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Federal Court of Australia - Full Court Decisions |
Last Updated: 12 April 2005
FEDERAL COURT OF AUSTRALIA
Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56
MIGRATION – application for spouse visa – where
relationship between appellant and sponsoring spouse has ceased – where
appellant
claims to have suffered domestic violence –meaning of phrase
‘domestic violence’ in Migration Regulations – whether
‘violence’ as used in regulation 1.23(2)(b) of the Migration
Regulations 1994 requires the application or threat of application of physical
force – whether ‘violence’ can encompass psychological
or emotional violence
PRECEDENTS – appellate jurisdiction of
Federal Court – where previous Full Court decision on matters arising for
determination are
obiter – stare decisis –
circumstances in which appropriate for Full Court to decline to follow previous
decision of the same Court
WORDS AND PHRASES –
‘domestic violence’
Acts Interpretation Act
1901 (Cth) s 16A
Crimes (Family Violence) Act 1987 (Vic)
s 4(1)(c)
Domestic and Family Violence Protection Act 1959 (Qld)
s 3A and s 11(1)(c)
Domestic Violence Act 1992 (NT)
s 4
Domestic Violence Act 1994 (SA) s 4(2)
Family Law
Act 1975 s 60D, s 114 and s 114AA
Migration Act
1958 (Cth) s 29, s 31, s 41, s 504
Protection
Orders Act 2001 (ACT) s 9
Migration Regulations 1994 Sch 1
Item 1129, Sch 2 Item 100.221, regulations 1.21, 1.22, 1.23 and
1.24
Migration Regulations (Amendment) 1995 No 117
Macquarie
Dictionary (3rd Ed)
New Oxford Dictionary of
English
Oxford English Dictionary (2nd Ed)
Access
Economics Pty Ltd, The Cost of Domestic Violence to the Australian Economy,
Australian Government’s Office of the Status of Women, Commonwealth of
Australia, 2004.
Cakmak v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183 not
followed
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of
the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 cited
Doan v Minister
for Immigration and Multicultural Affairs (2000) FCA 909 considered
Du
v Minister for Immigration & Multicultural Affairs [2000] FCA 1115
distinguished
Foster v Northern Territory of Australia [1999]
FCA 1235 (FC) referred to
Ibrahim v Minister for Immigration &
Multicultural & Indigenous Affairs [2002] FCA 1279 cited
In the
marriage of Kemsley J C and Kemsley W G (1984) FLC 491-567
considered
Kozel v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCA 658 referred to
Kumar v Minister for
Immigration & Multicultural & Indigenous Affairs [2004] FCA 201
referred to
Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562;
(2000) 98 FCR 291 cited
Meroka v Minister for Immigration and
Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251 cited
NATB & Others v
Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; (2003)
133 FCR 506 considered
NSW Associated Blue Metal Quarries Ltd v Federal
Commissioner of Taxation [1955] HCA 23; (1955-1956) 94 CLR 509 cited
Project Blue Sky
Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
cited
Telstra Corporation Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595
considered
Woodward v Repatriation Commission [2003] FCAFC 160; [2003] 200 ALR 332
cited
RITH
SOK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND
MR LINDSAY FORD (IN HIS CAPACITY AS A MEMBER
OF THE MIGRATION REVIEW TRIBUNAL)
AND MR STEVE KARAS (IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE MIGRATION REVIEW
TRIBUNAL)
VID 1270 of 2004
BRANSON, MARSHALL and HELY JJ
11 APRIL 2005
MELBOURNE
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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RITH SOK
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
FIRST RESPONDENT MR LINDSAY FORD (IN HIS CAPACITY AS A MEMBER OF THE MIGRATION REVIEW TRIBUNAL) SECOND RESPONDENT MR STEVE KARAS (IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL) THIRD RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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MELBOURNE
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THE COURT ORDERS THAT:
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
BRANSON J
INTRODUCTION
1 I have had the benefit of reading in draft the reasons for judgment of Hely J. I gratefully adopt his Honour’s outline of the factual and legal background to this appeal.
2 While I am in agreement with a large part of his Honour’s reasoning, I respectfully differ from his Honour on two critical issues. I identify and discuss these issues below. The difference between us on these two critical issues means that I do not feel able to join in his Honour’s conclusion as to the proper outcome of this appeal. In my view, for the reasons set out below, the appeal should be allowed and the first respondent ordered to pay the appellant’s costs of the appeal and at first instance.
CRITICAL ISSUES
Background
3 Before turning to the two issues in respect of which I take a different view from Hely J, it is convenient to outline briefly the statutory regime that provides the background to these issues.
4 The Migration Act 1958 (Cth) (‘the Act’) authorises the Minister to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or both (s 29). The Act provides for different classes of visas. Some classes of visas are provided for by the Act and others are prescribed by regulations made under the Act (s 31). The regulations made under the Act may prescribe criteria for visas of a specified class (subs 31(3)) and may provide that visas of a specified class are subject to specified conditions (s 41).
5 Division 2.1 of Part 2 of the Migration Regulations 1994 (‘the Regulations’) prescribes various classes of visas by reference to Schedule 1 of the Regulations. The division also makes provision for subclasses of a particular class of visa (reg 2.02). The criteria for the grant to a person of a visa of a particular class are prescribed by reference to Schedule 2 of the Regulations.
6 Item 1129 of Schedule 1 of the Regulations provides for a class of visa called Partner (Migrant) (Class BC) with the subclasses 100 (Spouse) and 110 (Interdependency). This appeal calls for consideration of the entitlement of the appellant to a Partner (Migrant) (Class BC) Subclass 100 (Spouse) visa (‘the Visa’).
7 It is accepted that, to be entitled to the Visa, the appellant must satisfy the criterion set out in subclause (4)(c)(i) of item 100.221 of Schedule 2 of the Regulations. That criterion is relevantly that, after the appellant first entered Australia, he has suffered domestic violence committed by his sponsoring spouse.
Relevant Domestic Violence
8 The first of the critical issues to which I have referred above is the issue of whether, in the context of regulation 1.23(2)(b) of the Regulations, the noun ‘violence’ requires the application, or the threat of the application, of physical force.
9 Division 1.5 of Part 1 of the Regulations is headed ‘Special provisions relating to domestic violence’. As Hely J has pointed out, regulation 1.22(1) provides that a reference in the 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. Regulation 1.23 is in this sense a deeming provision.
10 The denotation of the word ‘violence’ in par (2)(b) of regulation 1.23 is the ultimate issue of statutory construction before this Court. Indeed, subject to the matters discussed at [28]-[34] below, it is the only issue that is required to be determined on this appeal. Determination of that issue calls for careful consideration of, amongst other things, the context in which the word has been used. For this reason is it appropriate to reproduce much of regulation 1.23.
‘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:
(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or (d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or (e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or (f) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or (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) ... (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, 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.’
11 Regulation 1.24 provides:
‘1.24 Evidence
(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.’
12 It is important also to note the terms of regulation 1.21, the interpretation provision for Division 1.5 of Part 1 of the Regulations. Regulation 1.21 defines ‘violence’ to include a threat of violence. It also defines ‘competent person’ in relation to domestic violence committed against an adult to mean, in effect, a registered medical practitioner, a registered psychologist, a registered and practising nurse, a qualified and practising social worker, a court counsellor under the Family Law Act 1975 (Cth) or a person holding a position of responsibility in a women’s refuge or a crisis and counselling service that specialises in domestic violence.
13 It is now settled law that, in construing statutory provisions, a court must have regard to the context in which the relevant provision is found to ensure that the meaning of the provision is determined ‘by reference to the language of the instrument viewed as a whole’ (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ, cited in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]).
14 It is plain that the context in which the word ‘violence’ is used in par (2)(b) of regulation 1.23 is a context concerned with domestic violence. As Hely J has pointed out at [58]-[59] below, the expression ‘domestic violence’ has for some time in Australia been understood to encompass a wide range of behaviours only some of which involve actual or threatened physical harm (see also Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562; 98 FCR 291 at [12]- [15]; Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482; 117 FCR 251; but to the contrary effect, see Doan v Minister for Immigration and Multicultural Affairs (2000) FCA 909 at [42]).
15 Further, it is clear that the executive branches of Australian governments
use the expression ‘domestic violence’ to encompass an abuse
of power within a domestic relationship such that the less powerful partner in
the relationship experiences
fear of psychological or physical harm. In
addition to the material referred to by Hely J at [58]-[59], reference may
be made
to the various definitions of ‘domestic
violence’
contained in the Domestic Violence Interagency
Guidelines (see http://www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/definitions).
In my view, material that illustrates the meaning attributed to the expression
‘domestic violence’ by the executive branch of the Australian
government has particular significance in the circumstance of regulation 1.23.
Regulation 1.23 is found in an instrument of delegated legislation made by the
Governor-General acting with the advice of the Executive Council (see
s 504
of the Act and s 16A of the Acts Interpretation Act 1901 (Cth)).
16 Australian legislatures can also be seen to understand the expression ‘domestic violence’ to encompass more than acts of physical violence (see, for example, Domestic and Family Violence Protection Act 1989 (Qld) s 11(1)(c); Domestic Violence Act 1994 (SA) s 4(2); Domestic Violence Act 1992 (NT) s 4; Protection Orders Act 2001 (ACT) s 9).
17 In Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257; 135 FCR 183 (‘Cakmak’) the Full Court gave consideration to the proper construction of regulation 1.23. The Full Court at [60] said:
"Violence" is an ordinary English word. The phrase "domestic violence" refers to the social context of its occurrence. ... The phrase is not a term of art.’
18 The matters identified at [14]-[16] above demonstrate, in my respectful view, that their Honours were wrong to conclude that the expression ‘domestic violence’ is not a term of art in contemporary Australia. Their Honours’ conclusion was reached, as [68] of the judgment in Cakmak reveals, in the absence of relevant submissions from either party. Cakmak had been argued before the primary judge on the basis that the word ‘violence’ meant not only physical violence but included emotional or psychological violence (see [8] of Cakmak). Counsel for the Minister did not argue to the contrary on the appeal to the Full Court (see [68]). I turn to the significance of these circumstances at [31]-[33] below.
19 In giving consideration to the meaning attributed to the word ‘violence’ in accepted dictionaries, their Honours at [60] of the judgment in Cakmak noted the definition contained in the Macquarie Dictionary (3rd Ed), which importantly is an Australian dictionary. That definition is as follows:
‘Violence: noun 1. rough force in action: the violence of the wind. 2. rough injurious action or treatment: to die by violence. 3. any or unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury; wrong; outrage. 4. a violent act or proceeding. 5. rough or immoderate vehemence, as of feeling or language; fury; intensity; severity. 6. a distortion of meaning or fact [Middle English, from old French, from Latin violentia vehemence].’ (emphasis added)
20 However, relying principally, as it seems, on definitions contained in the Oxford English Dictionary (2nd Ed) and the New Oxford Dictionary of English, their Honours at [61] observed:
‘In some contexts in ordinary usage, the notion of "violent" as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone’s behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. 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.’
21 With respect to their Honours, I do not consider that the accuracy of the final sentence in the above quotation is self-evident – particularly in the context of regulation 1.23 which, as mentioned above, is a deeming provision. The critical words for present purposes are not those in pars (a) and (b) of regulation 1.23(1) but rather those in regulation 1.23(2)(b), namely ‘violence against the alleged victim ... that causes the alleged victim ... to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety’.
22 As the Full Court in Cakmak appreciated, the word ‘violence’ is sometimes used without any connotation of physical force. One such context, in my view, is where, there being a significant power disparity between two individuals, the more powerful of them unjustly and deliberately exercises his or her greater power so as to dominate or control the less powerful individual. This is the usage of ‘violence’ that I understand to be reflected in the third of the meanings attributed to the noun ‘violence’ by the Macquarie Dictionary (3rd Ed). See also the extract from Laing and Bobic (2002) referred to by Hely J at [58] below.
23 Like Hely J, I conclude that in the context of regulation 1.23 there is ambiguity inherent in the term ‘violence’. It is thus necessary to determine the meaning to be attributed to that term in regulation 1.23(2)(b) by reference to indicators to be found in the context provided by Division 1.5 of Part 1 of the Regulations.
24 As mentioned above, Division 1.5 of Part 1 of the Regulations is headed ‘Special provisions relating to domestic violence’. Domestic violence, understood as I think that it must be as a term of art, will ordinarily involve an abuse of power by one of the partners to a domestic relationship. Because of the general understanding in Australia of the nature of domestic violence (see [14]-[16] above), in the context of an Australian regulation concerning domestic violence it might be expected that the noun ‘violence’ would be intended to encompass more than physical violence. This expectation in respect of the use of the noun in regulation 1.23(2)(b) is confirmed, in my view, by the fact that the violence to which regulation 1.23(2)(b) refers is violence that causes, relevantly, the alleged victim to fear for, or be apprehensive about, his or her ‘personal well-being or safety’. While the intended content of the word ‘safety’ in the context may be open to debate, I do not think that it is open to be seriously contested that an individual’s ‘personal well-being’ is generally understood to encompass his or her psychological health. If the violence referred to in regulation 1.23(2)(b) were intended to be limited to physical violence, it may be doubted that the reference to ‘personal well-being’ was necessary; the reference to ‘safety’ would appear to be all that was required.
25 Further, I agree with Hely J that the inclusion of registered psychologists (and I would add social workers and those involved in positions of responsibility in women’s shelters and crisis and counselling services that specialise in domestic violence) within the class of persons who may provide statutory declarations as evidence that the alleged victim has suffered relevant domestic violence points towards the word ‘violence’ being used in regulation 1.23(2)(b) in a sense that extends beyond physical violence. If the word ‘violence’ were intended to include only physical violence it might have been expected, in my view, that at least one of the two ‘competent persons’ whose supporting evidence was required would be a medical practitioner or nurse. I further agree with Marshall J that it is significant that a person may be taken to have suffered domestic violence under regulation 1.23(1)(c) of the Regulations notwithstanding that he or she did not suffer physical violence (see also the observations of Hely J at [69]-[73] below).
26 I should add that I do not find persuasive the argument that if ‘violence’ in the context of regulation 1.23 is found to include more than physical violence it will prove difficult in practice to differentiate between conduct that falls within the terms of regulation 1.23(2)(b) and conduct that does not. That difficulty will exist even if ‘violence’ is confined to physical violence. The line between an assault that constitutes ‘violence’ in the relevant sense and an assault that does not will not always be easy to draw. Tickling and pinching, for example, might ordinarily be expected to fall on one side of the line and punching on the other – but this may not always be the case. Inherent in the notion of ‘violence’, whether physical or non-physical, is an element of vehemence or severity. For this reason a question of judgment is involved in determining whether particular conduct constitutes ‘violence’. Provided that the conduct complained of is capable of being regarded as ‘violence’, the regulation places the burden of making that judgment in respect of the domestic violence with which the regulation is concerned upon persons whose skills and experience have been assumed to fit them to make it.
27 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.
Should this Full Court defer to the views expressed in Cakmak?
28 The second of the critical issues to which I have referred above is the issue of the significance for this Full Court of Cakmak. The view expressed by the Full Court in Cakmak as to the meaning to be attributed to the word ‘violence’ in regulation 1.23(2)(b) was obiter; the Full Court at [71]-[73] agreed with the conclusion of the primary judge that the Tribunal was entitled to conclude that the evidence presented to the Tribunal did not suggest that the conduct complained of in that case had been done by or on behalf of the applicant’s spouse.
29 Nonetheless, I agree with Hely J that ordinarily the appropriate approach where one Full Court entertains reservations about a decision of an earlier Full Court is the approach adopted in NATB & Others v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; 133 FCR 506. The Court in that case at [61] concluded:
‘Although, perhaps, some of their observations were obiter, we should decide inconsistently with their Honours in the earlier Full Court only if "compelled to the conclusion that the earlier decision is wrong" (Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 269), "convinced that that is wrong" (Chamberlain v The Queen (1983) 72 ELR at 8-9), and only after exercising "great care" and if persuaded that the earlier decision was "clearly erroneous" (Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 at 560); and cf, to a similar effect, Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 at [25] per Heerey J, and [56]--[57] per Allsop J (with whom Emmett J agreed); Brooks v Commissioner of Taxation (Cth) [2000] FCA 721; (2000) 100 FCR 117 at 121; and Prebble Pty Ltd v Commissioner of Taxation [2003] FCAFC 165; (2003) 131 FCR 130 at [9]--[13] per Hill and Hely JJ. ....’
30 In Telstra Corporation Ltd v Treloar [2000] FCA 1170 (FC); [2000] FCA 1170; 102 FCR 595 Finkelstein J and I, after acknowledging at [23]-[25] the rationale behind the doctrine of stare decisis and the caution with which appellate courts generally act before reviewing earlier decisions, at [27]-[28] observed:
‘The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances the generality of the statutory language is deliberate and allows the courts to develop a body of law to fill the gaps. This may lead to disagreement among judges about what the statute means. It would be sound policy that once that intent has been discerned by an appellate court then that should be the end of the matter.
The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. In other areas of the law a precedent may be reconsidered if its underlying reasoning is outdated or is inconsistent with other legal developments. Perhaps, with some modification, in some instances these factors could also be applied to cases concerned with the construction of statutes. Accordingly, we venture to suggest it would be on a rare occasion that an intermediate appellate court (contrast the position of the High Court, as to which see Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1) will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense. In this case, the number of individuals who will relevantly be affected by the construction of the statute may be assumed to be, by reason of the passage of time, relatively small.’
31 However, I do not understand the authorities to suggest that the approach adopted in the two cases referred to above is to be followed automatically without regard to the circumstances in which the earlier decision was published. For example, the approach need not be followed where the per incuriam rule has application (see Foster v Northern Territory of Australia [1999] FCA 1235 (FC) at [32]).
32 The course adopted by the Full Court in Cakmak was unusual. Their Honours gave detailed consideration to the proper construction of a provision, the language of which raises issues of some difficulty, in circumstances in which the dispute between the parties did not require that consideration and their Honours had received no relevant assistance from counsel. While I am not ‘compelled’ to the conclusion that their Honours’ conclusion concerning regulation 1.23(2)(b) was wrong and I do not regard the construction adopted by their Honours as ‘clearly wrong’, I do regard at least one aspect of the process of reasoning adopted by their Honours as clearly wrong. I take the view that their Honours were clearly wrong in concluding that the expression ‘domestic violence’ is not a term of art in contemporary Australia. On this aspect, at least, of their Honours’ reasoning I consider that their Honours were significantly disadvantaged by not receiving the assistance of counsel. I doubt that their Honours would have taken the same view of the expression ‘domestic violence’ if the material referred to in [14]-[16], or some of it, had been drawn to their attention. It seems likely that at least some of that material would have been drawn to their Honours’ attention had the issue which this Full Court is required to determine been argued in Cakmak.
33 It may be that the per incuriam rule reaches to Cakmak. It is not necessary for me to reach a conclusion on this question. It is sufficient for me to conclude, as I do, that the circumstances in which the obiter observations in Cakmak were published are sufficiently out of the ordinary to make the approach referred to above one that is not binding on this Full Court.
34 In my view the interests of justice require that the appellant in this case should not be disadvantaged in a matter potentially as significant as his right to remain lawfully in Australia by reason of an obiter conclusion of an earlier Full Court reached without relevant material being drawn to that Full Court’s attention. That is, this being the first case in which the proper construction of regulation 1.23(2)(b) has been argued before a Full Court, I consider that the appellant is entitled to have his appeal determined on the basis of the construction of the regulation that this Full Court, or a majority of its members, considers to be its proper construction.
CONCLUSION
35 I would allow the appeal, set aside the decision of the primary judge and in lieu thereof order that the decision of the Migration Review Tribunal be set aside and the matter be remitted to the Migration Review Tribunal for further consideration according to law. I would order the first respondent to pay the appellant’s costs of the appeal and of the proceeding before the primary judge.
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I certify that the preceding thirty-five (35) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Branson.
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Associate:
Dated: 11 April 2005
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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VID 1270 of 2004
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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RITH SOK
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
FIRST RESPONDENT MR LINDSAY FORD (IN HIS CAPACITY AS A MEMBER OF THE MIGRATION REVIEW TRIBUNAL) SECOND RESPONDENT MR STEVE KARAS (IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL) THIRD RESPONDENT |
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JUDGES:
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BRANSON, MARSHALL and HELY JJ
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DATE OF ORDER:
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11 APRIL 2005
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WHERE MADE:
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MELBOURNE
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REASONS FOR JUDGMENT
MARSHALL J
36 I have had the benefit of reading, in draft form, each of the judgments of Branson J and Hely J. I respectfully agree with the reasoning of Branson J. I only wish to add one observation.
37 Regulation 1.23(1)(c) of the Migration Regulations 1994 refers to injunctions granted under s 114(1)(a), (b) and (c) of the Family Law Act 1975 (Cth). Such injunctions may be granted as a consequence of domestic violence as that term is understood in its modern day context, that is, including emotional abuse and/or economic deprivation. So much is evident from s 114AA of the Family Law Act, which in sub-section (1)(b)(ii) thereof contemplates that such an injunction may be breached by behaviour which does not cause bodily harm but which involves "harassing, molesting or stalking" of a person.
38 I agree with Branson J that the orders which her Honour proposes are appropriate ones to be made in the circumstances.
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I certify that the preceding three (3) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
Marshall.
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Associate:
Dated: 11 April 2005
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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VID 1270 of 2004
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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RITH SOK
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
FIRST RESPONDENT MR LINDSAY FORD (IN HIS CAPACITY AS A MEMBER OF THE MIGRATION REVIEW TRIBUNAL) SECOND RESPONDENT MR STEVE KARAS (IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL) THIRD RESPONDENT |
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JUDGES:
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BRANSON, MARSHALL and HELY JJ
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DATE OF ORDER:
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11 APRIL 2005
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WHERE MADE:
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MELBOURNE
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REASONS FOR JUDGMENT
HELY J
39 The appellant is a national of Cambodia. He married an Australian citizen, also of Cambodian origin. The marriage took place on 18 May 2001 in Cambodia. On 7 June 2001 the appellant applied for a Partner (Migrant) (Class BC) (subclass 100) visa, with his wife as sponsor. On 14 December 2001 a subclass 309 Spouse (Provisional) visa was granted to the appellant, and shortly afterwards he came to Australia. In the ordinary course, the appellant would have become eligible for the grant of a permanent visa two years after his visa application was made: Migration Regulations (1994) Schedule 2, par 100.221(2)(c) (‘the Regulations’).
40 However, the appellant’s wife withdrew her sponsorship of the appellant’s application for a permanent visa. The relationship between the appellant and his wife broke down, and they separated. Where, as here, the relationship between the appellant and his sponsoring wife has ceased prior to the grant of a permanent visa, the appellant will only be entitled to a permanent visa in specified circumstances, which are an exception to the general proposition that the spousal relationship must subsist at the time of the grant of the visa. The only circumstance potentially applicable in the present case is if the appellant ‘has suffered domestic violence committed by the sponsoring spouse’: Sch 2, par 100.221(4)(c).
Domestic violence
41 Division 1.5 of the Regulations contains special provisions relating to domestic violence. One such provision is regulation 1.22 which provides that a reference in the Regulations to a person having suffered (or committed) domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered (or committed) domestic violence. The appellant is taken, under regulation 1.23(1)(g), to have suffered, and his wife is taken to have committed, domestic violence in relation to the appellant if the appellant presents evidence in accordance with regulation 1.24 that he has suffered ‘relevant domestic violence’ committed by his wife. ‘Relevant domestic violence’ in the present context, is violence (including a threat of violence) against the appellant or his property that causes the appellant to fear for, or to be apprehensive about his personal well-being or safety: regulation 1.21 ‘violence’; regulation 1.23(2)(b). ‘Violence’ is not itself a defined term.
42 The ‘evidence’ called for by regulation 1.24, in the circumstances of the present case, is a statutory declaration by the appellant under regulation 1.25 and two statutory declarations each made by a competent person under regulation 1.26. Under regulation 1.25(2) the appellant’s statutory declaration must:
(a) set out the allegation that he is the victim of relevant domestic violence (within the meaning of par 1.23(2)(b)), and
(b) name the person alleged to have committed the relevant domestic violence.
43 A statutory declaration by a competent person under regulation 1.26 must set out the basis for the claim that the declarant is a competent person (a term defined in regulation 1.21) and, in addition:
‘(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 relevant domestic violence; and
(e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
(f) must set out the evidence on which the competent person’s opinion is based.’
44 The definition of ‘competent person’ provided in regulation 1.21 includes medical practitioners, psychologists, nurses, social workers and court counsellors. In many cases, persons occupying those positions would not themselves have witnessed the alleged violence, but would be wholly or partially dependent for the formation of the opinions required of them on information supplied by the alleged victim about the conduct in question, or about the effect of that conduct upon the alleged victim.
45 This regulatory regime was described by Wilcox J in Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [40] as a triumph of form over substance. That is because the decision-maker’s role is not to decide whether the visa applicant has in fact been the victim of domestic violence committed by the sponsoring spouse, but rather to determine whether statutory declarations in conformity with regulations 1.25 and 1.26 of the Regulations have been presented.
The statutory declarations provided
46 In the present case the appellant provided statutory declarations made by himself, by a social worker and by a psychologist, they being two of the categories of ‘competent persons’ specified in the Regulations.
47 In the appellant’s statutory declaration he said that he 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 described his marriage, his honeymoon and his arrival in Australia 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.’
48 Mr Peter Moore, a social worker, completed a statutory declaration on a Departmental Form 1040 headed ‘Statutory Declaration under the domestic violence provision of the Migration Regulations’. This 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.
Evidence of domestic violence
In order to access the provision, applicants need to provide evidence that domestic violence has occurred. This proof 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 declaration will be required to come from different occupation groups of "competent persons".
A record of assault from police is also acceptable as a substitute for one statutory declaration.’
49 Form 1040 has a number of questions upon it. The relevant questions, and Mr Moore’s response to those questions, is:
‘1. Give the following details about the people who have experienced (or in your professional opinion you believe have experienced), domestic violence.
Full Name Date of Birth Relationship to applicant (eg self, dependent child,
family unit member)
Rith Sok 6 February 1975 Self
2. Full name of the person who committed (or who you believe committed) the violence.
Sophear Hort
3. Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)
Mr Sok has experienced various forms of violence directed against himself by his estranged wife Ms 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. Ms 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 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.
...
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)
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.’
50 Ms Joan James, a psychologist, also completed a statutory declaration on Form 1040. The relevant questions and Ms James’ response to those questions is:
‘1. Give the following details about the people who have experienced (or in your professional opinion you believe have experienced), domestic violence.
Full Name Date of Birth Relationship to applicant
(eg self, dependent child,
family unit member)
Rith Sok 6 February 1975 Self
2. Full name of the person who committed (or who you believe committed) the violence.
Sophear Horth
3. Briefly describe the nature of the violence experienced
(Please refer to the definition of domestic violence on the front of this form)
Sophear emotionally abused Rith by belittling him, isolating him and neglecting his needs. This caused him to fear for his personal well-being. He feared for his psychological health. He became depressed, anxious and withdrawn and this affected his personal well-being. Sophear controlled his entire existence here and threatened him with immigration intervention if he did not comply. He was intimidated and fearful.
...
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)
It is my professional opinion that Rith Sok has suffered from domestic violence. This based on a very extensive interview whereby symptoms of trauma, grief and depression were observed. He was noticeably 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 described. His descriptions remained consistent and still causes pain to recollect.’
The decision of the Migration Review Tribunal (‘the MRT’)
51 The MRT accepted that its role was confined to an examination of the statutory declarations submitted to ensure that the regulatory requirements had been complied with. The MRT said that its role did not extend to the assessment of the credibility of the claims made by or on behalf of the appellant, although the member said that it was ‘quite evident that the visa applicant had been ill-used by both his wife and his employer’.
52 However, the MRT found that the competent persons declarations failed to conform to regulation 1.26. The MRT relied upon Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 at [18] and [19] in which the Court stated:
‘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.
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.’
The decision of the primary judge
53 The primary judge accepted the appellant’s submission that the MRT erred in finding that regulation 1.26 had not been complied with in the respect identified by the MRT. His Honour observed that at the time when Du was decided there was no Form 1040. It is implicit from the making of a declaration on Form 1040 that the competent person had formed the opinion required. His Honour’s conclusion in that respect is supported by the judgment of Ryan J in Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251 at [34] and is, with respect, plainly correct. Counsel for the Minister did not contend to the contrary on the hearing of this appeal.
54 However, the primary judge observed that a Full Court of this Court has held that for the purposes of the Regulations ‘domestic violence’ has as an essential element the application of physical force or the threat thereof: Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257; (2003) 76 ALD 333. In his Honour’s view, whilst Mr Moore’s statutory declaration contained a reference to ‘physical abuse’, albeit in the form of a bare and unparticularised allegation, Ms James’ declaration made no reference to physical violence. The threats she spoke of were threats to report the appellant to the Immigration Department.
55 The primary judge appears to have proceeded on the basis that he was bound by the decision in Cakmak, although noting that it was the subject of a then unresolved application for special leave to appeal to the High Court of Australia. The proposition that the primary judge was bound by the decision in Cakmak is an overstatement of the position, as the Full Court’s view of the meaning of ‘domestic violence’ although highly persuasive, was clearly obiter: [2003] FCAFC 257; 76 ALD 333 at [75]. The High Court ultimately refused special leave to appeal from the decision in Cakmak because the questions of principle contended for (ie, the meaning of ‘violence’ or ‘domestic violence’) would not necessarily arise: [2004] Trans 558.
Background to the decision in Cakmak
56 It was common ground between the parties in Cakmak that ‘violence’ in the context of the relevant regulations is not confined to physical violence, but also encompasses ‘emotional’ and ‘psychological’ violence. That approach appeared to the Full Court in Cakmak to have had its origins in observations made by Wilcox J in Malik v Minister for Immigration & Multicultural Affairs [2000] FCA 562; (2000) 98 FCR 291 where his Honour accepted a concession made by the solicitor for the Minister that the concept of ‘domestic violence’ does not necessarily involve physical assault, but encompasses hostile conduct by one person to another. That approach was followed by Ryan J in Meroka (supra), and applied by Wilcox J in Ibrahim (supra). It was also the approach adopted in Cakmak at first instance.
57 However, as the Full Court noted, the concession made by the Minister is contrary to the opinion expressed by Lindgren J in Doan v Minister for Immigration & Multicultural Affairs (2000) FCA 909, which pre-dated Malik. In that case a visa applicant was humiliated by his wife’s continuing adultery in the home where he was living, and this caused the marital relationship to end. Lindgren J held that the visa applicant’s complaints in this respect did not amount to an allegation that he had suffered domestic violence committed by his nominator, as there was no physical violence involved.
58 The reason for the concession made by the Minister’s representatives in these cases does not appear. A possible explanation is that the general topic of ‘domestic violence’ has been the subject of public discussion and research in recent years in a context which treats the notion of ‘domestic violence’ as not confined to actual or threatened physical violence. In the brief delivered by the Commonwealth Government’s Office of the Status of Women (‘OSW’) to Access Economics Pty Ltd in 2004 to estimate the costs of domestic violence to the Australian economy, the definition of domestic violence employed (appearing below) was that which was said to accord with the most common understanding of domestic violence:
‘2.1 Definition of Domestic Violence
The brief for this study defines domestic violence (DV) as follows.
Domestic violence occurs when one partner attempts by physical or psychological means to dominate and control the other. Domestic violence takes a number of forms. The most commonly acknowledged forms of domestic violence are: physical and sexual violence; threats and intimidation; emotional and social abuse; and financial deprivation. Domestic violence can involve a continuum of controlling behaviour and violence, which can occur over a number of years, before and after separation.
The definition in the OSW project brief accords with the most common definition identified in the studies reviewed by Laing and Bobic (2002).
DV comprises a range of behaviours of differing degrees of severity, duration and outcome.
"The definitions throughout Australian literature reflect a contemporary recognition that violence, whether defined as domestic or family includes a range of violent behaviours: physical violence, sexual, verbal, psychological and emotional abuse, as well as social isolation and economic or financial abuse" (Laing and Bobic, p. 14).’
59 The OSW definition is consistent with the description of domestic violence agreed to by the Heads of Government at the National Domestic Violence summit held in 1997 according to a communiqué issued on 7 November 1997:
‘This statement of principles comes from the combined policy and practice experience of governments, services, police, judiciary, researchers and community in dealing with domestic violence over the last two decades. It is an expression of consensus by the Heads of Government of Australia.
Context
Domestic violence is widespread and complex. It is a major issue affecting the social, emotional, physical and financial wellbeing of individuals and families and resulting in significant social and economic costs to the community.
Children often witness domestic violence and are profoundly affected by this experience.
Domestic violence is an abuse of power perpetrated mainly (but not only) by men against women both in a relationship or after separation.
Domestic violence takes a number of forms, both physical and psychological. The commonly acknowledged forms of domestic violence are physical and sexual violence, emotional and social abuse and economic deprivation.
Domestic violence occurs across all groups, cultures and creeds.
Domestic violence often occurs and recurs in a pattern which affects the lives of women, men and children. Violence can continue from one generation to the next.
Principles
• All individuals have the right to be free from violence.
• All forms of domestic violence are unacceptable in any group, culture and creed. • Many forms of domestic violence are against the law. Acts of domestic violence that constitute a criminal offence must be dealt with as such. • The safety and wellbeing of those subjected to domestic violence must be the first priority of any response. • Those who commit domestic violence must be held accountable for their behaviour. • The community has a responsibility to work toward the prevention of domestic violence and to demonstrate the unacceptability of all forms of domestic violence.’
60 These matters do not appear to have been drawn to the attention of the Full Court in Cakmak.
The decision in Cakmak
61 The Full Court said (at [60]) that the phrase used by the Regulations is ‘domestic violence’. ‘Violence’ is an ordinary English word, and the phrase ‘domestic violence’ refers to the social context of its occurrence. The phrase describes something: ‘violence’ occurring in the domestic context. After referring to dictionary definitions of ‘violence’ their Honours went on to say:
‘61. In some contexts in ordinary usage, the notion of "violent" as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone’s behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. 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. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little by way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling, expressions of contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement.
62. 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 personal safety.
63. This is not a body of regulations about marriage breakdown, matrimonial cruelty or psychological or emotional harm. The difficulties sometimes expressed as to the presumptive method of proof by the regulations (Wilcox J said it was a triumph of form over substance), to a significant degree, arise consequent upon the impermissibly broad scope given to the notion of violence. If the visa must be granted if a psychologist and a social worker express views that a client has been belittled, humiliated, rejected and insulted such that emotional violence has been done to him or her and that he or she fears for his or her emotional or psychological well-being, such criticisms have force. If, however, one recognises that the regulations were directed to the social problem of violence, that is the application, or threat of application, of force by a spouse to the other or a family member, and one recognises the difficulties of proof of those kinds of allegation that can exist, one can see the aim of the provisions. The sworn evidence of responsible professionals who could give an opinion, whether, from the viewing of contemporaneous evidence or indicia or not, that there has been violence or the threat of violence committed or perpetrated to cause the relevant fear or apprehension, was seen as a satisfactory surrogate for what might be intractably difficult fact finding in the absence of court orders already dealing with the allegations.
64. As we have said, "violence" is an ordinary word and "domestic violence" is an ordinary concept. Each normally includes the exercise of physical force. There are a number of pointers in the regulations themselves to indicate that this primary sense was intended by the drafter. In the first place, by virtue of regulation 1.21: "violence includes a threat of violence". If the concession on the part of the Minister is correct, this would have been unnecessary. Next, the reference in reg 1.23(2)(b) to violence against property is an indication in favour of the primary use of the term. The necessity for the violence to cause fear for, or apprehension about, the victim’s personal well-being or safety underlines that meaning. Furthermore, as we have pointed out, none of paras (c), (d), (e) and (f) of reg 1.23(1) would usually apply unless there had been physical assault or the threat of physical assault upon person or property. The applications referred to in paras (a), (b) and (c) of s 114(1) of the Family Law Act, picked up by reg 1.23 (1)(c), in contrast to paras (d), (e) and (f) of s 114(1), not picked up by reg 1.23(1)(c), are of a kind likely to be based on a complaint of violence, in the sense we have discussed. The applications referred to in reg 1.23(1)(d), (e) and (f) expressly contemplate court orders about violence, in the sense we have discussed. Furthermore, reg 1.24(1)(a)(ii) provides for proof, by the production of a record kept by the police of an assault.
65. Reference also needs to be made to the structure of the regulations and their purpose. These regulations are obviously framed with a view to having as much objective certainty and as little room for subjective judgment as possible. This is difficult enough even when violence in the ordinary sense, and the threat of violence in the ordinary sense, is the criterion. If the criterion involves a kind of constructive violence, all manner of difficulties emerge, as illustrated by this case and by other cases to which we have been referred, particularly Meroka, and which are, as we have said, a significant underlying reason for some of the criticisms of the system made by Wilcox J in Ibrahim at [40] and [41]. In cases which do not involve physical violence to person or property, or a threat of such, the concession on behalf of the Minister means that there will always be a subjective judgment as to whether the conduct which is alleged is sufficient to reach the threshold of being domestic violence as required, unless that concept is regarded as devoid of all content.’
62 In the result, their Honours rejected what they regarded as an extension of ‘violence’ to encompass ‘emotional’ and ‘psychological’ violence as the subject of the relevant Regulations, in the absence of the application, or threat of application of physical force.
The regulatory scheme
63 Division 1.5 of Schedule 2 of the Regulations which includes regulation 1.23, came into effect on 3 July 1995 by operation of the Migration Regulations (Amendment) 1995 No 117 dated 30 May 1995. The Division refers to ‘violence’ in three different contexts:
(i) ‘violence’, simpliciter, which is not defined, except that regulation 1.21 provides that ‘violence’ includes a threat of violence;
(ii) ‘relevant domestic violence’ which is defined in regulation 1.23(2)(b) as referring 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.’
(iii) ‘Domestic violence’ which a person is taken to have suffered or committed:
- in the circumstances described in regulation 1.23(1)(c)-(e); or - if evidence is presented in accordance with regulation 1.23(1)(g) that the alleged victim has suffered, and the alleged perpetrator has committed, ‘relevant domestic violence’.
64 Thus ‘relevant domestic violence’ in Division 1.5 is simply a drafting technique which signifies that a person referred to in regulation 1.23(2)(a) has suffered violence of the type described in regulation 1.23(2)(b) with the consequences specified in that subregulation. As the heading to Division 1.5 makes clear, the division contains special provisions relating to domestic violence. ‘Domestic violence’ is not an expression which is defined in Division 1.5. Nor is the term used in that division as an ordinary English term. Rather, the division contains a specification of a number of different circumstances in which a person is taken to have suffered or committed domestic violence. It is not to the point that there may be circumstances encompassed by regulation 1.23 which would not ordinarily be regarded as ‘domestic violence’ (assuming that to be the case). Nor is it to the point that there may be other instances of what would ordinarily be regarded as domestic violence which are not within the scope of regulation 1.23. Rather, regulation 1.23 is in the nature of a deeming provision which exhaustively prescribes the circumstances in which a person is taken to have suffered or committed domestic violence.
The appellant’s case in this Court
65 The appellant contends that the statements made by the Full Court in Cakmak as to the scope of the term ‘domestic violence’ were wrong and that this Court should not apply them. The definition of ‘relevant domestic violence’ in regulation 1.23(2)(b) refers to ‘violence’, not physical violence. In the appellant’s submission, the ordinary natural meaning of the word ‘violence’ is not limited to the application of force, still less physical force. Thus the Macquarie Dictionary 3rd Ed provides as a definition of ‘violence’:
‘3. Any unjust or unwarranted exertion of force or power as against rights, laws etc; injury; wrong; outrage.’
(emphasis added)
The Full
Court in Cakmak had this definition before it.
66 The appellant also submits that the expression ‘domestic violence’ has entered the common language of modern day Australia as a composite expression encompassing more than the sum of its two parts. The expression is not confined to physical violence, or threats of physical violence even if the notion of violence simpliciter is ordinarily or primarily so confined. Domestic violence, in the context of modern day Australia, describes or signifies unacceptable conduct or behaviour in a family environment. The appellant calls in aid documents such as the brief and the communiqué referred to above, and legislative provisions such as s 60D of the Family Law Act 1975 (‘the Family Law Act’) (which defines ‘family violence’) in support of this submission.
67 The appellant also places reliance on the provisions of regulation 1.23(1)(c)-(f), which provide that a person is taken to have suffered domestic violence, and another person is taken to have committed domestic violence in relation to the alleged victim if:
‘(c) on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b), or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e) a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f) the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; ...’
68 In the appellant’s submission, the operation of those provisions is such that domestic violence will be taken to have occurred in a range of circumstances not necessarily involving physical violence. It cannot have been intended, so the appellant submits, that the notion of domestic violence should be any narrower when the method adopted to establish its occurrence is the provision of evidence in accordance with regulation 1.23(1)(g) rather than one of the methods specified in regulation 1.23(1)(c)-(f). One first needs to examine whether the premises on which this submission is constructed are made out.
69 Sections 114(1)(a), (b) and (c) of the Family Law Act are as follows:
‘(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b) an injunction restraining a party to marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
...’
Paragraph (e) of the definition of matrimonial cause in subsection 4(1) is as follows:
‘(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or ...’
70 There is nothing in the language of s 114(a), (b) or (c) which requires a finding of physical violence or the threat of physical violence as a precondition to the making of an order. The decision of the Full Court of the Family Court In the marriage of Kemsley J C and Kemsley W G (1984) FLC 91-567 demonstrates that no such limitation is implicit in the notion of ‘personal protection’. At p 79,590 the Court said:
‘The words ‘personal protection’ do not only refer to [a wife’s] physical protection, but they are apt to include such matters as the protection of her right to lead her own life without undue influence from the husband.
...
‘An order might be for the personal protection of the wife if it prevented the husband from interfering with her employment or business or her social life or if it were designed to safeguard her mental or emotional well-being.’
71 In Cakmak (at [64]) the Full Court said that applications under s 114(1)(a), (b) and (c) of the Family Law Act are of a kind ‘likely’ to be based on a complaint of a physical assault, or the threat of physical assault on person or property, although the foundation for this expression of opinion is not exposed.
72 The injunction in Kemsley restrained the wife’s estranged husband from assaulting her new partner. The husband had previously assaulted the wife’s parents, and had twice assaulted the wife’s new partner. On the second occasion the husband had punched and kicked the new partner and fractured his jaw in two places. The husband had also damaged the new partner’s car, threatened to kill him and called him to come out and fight. In these circumstances the Full Family Court considered that an injunction restraining the husband from assaulting his wife’s new partner was for the wife’s personal protection.
73 But, clearly enough, the foundation for the relief granted by the Family Court was not the application, or threat of application, of physical force to the wife, but the distress occasioned to her by the assaults on her new partner. The case provides a practical illustration of the proposition that regulation 1.23(1)(c) may be enlivened in particular circumstances by a Family Court injunction, such that the party obtaining the injunction is taken to have suffered domestic violence, but if the circumstances which gave rise to the injunction had been established by evidence in conformity with regulation 1.23(1)(g) instead, a different result would have ensued if regulation 1.23(1)(g) is confined in its operation in the manner described in Cakmak.
74 But this disconformity in terms of outcome may be seen as no more than the product of the particular regulatory scheme which has been adopted. The notion of ‘relevant domestic violence’ is critical to the operation of regulation 1.23(1)(g), but it has no role to play in relation to the other subparagraphs of regulation 1.23(1). ‘Relevant domestic violence’ is in turn defined by reference to ‘violence’, rather than by reference to domestic violence.
Regulation 1.23(1)(d), (e) and (f)
75 Regulation 1.23(1)(d) refers to the making of a court order under State or Territory legislation ‘for the protection of the alleged victim from violence’ (emphasis added). We were referred to a number of legislative provisions in force in the various States and Territories which enable orders to be made restraining persons from engaging in family or domestic violence. Those enactments are not limited to orders restraining physical violence against the relevant victim.
76 One example of such an enactment is the Crimes (Family Violence) Act 1987 (Vic) which authorises the making of an intervention order not only in cases where a person assaults a family member, but also in cases where a person has harassed or molested a family member or has behaved in an offensive manner towards a family member: s 4(1)(c).
77 Another example is provided by the Domestic and Family Violence Protection Act 1989 (Qld) which enables a court to make a domestic violence order to provide protection in the case of domestic violence committed by someone else if any of four specified domestic relationships exist between the two persons: s 3A. ‘Domestic violence’ is defined so as to include wilful injury, wilful damage to the other person’s property, intimidation or harassment of the other person, indecent behaviour to the other person without consent, or threats to perform any of those acts: s 11. An example given of intimidation or harassment of the other person is:
‘4. Regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque.’
78 The appellant submits that regulation 1.23(1)(d) was intended to comprehend orders made pursuant to these various enactments whether or not the conduct restrained is violence, or physical violence. That submission cannot be accepted, because in order to fall within regulation 1.23(1)(d) the order must be one ‘for the protection of the alleged victim from violence’, as that term is used in the regulation, even though the reach of the particular State or Territory enactment may be wider.
79 If, for example, an intervention order were made under the Victorian Act to protect the applicant from repeated or annoying telephone calls, the order would not have been made to protect the applicant ‘from violence’, and it would not satisfy regulation 1.23(1)(d).
80 The position is the same in relation to regulations 1.23(1)(e) and (f), as (e) requires a conviction for an offence of violence, and the operation of (f) depends upon the relevant proceedings being based upon an act of violence against the alleged victim. In the context the reference in each case is to physical violence.
Consideration
81 In Cakmak, the Full Court said that ‘violence’ is an ordinary word involving the application or threat of application of physical force, and ‘domestic violence’ is an ordinary concept referring to the social context in which violence occurs. Cakmak is a recent and carefully considered decision of a unanimous Full Court. It has been expressly treated as binding by North J in Kumar v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 201 at [48] and by Ryan J in Kozel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 658 at [24] although in Kumar North J said that he has some reservations about its correctness. Although the physical force ruling in Cakmak was obiter, it is entitled to great respect, and we should not depart from it, unless compelled to the conclusion that the physical force ruling was wrong: NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 at [61]; Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 200 ALR 332 at [79]. As this case concerns the construction of a regulation, there are additional reasons for following Cakmak, as described in Telstra Corp v Treloar [2000] FCA 1170; (2000) 102 FCR 595 at [26] – [29].
82 There are two aspects to the physical force ruling, the denotation of ‘violence’, and the denotation of ‘domestic violence’. Whether in modern-day Australia the expression ‘domestic violence’ has the narrow signification of physical violence in a domestic context attributed to that expression by the Full Court in Cakmak depends in the end upon the regulatory context and upon ‘one’s own understanding of the sense in which words are currently used’: NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation [1955] HCA 23; (1955-1956) 94 CLR 509 at 514.
83 My understanding is that, for many years now, domestic violence has come to be regarded in Australia at least in the area of family law as involving a wide range of behaviour including physical violence, sexual abuse, emotional abuse, economic deprivation and threats of violence occurring in a family context. In my experience, the ordinary usage of that term does not necessarily require actual or threatened physical harm. The brief and the communiqué earlier referred to provide some support for that understanding, but they are by no means exhaustive of the literature relating to domestic violence in which that expression is used in a manner which accords with my understanding.
84 However, the denotation of the expression ‘domestic violence’ is not the critical matter in the resolution of this appeal. The critical matter is the meaning of the words ‘violence against the alleged victim’ in the particular context of regulation 1.23(1)(g). If the appellant produces evidence that his spouse has committed violence against him that causes him to be apprehensive about his personal well-being or safety, then he has suffered, and his wife has committed, relevant domestic violence in terms of regulation 1.23(1)(g). The consequence is that the appellant is taken to have suffered, and his wife to have committed, domestic violence in terms of regulation 1.23(1) and regulation 1.22. When that occurs, the appellant is taken to have suffered, and his wife to have committed domestic violence, whatever may be the ordinary meaning of that term.
85 ‘Violence’ is an ordinary word. Cakmak decides that in the context of the Regulations, ‘violence’ requires the application, or the threat of the application of physical force, because this is the primary sense in which the word is used, and because there are pointers in the Regulations to indicate that the primary sense was intended by the drafter.
86 That is not to say that there are no indicators in the Regulations which might be thought to point in a different direction, as, for example the inclusion of psychologists in the range of competent persons, and the inclusion of ‘personal well-being’ of the alleged victim in regulation 1.23(2)(b), as well as his or her safety.
87 The definition is couched in terms of violence (or the threat of violence) against the alleged victim, or his or her property, which suggests that violence is used in its primary sense of physical force. It would have been a simple drafting matter to give the regulation a broader reach. Had the regulation been couched in terms of conduct towards the alleged victim, then it would have encompassed intimidatory threats made to the alleged victim provided they engendered the requisite fear or apprehension in the alleged victim about his or her personal well-being or safety, however, that is not the course which the drafter adopted.
88 I am not satisfied that the meaning which the Full Court ascribed to ‘violence’ in the relevant regulation is so clearly wrong that I should not follow it. The language of the regulation is ambiguous, and whilst the construction advanced by the Full Court is not the only available construction, it is at least an available construction which derives some support from some indicators in the Regulations. In these circumstances the controversy as to the denotation of the term ‘violence’ should be regarded as settled by the decision in Cakmak.
89 In my opinion, the appeal should be dismissed with costs.
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I certify that the preceding fifty-one (51) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Hely.
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Associate:
Dated: 11 April 2005
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Counsel for the Applicant:
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S Estcourt QC and C Fairfield
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Solicitor for the Applicant:
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Clothier Anderson & Associates
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Counsel for the Respondent:
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A Cavanough QC and H Riley
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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4 March 2005
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Date of Judgment:
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11 April 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/56.html