‑bolus one that is proffered by the alleged victim. (Assuming that is what Dr Mobilia meant to do.)
48 In any case, the statutory declarations of the applicant and Mr Williams did not refer to that affidavit in their descriptions of the alleged domestic violence.
The affidavit of Ms Weiley
49 At [118] of the reasons, it is noted that the applicant asserted at the hearing before the Tribunal that the need for the statutory declarations of Dr Mobilia and Mr Williams had "become redundant" because he had obtained an affidavit of Ms Weiley. In that affidavit, Ms Weiley admits that she had committed domestic violence against the applicant. I agree with the Tribunal that such an admission is "unusual". In any case, as I noted at [13], the question for any decision‑maker (ie the delegate, the Tribunal or the Court) is not whether the applicant has suffered domestic violence committed by Ms Weiley but whether the statutory declarations proffered by the applicant as evidence thereof for the purposes of reg 1.23(1)(g) meet the requirements of the proof regulations. Ms Weiley is not a competent person and her affidavit is, therefore, incapable of meeting the requirements of the proof regulations. Therefore, the Tribunal did not did not commit an error ‑ let alone one that amounted to jurisdictional error ‑ when it ignored that affidavit.
The conduct of the Tribunal
50 The applicant also makes a series of sometimes vituperative complaints in both proceedings about the conduct of the Tribunal and its staff.
Failure to waive fees or accord review priority
51 The applicant's compliants as to the Tribunal's failure to waive its fees and accord his review priority are misconceived. So is the applicant's complaint as to the Tribunal's conduct in a separate proceeding commenced by him in this Court.
52 The applicant asked the Tribunal to waive its fees and accord his review priority. It declined to do so. This does not disclose any bias of the Tribunal against the applicant. Nor a reasonable apprehension thereof.
53 The separate proceeding to which I referred at [51] attempted to compel the Tribunal to accord the review priority. It was bound to fail. Heerey J dismissed the relevant application and ordered the applicant to pay the Tribunal's costs thereof: Theunissen v Principal Member of the Migration Review Tribunal [2003] FCA 1417. The applicant says that he should not have to comply with that costs order because the Tribunal failed to inform him of circumstances that rendered the separate proceeding unnecessary. That should have been put to Heerey J when he delivered judgment in the separate proceeding. Whether or not it was, the costs order cannot be reopened now.
Failure to give notice of letter of Ms Weiley
54 In an affidavit filed on 15 June 2004 the applicant complained that he was not given notice of, or an opportunity to comment upon, a letter from Ms Weiley to the Tribunal dated 15 September 2003. (This letter found its way into the court book in the instant proceedings.) At [122] of the reasons, the Tribunal made clear that it had not taken the letter into account in coming to the decision. Nor have I in coming to my decision.
Failure to invite applicant to handing down of decision
55 In his affidavit filed on 22 April 2004 the applicant complained that he was not invited to the handing down of the decision. Even if it is true that the applicant was not so invited, that failure did not cause any prejudice to him, as it did not prevent him from commencing the review proceeding within time. In any case, that failure cannot amount to jurisdictional error.
Reconciliation between the applicant and Ms Weiley
56 Any reconciliation between the applicant and Ms Weiley since the decision cannot affect its correctness. In any case, it does not necessarily entail Ms Weiley's reinstatement of her sponsorship of the applicant's application for the permanent spouse visa.
Conclusion on the review proceedings
57 The review proceeding must be dismissed with costs.
THE CONSTITUTIONAL PROCEEDINGS
58 Despite the length of the statement of claim, the applicant's complaints in the constitutional proceeding can be summarised as follows:
· Certain publications by the respondent, which led the applicant to seek to satisfy the proof regulations, amounted to the making of unconstitutional (or otherwise invalid) regulations or, alternatively, the unconstitutional (or otherwise invalid) amendment of regulations already made. I will refer to this as "the primary complaint".
· The regime established by reg 100.221 and the proof regulations is "fatally flawed, embarrassing, self‑defeating, unworkable and invalid". I will refer to this as "general invalidity".
· Taken separately, each of reg 100.221 and the proof regulations is invalid. I will refer to this as "specific invalidity".
I will deal with these in turn.
Primary complaint
59 The primary complaint turns on two publications downloaded by the applicant from the Department's website on 25 July 2002 ("the publications"). The first was a "Fact Sheet" entitled "38. Domestic Violence Provision". The second was a "Form 972i" entitled "Applying to remain permanently in Australia - Domestic violence provision".
60 Fact Sheet 38 briefly explains how persons can "remain eligible for permanent residence after the breakdown of their relationship if they, or a member of their family unit, have experienced domestic violence". The applicant fastens upon a statement therein that purports to explain the meaning of reg 1.23(2)(b) as follows:
"In basic terms, [domestic violence] is an abuse of power by one person over another, whether actual or threatened violence. It usually occurs at home and can include physical (such as hitting, punching, biting), sexual or psychological (including emotional and verbal abuse)."
61 That statement was wrong in law during the period ‑ roughly, from 21 November 2003 to 11 April 2005 ‑ in which Cakmak was generally accepted as a correct statement of the meaning of domestic violence for the purposes of the proof regulations. (See [27]‑[28].) However, it was (presumably) not wrong in law before then: ie at the time the applicant came upon Fact Sheet 38. Nor, due to Sok, is it wrong in law now.
62 Form 972i traverses much of the same ground as Fact Sheet 38. The applicant fastens upon the following statement therein:
"You do not have to remain in a violent situation to get residence.
Once you have decided to leave/have left your partner in Australia, you must decide whether to return to your country of origin or remain here."
63 Cakmak did not affect the correctness of that statement. (Though I note that Form 972i also included a statement like that extracted at [60] from Fact Sheet 38.) The applicant seems to have been under the misapprehension that he had to meet the requirements of reg 100.221(2)(b) in order to avail himself of the benefit of reg 100.221(4). However, as I have stated at [12] and [21], reg 100.221(4) ‑ in so far as it relates to domestic violence ‑ is an exception to the general rule in reg 100.221(2). Neither the delegate nor the Tribunal was under the applicant's misapprehension. Each initially considered whether the applicant met the requirements of reg 100.221(2)(b) because he was "the spouse of the sponsoring spouse". Each decided, correctly, that he did not: the delegate because there was no longer a spousal relationship between the applicant and Ms Weiley at the time of the refusal, the Tribunal because of that and also because there was no longer a sponsorship of the applicant's application by Ms Weiley at the time of the decision. Notwithstanding this, each then considered the alternative that they were faced with: whether the applicant met the requirements of reg 100.221(4). The question for both was not whether they considered the applicant to be the victim of domestic violence but whether they considered that the requisite statutory declarations proffered by the applicant as proof thereof met the requirements of the proof regulations.
64 The applicant complains that the publications, which led him to seek to satisfy the proof regulations, amounted to the making of unconstitutional (or otherwise invalid) regulations or, alternatively, the unconstitutional (or otherwise invalid) amendment of regulations already made. This complaint arises from the discrepancy noted at [60]‑[61].
65 The primary complaint is misconceived. The publications are not themselves regulations. Nor do they purport to be. They cannot constitute "assurances" or "guarantees" as to the application and the interpretation of the impugned regulations. Nor can they affect the validity of the impugned regulations.
General invalidity
66 The applicant's assertion that the impugned regulations are "fatally flawed, embarrassing, self‑defeating [and] unworkable" is pejorative and of no consequence. The impugned regulations are only invalid if they exceed either the power to make them that is conferred by the Act or the power of the Commonwealth Parliament to legislate in relation to immigration that is conferred by the Constitution. Neither circumstance has been shown to exist here.
Specific invalidity
67 What I have said at [66] also disposes of the applicant's specific invalidity complaints. However, I will mention two of the applicant's complaints. The first was that the Minister had represented in a media release that Centrelink's Social Work Service was "the only organisation able to provide the coverage and range of services to meet both legal requirements and clients' needs in assessing claims of domestic violence". However, when the applicant attended at Centrelink, no such assistance was forthcoming. The media release was an announcement of proposed amendments to the proof regulations. Those amendments were disallowed by the Senate on 1 November 2000 and never came into effect. Therefore, those amendments and the media release are irrelevant to the instant proceedings. The second complaint was that he found it difficult to find a competent person to provide him with the requisite statutory declaration. In particular, a counsellor at the Family Court in Albury refused to provide the applicant with the requisite statutory declaration. However, the proof regulations do not impose a duty on those that they describe as competent persons to provide the requisite statutory declaration to all‑comers.
Damages claim
68 The applicant claimed $250,000.00 "tax free" in "punitive" damages. The statement of claim discloses no cause of action known to the law that would entitle the applicant to damages if it were made out. The claim must be dismissed.
Relief sought
69 Apart from damages (see [68]) and the reopening of Heerey J's costs order (see [53]), the applicant sought:
· a declaration that reg 100.221 and the proof regulations are invalid;
· orders that some of those regulations be "taken as being inapplicable" and that others be "taken to mean" certain things;
· orders that temporary spouse visas will only be revoked in certain circumstances - presumably in order to remedy the situation in which the applicant found himself once his own temporary spouse visa was revoked upon the refusal; and
· an order that he be granted the permanent spouse visa.
70 It is beyond the power of the Court to grant any of this relief. The Court cannot usurp legislative functions and rewrite legislation ‑ even under the guise of its own orders. Nor can it usurp administrative functions and grant visas.
CONCLUSION
71 Both proceedings are dismissed. The applicant must pay the respondents' costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.