Federal Circuit Court. Is a statutory declaration from a psychologist that is in "essentially conclusory terms and was relatively unsupported by evidence of her observations" sufficient to satisfy the requirements for a statutory declaration from a psychologist in IMMI 12/116? Was it "open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116"? Is the validity of an opinion expressed by persons specified in IMMI 12/116 a jurisdictional fact, in the sense of a fact that a court can and should determine for itself on judicial review?
Regulation 1.23(9)(c) of the Migration Regulations 1994 (Cth) prescribed as following for the purpose of a non-judicially determined claim of family violence made in the context of a partner visa application:
(c) the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant family violence; and
(ii) the alleged perpetrator committed that relevant family violence.
Regulations 1.24 provided as follows:
The evidence mentioned in paragraph 1.23(9)(c) is:
(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and
(b) the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.
IMMI 12/116 provided that one of the items for the purpose of r 1.24(b) was a "Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is: registered as a medical practitioner and is performing the duties of a medical practitioner". Another item was a "Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist", which "States in their opinion the alleged victim was subject to family violence; and etails the reasons for the opinion, and Identifies the alleged perpetrator".
Some of the questions to the Federal Circuit and Family Court (FCC) were as follows:
Question 1: Is a statutory declaration from a psychologist that is in "essentially conclusory terms and was relatively unsupported by evidence of her observations" sufficient to satisfy the requirements for a statutory declaration from a psychologist in IMMI 12/116?
Question 2: Was it "open to a Tribunal to doubt the validity of an opinion expressed by persons of the kind specified in IMMI 12/116"?
Question 3: Is the validity of an opinion expressed by persons of the kind specified in IMMI 12/116 a jurisdictional fact, in the sense of a fact that a court can and should determine for itself on judicial review?
Question 4: If the answer to Question 3 is 'yes', could the Applicant have adduced evidence to discharge her onus on judicial review of establishing that jurisdictional fact?
Question 5: Must a doctor be Australian registered to satisfy rr 1.23(9)(c), 1.24(b) & IMMI 12/116?
The FCC answered those questions as follows: