BELLARY v Minister for Immigration
[2020] FCCA 873
•21 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELLARY v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 873 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to the decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant partner visa on the ground that the applicant suffered family violence after the spousal relationship ended – whether the Tribunal ought to have considered whether the violence that led to the order against alleged perpetrator included violence that occurred before the day by which the Tribunal found the spousal relationship ended – whether the Tribunal failed to consider or properly consider factors relevant to the existence of a spousal relationship – whether Tribunal failed to give proper consideration to request it obtain evidence from a person from whom applicant requested evidence be taken – no jurisdictional error. |
| Legislation: Family Violence Protection Act 2008 (Vic) Migration Regulations 1994 (Cth), reg.1.15A, 1.22, 1.23 |
| Cases cited: Fobizi v Minister for Immigration and Border Protection [2017] FCCA 1738 Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 |
| Applicant: | SHILPA BELLARY |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3232 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 14 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Fuller |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
Subject to order 3 the applicant pay the first respondent’s costs set in the amount of $7,328.
The parties have liberty to apply within fourteen days of the making of these orders for an order discharging or varying order 2.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3232 of 2017
| SHILPA BELLARY |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal question that arises on this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal) made a jurisdictional error in finding that the applicant, a citizen of India, was not the “spouse”, as that word is defined in s.5F of the Act, of her husband at the time the applicant suffered “family violence”, as that expression is defined in reg.1.23(4) of the Migration Regulations 1994 (Cth) (Regulations).
Background
Sponsor applies for 309 and Partner visas
On 7 April 2015 the applicant applied for a Partner (Provisional) (Class UF) (Subclass 309) visa (309 visa) and for a Partner (Migrant) (Class BC) (Subclass 100) visa (Partner visa). The applicant’s husband, a citizen of India, lodged the application as sponsor. The sponsor stated he is a resident of Australia, having arrived (from India) in Australia in 2009; he and the applicant first met on 4 August 2014; after their initial meeting the applicant and sponsor liked each other and decided to progress their relationship further and get married; and after meeting the applicant and sponsor “made a mutual commitment to continue their relationship and decided to get married in March 2015 after the mutual consent and blessings of their parents”.[1] On 17 August 2014 the applicant and sponsor committed to a shared life as husband and wife to the exclusion of all others; the applicant and the sponsor were socially introduced as a couple to all their relatives and friends in India; and their wedding was solemnised in March 2015.
[1] CB6
The applicant was granted a 309 visa on 24 February 2016; and she entered Australia as the holder of such visa on 5 April 2016, having previously entered and stayed in Australia for around six months in 2015 as the holder of a visitor visa.
Relevant provisions
To have been entitled to a Partner visa the applicant was required to satisfy cl.100.221 of Schedule 2 to the Regulations. That clause identifies one of five alternative sets of criteria that an applicant must satisfy.[2] Common to each set of criteria is the requirement that the applicant entered Australia holding a 309 visa, and that the applicant “is the spouse or de facto partner of the sponsoring partner”. Subsection 5F(1) of the Act provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act persons are in a “married relationship” if:
a)they are married to each other under a marriage that is valid for the purposes of this Act; and
b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
c)the relationship between them is genuine and continuing; and
d)they live together, or do not live separately and apart on a permanent basis.
[2] For ease of comprehension I will use the present tense when discussing the effect of cl.100.221 of Schedule 2 to the Regulations. The clause, however, applies as it was in force on the day on which the applicant applied for the Partner visa, namely, 7 April 2015.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg.1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; any basis on which the persons plan and undertake joint social activities; and
d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
Relevant to the questions I am required to determine is cl.100.221(4) of Schedule 2 to the Regulations which relevantly provides:
The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) - either or both of the following circumstances applies:
(i)either or both of the following:
(A)the applicant
. . . .
has suffered family violence committed by the sponsoring partner . . .
The “requirements of subclause (2) or (2A)” in this clause is a reference to cl.100.221(2) and cl.100.221(2A) of Schedule 2 to the Regulations. Relevant to the case before me is cl.100.221(2), which provides:
The applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa; and
(b)the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
Under reg.1.22(1) of the Regulations “a person having suffered family violence” is a reference to a person being taken, under reg.1.23, to have suffered family violence, and, under reg.1.22(2), “a person having committed family violence in relation to a person” is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person. Subregulation 1.23 relevantly provides:
(1) For these Regulations, this regulation explains when:
(a)a person (the alleged victim) is taken to have suffered family violence; and
(b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.
. . . .
(4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b)the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
Applicant notifies delegate she is the victim of family violence and provides evidence in support
On 3 May 2016 the delegate received by post a handwritten statement from the applicant, together with a number of documents.[3] In her statement the applicant stated as follows:
a)The applicant married the sponsor on 9 March 2015. The marriage was arranged.
b)The applicant became aware that the sponsor’s parents were looking for the sponsor to remarry. The applicant decided to patch up their marriage by going to Melbourne on 21 April 2016.
c)On 22 April 2016 the applicant went to the sponsor’s place, but he did not allow the applicant inside. The applicant requested the sponsor come outside to talk. The sponsor came out 30 minutes later. As the applicant and sponsor got into conversation, the sponsor became angry and assaulted the applicant.
d)This was not the first time the sponsor had acted in this way: “even in India he has done the same”; “in Melbourne [illegible] assaulted me”; and “all this kind of actions are done in need of DOWARY [i.e demanding of wealth)”.
e)During the assault an onlooker called the police. The matter came before the Magistrates’ Court on 26 April 2016.
[3] CB110
The applicant’s handwritten statement was accompanied by an “Intervention Order” issued by the Magistrates’ Court on 26 April 2016 (Intervention Order).[4] That order required the sponsor, among other things, not to “commit family violence against the protected person”, that person being the applicant. The order was stated to expire at midnight on 26 April 2017 unless extended or varied before that time. The Intervention Order contained a number of other orders. These included orders that the sponsor not do any of the following:
a)“go to or remain within 200 meters of [an address in] Plenty Rd Bundoora” (Bundoora address), this being the address at which the applicant claimed she stayed with the sponsor as husband and wife when she stayed in Australia on a visitor visa;
b)attempt to locate, follow the applicant, or keep her under surveillance;
c)contact or communicate with the applicant “by any means”; or approach or remain with 5 metres of the applicant; or
d)get another person to do anything the sponsor is not permitted to do under the Intervention Order.
[4] CB116
The Intervention Order was made on the basis of a “Family Violence Safety Notice” which appears to have been prepared by a police officer.[5] It records that the application for the notice was made at 8 am on 22 April 2016, and it required that the sponsor not do a number of things, one of which was being at or within 200 metres of the Bundoora address. In the section of the notice headed “Part A – Statement of Reasons (for Issuing Notice)” there is recorded that the applicant and the sponsor had been married for one year; “they do not have any children and do not live together”; the applicant “spent the past 3 months in India”, having returned there to arrange her immigration visa; and the applicant arrived in Melbourne “yesterday morning”; and “this morning” the applicant travelled to the sponsor’s address “to speak to him about their future plans”. This part of the order then described the sponsor’s assault of the applicant. The sponsor “threw the [applicant] to the ground”, he “sat on top of her and started punching her in the face”; the sponsor “landed numerous blows to the [the applicant’s] face and head”, a “passer by saw the assault occurring and came to the [the applicant’s] aid”; and, “as the witness approached he saw the [sponsor] biting the [the applicant’s] cheek”. In that section of the Intervention Order headed “Notations”, the following is recorded:
[5] CB123-124
The respondent was served with a copy of the Application and Summons
By consent without admission of allegations in complaint
The respondent was present at the hearing
The respondent agreed to this Order being made
In addition to the Intervention Order the applicant provided to the delegate a medical certificate dated 22 April 2016.[6] It recorded the applicant’s description of the assault, a description of the injuries the applicant suffered, and other matters the applicant stated. These included “has been hurting before harassing for dowry [sic]”, and that “she made police report”.
[6] CB128
Under cover of a letter dated 24 May 2016 the applicant’s representative provided the delegate with the following additional documents:
a)A certificate dated 9 May 2016 from a doctor in Bundoora, Victoria, stating that the applicant “came with her husband on 27/7/15 and 30/7/2015 for medical condition”.[7]
b)A statutory declaration from two persons that the applicant and the sponsor were staying with at the Bundoora address as husband and wife from 21 May 2015 until 31 October 2015.[8]
c)A statutory declaration made by the applicant stating she stayed with the sponsor at the Bundoora address, and that she went with her husband for medical treatment on 27 and 30 July 2015.[9]
d)A bond lodgement form in relation to the Bundoora address.[10]
e)A marriage certificate.[11]
f)Wedding photographs.[12]
[7] CB131
[8] CB133-134
[9] CB135
[10] CB137-139
[11] CB140
[12] CB148-150
Applicant’s evidence to the delegate
On 5 August 2016 the delegate interviewed the applicant by telephone in relation to her relationship with the sponsor. According to a record of that interview, the applicant said as follows:[13]
[13] CB157-158
a)The applicant and sponsor came into contact after an advertisement was placed in the newspaper personals. After corresponding with each other they met on 2 August 2014 and were engaged on that day.
b)The applicant and sponsor maintained contact when the sponsor returned to Australia.
c)The sponsor returned to India on 2 March 2015 and the applicant and sponsor married on 9 March 2015 in India. The sponsor remained in India for three weeks after which he again returned to Australia.
d)The applicant applied for a 309 visa in April 2015, and she also applied and obtained a visitor visa on the basis of which she travelled to Australia in May 2015. The applicant remained in Australia until the end of October 2015 when she returned to India.
e)While the applicant “was here”, the sponsor’s parents were very aggressive about the applicant’s gold and jewellery. The sponsor asked the applicant to give her jewellery to his parents because his parents thought the applicant had not contributed enough to the wedding or the dowry.
f)In March 2016 the sponsor came to India; but on 26 March 2016 the sponsor “just left India without informing” the applicant. The applicant did not know where the sponsor went. The applicant called the sponsor’s parents, and they told her the sponsor had left India and returned to Australia. The applicant decided she would come to Australia and look for the sponsor.
g)The applicant travelled to Sydney, where she stayed with her uncle and cousins. The sponsor “lives in Melbourne with his parents”. The applicant accepted her cousin’s help, and then “we came to Melbourne to confront” the sponsor “as to why he had left me”. The applicant came to Melbourne on 21 April 2016 and took a taxi to the sponsor’s house on 22 April 2016.
h)The applicant confronted the sponsor, and “asked him why he had left me in India”. The sponsor said the applicant needed to give more jewellery because that is what his parents wanted, and they could get back together if the applicant gave her jewellery. The applicant told the sponsor she did not want to give her jewellery and that “we could gift my jewellery to our children”. That is when the sponsor became angry and hurt the applicant, which led to a passer-by calling the police.
Evidence before the Tribunal
In support of her application for review the applicant made a statement dated 15 August 2017 in which she said as follows:[14]
[14] CB204-205
a)The applicant’s marriage to the sponsor was an arranged marriage performed according to “Hindu system”. After the marriage the applicant stayed with the sponsor’s parents.
b)On 21 May 2015 the applicant came to Australia on a tourist visa. She stayed with the sponsor “and his housemates”.
c)The sponsor’s parents started demanding the applicant’s jewellery and money. When the applicant refused their demand the sponsor “started to harass me verbally and assaulted me. (few time between June and July 2015) [sic]”. The applicant never complained to anyone “as this has happened within 4 months of my wedding and gave him a chance to change himself”. The sponsor, however, “continued his insane behaviour”.
d)The applicant returned to India on 31 October 2015 and there stayed with the sponsor’s parents.
e)After the applicant was granted the 309 visa on 24 February 2016 the sponsor’s parents did not agree to the applicant travelling to Australia and living with the sponsor “because of demand of gold and money [sic]”.
f)The sponsor’s parents and brothers ill-treated the applicant. This continued after the sponsor returned to India on 4 March 2016. On 14 March 2016 the sponsor and his parents and brothers cornered the applicant and repeatedly demanded the applicant give her gold, and to borrow money from her parents. The applicant was harassed physically and “physiologically”.
g)The applicant “called my parents and relatives to resolve this issue and to sort this situation I went with my parents without any luggage”. The sponsor left India without informing the applicant.
h)The applicant came to Australia on 5 April 2016 in search of the sponsor. The applicant trusted the sponsor and she came to Australia “with hope that he will never refuse me and eventually we can sort out the issues”. The applicant first travelled to Sydney because she did not know anyone in Melbourne, and she has some relatives in Sydney.
i)On 21 April 2016 the applicant visited the sponsor. He demanded money and gold and said that if gold and money were not given the sponsor would divorce the applicant. At midnight the sponsor “threw my luggage in Melbourne CBD and left” the applicant alone.
j)Early in the morning on 22 April 2016 the applicant again went to meet the sponsor “for requesting but he assaulted me on the main road and onlooker on road has called police and stopped” the sponsor “since he was beating me”.
k)On 26 April 2016 the applicant and sponsor went to court and “we have received intervention order 1 year”.
l)On 23 June 2016 the sponsor’s “parents have repeatedly called my parents for almost 20-30 calls to consolidated this issue [sic]”.
m)In August 2016 the sponsor’s father and his family friend went to the applicant’s parents’ house and tried to resolve the issue; and “in Oct, Nov, Jan, Mar and April 2016 [sic]” the sponsor’s parents approached “some of common relative to resolve this issue [sic]”.
There is in evidence a transcript of the hearing before the Tribunal that occurred on 20 September 2017.[15] The applicant gave the following evidence:
[15] The transcript is annexed to the affidavit of K N Hooper.
a)The sponsor and applicant married on 9 March 2015. It was an arranged marriage. The applicant came to Australia holding a tourist visa and she stayed with the applicant and his housemates. The applicant returned to India after her tourist visa ended.[16]
b)While in Australia the sponsor “was demanding me for gold and money”.[17]
c)When the applicant returned she stayed with the sponsor’s family, and she never visited her parents because the sponsor’s parents did not let her.[18] The applicant said:[19]
So however after managing Hindu customs, that is only your family where the girl belong, so I felt that’s my family and I stayed with them, and then they started to ….. [sic] with me by demanding money and gold. At that time the – at that time in the month of March 2016 [the sponsor] came back to India and when the same kind of refusals happened, still when he went to the – when the conversation went to the …. [sic] I call my parents to resolve this issue so - and then he went back to Australia.
d)When the sponsor returned to India he and the applicant stayed together with the sponsor’s parents.[20] The sponsor, however, “just left me and he came to Australia”.[21]
e)When the sponsor returned to Australia he rented a new house. The applicant knew the new house because she and the sponsor had searched together for the new house.[22]
f)When she came to Australia the applicant went near the sponsor’s house as well as near his office. The sponsor did not allow the applicant inside.[23] The sponsor “come up with his insane behaviour”, and began beating the applicant.[24]
g)The sponsor beat the applicant during her visit in Australia when holding a tourist visa “He beat me. I was truly hurted at that situation [sic]”.[25] The sponsor “slapped me”, but the applicant gave the sponsor another chance. The sponsor said: “Let’s forget and go ahead with the . . . this life”.[26]
[16] T4.35
[17] T5.20
[18] T6.30
[19] T6.40
[20] T7.20
[21] T7.35
[22] T9.15
[23] T9.40
[24] T11.40
[25] T12.25
[26] T12.30
The applicant was also asked questions relevant to whether the sponsor was the applicant’s spouse. The applicant and sponsor did not have a joint account. The sponsor was the only person who worked. The sponsor gave the applicant cash of “200 to 300 dollars sometimes every month”.[27] The applicant brought cash with her from India, but she spent it, after which she did not have a single dollar.[28] The sponsor’s friends were really surprised after the “domestic violence case”.[29]
[27] T14.20
[28] T14.30
[29] T15.15
The Tribunal also asked the applicant whether there was any evidence of what happened while the applicant was in Australia on her tourist visa, and, in particular, whether there was “anything in relation to that other incident that you mentioned”. The applicant said:[30]
That . . . instant happened inside the room, just between the two members, that’s me and my husband, so no one knows about it. I – even I didn’t said my parents this thing has happened.
[30] T16.30
On 22 September 2017 the Tribunal sent by email a letter addressed to the applicant which included the following:[31]
In the course of the hearing, you have referred to an incident involving family violence during the first period of your stay in Australia as a holder of a Visitor visa. You have not presented any documentary evidence prescribed in the Migration Act in relation to that incident. If you wish the Tribunal to consider that claim of family violence, please inform the Tribunal, within 7 days from the date of this letter, whether you intend to provide the prescribed evidence in relation to that incident.
[31] CB231
On 23 September 2017 the applicant’s representative provided to the Tribunal a statutory declaration by one of the persons who had already provided a statutory decoration to the effect that the applicant and the sponsor had lived at the Bundoora address. In the second statutory declaration that person stated that during the first week of July 2015 she heard the applicant “scream out in pain inside her room, there was an argument happening between her and her husband”, she “heard him yell at her, and she screaming in pain”.[32]
[32] CB233
Tribunal’s reasons
The Tribunal was prepared to accept “there was some form of a spousal relationship while the applicant was staying in Australia on a Visitor visa”.[33] The Tribunal, however, formed the view that the spousal relationship ended “by the time the applicant re-entered Australia”.[34] The Tribunal relied on the following matters:
a)The sponsor left India without informing the applicant. That indicated to the Tribunal that the sponsor lost interest in the relationship and was unwilling to maintain that relationship with the applicant.[35]
b)The sponsor did not allow the applicant to enter his house, and their confrontation occurred on the street.[36]
c)There is no suggestion that by the time the applicant re-entered Australia she and the sponsor maintained a joint household, shared any financial arrangements, or that the applicant and the sponsor undertook any joint activities or continued to represent themselves as being in a genuine relationship after the applicant’s re-entry into Australia.[37]
d)The sponsor made no effort to assist the applicant to relocate to Australia; instead the applicant claimed she decided to come to Australia to confront the sponsor. Even if the Tribunal were to accept the applicant desired the relationship to work and would have continued with the relationship after the intervention of the police, and the applicant’s and sponsor’s parents continued to communicate to try to make the relationship work, the Tribunal would not have been satisfied “the sponsor had such an intention or any commitment to the relationship”.[38]
[33] CB242, [10]
[34] CB242, [12]
[35] CB242, [12]
[36] CB242, [12]
[37] CB242, [12]
[38] CB242-243, [12]
The Tribunal, therefore, found that “the family violence, which formed the basis of the Intervention order, did not occur when the couple were in a partner relationship”.[39]
[39] CB243, [13]
The Tribunal also referred to the other incident of violence the applicant claimed occurred when the sponsor slapped the applicant while she was in Australia on a visitor visa. The Tribunal made the following findings in relation to that claim:[40]
There is no prescribed evidence relating to that incident and the applicant claims it occurred in their room and she did not want to tell anyone about it because she wanted the marriage to work. The Tribunal invited the applicant to provide evidence relating to that incident and the applicant provided a statutory declaration but such evidence is not sufficient to meet the statutory requirements to raise the claim of family violence. The Tribunal is unable to consider that incident as a claim of family violence and finds that the claim of family violence in relation to the first incident has not been properly raised.
[40] CB243, [15]
The Tribunal concluded it was not satisfied the applicant and the sponsor were in a partner relationship when the violence occurred and, for that reason, the Tribunal was not satisfied the applicant met the requirements of cl.100.221 of Schedule 2 to the Regulations.[41] Under the heading “Conclusion” the Tribunal said:[42]
Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet and essential criterion for the visa, the Tribunal must affirm the decision under review.
[41] CB243, [16]
[42] CB243, [17]
Ground 1 of amended application
The applicant relies on three grounds stated in the amended application filed on 14 October 2019.[43] The first ground is pleaded in eleven paragraphs. The essence of the ground, however, is contained in paragraphs 8, 9, 10, and 11, which may be summarised as follows:
[43] At the hearing I granted the applicant leave to file an amended application in the form of the draft attached to the amended application in a case that was filed on 19 June 2019 with the exception of ground 4 on which counsel for the applicant said the applicant did not press.
a)On its proper construction reg.1.23(5) of the Regulations requires the Minister:
i)first, to identify the violence that led to the granting of the relevant protection order; and
ii)second, to determine whether all or part of the violence occurred while the married relationship or de facto relationship existed between the alleged perpetrator and their spouse or de facto partner.
b)The Tribunal:
i)failed to identify the violence that led to the granting of the protection order in favour of the applicant;
ii)failed to identify the timeframe in which the violence occurred; and
iii)failed to determine whether all or part of the violence occurred while the married relationship existed between the applicant and the spouse.
c)Because of the matters identified in (b), the Tribunal:
i)made an error of law;
ii)misunderstood the scope of the power under s.65(1)(a)(ii) of the Act; and
iii)placed an impermissible limit on its discretion under that subsection.
d)Further, or in the alternative to (c), because of the matters referred to in (b) the Tribunal failed to take into account one or more relevant considerations in exercising the power under s.65(1)(a)(ii).
In his written submissions counsel for the applicant submitted the Tribunal made two errors.
Misconstruing cl.100.221
The first asserted error is said to be revealed in the Tribunal’s conclusion at paragraph 17 of its reasons that “the claim of family violence has not been established”, and the applicant did not “meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa”.[44] Counsel for the applicant submits this conclusion implies the Tribunal was of the view that whether cl.100.221(4)(b) of Schedule 2 to the Regulations is satisfied turns on whether there has been family violence. That view, however, is incorrect because cl.100.221(4)(b) is satisfied if the applicant is the holder of a 309 visa, the applicant is the spouse or de facto partner of the sponsoring partner, and, subject to subclauses (5), (6), and (7), at least two years have passed after the application for the Partner visa was made.
[44] Applicant’s Written Outline of Submissions, [47]-[52]
It is true that the satisfaction of cl.100.221(4)(b) of Schedule 2 to the Regulations does not turn on whether family violence occurred. I am not satisfied, however, that the Tribunal proceeded on an understanding that the satisfaction of that paragraph did turn on whether family violence occurred. The Tribunal was prepared to accept the applicant and sponsor were in some spousal relationship, and it did so without reference to the claims of family violence the applicant made. Further, the Tribunal directed its attention to determining whether, at the time the violence of 22 April 2016 occurred, the applicant and the sponsor were in any spousal relationship. The Tribunal’s conclusion it was not satisfied such relationship existed at that time was based on matters that did not include any of the acts of violence to which the applicant claimed she had been subjected.
In those circumstances, the Tribunal’s reference in its conclusion to the applicant’s not meeting “the requirements of cl.100.221(4)(b)” as well as (c) is a slip. That is confirmed by what the Tribunal said in the last sentence of paragraph 17 of its reasons: the applicant did not meet “an essential criterion”, not criteria. That is a reference to the criterion provided by cl.100.221(4)(c) of Schedule 2, read with the definition of “family violence” in reg.1.23(4) and (5) of the Regulations.
This part of ground 1 fails.
Failure to consider whether earlier violence part of violence leading to the making of the Intervention Order
The second error counsel for the applicant submits the Tribunal made is that, when considering the application of reg.1.23(4)(c) and reg.1.23(5) of the Regulations to the applicant’s circumstances, the Tribunal confined itself to the violence that occurred on 22 April 2016. This, counsel submits, indicates the Tribunal did not ask the question reg.1.23(4)(c) and reg.1.23(5) of the Regulations required it to ask, namely, whether the earlier incident or incidents of violence (earlier violence) formed part of the violence that led to the making of the Intervention Order.[45]
[45] Applicant’s Written Outline of Submissions, [53]-[54]
It is true the Tribunal did not ask itself whether the earlier violence was part of the violence that led to the granting of the Intervention Order. It proceeded on the view that the earlier violence did not form part of the violence on the basis of which the Intervention Order was granted. That by itself, however, does not manifest any misunderstanding or error by the Tribunal. The Tribunal ought to have asked itself whether the earlier violence was part of the violence that led to the granting of the Intervention Order only if there was some material before it that ought reasonably to have suggested to the Tribunal that the earlier violence did form, or could reasonably have formed, part of the violence that led to the granting of the Intervention Order. But there was no such material.
The only evidence that was before the Tribunal from which it was reasonably open to it to identify the violence that led or could reasonably have led to the granting of the Intervention Order is the evidence recorded in the “Family Violence Safety Notice”. That notice only referred to the violence that occurred on 22 April 2016; and there is nothing in the Intervention Order itself that suggests or could reasonably have suggested to the Tribunal, that there was any evidence of any other violence before the Magistrates’ Court at the time the Intervention Order was made.
Further, it would not have been reasonably open to the Tribunal to infer that the applicant or the sponsor put any additional material before the Magistrates’ Court at the time the Intervention Order was made. First, the information contained under the “Notations” to which I have referred earlier in these reasons suggests the Intervention Order was made with the consent of the sponsor, but without any admissions. The more likely inference, therefore, is that, at the time the Intervention Order was made, neither the applicant nor the sponsor said anything to the Magistrates’ Court, other than to record the sponsor’s consent to the making of the Intervention Order, and that his consent was made without any admissions. Second, the Tribunal made it clear to the applicant that it considered the earlier violence to have been a distinct event, not related to the Intervention Order, and that it provided the applicant an opportunity to provide evidence that the earlier violence did fall within another definition of “family violence”. If there had been any evidence that the evidence of violence that was before the Magistrates’ Court went beyond that contained in the “Family Violence Safety Notice”, the applicant had an opportunity to provide such evidence, and, if there were such evidence, it is reasonable to expect that the applicant would have provided such evidence to the Tribunal.
Counsel for the applicant referred to the Tribunal’s using the words “formed the basis of”, rather than “led to” the granting of the Intervention Order (being the words used in reg.1.23(5)), submitting that the two expressions are not synonymous. Counsel submitted that “led to” has a broader meaning than “based on”.[46] Stated in the abstract, that submission may be accepted. The question, however, is whether the Tribunal’s use of “based on” in relation to the granting of the Intervention Order can reasonably be supposed to have been understood by the Tribunal to convey a different and, if so, a narrower, meaning than “led to” in relation to the granting of that order. I am not satisfied it did.
[46] Applicant’s Written Outline of Submissions, [64]
A court grants an order after it considers the evidence before it, makes findings on the basis of that evidence, identifies the relevant law, and applies the law to its findings. To ask in relation to any court order, therefore, what it is that led the court to grant it, and to ask what is the basis on which the court granted the order, is to ask the same question: it is to ask for the identification of the factual and legal premises on which the court relied to grant the order. To ask, therefore, what led the Magistrates’ Court to grant the Intervention Order is to ask on what evidence, findings, and law the Magistrates’ Court relied to grant that order; and to ask the basis on which the Magistrates’ Court granted the Intervention Order is to ask the same question. On the material that was before the Tribunal, these two questions were reasonably open to only one answer; and that is, in granting the Intervention Order the Magistrates’ Court relied on the facts set out in the “Family Violence Safety Notice”, the sponsor’s consent to the granting of the Intervention Order, and the relevant provisions of the Family Violence Protection Act 2008 (Vic).
Even if “led to” has a broader meaning than “based on”, the material that was before the Tribunal is incapable of supporting a finding that the earlier violence formed part of the circumstances that led to the granting of the Intervention Order.
Counsel for the applicant also submitted the Tribunal failed to actively engage with whether the earlier violence formed part of the violence that led to the granting of the Intervention Order.[47] That submission presupposes there was material before the Tribunal that ought reasonably to have led to the Tribunal to consider whether the earlier violence did form or could have formed part of violence that led to the granting of the Intervention Order. For reasons I have already given, there was no such material before the Tribunal.
[47] Applicant’s Written Outline of Submissions, [66]
The Tribunal, therefore, made no jurisdictional error by not considering whether the earlier violence formed part or could have formed part of the violence that led to the Intervention Order; and that is because there was nothing before the Tribunal that could reasonably have led the Tribunal to consider whether the earlier violence did form or could reasonably have formed part of the violence that led to the granting of the Intervention Order. Nor did the Tribunal make any jurisdictional error by using the words “based on” rather than “led to” when seeking to identify the family violence that led to the granting of the Intervention Order. Further, the Tribunal was aware that the period in which it was required to consider whether the family violence of which the applicant alleged occurred was the period during which the applicant had a spousal relationship with the sponsor; it considered and determined when that relationship ended; it did not consider that the earlier violence formed part of the violence on which the Intervention Order was based, but instead considered whether the earlier violence fell within one of the other definitions of “family violence”, finding that it did not; and the Tribunal found that the violence described in the “Family Violence Safety Notice” was the violence on the basis of which the Intervention Order was granted, but it found that that violence occurred after the spousal relationship ended.
This part of ground 1, therefore, also fails.
Ground 2 of amended application
In ground 2 of the amended application the applicant claims the Tribunal was required, but failed, to consider or properly consider the following matters identified in reg.1.15A(3) of the Regulations:
a)any joint ownership of real estate or other major assets (reg1.15A(3)(a)(i));
b)any joint liabilities (reg1.15A(3)(a)(ii)); and
c)the opinion of the persons’ friends and acquaintances about the nature of the relationship (reg1.15A(3)(c)(ii)).
Ground 2 further claims that, on the proper construction of reg.1.15A(2) of the Regulations, the Tribunal was required to, but it failed, to consider or properly consider the following circumstances of the relationship between the applicant and the sponsor:
a)the cultural context in which the marriage occurred, including its nature as an arranged marriage;
b)the context for any physical discontinuity in the relationship; and
c)any efforts to reconcile a troubled relationship.
I will collectively refer to the matters the applicant claims the Tribunal did not consider or properly consider as the “Overlooked Matters”.
Parties’ submissions
In his written submissions counsel for the applicant submitted the Tribunal was required to consider all of the circumstances of the applicant’s relationship with the spouse, including the circumstances identified in reg.1.15A(3) of the Regulations. Counsel relied on the judgment of Judge Lucev in Fobizi v Minister for Immigration and Border Protection.[48] Counsel for the applicant reproduced his Honour’s observations that reg.1.15A(2) imposed an absolute, imperative obligation to consider all of the circumstances of the relationship, including every one of the matters in reg.1.15A(3); and that “consider” in reg.1.15A(2) means to engage in an “active intellectual process” directed to the relevant criterion, or to give each criterion “proper, genuine and realistic consideration”; that each criterion should be given weight as a fundamental element in the decision-making process.[49]
[48] [2017] FCCA 1738
[49] Applicant’s Written Outline of Submissions, [75]
Counsel for the applicant then submitted that although the Tribunal made a general reference to the financial aspects of the relationship, there is no evidence the Tribunal considered whether the applicant and the sponsor jointly owned real estate or other major assets, or that they are subject to joint liabilities;[50] and the Tribunal did not refer to the opinions contained in the statutory declarations made by the applicant’s and the sponsor’s friends.[51] Counsel further submitted the Tribunal did not consider the “cultural context in which” the applicant’s marriage occurred which, on the applicant’s case, was essential to understanding the nature of the relationship with the sponsor.[52] Here, counsel for the applicant referred to the following matters:
a)The applicant’s representative informed the Tribunal that, although the dowry system is illegal in India, it persists among some cultural groups, and the system had the consequence that an expectation is imposed on the bride’s parents to provide money and gold to the groom’s parents as part of the marriage arrangement.
b)The applicant attempted to give evidence that any important decisions that a boy and girl wants to take is being carried out through their parents.[53]
c)The applicant and her representative informed the Tribunal on multiple occasions that the applicant’s and her husband’s parents were continuing to negotiate in relation to the dowry with a view to preserving the marriage. Counsel referred to evidence that the sponsor had made no decision to terminate the relationship in India, and that he had asked the applicant to stay with him in a hotel room when she returned to Australia. Counsel also submitted that the Tribunal had formed a view early in the hearing that the applicant’s husband’s leaving India to return to Australia without telling her demonstrated a lack of commitment to the relationship on the sponsor’s part.
[50] Applicant’s Written Outline of Submissions, [77]
[51] Applicant’s Written Outline of Submissions, [78]
[52] Applicant’s Written Outline of Submissions, [80]
[53] Applicant’s Written Outline of Submissions, [80]
The Minister, in his counsel’s written submissions, accepts the Tribunal does not in its reasons expressly address the matters the applicant identified in the period following the applicant’s arrival in Australia on a 309 visa.[54] The Minister submits, however, that it may readily be inferred from the Tribunal’s findings in paragraphs 12 and 13 of its reasons that “it recognised there was no supportive evidence of the existence of the relationship after April 2016”; and that the present case, therefore, is “an instance where the absence of express reference to certain particular matters prescribed in r.1.15A(3) would not lead to an inference that the Tribunal did not give genuine consideration to those matters”. The Minister further submits the Tribunal did not refer to each and every matter in reg.1.15A(3) “because there was ‘no suggestion’ that the applicant could satisfy those matters on the evidence before the Tribunal”.[55] Finally, the Minister submits that to the extent the Tribunal failed to consider the matters the applicant claims it failed to consider, its failure was not material.[56]
[54] Submissions of the First Respondent, [24]
[55] Submissions of the First Respondent, [25]
[56] Submissions of the First Respondent, [26], [27]
Before I identify the questions that arise given the submissions the parties have made, it will be necessary to identify the principles that are relevant to determining this part of the applicant’s claims.
Principles
The principal authority for the construction of reg.1.15A(3) of the Regulations is the Full Federal Court’s judgment in He v Minister for Immigration and Border Protection.[57]
[57] He v Minister for Immigration and Border Protection [2017] FCAFC 206
In He the appellant visa applicant claimed the Tribunal failed to consider the circumstances identified in three paragraphs of reg.1.15A(3) of the Regulations. The visa applicant submitted that the lawful consideration of those matters required the Tribunal to make a determination, or reach a conclusion, in relation to each of them.[58] The principal question the Full Federal Court addressed, therefore, was whether “the Minister (or Tribunal) is required to make findings upon each of the circumstances in reg 1.15A”.[59] The Full Federal Court answered that question in the affirmative in relation to the specific matters identified in paragraphs (a) to (d) of reg.1.15A(3) by roman numerals:[60]
In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. . . . The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
[58] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [33], [44], [45], [46]
[59] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [71]
[60] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [76]
The Full Federal Court further found that the matters contained in paragraphs (a) and (b) of reg.1.15A(3) of the Regulations to which the matters identified by Roman numerals are also matters about which a decision-maker must make findings.[61]
[61] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [77]
Having construed “consider”, at least as that word is used in reg.1.15A(2), as importing the requirement of making a finding about each of the matters identified in reg.1.15A(3), the Full Federal Court observed that this construction is “a function of the way in which reg 1.15A has been drafted” which, as a “drafting style . . . has both advantages and disadvantages”. The disadvantage the Full Federal Court identifies is that the legal obligation to make a finding “necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, make such findings explicitly) into a potential trigger for the assertion of jurisdictional error”.[62]
[62] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [78]
Although it concluded that reg.1.15A(3) requires the Tribunal (and the Minister or his or her delegate) to make findings in relation to the matters stated in reg.1.15A(a) to (d), the Full Federal Court said the Tribunal has no legal obligation to record its findings in its reasons for decision; and that is because the “making of a decision involves a mental process”, and the writing functions “as a record of the Tribunal’s reasons for making its decision”. Thus the Tribunal’s not recording in its reasons for decision findings it is required to make has only evidentiary significance: if “the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision”.[63]
[63] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [79]
Finally, although the Full Federal Court found the Tribunal must make a finding in relation to each of the matters identified in reg.1.15A, it is not necessary that the Tribunal expressly make such finding; it will be sufficient if the Tribunal “must be understood” to have made a finding it was required to make but which it did not expressly make. That is apparent from the manner in which the Full Federal Court dealt with the second ground of appeal. The visa applicant claimed the primary judge erred in finding the Tribunal was not required to make a finding that the visa applicant and sponsor cohabited at the time of the Tribunal’s decision. The Full Federal Court found the primary judge erred in finding that no consideration had to be given to whether the visa applicant and the sponsor were cohabiting; but the Full Federal Court found that the Tribunal “must be understood to have found it was not” so satisfied.[64]
[64] He v Minister for Immigration and Border Protection [2017] FCAFC 206, [90]. The primary judge in that case did not find the Tribunal did not have to consider whether the visa applicant and the sponsor were cohabiting at the time of the Tribunal’s decision; the primary judge found the Tribunal was not required to find the visa applicant and sponsor cohabitated at the time the Tribunal made its decision. Further, the Full Federal Court appears to have assumed that reg.1.15A(3) of the Regulations requires the Tribunal to make a finding about cohabitation. The word “cohabitation”, however, does not appear in reg.1.15A(3). Paragraph (b) refers to “the nature of the household”, including “the living arrangements of the persons”.
The principles that are to be extracted from He, therefore, are as follows:
a)Reg.1.15A(2) requires the Authority not only to consider the matters stated in reg.1.15A(3), but also make findings in relation to each of the matters identified in reg.1.15A(3).
b)The Authority is not required to record its findings in its reasons for decision, but if it fails to do so that may entitle a court exercising judicial review to infer the Tribunal did not make any finding.
c)It is not necessary that the Tribunal make an express finding in relation to the matters identified in reg.1.15A(3). It may be sufficient for the Tribunal to be taken to have made such finding.
There are two observations that may be made about the Full Federal Court’s construing “consider” in reg.1.15A(2) as requiring the decision maker to make a finding about each of the matters identified in reg.1.15A(3). First, the meaning of “consider” itself has been considered, but it has not been held to include making a finding about that which is required to be considered. In Tickner v Chapman Black CJ said:[65]
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of.” Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
[65] Tickner v Chapman [1995] FCAFC 1726, at [39]
In Minister for Immigration & Multicultural Affairs v Anthonypillai, the Full Federal Court found that “consider” in the context of the Tribunal’s duty to review under s.414 of the Act means “to view or contemplate attentively . . . examine . . . scrutinise . . . to fix the mind upon . . .to reflect upon”.[66]
[66] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, at [71]
Second, there are cases that have considered the duty of a decision maker who is required to take into account two or more matters when making a decision. One example is the Full Federal Court’s judgment in Minister for Immigration and Citizenship v Khadgi.[67] The question there was whether the Tribunal had regard to the matters that had been prescribed pursuant to s.109(1)(c) of the Act. After finding that “have regard to” as used in s.109(1)(c) means “to give consideration to something”, and that a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process, the Full Federal Court said:[68]
[67] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
[68] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145, at [63]-[64]
In Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]–[54] (pp 7–8), the Full Court held:
(a)In circumstances where a decision-maker is required to have regard to several specified or prescribed mandatory considerations, he or she must genuinely have regard to each and every one of those considerations and must engage actively and intellectually with each and every one of those considerations by thinking about each of them and by determining how and to what extent (if at all) each of those criteria might feed into the deliberative process and the ultimate decision; and
(b)The reasons for decision published by a decision-maker who is obliged to have regard to mandatory considerations should show such an active intellectual engagement with all mandatory criteria although such reasons are:
… meant to inform and [are] not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272].
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [46] (p 641), the Full Court held that:
(a)It is not necessary for an administrative decision-maker such as the Tribunal to refer in its written reasons to every piece of evidence and every contention made by an applicant;
(b)It may be that some evidence is irrelevant to the criteria and some contentions misconceived; and
(c)The reasons of a tribunal such as the Tribunal in the present case should not be scrutinised “with an eye keenly attuned to error” nor is it necessary to provide reasons of a kind that might be expected of a court of law.
The Full Federal Court in Khadgi did not suggest that the obligation s.109(1)(c) of the Act imposes on the decision maker to have regard to the prescribed matters carries with it an obligation to make a finding in relation to each prescribed matter.
The Full Federal Court’s judgment in He must be considered with the more recent Full Federal Court judgment in Kumar v Minister for Immigration and Border Protection.[69] That case concerned the obligation of the Tribunal to take into account the matters identified in Direction 53, being a direction the Minister issued under s.499(1) of the Act. The visa applicant appellant submitted the Tribunal was required not only to consider each of the matters identified in Direction 53 but also to make findings in relation to each of those matters. The visa applicant relied on a number of authorities, including the Full Federal Court’s judgment in He.
[69] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
The Full Federal Court in Kumar considered He, but found it was distinguishable in two ways. First, in He each of the matters in which the visa applicant relied as something about which the Tribunal ought to have made a finding was something on which the visa applicant relied before the Tribunal in support of her contention she was in a “married relationship”, whereas in Kumar the visa applicant contended the Tribunal made an error by not making a finding about a matter which had not been advanced by the visa applicant before the Tribunal.[70] Second, Direction 53 contains an express direction that the decision makers “should not use the factors specified . . . as a checklist” and that “[r]ather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole”.[71]
[70] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [61]. With respect, that does not appear to be a material distinction. The Full Federal Court in He at [76] said that reg.1.15A(2), at least in some cases, required the Tribunal to find there was no relevant material to a factor: “In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter”.
[71] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [69]
The Full Federal Court made a number of observations about the nature of the Tribunal’s obligation when required to consider a number of mandatory matters:[72]
Where a decision-maker is required to have regard to several mandatory considerations, he or she must actively engage with each of the considerations by determining how and to what extent, if at all, each of them might feed into the deliberative process and ultimate decision: Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]–[54]; Khadgi at [63]. The consideration of the factor in the process of reaching a decision must be genuine: Tickner v Chapman (1995) 57 FCR 451 at 462 and 464 (Black CJ), 476 (Burchett J), 495 and 496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]; Khadgi at [57].
[72] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [84]
The Full Federal Court then referred to the nature of the Tribunal’s obligations when applying Direction 53:[73]
[73] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [85], [86], [96]
Those factors in Direction 53 considered to be sufficiently material to the decision must be brought to account in the decision-making process: Jan at [27]. Some factors may weigh in favour of the visa applicant, some may weigh against, some may be neutral, some may be of marginal significance and some may be irrelevant in the particular circumstances. The weight to be given to the various factors mentioned in Direction 53 is a matter for the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Khadgi at [58].
It is not the number of factors for and against a decision which is necessarily important, although it might be that this is considered by the decision-maker to be relevant in the particular circumstances. If a matter is not considered to be relevant to an applicant’s circumstances, or to be sufficiently material to the application, then it does not need to be given weight. In such a situation, the decision maker has had regard to the factor in determining, after genuine consideration, that the factor was not sufficiently relevant or material.
. . . .
Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
With respect, these passages from Kumar, together with the passage from the judgment in Khadgi, are a more reliable guide to how the Tribunal should apply reg.1.15A of the Regulations than what the Full Federal Court said in He. The meaning of “having regard to” (being the equivalent of “to consider”) given or assumed in these passages accords with the ordinary meaning of the word “consider”; and because the Full Federal Court in He did not refer Khadgi, a point noted by the Full Federal Court in Kumar.[74] Further, the Full Federal Court in Kumar, when describing the nature of the Tribunal’s obligation to have regard to several mandatory considerations, referred to Khadgi,[75] having earlier noted that He does not stand for the same propositions as Khadgi.[76] I will, nevertheless, assess this part of the applicants’ claims on the alternative assumptions that the Tribunal was required, and was not required, to make findings in relation to at least those of the Overlooked Matters that fall within reg.1.15A(3) of the Regulation.
[74] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [68]
[75] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [84]
[76] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [68]
The Full Federal Court in Kumar also identified principles relevant for determining whether the Tribunal failed to consider a matter it was required to consider. The Full Federal Court said the applicant bears the onus of establishing that, from the Tribunal’s failure to refer to a matter in a written statement given under s.368 of the Act, it should be inferred the Tribunal overlooked the matter;[77] that the appropriate inference depends on all of the circumstances;[78] the context against which the reasons of the Tribunal should be examined includes the course of the decision making process;[79] and that the appropriate inference to draw “might be informed by what occurred during the decision-making process, including the evidence and submissions put forward by an applicant before the delegate and the Tribunal on review and the prominence or importance of the particular matter said to have been overlooked.”[80]
[77] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [91]
[78] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [92]
[79] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [93]
[80] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [93]
Issues and context in which they are to be considered
Given the parties’ competing submissions, and the principles I have identified, the following questions arise in relation to each of the Overlooked Matters.
a)Did the Tribunal fail to refer to one or more of the Overlooked Matters?
b)To the extent (a) is answered in the affirmative, is the inference to be drawn the Tribunal did not consider the Overlooked Matters?
c)To the extent (a) and (b) are answered in the negative:
i)Did the Tribunal fail to give proper, genuine, and realistic consideration to the Overlooked Matters?
ii)Assuming (i) is answered in the negative, did the Tribunal fail to make findings in relation to the Overlooked Matters?
d)To the extent (a), (b) and (c) are answered affirmatively, are the errors material?
As noted by the Full Federal Court in Kumar, it is necessary to identify the context in which a claim that the Tribunal failed to consider mandatory requirements is to be assessed. In the case before me the relevant context includes the following matters:
a)The Tribunal understood it was “necessary to consider whether the applicant was the spouse of the sponsor before the relationship ceased”.[81]
b)The Tribunal considered that question. It accepted that “when the applicant was in Australia holding the Visitor visa, she lived in the same household with the sponsor, the sponsor provided financial support to her and that they socialised together as a couple”.[82]
c)Although the Tribunal said it was “of considerable concern” that “the sponsor’s commitment to the relationship appears to have been subject to the applicant paying money or gold”, the Tribunal accepted “there was some form of a spousal relationship while the applicant was staying in Australia on a Visitor visa”.[83]
d)The Tribunal then considered the evidence of what occurred after the applicant returned to India, and found the relationship ended by the time she re-entered Australia.[84] It so found by assuming as correct the applicant’s evidence that she wanted the relationship to work, and would have continued with it if it were not for the intervention of the police, and that the applicant’s and the sponsor’s parents continued to communicate and tried to make the relationship work.[85]
[81] CB242, [8]
[82] CB242, [10]
[83] CB242, [10]
[84] CB242, [12]
[85] CB242-243, [12]
Did the Tribunal fail to refer to one or more of the Overlooked Matters?
The Tribunal did not in its reasons refer to whether the applicant and the sponsor held any joint ownership of real estate or other major assets, or to whether they were subject to any joint liabilities. The Tribunal referred to a flatmate having given a statement that the applicant and sponsor cohabited, but the Tribunal did not refer to the statutory declarations given by the supporting witnesses that they believe the witnesses to be genuine and honest,[86] or to the evidence the applicant gave before the Tribunal that the friends of the applicant and the sponsor were surprised after the domestic violence case happened, because “[b]efore that they were really happy that we were a very good couple”, and that “every time every one said that we look like meant to be together”, and that they “really appreciated our – our relationship”.[87]
[86] CB86-89
[87] T15.15
Although the Tribunal referred to the applicant’s claims that her and the sponsor’s parents continued to communicate and tried to make the relationship work, it did not specifically refer to the applicant’s representative’s statement that although the dowry system is illegal in India, it persists among some cultural groups, and the system had the consequence that an expectation is imposed on the bride’s parents to provide money and gold to the groom’s parents as part of the marriage arrangement. Nor did the Tribunal refer to the applicant’s evidence that any important decisions that a boy and girl want to take is being carried out through their parents.[88]
[88] Applicant’s Written Outline of Submissions, [80]
Did the Tribunal fail to consider the Overlooked Matters?
There is no suggestion that there was before the Tribunal evidence of or a claim that the applicant and sponsor jointly held any property or were the subject of any joint liabilities. Given the Tribunal did refer to the financial circumstances of the relationship, I do not accept the Tribunal failed to consider whether the applicant and sponsor jointly held property or were subject to joint liabilities. The more natural inference is that the Tribunal was aware there was no evidence on these matters, and simply did not record the obvious.
I also do not accept the Tribunal did not consider the opinions of the friends of the applicant and the sponsor. First, the evidence the applicant gave at the hearing was in response to questions the Tribunal asked, thus indicating the Tribunal was aware that the opinions of friends was of relevance. Second, the Tribunal found the applicant and the sponsor socialised as a couple, and that they were in a spousal relationship while the applicant was in Australia. Given these matters, the more natural inference is that the Tribunal considered the opinions of the friends and in part relied on them to accept the applicant was in a spousal relationship with the sponsor up to the time the applicant re-entered Australia on 5 April 2016.
I do not accept the Tribunal did not consider the applicant’s representative’s statement, that although the dowry system is illegal in India, it persists among some cultural groups, and the system had the consequence that an expectation is imposed on the bride’s parents to provide money and gold to the groom’s parents as part of the marriage arrangement. Although the Tribunal did not in terms refer to the “dowry system”, it did refer to what, in the circumstances of the case before it, was the practical operation of that system, namely, the sponsor’s commitment to his marriage to the applicant appearing to be subject to the applicant paying gold and money. The Tribunal considered this as counting against there being a genuine spousal relationship, but, nevertheless, was prepared to find there was a spousal relationship notwithstanding the conditions the applicant claimed the sponsor attached to remaining married to the applicant.[89]
[89] CB242, [10]
In his written submissions counsel for the applicant submitted that “at least in its early stages, the maintenance of the relationship between husband and wife in this cultural setting is entwined with the relationship between their parents, including the progress of their negotiations for an acceptable arrangement in relation to the dowry”.[90] The basis on which counsel makes this submission is the applicant’s representative’s assertion that although the dowry system is illegal in India, it persists among some cultural groups. The representative, however, did not identify the cultural groups among whom it was claimed the illegal practice persisted, or whether the sponsor’s parents or the applicant’s parents belonged to such cultural group; and it has not been suggested there was any evidence of such “illegal practice”, other than the applicant’s claims that her marriage to the sponsor was arranged, that the sponsor’s parents and the sponsor demanded money and gold from her, and that the parents of the applicant and the sponsor continued to communicate to make the relationship work.
[90] Applicant’s Written Outline of Submissions, [80]
Counsel for the applicant also submitted that the applicant’s representative submitted “on multiple occasions” that the applicant’s and sponsor’s parents “were continuing to negotiate in relation to the dowry with a view to preserving the marriage”.[91] The reference to “dowry” in this submission is counsel’s characterisation of what the representative submitted. The representative referred to negotiations in relation to the payment of money and gold.
[91] Applicant’s Written Outline of Submissions, [81]
Finally, I do not accept the Tribunal did not consider the applicant’s claim that any important decision that a boy and girl wants to take is being carried out through their parents. In its reasons the Tribunal referred to, and assumed as correct, that, consistently with the applicant’s evidence, the applicant’s and the sponsor’s parents did communicate with each other to try to make the relationship work. This, on the evidence before the Tribunal, constituted the practical operation of the applicant’s evidence that any important decisions that a boy and girl wants to take is being carried out through their parents. Further, at the hearing, when discussing with the applicant what evidence the applicant’s father was to provide, the Tribunal member said: “yes, parents play an important role potentially in these relationships, but at the end of the day, it’s about you and him”.[92]
[92] T20.25
Proper consideration?
In relation to whether the applicant and the sponsor held joint assets, or were subject to joint liabilities, there was nothing for the Tribunal to consider except whether there was any material before it on those matters. I am not satisfied the Tribunal did not give proper, genuine, and realistic consideration to that question. Further, I am satisfied the Tribunal is to be taken to have found there was no material before it on these matters.
I do not accept the Tribunal did not give proper, genuine, and realistic consideration to the opinions of the friends of the applicant and the sponsor. The Tribunal found the applicant and the sponsor socialised as a couple, and that they were in a spousal relationship while the applicant was in Australia. Further, I am satisfied on the basis of this finding that the Tribunal is to be taken to have found that the applicant’s and sponsor’s friends genuinely held the opinions they expressed about the applicant’s relationship with the sponsor.
I then turn to the applicant’s claim the Tribunal did not give proper, genuine, and realistic consideration to the applicant’s representative’s statement that although the dowry system is illegal in India, it persists among some cultural groups, and the system had the consequence that an expectation is imposed on the bride’s parents to provide money and gold to the groom’s parents as part of the marriage arrangement; and to the applicant’s claim that any important decisions that a boy and girl want to take is being carried out through their parents. Counsel for the applicant submitted it was evident from the transcript that the Tribunal member had formed an early view in the hearing that the sponsor’s leaving India to return to Australia without telling the applicant demonstrated a lack of commitment to the relationship, and that “[n]one of the applicant’s evidence caused the member to waver from that view”. Counsel submitted the Tribunal member “repeated it in forceful terms throughout the hearing, interrupting the applicant’s evidence”, and that the Tribunal considered it “as determinative of the question as to whether there was a marriage relationship at the time of the second incident of family violence”.[93]
[93] Applicant’s Written Outline of Submissions, [82]
That is not a fair characterisation of what occurred at the hearing. The transcript records the Tribunal putting to the applicant its concerns and engaging with the answers the applicant gave. It is true the Tribunal member at times interrupted the applicant, but there was no pattern of interruption that could reasonably be said to have denied the applicant or her representative an opportunity to respond to what the Tribunal had asked. It is also true that the Tribunal put to the applicant that the evidence the applicant gave about the circumstances in which the sponsor left India suggested the relationship had ended. But this was no mere repetition of a fixed view. It was done cumulatively by reference to additional information the applicant gave in answer to the Tribunal’s questions:
a)After the applicant answered the Tribunal’s question how after the sponsor left India without telling the applicant the applicant’s relationship with the sponsor could be regarded as ongoing, which included her evidence that she came to Australia to search for the sponsor, the Tribunal suggested that this evidence further suggested the relationship ended.[94]
b)After further questioning, the Tribunal summarised the effect of the applicant’s evidence, namely, that the sponsor had left the applicant without telling her; that the applicant had to search for the sponsor in Australia; the sponsor did not help the applicant travel to Australia; that when the applicant did find the sponsor the sponsor would not let her enter his house; and the Tribunal then asked the applicant how that was a committed relationship.[95]
c)After the applicant said the sponsor would not allow her in his house unless the sponsor was paid gold and money, the Tribunal again asked the applicant how that was a committed relationship. The applicant said her marriage was an arranged marriage. The Tribunal then put to the applicant that even arranged marriages still rely on mutual commitment and supportive relationships and, having said that, said the relationship between the applicant and the sponsor ended by the time the applicant came to Australia. That was in effect a question to which the applicant gave the following answer:[96]
But we were in a relationship. We never committed that relationship was ended. I finalised myself – even his parents – I mean, his father was sequentially was talking to my father in the month of June as well. We were in a relationship. Even his parents and my parents had a mutual conversations.
[94] T8.20
[95] T9.45-10.5
[96] T11.20
I do not accept the Tribunal did not give proper, genuine, and realistic consideration to this part of the applicant’s claims. It accepted the applicant’s claims her marriage was arranged; that the sponsor and his parents were demanding money and gold from the applicant; and that the parents of the applicant and the spouse were holding discussions about the relationship between the applicant and the sponsor. There was no other evidence of “cultural context” that was before the Tribunal, and on which the applicant relied. [97] The Tribunal weighed that evidence against all the other evidence that was before it and which, for reasons that were reasonably available to it, found the applicant’s spousal relationship with the sponsor had ended by the time the applicant entered Australia on 5 April 2016.
[97] The qualification “and on which the applicant relied” is necessary because the claim that the marriage between the sponsor and the applicant was arranged is not one that is consistently made in the material before the Tribunal. In the 309 visa application the sponsor did not refer to his and the applicant’s marriage being arranged. The sponsor stated that he and the applicant “made a mutual commitment to continue their relationship and decided to get married in March 2015 after the mutual consent and blessings of their parents”, which implies the sponsor and applicant decided between themselves to marry after which they obtained the consent and blessing of their parents. Further, in her telephone interview with the delegate, the applicant said she and the sponsor came into contact after an advertisement was placed in the newspaper personals; and, after corresponding with each other, they met on 2 August 2014 and were engaged on that day.
Materiality
The Minister has put in issue the materiality of the Tribunal’s failing to consider or failing properly to consider the Overlooked Matters. The applicant, however, has not identified how the Tribunal’s not having considered or not having properly considered any one or more of the Overlooked Matters could have resulted in a favourable outcome for the applicant. Assuming, therefore, contrary to my conclusions, the Tribunal overlooked or failed to properly consider any one or more of the Overlooked Matters, I am not satisfied that deprived the applicant of the possibility of a successful outcome.[98]
[98] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [3]
Conclusion
For these reasons ground 2 fails.
Ground 3 of amended application
Ground 3 relates to the Tribunal’s response to the request the applicant made pursuant to s.361(2) of the Act that the Tribunal take oral evidence from her father. Before I set out the ground, it will be necessary to refer to the evidence.
In a document headed “Response to hearing invitation – MR Division”, the applicant included a name which she said was her father’s and the person’s contact details.[99] The applicant did not complete that part of the form after the words “[d]escribe this person’s evidence and how it is relevant to your case” other than to include a telephone number. At the hearing before the Tribunal, the following occurred: [100]
[99] CB200-202
[100] T19.40-20.20
MEMBER: . . . . Shouldn’t we speak to the father, what evidence is he likely to provide?
. . . .
MEMBER: But what evidence is he likely to provide ….
MS……………That the relationship was ….. the parents were talking to the in-laws and the in-laws were saying that if the money is given, then there is no issues with the son.
MEMBER: I mean, I’m happy to accept that … I mean, this was part of my problem … interpreter. I’m happy to accept that for what it’s worth, but I need to be satisfied that the …. mutual commitment.
MS ……. I understand.
MEMBER: I’m happy to accept that the parents were talking to each other and trying to resolve things. I don’t know whether that’s sufficient to satisfy me that the couple themselves have an initial commitment. And that’s really ultimately what the case is going to turn on.
MS ……..I am not really sure, because what he could provide …. can provide.
MEMBER: Yes, I ….what he can provide. I will accept that evidence from the father, that there was communication between the parents, and . . .
Ground 3 claims the Tribunal failed to give proper, genuine, and realistic consideration “to the applicant’s notice” because:
a)The Tribunal did not give the applicant a proper opportunity to describe the evidence she believed her father would give.
b)The Tribunal member did not give proper, genuine, and realistic consideration to the description the applicant’s representative gave of the evidence the applicant believed her father would give.
c)The applicant describing the evidence she believed her father would give did not detract from the Tribunal member’s obligation to give proper, genuine, and realistic consideration to the relevance and potential importance to the outcome of the review of the evidence the applicant’s father may give, and whether, in light of those matters, it was necessary to hear the applicant’s father and not just rely on the applicant’s description of the evidence the applicant believed he would give.
In his written submissions counsel for the applicant submitted the Tribunal member’s approach to the evidence “was coloured by her view that the evidence of the parents’ negotiations had limited relevance to the question of mutual commitment”, but this view was formed in error “without proper, genuine and realistic consideration of the cultural context of the relationship”.[101] I do not accept that submission. It is clear from the transcript that the Tribunal decided not to obtain evidence from the father because it was prepared to accept as true the evidence the Tribunal understood the applicant’s representative indicated the applicant’s father would give. And as I have already noted, the only evidence (as opposed to assertion) of “cultural context” before the Tribunal on which the applicant relied was evidence that the applicant’s marriage had been arranged, the sponsor and the sponsor’s parents demanded gold and money, and the parents of the sponsor and the applicant continued to communicate in an attempt to make the relationship work; and the Tribunal accepted this evidence.
[101] Applicant’s Written Outline of Submissions, [88]
In his written submissions counsel for the applicant further submitted as follows:
a)The evidence the applicant’s representative said the applicant’s father would give did not only consist of communications between the parents of the applicant and the sponsor, but also evidence of the sponsor’s attitude, namely, that there would be “no issues with the son”, that is, the sponsor, if money was given.[102] In his oral submissions counsel for the applicant submitted the Tribunal misunderstood that the father would give evidence to this effect.
b)The Tribunal did not attempt to weigh the possible relevance of the father’s evidence against the time it would take to obtain that evidence.[103]
c)There was a danger in the Tribunal making a determination not to take evidence based on a short description of the proposed evidence, that danger being the Tribunal could make a decision based on an inadequate understanding of the evidence the Tribunal is asked to obtain.[104]
[102] Applicant’s Written Outline of Submissions, [90]
[103] Applicant’s Written Outline of Submissions, [91]
[104] Applicant’s Written Outline of Submissions, [92]
The Minister, in his counsel’s written submissions, submitted the Tribunal did give genuine consideration to the applicant’s request that it obtain evidence from her father.
I do not accept the Tribunal did not give the applicant a proper opportunity to describe the evidence she believed her father would give. First, the “Response to hearing invitation – MR Division” invited the applicant to describe the evidence her father would give and its relevance; the applicant, however, did not provide that information when completing the form. Second, at the hearing before it the Tribunal member asked the applicant’s representative to identify the evidence the applicant’s father was expected to give. Third, the applicant has not identified the evidence she submits the applicant or her representative would have described the applicant’s father would have given had the Tribunal provided the applicant the proper opportunity the applicant submits the Tribunal failed to give her.
I also do not accept that the Tribunal did not weigh the time it would take the applicant’s father to give evidence. The Tribunal decided it would not obtain evidence from the father because it was prepared to accept as true the evidence the applicant’s representative said the father would give. It may be inferred that the Tribunal considered that it would not be a good use of time to hear evidence on matters it was going to accept.
It is difficult to make sense of the claim the Tribunal did not give proper, genuine, and realistic consideration to the description the applicant’s representative gave of the evidence she believed the applicant’s father would give, given that the Tribunal was prepared to accept that which it understood the applicant’s representative said would be the evidence the applicant’s father would give. As I have already concluded, the Tribunal weighed what it was prepared to accept as true with the other matters the Tribunal identified as relevant to whether the relationship ended by the time the applicant suffered family violence.
I do not accept the Tribunal misunderstood the evidence the applicant’s representative said the applicant’s father would give, and in particular, that the father proposed to say that “the in-laws were saying that if the money is given, then there is no issues with the son”. Immediately after the representative said that, the Tribunal said: “I’m happy to accept that”.[105]
[105] T20.2
Although it may be accepted that there is a risk that a description of the evidence a person is intended to give may not prove accurate, that is a risk inherent in s.361(2) of the Act which fixes the Tribunal’s obligation to consider whether it should obtain evidence from a person by reference to the request an applicant makes which, in turn, implies that the Tribunal is required to consider the request by reference to what an applicant says he or she expects the evidence will be. In any event, the applicant has provided no evidence, and advanced no submission, to the effect that the description the applicant’s representative gave of the evidence the father would give did not accurately reflect the substance of the evidence the applicant understood the father would give.
Finally, the applicant appears to place significance on the applicant’s representative saying that the father would give evidence not only of the fact that there have been communications between the parents of the applicant and the parents of the sponsor, but that the sponsor’s parents said that “if the money is given, then there is no issues with the son”.[106] Such evidence, however, was incapable of supporting the applicant’s claims that the relationship continued after the applicant entered Australia on 5 April 2016, or after the applicant was the subject of family violence on 22 April 2016.
a)First, the applicant did not suggest that her family gave any of the money or gold the sponsor’s parents demanded. If anything, the effect of the evidence the applicant’s father would have given would have only reinforced the Tribunal’s finding that the applicant’s relationship with the sponsor had ended by the time the applicant entered Australia; and that is because the evidence had the tendency to confirm that the sponsor had indeed ended his relationship with the applicant, and that his altering his attitude to having ended the relationship depended on the applicant or her parents paying to the sponsor’s parents the money and gold they demanded.
b)Second, the hearing before the Tribunal occurred on 20 September 2017. The applicant did not suggest she or the sponsor applied to vary or discharge the Intervention Order that was stated to operate up to midnight on 26 April 2017. That, in turn, was open to suggesting to the Tribunal two things. First, whatever discussions occurred between the parents of the applicant and the parents of the sponsor did not induce any softening of the sponsor’s requirement that the applicant deliver gold and money to his family. Second, the discussions did not lead to the applicant herself feeling less fearful of violence at the hands of the sponsor such as to induce her to apply to remove or modify the restrictions the Intervention Order placed on the sponsor not to contact or communicate with her “by any means”, and not to get any person to do anything the sponsor was not permitted to do under the Intervention Order. In those circumstances, it is almost impossible to imagine how a rational decision-maker could have entertained the possibility that there was a prospect of the relationship continuing or resuming.
[106] T20.2
Ground 3, therefore, also fails.
Conclusion and disposition
The applicant has failed on all of the grounds on which she relies. I propose, therefore, to order that the application be dismissed.
I also propose to order that the applicant pay the Minister’s costs set in the amount of $7,328, being the costs provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) at the time the applicant commenced this proceeding on 18 October 2017. I will, however, reserve to the parties liberty to apply within fourteen days to vary or discharge this order for costs because the parties have not made submissions on costs.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 21 April 2020
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