Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89 (8 June 2007)

Last Updated: 12 June 2007

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Citizenship v Ejueyitsi [2007] FCAFC 89

MIGRATION – spouse visa – domestic violence exception – statutory declarations by competent persons – whether statement that, in the competent person’s opinion, relevant domestic violence has been suffered can be implicit – whether sufficient to state that presentation consistent with domestic violence


WORDS AND PHRASES – "state"


Migration Regulations 1994 (Cth) regs 1.15A, 1.21, 1.22, 1.23, 1.24, 1.25, 1.26


Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 approved
Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183 considered
Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 approved
Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 328 considered
Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 discussed
Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251 approved








MINISTER FOR IMMIGRATION AND CITIZENSHIP v VINCENT BABATUNDE EJUEYITSI
WAD 21 OF 2007

MINISTER FOR IMMIGRATION AND CITIZENSHIP v VINCENT BABATUNDE EJUEYITSI
WAD 83 OF 2007

TAMBERLIN, STONE & SIOPIS JJ
8 JUNE 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 21 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	VINCENT BABATUNDE EJUEYITSI Respondent

JUDGES:	TAMBERLIN, STONE & SIOPIS JJ
DATE OF ORDER:	8 JUNE 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The respondent pay the appellant’s costs of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 83 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	VINCENT BABATUNDE EJUEYITSI Respondent

JUDGES:	TAMBERLIN, STONE & SIOPIS JJ
DATE OF ORDER:	8 JUNE 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. Leave to appeal is granted.
2. The appeal is allowed in part.
3. Order 2 made on 19 April 2007 by McInnis FM in proceeding MLG 477 of 2006 be upheld.
4. Order 3 made on 19 April 2007 by McInnis FM in proceeding MLG 477 of 2006 be vacated.
5. The respondent pay the appellant’s costs of the proceedings in MLG 477 which were the subject of orders made by McInnis FM on 20 December 2006.
6. Order 4 made on 19 April 2007 by McInnis FM in proceeding MLG 477 of 2006 be vacated.
7. Each party to bear their own costs of the proceedings in MLG 477 which were the subject of orders made by McInnis FM on 19 April 2007.
8. There be no order as to the costs of the application for leave to appeal or of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 21 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	VINCENT BABATUNDE EJUEYITSI Respondent

WAD 83 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Applicant
AND:	VINCENT BABATUNDE EJUEYITSI Respondent

JUDGES:	TAMBERLIN, STONE & SIOPIS JJ
DATE:	8 JUNE 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 Mr Ejueyitsi, a citizen of Nigeria, arrived in Australia on 13 April 1997. He held a series of student visas, the last of which expired on 7 May 2000. On 28 February 1999 he married an Australian citizen, Ms Nola Khan. On 12 April 1999 he applied for a Class TK Extended Eligibility (Temporary) subclass 820 (spouse) visa for which he was nominated by Ms Khan.

2 Both Mr Ejueyitsi and Ms Khan were interviewed by an officer of the Department of Immigration on 22 June 1999. On 29 June 1999 Ms Khan withdrew her support for the spouse visa application on the basis that her relationship with Mr Ejueyitsi had ended.

3 The withdrawal of Ms Khan’s support jeopardised Mr Ejueyitsi’s application for a spouse visa, because an applicant for a spouse visa must be in a married relationship with an Australian citizen, both when the application is lodged and when the decision is made. There is an exception to this requirement which applies where the marital relationship is no longer continuing and the visa applicant has suffered domestic violence committed by the nominating spouse. The appellant sought to rely on this exception.

The Tribunal’s decision

4 On 30 April 2002 a delegate of the Minister rejected the application. The decision was reviewed by the Migration Review Tribunal which held that, according to the statutory criteria in reg 1.15A of the Migration Regulations 1994 (Cth), Mr Ejueyitsi was not the spouse of Ms Khan when he lodged his application and that, in any event, the domestic violence exception did not apply to him.

The first decision in the Federal Magistrates Court

5 An application for judicial review in the Federal Magistrates Court was dismissed; [2004] FMCA 935. The Federal Magistrate upheld the Tribunal’s findings as to the lack of a "genuine and continuing married relationship as required by law". Because it was necessary for Mr Ejueyitsi to succeed on both issues if his application for a spouse visa was to be successful, his Honour regarded it as unnecessary to consider the domestic violence issue.

The decision of Weinberg J

6 On appeal to this Court Weinberg J found that the Tribunal’s decision concerning Mr Ejueyitsi’s marital relationship with Ms Khan was affected by jurisdictional error; [2006] FCA 328. His Honour remitted the matter to the Federal Magistrates Court for further consideration explaining at [108]:

... when an appeal from the Federal Magistrates Court is allowed, as this appeal will be, this Court should ordinarily make the orders that the Federal Magistrates Court itself ought to have made. However, where the Federal Magistrates Court has not completed its task of judicial review, as is the position in the present case, then as a general rule it ought to be required to do so.

7 In remitting the matter to the Federal Magistrates Court Weinberg J said, at [96], that he would not do so if he were satisfied that Mr Ejueyitsi "could not conceivably bring himself within the domestic violence exception". The submissions put to Weinberg J and his Honour’s comments on the domestic violence issue are discussed below at [27]-[28].

The second decision in the Federal Magistrates Court

8 As directed by Weinberg J, the Federal Magistrate reviewed the Tribunal’s decision in relation to the domestic violence exception. For reasons that are discussed below, the Federal Magistrate found that the decision was tainted by jurisdictional error, ordered that it be set aside and remitted the matter to the Tribunal to be determined according to law; [2006] FMCA 1900.

This appeal

9 The Minister now appeals from the Federal Magistrate’s decision. The Notice of Appeal filed on 30 January 2007 sets out two grounds of appeal:

1. The learned Federal Magistrate erred in law in the construction of regulation 1.26 of the Migration Regulations 1994 in holding that a statutory declaration of a competent person under that regulation need not show whether the competent person rejects or accepts the claimed incidents of domestic violence, when, by that regulation, the statutory declaration:

1.1 must state that in the competent person’s opinion, relevant domestic violence has been suffered by a person; and

1.2 must set out the evidence on which that opinion is based.
2. As a result of the error in ground 1, the learned Federal Magistrate failed to consider whether, in the exercise of his discretion, the First Respondent should be refused relief in relation to the decision of the Tribunal, on the basis that such relief would be futile.

10 As can be seen the appeal does not raise any issues in relation to the Tribunal’s decision about the nature of the married relationship of Mr Ejueyitsi and Ms Khan. It is concerned only with the domestic violence issue. It is therefore necessary to understand the regulatory framework of the domestic violence exception.

11 At the relevant time the provisions relating to domestic violence were contained in Division 1.5 of the Regulations which included the following:

Interpretation

1.21(1) In this Division:
competent person means:

(a) in relation to domestic violence committed against an adult:

(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii) a person who:
(A) is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B) is performing the duties of a registered nurse; or
(iv) a person who:
(A) is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B) is performing the duties of a social worker; or
(v) ...
(vi) ...
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.

References to person having suffered or committed domestic violence

1.22 (1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2) A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in relation to that person.
When is a person taken to have suffered or committed domestic violence?
1.23(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) ... ; 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) the persons referred to are the following:
(i) a spouse of the alleged perpetrator;
....
(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.
Evidence
1.24(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.
Statutory declaration by alleged victim etc
1.25(1) A statutory declaration under this regulation must be made by:
(a) the spouse of the alleged perpetrator; or
(b) if the alleged perpetrator is in an interdependent relationship with a person -- that person.
(2) A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) set out the allegation; and
(b) name the person alleged to have committed the relevant domestic violence.
(3) A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a) name that other person; and
(b) set out the allegation; and
(c) identify the relationship of the maker of the statutory declaration to that other person; and
(d) name the person alleged to have committed the relevant domestic violence; and
(e) set out the evidence on which the allegation is based.
Statutory declaration by competent person

1.26 A statutory declaration under this regulation:

(a) must be made by a competent person; and
(b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2)(b)) has been suffered by a person; and
(d) must name the person who, in the opinion of the competent person, has suffered that 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.

12 As can be seen, a person who claims to have been the victim of domestic violence will be "taken to have suffered domestic violence" if, inter alia, the alleged victim presents evidence in accordance with reg 1.24. Before the Tribunal, Mr Ejueyitsi provided as evidence a copy of a police record of an assault upon himself, a statutory declaration made by himself as well as statutory declarations made by Dr Norman Van Dort, a medical practitioner and Ms Cozette Fraser, a social worker. There is no issue in this appeal concerning the police record or the declaration made by Mr Ejueyitsi. The issue here is whether the declarations made by Dr Van Dort and Ms Fraser comply with the requirements of reg 1.26.

13 It is not in contention that both Dr Van Dort and Ms Fraser are competent persons as required by reg 1.26(a) and that their claims to be competent persons satisfy reg 1.26(b). The Minister submits, however, that the declarations do not comply with the requirement in reg 1.26(c) because a declaration "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, in this instance, Mr Ejueyitsi.

14 In his statutory declaration made on 12 August 1999, Dr Van Dort stated:

On the 28/6/99 I attended a man who identified himself as Babatunde Ejueyitsi. He related having problems with his legally married wife, an aboriginal lady with an alcohol problem. He stated that when under the influence of alcohol (which was most of the time) she was violent to him & to his property. He cited have [sic] reported the above to the police and showed me a report. He also showed me photographs of two cars which showed the windows & front & rear windscreen damaged. He was distressed & I felt that he was depressed. I commenced him on an antidepressant approximately 20 mg daily & an [illegible] valium 5 mg as required. He was also concerned about his legal status in Australia, which contributed to his depression. Prior to this visit I have had no contact with Mr Ejueyitsi & I have never met his wife. The history is wholly as he related it to me.

15 Ms Fraser provided a declaration made on 9 August 1999 and a supplementary declaration on 12 December 2003. The two declarations are intended to be read as one and I will treat them as such. In her second declaration Ms Fraser states:

1. I refer to my Statutory Declaration concerning Mr Babatunde Ejueyitsi and his wife Nola declared on 9 August 1999, a copy of which is annexed to this declaration and marked "A" and I confirm the truth of the contents of that declaration.
2. When Mr Ejueyitsi consulted me on 5 July 1999, he referred to 2 specific incidents of domestic violence committed against him by his wife Nola, the first incident involved Nola violently and extensively damaging 2 cars belonging to him, the second incident involved Nola threatening him with a knife. There are other more general comments made by him with respect to Nola’s behaviour.
3. I confirm that both now and at the time I made the declaration on 9 August 1999 I was and am currently recognised by the Australian Association of Social Workers as eligible to be a member of that Association. I further confirm that in seeing Mr Ejueyitsi on referral and in providing my previous declaration I was performing the duties of a social worker.

16 The Tribunal accepted that Dr Van Dort is a medical practitioner and a "competent person", however, referring to Dr Van Dort’s declaration the Tribunal said:

The Tribunal has carefully considered Dr Van Dort’s declaration and cannot find anything in that declaration which would amount to an expression of an ‘opinion’ that the Applicant has suffered domestic violence within the meaning prescribed under regulation 1.23. Neither is there an expression of an opinion by Dr Van Dort that Ms Khan has ‘committed the relevant domestic violence’ on the Applicant. Dr Van Dort merely repeated what was told to him by the Applicant and was unequivocal in stating that the ‘history is wholly as [the Applicant] related’. The only opinion expressed by Dr Van Dort is that ‘he felt [the Applicant] was ‘depressed’. This falls short of an expression of opinion that the Applicant has suffered domestic violence at the hands of Ms Khan which has caused him to fear for, or to be apprehensive about his personal well-being or safety as required by law.

17 The Tribunal took a similar view of Ms Fraser’s declarations:

Not unlike the declaration of Dr Van Dort, Ms Fraser’s declarations do not express an opinion that the Applicant is a victim of domestic violence committed by Ms Khan. She merely stated what the Applicant had told her. She fell short of expressing an opinion that what she had heard or seen was consistent with the Applicant being the victim of domestic violence committed by Ms Khan. On a fair reading of Ms Fraser’s statutory declarations the Tribunal finds that the declarations do not satisfy the requirements prescribed under paragraphs (c), (d) and (e) of regulation 1.26 of the Regulations.

18 At the hearing before the Federal Magistrate, Mr Ejueyitsi submitted that Dr Van Dort’s and Ms Fraser’s opinions that he had suffered domestic violence committed by Ms Khan are implicit in their declarations. His Honour accepted this submission:

In the present case the declaration by Dr Van Dort clearly relies upon the history given to him by the Applicant. It is difficult to conceive that a medical practitioner could do anything other than refer to the history. By referring to the history the doctor implicitly has taken to accept the history. It is not for the doctor to undertake an investigation of his own to determine whether the history is true or untrue. The history relied upon included identification of the person who is alleged to have committed the domestic violence. Domestic violence is not confined to personal violence and the history included that the Applicant [sic] was "violent toward him and to his property". Specific reference is made to property namely photographs of two cars which "show the windows in front and rear windscreen damaged". Immediately after that reference Dr Van Dort in his declaration states, "He was distressed and I feel that he was depressed". Relevant medication is referred to and the only other contributing factor to the depression referred to is the Applicant’s legal status in Australia". This it is claimed by the doctor "contributed to his depression". It is not suggested that the domestic violence was not a cause of the distress. It is also not suggested that the domestic violence was not at least one contributing factor to the depression.

...
The declarations by Ms Fraser in my view are likewise sufficient to satisfy Regulation 1.26. Again, it is not a matter for Ms Fraser to indicate whether she rejects or accepts the claimed incidents. She has clearly referred to two incidents, one referring to her property namely the damaging of two cars and a second involved a threat to the Applicant by the nominator with a knife. The name of the person committing domestic violence was clearly given and symptoms of stress ‘related to what (the Applicant) defined as a situation of domestic violence" was clearly stated. Reference was made to the Applicant’s claim to have been subjected to "physical and emotional abuse". Again one would not expect the social worker to be in possession of material consistent with the Applicant being the victim of domestic violence. Events described are "past events" to which the social worker was not a witness. It is unusual for social workers and indeed doctors to then undertake an investigation presumably of others or otherwise seek further information to determine whether the claims are consistent with domestic violence. Imposing that requirement is to go beyond the requirement of Regulation 1.26 in my view.

19 In this appeal from the Federal Magistrate’s decision, the Minister submits that "it is not necessary for the opinion to be expressly stated" and that it may be "stated" by "clear implication from what is said in the declaration". The Minister submits, however, that it is not sufficient for the declarant merely to "express the opinion that an applicant’s presentation is consistent with a history of domestic violence."

20 Before discussing the statutory declarations of Dr Van Dort and Ms Fraser, we note that, given the history of this matter, it is no longer in contention that:

(a) the Tribunal erred in finding that Mr Ejueyitsi was not in a married relationship with Ms Khan at the time of making his application for a spouse visa; and
(b) that the police record provided by Mr Ejueyitsi meets the requirement of reg 1.24(1)(a)(ii) and is therefore evidence within the meaning of that regulation.

21 It follows that if this Court were to be satisfied that either of the declarations made by Dr Van Dort or Ms Fraser meets the requirements of reg 1.26 then the appeal should be dismissed and the Federal Magistrate’s order that the matter be remitted to the Tribunal should stand. If, however, we uphold the appellant’s claim that the declarations do not comply with reg 1.26, we will need to decide if, as a matter of discretion, the Tribunal’s admitted error in relation to Mr Ejueyitsi’s marital relationship warrants the remittal. This issue is discussed in detail below.

The statutory declarations

22 The relevant meaning of the verb, "state" given in the Macquarie Concise Dictionary includes:

to set forth formally in speech or writing...to set forth in proper or definite form

23 There is nothing in this definition, and no authority of which the Court is aware, that requires competent persons, in order to conform to reg 1.26 in stating their opinion, to use the word "opinion" as distinct from expressing an "opinion". There are, however, a number of cases in which this Court has considered what is required for a statutory declaration to comply with reg 1.26.

24 In Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257; (2003) 135 FCR 183, the Full Court referred to the requirement in reg 1.23(1)(g) that the alleged victim of domestic violence (or another person on his or her behalf) must present evidence of domestic violence in accordance with reg 1.24. The Court said that the correct question for the Tribunal to ask itself was whether the evidence called for by the regulations had been presented. If it has not, then the domestic violence is not "taken" to have occurred and the exception does not apply. The Court placed some stress on the fact that reg 1.26 is very specific in its requirement for the competent person to "state" that in his or her opinion relevant domestic violence has been suffered.

25 In Du v Minister for Immigration and Multicultural Affairs [2000] FCA 1115 at [18] Mathews J emphasised the need for an expression of opinion and observed that it was not sufficient for a competent person "simply to note the consistency between a person’s presentation and their account of domestic violence". It was necessary for that person to "express an opinion in very specific terms ... as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person". Her Honour added that this required the competent person to assess the alleged victim’s state of mind as well as to form an opinion as to whether past acts of violence have occurred.

26 Sundberg J agreed with Mathews J’s observations in Alin v Minister for Immigration & Multicultural Affairs [2002] FCA 979 at [13]. In that case there was a live issue (which does not arise here) as to whether the conduct of which the visa applicant complained was domestic violence, as that term is defined in the regulations. His Honour also observed that the declarations in Alin did not contain the necessary expression of opinion and distinguished the circumstances before him from those considered by Ryan J in Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482; (2002) 117 FCR 251. In Meroka, Ryan J arguably took a more flexible approach to the requirement in reg 1.26 that the competent person state his or her opinion when he said at [34] that a statement of opinion might be conveyed by implication.

27 At the hearing of the appeal Mr Ejueyitsi appeared for himself. While it was not always easy to understand his submissions, the main thrust of them was clear. He submitted, relying on Meroka, that the declarations of both Dr Van Dort and Ms Fraser met the statutory requirement because their opinion was stated by implication. This submission is substantially the same as that put to Weinberg J by Mr Horan of counsel who appeared before his Honour for Mr Ejueyitsi. Weinberg J summarised Mr Horan’s submission at [52]–[54]:

Once again, Mr Horan submitted that it was "implicit" in Ms Fraser’s two statutory declarations that she was of the opinion that the appellant had suffered domestic violence committed by the nominator. He submitted that in considering whether a statutory declaration contains the requisite opinion, it must be read fairly, and should not be "scrutinised over-zealously with a view to detecting some inadequacy of expression from which error may be imputed": see Kozel at [30] per Ryan J. He submitted that in many, if not most, cases, the competent person would have no direct knowledge of the applicant’s relationship with his or her spouse, and would therefore be in no position to do other than recount the history given by that person. Even if there were objective signs of violence having been inflicted, it would be difficult for a doctor, or a social worker, to proffer an opinion that the injuries in question had been inflicted in the course of domestic violence, still less that a particular person had inflicted them. He submitted that the Regulations should be construed benevolently, having regard to their evident purpose, which was to allow persons who had been subjected to domestic violence, and forced to live apart, to maintain a claim for a spouse visa. He further submitted that the Regulations should not be construed so as to require the competent person to act as an investigative, or fact finding body, a task which many such persons would either eschew, or not be qualified to undertake.

In that regard, Mr Horan submitted that Dr Van Dort, in his statutory declaration, had stated that he had been given an account of the domestic violence suffered by the appellant, and committed by the nominator, and that he had been shown corroborating evidence in the form of police reports and photographs. It was in that context that Dr Van Dort stated that the appellant "was distressed and I feel that he was depressed". In those circumstances, Mr Horan submitted, it was by no means difficult to infer that Dr Van Dort was stating an opinion that the appellant had suffered domestic violence, as required by reg 1.26, and that he held the opinion that this had been inflicted by the nominator. The same could be said of Ms Fraser’s statutory declarations.

Mr Horan noted that the conduct of the nominator, as described by the appellant, was capable of amounting to domestic violence within the meaning of the Regulations. It involved violence against the appellant’s property, and at least the implicit threat of violence against him. It must have caused him to fear for, or to be apprehensive about, his personal well-being or safety.

28 Commenting on those submissions and the submission made on behalf of the Minister, Weinberg J said at [100]-[102]:

The appellant’s submissions regarding the statutory declarations obviously face significant hurdles. Nonetheless, an argument can be put to the effect that the MRT erred in its treatment of this issue. Much will depend upon whether the approach taken by Ryan J in Meroka, which recognises the possibility that a statutory declaration may state an opinion "implicitly", is good law.
In particular, the question may arise as to whether the distinction that Sundberg J drew in Alin between a statutory declaration on a form approved by the Department, which may contain implicit statements of opinions, and a declaration not in that form, which may not, is correct. It is fair to say that Sundberg J referred to the difference between the form used in Meroka, and that used in Alin, as a basis for distinguishing Meroka. However, his Honour did not explain, in any detail, why the difference in the form of the declarations used warranted a different result, at least in terms of whether an opinion could be "implicit". It is arguable that the broader and more flexible approach taken by Ryan J in Meroka was not intended to be so constrained.
It is also arguable that the gloss that Sundberg J placed upon reg 1.26, in [12] of Alin, namely that the competent person must indicate that he or she "was aware of the definition of domestic violence in reg 1.23(2)(b)", and refer to "the applicant’s state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety" is not warranted by the terms of the regulation itself.

29 It is abundantly clear that the declarations made by Dr Van Dort and Ms Fraser do not contain an express statement of opinion. Mr Ejueyitsi can only succeed in this appeal if, as Mr Horan submitted before Weinberg J, the requisite opinion is implicit in at least one of the declarations. Much then depends on what Ryan J meant by his comments in Meroka and whether they are really in conflict with the views expressed by Mathews J in Du and Sundberg J in Alin. For reasons that follow we do not believe that Ryan J’s position is in conflict with the positions adopted by Mathews J in Du or Sundberg J in Alin.

30 In Meroka the declarations filed by the two competent persons were both on standard forms provided for by the Regulations. The forms, which were headed "Statutory Declaration under the Domestic Violence Provision of the Migration Regulations – Form 1040", contained directions to ensure that the matters required to be addressed under the regulations were drawn to the attention of the declarants. They included the following:

Give the following details about the people who have experienced (or in your professional opinion you believe have experienced) domestic violence.
Briefly describe the nature of the violence experienced. (Please refer to the definition of domestic violence at the front of this form).
Briefly describe the evidence on which you base your professional opinion that the people named in question 1 have experienced domestic violence.

31 The declarants filled in the forms in response to these directions. In considering those declarations Ryan J said at [34]:

I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence has been suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of "domestic violence" in reg 1.23(2)(b). The implication arises in the context of that direction from the insertion in the respective spaces provided of the name and date of birth of the victim and the full name of the person believed to have perpetrated the domestic violence.

When the comments were read in conjunction with the directions on the form his Honour was able to discern the requisite statement of opinion.

32 In Alin, the declarations considered by Sundberg J were not on standard forms and therefore there was no context provided by directions such as were present in Meroka. His Honour found that the declarations of the medical practitioner and a psychologist did not satisfy reg 1.26 and, at [12], gave the following explanation:

Dr Munir’s declaration contains no indication that he was aware of the definition of domestic violence in reg 1.23(2)(b), and makes no reference to the applicant’s state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety. Nor is there any indication that Mr Garcia was aware of the definition of domestic violence and was expressing his opinion by reference to it. In the last line of the report attached to his declaration he merely says that the applicant was subjected to "a series of actions that may indicate that he suffered domestic violence (emphasis added). This is firmed up somewhat in his declaration – "it appears to me" that the applicant was a victim of domestic violence. Mr Garcia makes no reference to the applicant’s state of mind. He expresses no opinion on the central part of the definition. Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 is distinguishable. There the competent persons made statutory declarations on forms approved by the Department which incorporated by reference the definition of domestic violence in reg 1.23(2)(b).

33 It is common to all of these cases that for a declaration to conform to reg 1.26, it must be clear from the declaration itself that the declarant is expressing his or her opinion that the visa applicant has suffered domestic violence within the meaning ascribed to that term in reg 1.23(2)(b), namely,

... 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.

34 It is not sufficient for the competent person to state that the victim’s presentation is consistent with the claim of domestic violence; Du at [18]. Nor is it sufficient to state that the alleged victim may have, or appears to have, suffered domestic violence; Alin at [12]. Similarly it is not sufficient for the competent person merely to recite the possession of an opinion that the alleged victim has suffered domestic violence; Meroka at [32]. Ultimately the regulation requires that the competent person must state that in his or her opinion, "relevant domestic violence ... has been suffered". It must be apparent from the declaration that the competent person attributes the same meaning to "domestic violence" as reg 1.23(2)(b) although, in our view, it is not necessary for the declarant to refer to that definition.

35 Applying these principles to the present case, it is clear that the declarations of Dr Van Dort and Ms Fraser do not meet the regulatory requirements. Contrary to the views expressed by the Federal Magistrate (see [18] above) one cannot assume that Dr Van Dort accepted the history given to him by Mr Ejueyitsi merely because he referred to it. We agree with the Tribunal that the only opinion expressed by Dr Van Dort in his statement is that Mr Ejueyitsi was distressed and depressed. Far from giving an opinion, Dr Van Dort appears to disavow any opinion, not only by saying that he had no prior contact with Mr Ejueyitsi and had never met his wife, but also that the history he recounts in his statement "is wholly as he related it to me". The same is true of Ms Fraser’s declarations. In her statutory declaration of 9 August Ms Fraser refers to the fact that Mr Ejueyitsi claimed to have been subjected to physical and emotional abuse but she does not express any opinion as to the veracity of the claim or its consistency with her observations or the assistance which she gave.

36 Moreover, as the appellant’s written submissions point out, even if one were able to glean an expression of opinion from these statements, this is not sufficient to comply with the requirement in reg 1.26(f) that the declaration set out the evidence on which the opinion is based. This point was made by Wilcox J in Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 at [43]:

In his reasons for decision, the Tribunal member quoted the words used by Dr Tadros in response to the form’s request for a description of "the evidence on which you base your professional opinion" that Mr Ibrahim had suffered domestic violence. The member did not comment upon the adequacy of Dr Tadros’ answer, or suggest that the declaration failed to satisfy reg 1.26(f). But it did so fail. Dr Tadros only said: "Based on my full clinical assessment, I am of the opinion that Mr Taleb Ibrahim has most likely suffered from domestic violence". That was not evidence at all, not even hearsay or unconvincing evidence. It was merely a "trust me" statement.

37 The Tribunal held that Ms Fraser’s declarations also failed to meet the requirements of reg 1.26, saying:

Not unlike the declaration of Dr Van Dort, Ms Fraser’s declarations do not express an opinion that the Applicant is a victim of domestic violence committed by Ms Khan. She merely stated what the Applicant had told her. She fell short of expressing an opinion that what she had heard or seen was consistent with the Applicant being the victim of domestic violence committed by Ms Khan.

38 We agree with the Tribunal’s assessment of Ms Fraser’s declaration and with the conclusion that the declarations do not meet the regulatory requirements. It follows from this that the Federal Magistrate was in error in finding that the Tribunal made a jurisdictional error in its decision concerning the statutory declarations made by Dr Van Dort and Ms Fraser.

39 This raises the question referred to at [21] above, which is whether, as a matter of discretion, the admitted error of the Tribunal concerning Mr Ejueyitsi’s marital relationship warrants the matter being remitted to the Tribunal. In our view it does not.

40 Even if, on reconsideration, the Tribunal were to reach a different conclusion on the question of Mr Ejueyitsi’s marital relationship this would not be sufficient for his application for a spouse visa to succeed. It would also be necessary for him to provide at least one statutory declaration that meets the requirements of reg 1.26. On the present state of the evidence there is no such declaration. It may be that the Tribunal would permit him to provide additional declarations although it is by no means clear that this would be so or that it is appropriate for him to be given this opportunity.

41 As counsel for the Minister pointed out, the Tribunal expressly rejected the application on two quite independent grounds. Strictly speaking, having found against Mr Ejueyitsi on the marital relationship issue it was not necessary for the Tribunal to consider the statutory declarations. The Tribunal said:

That stated, for reasons discussed earlier, it is not necessary to consider whether the domestic violence provisions applied. However in the event that the Tribunal is wrong in its finding that the Applicant was not in a spouse relationship with an Australian citizen or an Australian permanent resident at the time of lodgement of the primary application and given that it is uncontroversial evidence that the relationship once shared between the Applicant and Ms Khan had ended the Tribunal will assess whether the Applicant had suffered domestic violence committed by Ms Khan pursuant to clause 820.221(3)(b) of the Regulations.

42 We have found no error in the Tribunal’s decision on the issue and there is no occasion for reconsideration of the issue. There would therefore be no utility in sending the matter back to the Tribunal to consider its determination in respect of the marital relationship issue. Regardless of the view to which the Tribunal came on that issue, its ultimate decision to affirm the delegate’s decision would stand. For this reason we allow the appeal.

Costs

43 When Weinberg J set aside the decision of the Federal Magistrate dismissing the application for review and remitted the matter to the Federal Magistrates Court, his Honour also set aside the costs order made against Mr Ejueyitsi. His Honour ordered that the Minister pay Mr Ejueyitsi’s costs of the appeal. His Honour further ordered that:

The costs of the previous proceeding before the Federal Magistrate, together with the future costs of that proceeding, be reserved.

44 When the Federal Magistrate made orders remitting the matter to the Tribunal on 20 December 2006, his Honour did not make a costs order. His Honour subsequently accepted that this was an error and that it could be corrected by the slip rule; he delivered a separate judgment on 19 April 2007: [2007] FMCA 625 and Orders 2-4 made on that date ordered as follows:

(2) In relation to the proceedings which were the subject of the judgment delivered on 3 December 2004, the [Minister] pay [Mr Ejueyitsi’s] costs and disbursements fixed in the sum of $6,500.00.
(3) In relation to the proceedings which were the subject of the orders made on 20 December 2006 the [Minister] pay [Mr Ejueyitsi’s] disbursements fixed in the sum of $400.00.
(4) The [Minister] pay [Mr Ejueyitsi’s] costs of and incidental to this application fixed in the sum of $400.00.

45 The Minister had sought leave to appeal from these orders. Counsel for the Minister, Mr Allanson, explained that as his Honour’s decision as to costs had been made as a separate decision it was regarded as necessary to apply for leave to appeal. He submitted that the Minister sought only the application of the general rule that costs should follow the event. Mr Ejueyitsi did not dissent from this view although it is not entirely clear that he understood the submission.

46 We see no reason why the Minister should not be given leave to appeal and why the general approach to costs referred to above should not apply here. It follows that the Minister should have his costs of and incidental to the proceedings which were the subject of orders made on 20 December 2006 and of this appeal. Although the Minister succeeded overall, in that the proceedings will not be remitted to the Tribunal, it is nevertheless the case that, as a consequence of Weinberg J’s decision, Mr Ejueyitsi should have succeeded on the limited point considered by the Federal Magistrate in the proceedings which were the subject of the judgment delivered on 3 December 2004. That being so, it is our view that the Federal Magistrate’s order in relation to the costs of those proceedings (Order 2 above) should stand; and, each party having succeeded on one point, Order 4 above should be vacated. Instead there should be an order that each party pay their own costs of that application. Similarly there should be no order for costs in relation to the application for leave to appeal from the orders made by the Federal Magistrate on 19 April 2007 or in relation to the appeal from those orders. The Minister should have his costs of this appeal.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Stone & Siopis.

Associate:

Dated: 8 June 2007

Counsel for the Appellant:	JD Allanson
Solicitor for the Appellant:	Australian Government Solicitor
The Respondent appeared in person.
Date of Hearing:	15 May 2007
Date of Judgment:	8 June 2007