Case: Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979
Outcome: considered
Finally, Ms Riley referred to Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979 at [13] where Sundberg J indicated that he agreed with what Mathews J had said in Du . His Honour said, at [12], that the statutory declarations under consideration in Alin did not satisfy the Regulations because they made "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", that being a component of the definition of "relevant domestic violence" in reg 1.23(2)(b). 77 However, she noted that in Alin , Sundberg J had distinguished Meroka on the basis that the standard form, which had been used in Meroka , had not been used in Alin . Where the standard form was not used, it was necessary, in Sundberg J's view, for the requisite opinion to be expressly stated. Ms Riley noted that the standard form had not been used in the present case. 78 In these circumstances, and relying upon both Du and Alin , Ms Riley submitted that even an implicit expression of opinion, of the kind for which Mr Horan contended, would not be sufficient. The requisite opinion would have to be clearly expressed. 101 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. 102 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. 103 In any event, it seems to me that these issues are not properly ones for me to determine. They do not arise directly under the notice of appeal. Their only relevance lies in whether relief should be refused on the basis of futility. For the reasons already given, I do not think that remittal would be futile. 104 The question that next arises is, to which body should this proceeding be remitted? As previously indicated, Mr Horan submitted that the matter should be remitted to the MRT. That would have the obvious advantage, for the appellant, of allowing him the opportunity to file further statutory declarations that may meet the formal requirements of reg 1.26. That assumes, of course, that such statutory declarations would be forthcoming. That is an assumption that perhaps should not too readily be made. It may be difficult to persuade a competent person to express the opinions set out in that regulation, at least in circumstances where the declarant has no actual knowledge of the facts said to amount to domestic violence.