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Federal Court of Australia - Full Court Decisions |
Last Updated: 3 April 2007
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 47
MIGRATION – appeal from
decision of Federal Magistrate – two grounds of appeal – need to
succeed on one – successful
on one, not successful on the other –
appeal allowed
Migration Regulations
1994 (Cth) reg 1.15A, reg 1.21, reg 1.23, reg 1,24, reg 1.25, reg 1.26, Sch
2 cl 300.21, Sch 2 cl 820.111, Sch 2 820.211
MINISTER
FOR IMMIGRATION AND CITIZENSHIP v JOSEPH ZAOUK AND MIGRATION REVIEW
TRIBUNAL
No NSD 2293 of
2006
MOORE, FINN AND MARSHALL JJ
3
APRIL 2007
ADELAIDE (HEARD IN SYDNEY)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The name of the Appellant be changed to Minister for Immigration and Citizenship.
2. The appeal be allowed.
3. The decision of the Federal Magistrate be set aside.
4. The decision of the Tribunal of 18 November 2005 be reinstated.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant |
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AND:
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JOSEPH ZAOUK
First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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MOORE, FINN AND MARSHALL JJ
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DATE:
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3 APRIL 2007
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PLACE:
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ADELAIDE (HEARD IN SYDNEY)
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REASONS FOR JUDGMENT
1 This appeal from a decision of a Federal Magistrate granting relief by way of constitutional writs against a decision of the Migration Review Tribunal raises two discrete issues of statutory interpretation. The first relates to the proper construction of one of the criteria required to be satisfied at the time of application for a Subclass 820 (Spouse) visa, provided for in Sch 2 to the Migration Regulations 1994 (Cth). The second relates to the construction of the requirements of a statutory declaration made by a competent person under reg 1.26 of the Migration Regulations.
BACKGROUND
2 The respondent, Joseph Zaouk, is a national of Lebanon. He entered Australia on 12 April 2002 having been granted a Prospective Marriage (Temporary) (Class TO) visa. He had been sponsored for this by his prospective spouse. On 25 October 2002 Mr Zaouk and his sponsor wife married. The parties on 30 November 2002 separated and have remained apart thereafter. On 2 January 2003 he applied for the visa in issue in the present proceedings. The Migration Review Tribunal found him not to be entitled to that visa. In judicial review proceedings that decision was ordered to be quashed and matter re-determined. From that decision of the Federal Magistrate the Minister appeals to this Court. As a matter of convenience, we will deal separately with the two different matters of construction raised.
1. THE SUBCLASS 820 (SPOUSE) CRITERIA
The Statutory Setting
3 Clause 820.111 defines "sponsoring spouse" to mean:
"(a) in relation to an applicant who is, or was, the holder of a prospective marriage (temporary) visa – the Australian citizen, Australian permanent resident, or eligible New Zealand citizen who was specified in the application for that visa as the person whom the applicant intended to marry after entry to Australia; or
(b) in relation to any other applicant – the Australian citizen, Australian permanent resident or eligible New Zealand citizen who nominated the applicant as his or her spouse when the application for the visa was made."
4 Clause 820.211(8) requires that at the time the application is made for the visa:
"(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and
(b) the applicant has married the sponsoring spouse under a marriage that is recognised as valid for the purposes of the Act; and
(c) the relationship between the applicant and the sponsoring spouse has ceased; and
(d) any 1 or more of the following:
(i) the applicant;
(ii) a member of the family unit of the applicant who has made a combined application with the applicant;
(iii) a dependent child of the sponsoring spouse or of the applicant or of both of them;
has suffered domestic violence committed by the sponsoring spouse."
5 The particular requirement in issue is that in subpara (c) of the above.
6 Regulation 1.15A of the Migration Regulations defines a person to be the "spouse" of another person if the two are "in a married relationship". It goes on to describe persons as being in a married relationship if:
"(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis."
7 In concluding that the respondent did not satisfy the requirement of subpara (c), the Tribunal member said that the relevant relationship was required to be of a spousal nature at some time before the date of the visa application. In so doing the Tribunal member gave the word "relationship" in the subparagraph the same meaning as in the reg 1.15A definition of a "married relationship". The Tribunal was not satisfied on the evidence that the visa applicant and his sponsor were in a spousal relationship in the period between the marriage and his wife’s departure as it was not satisfied that the parties had had a mutual commitment to a shared life as husband and wife to the exclusion of all others.
8 In the judicial review proceedings, the Federal Magistrate concluded that in so invoking reg 1.15A in the construction of subpara (c) the Tribunal committed jurisdictional error. The Federal Magistrate was of the view that the term "sponsoring spouse" in subpara (c) had been given its own definition for the purpose of Subclass 820 in cl 820.111(a) (which is set out above). In consequence his Honour considered that the relevant relationship for the purposes of subpara (c) was simply that of a visa applicant and sponsor: see Reasons [20], [38] and [39]; i.e. the "relationship" presupposed in the cl 820.111 definition of "sponsoring spouse".
Consideration
9 The proper construction of subpara (c) is to be ascertained from the text, structure and apparent purpose of the provisions of "Subclass 820 Spouse" in Sched 2 of the Act. The actual text of the subpara itself provides no decisive answer.
10 The definition of "sponsoring spouse" in cl 820.111(a) provides a definition of a person who will answer that description. It does not define a relationship as such, although it necessarily presupposes that a relationship of a particular type existed at the time when the applicant was granted a Subclass 800 (Spouse) visa: see cl 820.211(8)(a) and Subclass 300 (Prospective Marriage) visa: see cl 300.21. This said, it is not obvious why that relationship ought have continuing significance for the purposes of cl 820 – the more so when the prospective marriage envisaged by Subclass 300 has actually taken place. Nonetheless, the Federal Magistrate was satisfied that for the purposes of cl 820.211(8)(c), the relationship that had ceased was simply the relationship of sponsor and applicant. His Honour did not indicate why this relationship, the effective purpose of which was spent on the grant of the Subclass 300 visa, had continuing significance for Subclass 820 purposes.
11 When one turns to the structure and apparent purpose of the provisions of Subclass 820, firmer indications are to be found as to the proper meaning of "relationship" contemplated by subpara (c). Clause 820.2 envisages nine different possible bases on which an application can be made for this class of visa. One of these (cl 820.211(2A)) is clearly an alien presence in this Subclass, it being unrelated in any way to spouses and/or to marriage. Of the remaining eight possibilities subcll (8) and (9) can for present purposes be considered together as all of the criteria of the former (including subpara (c)) are required to be satisfied by the latter. Consideration of these two will be deferred until the remaining possibilities have been considered.
12 Four of the remaining six possibilities (subcll (2), (3), (4) and (5)); are not tied to an applicant having been sponsored for, and having obtained, a Subclass 300 visa. Rather their premise is that the applicant (i) is the spouse of an Australian citizen, a permanent resident or an eligible New Zealand citizen; and (ii) that person is specified as the applicant’s spouse in the application (the "sponsoring spouse"). At the time of the application for a Subclass 820 visa, the applicant in three of the four possibilities is required to be married to his or her sponsoring spouse. In all four the applicant is, as a "spouse", required to be in a "married" (or "defacto" in the case of subcl (2)) relationship with the sponsoring spouse: reg 1.15A. It should be noted for the sake of completeness that, in the case of "defacto relationship", the same requirement of a genuine and continuing relationship, etc is imposed as in the case of a married relationship.
13 The next two possible bases on which an application can be made (cll 820.211(6) and (7)); are tied to the applicant being a holder of a Subclass 300 visa and to his or her having married the sponsoring spouse. In the case of subcl (6) the applicant has to continue to be "the spouse of the sponsoring spouse" at the time of the application. In the case of subcl (7), the sponsoring spouse is required to have died but the Minister has to be satisfied that "the applicant would have continued to be the spouse of the nominating spouse if the nominating spouse had not died": subcll (7)(c) and (d).
14 The matter to be emphasised with all of the above six class of applicant is that, at the time of the application, the applicant is required to be (or but for death would have been) in a reg 1.15A spousal relationship with his or her sponsoring spouse. It is in this above context that the proper construction of subcl 820.211(8)(c) falls for determination (it is unnecessary to refer to subcl (9) which, for present purposes, is in identical terms).
15 Though the applicant is not referred to as such as "a spouse" in subpara (c), it is in our view tolerably clear that the relationship it contemplates as having existed but then having ceased is a reg 1.15A married relationship. That relationship clearly enough provides an essential foundation for the criteria for this subclass of visa. Ordinarily that relationship is required to exist at the time of the application for this visa: subcll (2), (3), (4), (5), (6). In the case of the death of the sponsoring spouse, the Minister is required to be satisfied that it would have continued to exist, but for that death: subcl (7). Then there is the exceptional case where that relationship has ceased but where nonetheless an application for this visa can be made. This is subclause (8). That exception is tied to the domestic violence requirement.
16 While the respondent has urged upon us the view that the incidence of domestic violence of itself provides the policy justification for the exception such that the "relationship" requirement should be construed beneficially to an applicant, we do not consider that the subpara can be so construed. Its context requires otherwise. It is evident from the provisions of Subclass 820 that the underlying policy (evident in the title of the subclass itself) is to tie the award of this visa to persons who are, or, exceptionally, who have been, in spousal relationships having the qualities identified in reg 1.15.
17 While this conclusion may appear to bear hardly upon a person in the situation of the present respondent, the factual findings made which led to the Tribunal’s conclusion that no spousal relationship had been established between the parties were in turn exceptional. In saying this we are not impugning the conclusion. Rather we are suggesting that it is likely to be an infrequent one not easily arrived at.
18 Because the Federal Magistrate erred in his conclusion, the appeal must be allowed in relation to grounds 1 and 2 of the grounds of appeal.
THE STATUTORY DECLARATION REQUIRED
19 Division 1.5 of the Migration Regulations contains special provisions relating to domestic violence. Its present provisions apply to applications not finally determined before 1 July 2005, hence its application by the Tribunal to the present matter.
20 All that need be noted of this Division for present purposes is that (i) if a person in the position of the respondent claims to have suffered domestic violence, that person must present evidence in accordance with reg 1.24 and reg 1.23(1A)(b)(ii); (ii) the evidence required 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 (other than a statement by the alleged victim); or
(b) a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26:" reg 1.24(1)
- "competent person" is itself a defined term: reg 1.21; (iii) the competent person’s statutory declaration:
"(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 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:" reg 1.26;
(iv) the Minister must consider whether the alleged victim has suffered "relevant domestic violence" and -
"(1B) If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and:
(a) if satisfied that the alleged victim has suffered relevant domestic violence – consider the application on that basis; or
(b) if not satisfied that the alleged victim has suffered relevant domestic violence – seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence:" reg 1.23(1B)
and (v) relevant domestic violence is –
"(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:" reg 1.23(2)(b).
21 In the present matter two "competent persons" each provided two statutory declarations. These declarations were made using two, not relevantly different, versions of Form 1040, a document created by the Minister’s Department "for the purposes of the domestic violence provisions of the Migration Regulations". All four of these declarations are contained in the appeal book. It is sufficient if reference is made to the apparently more recent version of Form 1040. It required the competent person completing his or her part of the form to answer two sections concerning the alleged domestic violence. The first of these (Q 10) was in the following terms:
"10. Is there evidence that indicates to you that the visa applicant is a victim of domestic violence?
Please give details: citing:
• specific incidents of domestic violence;
• dates on which the incidents occurred;
• the impact of these incidents on the visa applicant.
For further information about what you are required by the Migration Regulations to provide, please refer to the definition of domestic violence on page 2 and Responsibilities of competent persons on page 3 of the guidelines at the front of this form. If there is insufficient space, please provide additional pages."
The second (Q 11) contained a similar reference to the definition in the guidelines. That definition replicated the definition of "relevant domestic violence" in the Migration Regulations and gave illustrations of what that definition might include.
22 The later two declarations of both competent persons described the conduct complained of, and its affects on the respondent. The Tribunal set these out in some detail. Nonetheless, as the Tribunal noted and then concluded (at Reasons [65]-[67]):
"65. Neither of the competent persons has made a statement that the visa applicant had experienced violence that caused him to fear for, or to be apprehensive about his well-being or safety, which is encapsulated in the definition of relevant domestic violence in Regulation 1.23(2)(b).
66. The Tribunal considers that the statutory declarations of Dr Zaki and Ms Vrklevski do not satisfy r.1.26(c) on the basis that their statutory declarations fail to conform to regulation 1.23(2)(b) as they do not state that relevant domestic violence has been experienced by the visa applicant.
67. As the statutory declarations do not comply with r.1.26, a non-judicial claim of domestic violence has not been made for the purposes of r.1.23(1A)(b). Accordingly, the decision of the delegate is affirmed."
23 In the judicial review proceeding the Federal Magistrate held that, in so deciding, the Tribunal fell into jurisdictional error:
"61. It appears quite clear that the competent persons, having had their attention drawn by the form to the definition of ‘domestic violence’, would in their conclusions use that term in the way it had been defined. There is nothing that I can see in the regulation that requires a competent person, when expressing his or her professional opinion, to recite the definition of relevant domestic violence that is contained in reg.1.23(2)(b).
61.(sic) Accordingly, I am satisfied that the Tribunal fell into jurisdictional error in importing a requirement into reg 1.26 that the competent persons should specifically quote the definition of relevant domestic violence in reg 1.23(2)(b)."
Consideration
24 Both the appellant and the respondent accept that, if the Tribunal imported a requirement into reg 1.26 that the competent persons should specifically quote the definition of relevant domestic violence in reg 1.23(2)(b), it erred. We agree. The two substantive questions referred to above in Form 1040 incorporate by reference the definition of domestic violence in the terms of the question itself. In answering those questions, one ordinarily would expect that the competent person would have addressed the definition itself. But such may not have happened. Equally that person may not properly have understood the burden of the definition or may not reasonably have applied it. These, though, are matters for the Tribunal in satisfying itself that the alleged victim has suffered "relevant domestic violence": reg 1.23(1B). What is clear is that reg 1.26(c) does not require the recitation by the competent person of the reg 1.23(2)(b) definition. It does not require to be stated what the question in the Form 1040 itself presupposes. What the subregulation does require is that the Minister satisfies himself that what is said in the declaration manifests an opinion that the applicant has suffered domestic violence as defined. Arriving at that satisfaction may itself result from what properly can be inferred from what was said by the competent person.
25 For reasons which are not altogether obvious, the appellant (but not the respondent) sought to place a different interpretation on what the Tribunal said in its Reasons. It is contended that all that the Tribunal was doing in paragraphs [65] to [67] of the Reasons quoted above was finding that the statutory declarations did not satisfy reg 1.26(c) on the basis that they did not meet reg 1.23(2)(b), because they did not state that "relevant domestic violence" had been experienced by the applicant. The critical statement by the Tribunal in those paragraphs is said in the appellant’s submissions to be that "neither of the competent persons has made a statement that the visa applicant has experienced violence that caused him to fear for, or be apprehensive about, his well-being or safety, which is encapsulated in the definition of relevant domestic violence in reg 1.23(2)(b)": (italics added by the appellant).
26 We cannot accept this. The Tribunal was not making a finding as to the substance of the declarations. Notwithstanding that the Tribunal referred to each of the declarations in a little detail, there is nothing in its reasons to suggest it was addressing what the declarations conveyed by way of expert opinion. Its approach was expository not analytic. It was addressing the declarations’ form. Its finding was that they were deficient in form, i.e. they did not satisfy reg 1.26(c) as they failed to conform to reg 1.23(2)(b).
27 Accordingly, we reject grounds 3 to 5 of the notice of appeal which relate to this issue.
CONCLUSION
28 The appeal having been successful on the first of the two questions of construction, it will be ordered that the appeal be allowed. As the Court is of the view that the decision of the Tribunal on that question was correct and of itself, as the Tribunal recognised, necessitated its arriving at the decision it did on the respondent’s visa application, we will order that (i) the appeal be allowed; (ii) the decision of the Federal Magistrate be set aside; and (iii) in lieu thereof the decision of the Tribunal of 18 November 2005 be reinstated.
29 We will hear the parties on the issue of costs.
Associate:
Dated: 3
April 2007
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Solicitor for the Appellant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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