Case: Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658 ; (2004) 138 FCR 181
Outcome: referred to
The MRT then stated that it was established law that it was not its role, nor that of any decision maker, to assess whether domestic violence had taken place. In the words of Ryan J in Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658 ; (2004) 138 FCR 181 (" Kozel "), it was "the Tribunal's responsibility to assess whether statutory declarations have been furnished which express the opinions mandated by reg 1.26". 14 It should be noted that reg 1.26 is in the following terms: " 1.26 Statutory declaration by competent person A statutory declaration under this regulation: (a) must be made by a competent person; and (b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and (c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and (d) must name the person who, in the opinion of the competent person, has suffered that 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." 15 It should also be noted that reg 1.24(1)(a)(ii) provides that the evidence that may be relied upon to support a contention that a person has suffered or committed domestic violence includes: "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". 52 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. 53 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. 54 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.